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Five Recent Developments Employers in New York State or City Should Know

Employers of all industries should be aware of the following five recent developments under New York State and New York City employment law.Evan J. Spelfogel

  1. Increased Minimum Wage

Effective December 31, 2015, three separate minimum wage increases took effect across New York State: (i) the nonexempt employee minimum wage increased from $8.75 per hour to $9.00 per hour; (ii) the minimum salary for executive and administrative exemptions increased from $656.25 per week to $675.00 per week; and (iii) the minimum pre tip wage for tipped employees in the hospitality industry increased to $7.50 per hour, with a corresponding reduction in the state’s tip credit to $1.50 per hour (provided that affected employees earn enough gratuities to cover the difference).

In addition, wages for fast food workers increased to $15 per hour, phased in over three years for workers in New York City, and over five-and-a-half years for workers in the rest of the state. Effective January 1, 2016, the new minimum wage rate for fast food workers became $10.50 per hour in New York City and $9.75 per hour throughout the rest of the state.

  1. Expanded Workplace Protections for Women

On January 19, 2016, a series of bills commonly as the “Women’s Equality Act” took effect. The bills expand the state’s gender-based employment protections and narrow the circumstances under which male and female employees may be paid different wage rates for jobs that require equal skill, effort, and responsibility, and that are performed under similar working conditions. Among other protections, the new laws:

  • bar employers from prohibiting employees from inquiring about, discussing, or disclosing their wages or the wages of other employees;
  • provide that aggrieved employees may recover liquidated damages equal to 300 percent of the unpaid wages owed for willful violations of the state’s equal pay law;
  • amend the state’s anti-discrimination laws to require that employers provide reasonable accommodations to employees because of a “pregnancy-related condition”;
  • add “familial status” (including child care) to the list of protected classes under the state’s anti-discrimination law, placing it on equal footing with race, sex, age, religion, and other statutorily protected characteristics
  • permit, for the first time, state courts and the New York State Division of Human Rights to award attorneys’ fees  to prevailing parties on sex discrimination claims; and
  • provide that sexual harassment claims may be asserted against employers regardless of the number of persons employed (previously, the law only applied to employers with four or more employees).

For more information about these bills, please see the Epstein Becker Green Act Now Advisory entitled “New York State Passes Five New Laws to Effectuate Gender Equality in the Workplace.”

  1. Limited Background Checks

Last autumn, New York City enacted two new laws that limit what employers may ask during the hiring process.

The first law, the “Stop Credit Discrimination in Employment Act,” bars employers from requesting or considering a prospective or current employee’s “consumer credit history” for employment purposes. There are narrow exemptions with respect to the employment of persons who would (i) have regular access to trade secrets and other highly sensitive employer information, or (ii) have fiduciary and signatory authority over third-party funds or assets valued at $10,000 or more.

The second law, the “Fair Chance Act,” prohibits employers from inquiring about a job applicant’s or current employee’s pending arrest or criminal conviction record until after an employer extends a conditional offer of employment to an applicant or has made a conditional offer of a promotion or wage increase to a current employee. After a conditional offer is extended, the employer may make such inquiries but must comply with procedures similar to those set forth in the federal Fair Credit Reporting Act.

For more information on these two new laws, please see the Epstein Becker Green Act Now Advisory entitled “Now That New York City’s Credit Check and “Ban the Box” Laws Are in Effect, How Do Employers Comply?

  1. Enhanced Transportation Benefits

Effective January 1, 2016, under New York City’s new Affordable Transit Act, employers with 20 or more “full-time employees” (defined as those working 30 or more hours per week) must offer their employees the opportunity to use pre-tax earnings to purchase qualified transportation fringe benefits (other than parking). Essentially, the new law requires employers to take advantage of the Internal Revenue Code’s qualified transportation fringe benefits provisions by allowing employees to pay for certain commuter expenses with pre-tax dollars.

Moreover, if, at any time, a covered employer’s workforce is reduced to fewer than 20 full-time employees, the employer must continue to offer the pre-tax benefit to all employees who were eligible for the benefit before the headcount reduction, for the duration of their employment.

The act contains several exemptions: it does not apply to (i) employees of government entities, (ii) employers that are parties to a collective bargaining agreement covering more than 20 full-time employees, or (iii) employers that are not required by law to pay federal, state, and city payroll taxes. Also, the law provides a six-month grace period: employers will not be subject to civil penalties for violations that occur before July 1, 2016.

For more information about these enhanced transportation benefits, please see the Epstein Becker Green Act Now Advisory entitled “NYC Affordable Transit Act: Employers Will Be Required to Offer Qualified Transportation Benefits in the New Year.”

  1. Added Protections for Transgender Workers

Effective this past October. 23, 2015, Governor Cuomo issued an executive order expanding the state’s anti-discrimination law to ban discrimination and harassment based on transgender status, gender identity, and gender dysphoria.