New York Employers Take Note: Another Slew of Laws Have Been Passed

In recent weeks, New York enacted various employment laws that provide additional protections for New York employees. After reviewing the below, which summarizes the new laws in descending order of effective date, employers should speak to counsel to assess whether any changes should be made to their policies, procedures, or employment agreements.

Prohibitions RElating to Invention Assignment Provisions in Employment Agreements

The new law, Bill A5295, provides that an invention assignment provision found in an employment agreement, “shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information[.]”  Therefore, any existing provisions or newly signed provisions to the contrary are unenforceable.

Effective Date: took effect immediately upon Governor Kathy Hochul’s signature.

Prohibition of Mandatory Meetings and Communications Concerning an Employer’s Political or Religious Views

In line with other states with similar laws, pursuant to Bill S4982, employers may not discriminate against employees who refuse to attend employer-sponsored meetings, or listen to a speech or communications, where such communications have the primary purpose of communicating the employer’s opinion concerning political or religious matters (commonly referred to as “captive audience” meetings).  The law, which modifies New York Labor Law (“NYLL”) Section 201-d, defines “political matters” as “matters relating to elections for political office, political parties, legislation, regulation and the decision to support any political party or political, civic, community, fraternal or labor organization.” “Religious matters” are defined as those “relating to religious affiliation and practice and the decision to join or support any religious organization.”

The law only applies to non-managerial and non-supervisory employees and does not prohibit “casual conversations” in the workplace.

Employers must also post a sign or notice informing employees of their rights under the law. We expect that the New York Department of Labor (“NYDOL”) will soon create a form of notice for employers.

Effective Date: took effect immediately upon Governor Hochul’s signature.

Wage Theft is Now Criminal Larceny

Governor Hochul also signed S2832A, amending the New York Penal Law to render wage theft a form of criminal larceny. Pursuant to the New York Penal Law, “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” N.Y. Penal Law § 155.05(1). The amendment defines “property” to include “compensation for labor or services” and adds “wage theft” to the definition of “larceny”.

This new law does not replace the existing criminal wage theft offenses under the NYLL. For example, NYLL Section 198-a provides for criminal penalties for employers and their officers and agents for “failing to pay the wages of any of [their] employees.”

Effective Date: took effect immediately after Governor Hochul’s signature.

Additional Protections for Interns

According to A7355/S7382, which Governor Hochul recently signed, the New York State Human Rights Law is amended to specifically state that interns are protected from discrimination based on gender identity and gender expression.

Effective Date: took effect immediately upon Governor Hochul’s signature.

Notification of Eligibility for Unemployment Benefits

Currently, New York employers must provide employees who are terminated or separated from employment a Record of Employment form concerning the right to file an application for unemployment compensation benefits. As per S4878/A398, notice of such information must also be provided to an employee when there is a reduction in hours, temporary separation, or any other interruption of continued employment, that results in “total or partial unemployment.” The notification must be provided on a form furnished and approved by NYDOL with certain identifying employer information. This law amends Section 590 of the NYLL. Notably, the NYDOL has not yet published the new Record of Employment form to comply with the law.

Employers should keep in mind that, in addition to the above, they must always “notify any employee terminated from employment, in writing, of the exact date of such termination as well as the exact date of cancellation of employee benefits connected with such termination.” NYLL §195(6).

Effective Date: November 13, 2023

Social Media Account Information

Governor Hochul signed a bill that prohibits employers from demanding social media account information from applicants and employees. Bill S2518/A836 adds Section 201-i to the NYLL and precludes employers from requesting or requiring employees or applicants to provide their username, login information, password, or other means to access their personal accounts. This law makes New York similar to 26 other states with related prohibitions.

Per the law, it is “unlawful“ for an employer to, “request, require or coerce any employee or applicant for employment” to:

• disclose any username and password, password, or other authentication information for accessing a personal account;
• access the employee’s or applicant’s personal account in the presence of the employer; or
• reproduce in any manner pictures, video, or other information contained within a personal account obtained by the means prohibited by the law.

Where an employee voluntarily includes the employer, or an agent of the employer, on their personal social media account, then it is not unlawful for the employer to access the personal account in that way. Importantly, the law allows an employer to monitor employer-provided business accounts, so long as the employee was provided notice of the employer’s right to request such information. Further, there is another carve-out for employers who request or require an employee to disclose access information for an account known to the employer to be used for business purposes.

The law explicitly provides for an affirmative defense if the employer acts in compliance with requirements of a federal, state, or local law.

Effective Date: March 12, 2024

Modification of Definition of Clerical Worker

Governor Hochul also signed Bill S5572/A6796, which amends the NYLL’s definition of a “clerical and other worker.” Namely, the new law increases the minimum weekly earnings that a bona fide executive, administrative, or professional employee must receive to be excluded from the category of “clerical and other worker” from $900 to $1,300 per week. Therefore, executive, administrative, and professional employees making $1,300 or less per week will now be able to seek recovery of benefits or wage supplements from the NYDOL. Currently, many of these employees are excluded from seeking redress through the NYDOL.

Further, executive, administrative, and professional employees making $1,300 or less per week cannot be subject to mandatory direct deposit.

Notably, the law does not alter salary thresholds for classifying employees as exempt under NYLL.

Effective Date: March 13, 2024