It’s back to school time here in Rochester, so I just put my kids on the bus for their first day back in class. Before letting them go, like any good parent, I made sure to remind each of them about the importance of studying hard, keeping up to date on all of their assignments, and, most importantly, avoiding the mystery meat in the school cafeteria.
Setting aside the food-related advice, I have similar counsel for you, dear readers. With school back in session, it’s time to hit the books and bone up on some important changes in the employment law. While students were enjoying the last few weeks of summer vacation, New York State adopted several new employment laws. Below is a cheat sheet. Now start studying!
Increased Potential Criminal Penalties for “Wage Theft”
In New York, the definition of criminal larceny has recently been updated to include wage theft, which occurs when a person “hires a person to perform services and the person provides such services” but the employer “does not pay wages, at the minimum wage rate and overtime, or promised wage, if greater than the minimum wage rate and overtime, to said person for the work performed. Prior to this change, employers in New York already faced potential misdemeanor charges for stealing wages (although, in my experience, such charges were rarely, if ever, pursued). However, this new law ups the ante. Criminal larceny becomes a felony when the amount in question reaches $1,000.00, so even a relatively minor wage miscalculation or oversight could result in severe criminal liability.
My Takeaway: While I’m still doubtful that serious criminal charges will be pursued against employers who make good-faith errors when calculating wages, this update shows that New York is getting more serious about pursuing employers who fail to properly pay wages. Audit your pay practices as soon as possible.
Ban on Captive Audience Meetings
One tool that employers sometimes use when facing a union organizing campaign is to require their employees to attend informational meetings during working time during which the employer will explain its position regarding the union (most often against). Union representatives have alleged that these meetings can be coercive and threatening since employees can be forced to attend. Many employers believe that such meetings are necessary so that employees hear a different perspective than the one being provided by the union. Under a recent update to the law, New York has explicitly sided with the unions. Section 201-d of the Labor Law now prohibits employers from taking any adverse actions against employees who refuse to attend “an employer-sponsored meeting” or “listen to speech or view communications” where “the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.” Among other things, the definition of “political matters” includes matters relating to “the decision to join a labor organization.” The updated law also requires employers to post a notice to employees informing them of their rights under this section of the Labor Law.
My Takeaway: Long story short, there will be litigation, and the ultimate fate of this law is extremely uncertain. Similar laws that have been adopted by other states have been overturned or are currently subject to legal challenge. For example, in 2008, the US Supreme Court overturned a California law with similar intentions, holding that the National Labor Relations Act preempted the California state law and permitted employers to hold such meetings (although the current NLRB General Counsel takes the opposite position on the interpretation of the National Labor Relations Act). The addition of “religious” topics to these banned meetings only creates additional legal questions. My prediction is that this law will be tied up in court for years. Regardless of the outcome, this issue of captive audience meetings is extremely complicated and fact-specific, so I strongly recommend working with legal counsel before considering such meetings.
Workers Compensation Benefits Increase
In a somewhat less controversial update, starting in 2024, the floor on workers compensation wage benefits for individuals who suffer partial or total disability will be increased. Another increase is scheduled for 2025 and then an automatically adjusting formula will take effect in 2026 (in most cases, one-fifth of the New York State average weekly wage).
My Takeaway: There’s really nothing to do here, and these updates are really just intended to keep the applicable benefits consistent with wage growth. However, don’t be surprised when your next workers compensation insurance premium payment goes up.
These are three most recent updates that will be covered on the next pop quiz, but don’t forget that it is a long school year and there is a lot more on the employment law curriculum. There are several other bills sitting on Governor Hochul’s desk that could be signed at any time-some of which are whoppers. They include a proposed ban on all non-competition agreements, new protections for freelance workers, additional employee notice and posting requirements, restrictions on an employer’s ownership of employee-created intellectual property, and a requirement that employers provide employee demographic information to the New York Secretary of State. Depending on what the Governor decides to do, there could be a lot of material on the midterm.
Also, don’t forget that September 17, 2023 marks the first day that employers in New York are required to include salary ranges and other information on all job postings. I have written about this update in the past, and this is a major change that affects virtually all private employers in New York. If you haven’t already started including the required information in your job postings (or worse, haven’t even heard of this new requirement), drop everything and start working on it now. The law sets forth monetary penalties for non-compliance, so there will likely be no make-up exam for this topic.
Ben Mudrick is a partner in the Labor & Employment practice at Harter Secrest & Emery LLP. He can be reached at [email protected].e