2023 New Year Employment Law Updates
The year of 2023 has arrived, and with its arrival, a set of new employment laws will take effect in the state of New York. Understanding those laws and regulations is crucial to all New York employees and employers. We prepared the following changes in law with the hope that it would allow New York employers to make a smoother transition heading into 2023.
Beginning December 31, 2022, most New York state will see the minimum pay rise to $14.20/hour, except for New York City, Long Island, and Westchester County, where a $15 minimum has been in place. Because the minimum wage rates differ based on industry and region, in determining the accurate minimal wage, New York employers should be mindful of the intrastate intricacies and industry-specific minimum wage laws and requirements.
New York Paid Family Leave Law
The New York Paid Family Leave Benefits Law creates a program for New York State employees to have job-protected, paid time off to:
Bond with a newly born, adopted, or fostered child,
Care for a family member with a serious health condition, including COVID-19, or
Assist loved ones when a spouse, domestic partner, child or parent is deployed abroad on active military service.
The law applies to employers employing at least one employee for at least 30 days of any calendar year.
Covered employees are entitled to up to 12 weeks within a 52-week period, paid at a rate that is:
Up to 67% of the employee's average weekly wage.
Capped at 67% of the state average weekly wage (for 2022, a maximum weekly benefit of $1,068.36).
Currently, covered family members include an employee’s:
Child and stepchild.
Parent and stepparent.
In November 2021, Governor Kathy Hochul signed legislation to further strengthen PFL by expanding family care to cover siblings. Effective January 1, 2023, the definition of family member is expanded to include an employee's sibling (including biological, adopted, step, and half-sibling relationships). Notably, the family members requiring care don’t have to live in the state of New York.
New York City Law On Use of Automated Employment Decision Tools
New York City law enacted Local Law Int. No. 144 to impose limitations on employers when using automated employment decision tools to conduct or assist with hiring or promotion decisions in New York City. Under the law, the scope of an “automated employment decision tool” is broad and encompasses any process that uses “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation” that is used to “substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.”
The law prohibits the use of these tools unless:
The tool has been the subject of a bias audit not more than one year before the tool is used; and
The employer or employment agency makes publicly available on its website a summary of the most recent bias audit results and the tool's distribution date before using the tool.
A bias audit requires an employer to retain an “independent auditor” to assess whether the tool’s selection criteria result in disparate impact based on race, ethnicity, or sex.
Employers using an automated employment decision tool also must notify any employee or candidate residing in New York City who has applied for employment at least ten business days before using the tool of the following:
That the employer or employment agency is using an automated employment decision tool to assess or evaluate the individual; and
The job qualifications and characteristics that the tool uses to assess the candidate or employee.
The law requires the employer or employment agency to retain the following information.
The type of data collected for the automated employment decision tool.
The source of the data.
The data retention policy.
The above information shall either be disclosed on the organization’s website or provided to applicants within 30 days of a written request.
The law was scheduled to become effective on January 1, 2023, and later delayed until April 15, 2023, given the high volume of public comments. We are closely monitoring the situation and plan to update our review of the law when the law takes effect.
New York City Pay Transparency Law
New York City Pay Transparency Law was enacted on January 15, 2022. The law makes it an unlawful discriminatory practice to not include the minimum and maximum salary offered in job listings. The minimum and maximum salary listed in the advertisement must be the salary the employer believes in good faith that it will pay for the position. The disclosure requirement covers external job advertisements as well as internal postings for transfers and promotions. Temporary staffing agencies are exempted from the law.
The New York City Council, on April 28, 2022, passed an amended version of the law, Int. 134-A, as the initial version contained ambiguities and provided only a short lead time (initially effective on May 15, 2022).
The amendment has changed the initial version in the following ways:
Date: pushed the effective date of the law to November 1, 2022.
Coverage: In addition to the “employees” as required in the original version, the amendment indicates that the coverage of the law also includes “employment agencies, and employees or agents thereof.”
Both Salaries and Hourly Wages Covered: The original version required employers to provide a position’s “minimum and maximum salary.” The amendment clarifies that employers must articulate “the minimum and maximum annual salary or hourly wage.”
Private Right of Action Limited: the original version does not contain limitations to who has private right of action. In other words, any applicant who encountered a non-compliant job posting could have pursued a claim against the posting employer. Now, only current employees may bring an action against their employer for violating the law.
Notably, the geographic scope of the law is still broad, even though the amendment exempts positions “that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home.” This means that out-of-state employers hiring for remote jobs will still need to comply with the law, if the offered position will, at least in part, be performed in New York City.
New York State Pay Transparency Law
On December 21, 2022, Governor Kathy Hochul signed legislation establishing a statewide pay transparency law in New York State. The new law (S.9427-A/A.10477) requires all New York State employers to list salary ranges for all advertised jobs and promotions in the state. The new law will take effect on September 17, 2023.
The new law will cover employers with at least four employees and employment agencies.
Similar to New York City’s version of the law, the new law requires covered employers to include in any advertisement for a job, promotion, or transfer opportunity the minimum and maximum annual salary or hourly range of compensation that the employer in good faith believes to be accurate at the time of the posting. However, in addition to New York City’s requirements, the new law requires employers also to disclose the applicable job description if one exists, which is not required under the New York City version. For a commission-only position, the disclosure obligation is satisfied by making a general statement that compensation will be based on commission.
The state Commissioner of Labor is empowered to issue regulations and necessary guidance to clarify the obligations of covered entities. We are closely monitoring the situation and plan to update our review of the law when the law takes effect.
The New York State Secure Choice Savings Plan (Program)
Effective October 21, 2022, employers who have employed at least 10 employees in New York State at all times during the previous calendar year, that have been in business at least two years, and have not sponsored a qualified retirement plan for their employees in the preceding two years are required to provide an automatic IRA program funded with employee payroll deferrals. Employees in the state who are at least 18 and earn wages from an employer who does not offer retirement benefits are eligible.
Qualifying employers are required to:
Create payroll deductions in the chosen amount or the default 3% of employee wages
Enroll each employee in the program that does not choose to opt out
Provide necessary forms to current employees and all future employees to opt out of the program
Withhold and remit employee contributions to the program
Provide all informational materials to employees regarding the program and their options
New York City Retirement Security for All
Applicable to employers that employs five or more employees in New York City, has been in continuous operation for at least two years, and does not offer an employee retirement plan to its employees, employers will now (1) automatically enroll eligible employees in individual retirement savings accounts (IRAs); (2) deposit employee funds into the IRA accounts; and (3) retain records confirming compliance with the laws' requirements for at least three years.
Covered employees are those who are at least age 21 and work 20 or more hours per week in New York City and employees may opt out of the program, adjust their contribution rates up or down, or do nothing at all. Each IRA is portable. The law does not mandate employer contributions. Employee IRAs will be funded with deductions from employees' wages. The default employee contribution rate is 5 percent, capped at $6,000 for employees under age 50, and $7,000 for employees over age 50 (the annual IRA maximums).
The laws became effective on Aug. 9, but the Retirement Savings Board (the agency created by the laws to implement the program) has up to two years to formalize program details and set a commencement date. As of this time we are not required to take any action regarding the above and we will update periodically.
What Employers Should Do
New York State employers are facing a wide range of changes in employment laws that effect numerous policies and procedures in the employment context. To ensure compliance for 2023, New York State and City employers should consider the following:
Review and revise employee handbooks to ensure that they are up to date with the changes in laws;
Ensure workplace posters and notices are up to date;
Review and revise policies and procedures to ensure compliance with New York Paid Family Leave Law and New York City Pay Transparency Law;
Ensure compliance with minimum wage laws in accordance with state-wide changes;
Take steps to document and determine salary ranges for each job classification and update policies regarding the publication of external job positions, internal promotion, and transfer opportunities.