On April 19, my colleague Andrew Bernstein and I will be discussing the increasingly complex web of federal, state, and local leave and accommodation laws that employers must navigate. As many companies are aware, the federal Family and Medical Leave Act provides up to 12 weeks (and in some cases, up to 26 weeks) of unpaid, job-protected leave to eligible employees and the Americans with Disabilities Act requires employers to provide reasonable accommodations, which may under some circumstances include flexible schedules and leaves of absence, to qualified individuals with disabilities.
Phew – it has been a whirlwind of a month in the employment law world! Just in time for spring, new laws are popping up like crocuses just about everywhere we turn.
Here is your monthly rundown of the most recent developments in labor and employment law: The Supreme Court significantly narrowed whistleblower protections under Dodd Frank with its decision in Digital Realty Trust, Inc. v. Somers. The Second Circuit became the second circuit court to prohibit sexual orientation discrimination when it issued a decision holding that sexual orientation discrimination is sex discrimination under Title VII. In New York, just as employers finished preparing for and implementing the New York Paid Family Leave law, New York City passed new legislation requiring employers to grant temporary schedule changes for qualifying personal events, and amending the requirements for employers and employees engaging in a cooperative dialogue concerning a reasonable accommodation. The Massachusetts Attorney General’s Office issued guidance on the pay equity law scheduled to take effect in July; Austin, Texas became the first Texas municipality to enact a paid sick and safe leave law; and new legislation intending to crack down on sexual harassment has been proposed in several jurisdictions, including Connecticut and New York City. Stay tuned for further updates and more details on these developments which we will be covering more extensively here in the coming weeks.
In the meantime, don’t forget to register to attend our Fourth Annual Employment Law Summit on April 19!
Last year New York State made significant changes to its wage orders resulting in increases to the State’s minimum wage, white collar overtime exemption salary thresholds, tip, meal and lodging credits, and uniform allowances. The latest changes go into effect on December 31, 2017. We quickly summarize the minimum wage and overtime salary threshold changes below, but urge you to visit our prior post here for more in-depth coverage, including best practices for compliance.
As a reminder, the NYC law prohibiting employers and their agents from inquiring about or relying on an applicant’s salary history goes into effect today.
This means that as of today, employers cannot:
- Ask for current salary or salary history on an employment application;
- Ask about an applicant’s current or past salary (including wages, benefits, and other compensation);
- Ask an applicant’s current or former employer or a staffing or recruiting agency for information related to an applicant’s current or past salary;
- Search public records or the internet to find or verify an applicant’s current or past salary;
- Rely on information about an applicant’s current or prior salary to set compensation.
Trick or Treat! This month’s Bubbler is a cauldron full of hot new developments in employment law … the NYC Salary History law is now in effect … California followed suit and its salary history law will take effect on January 1, 2018, just after Delaware and just before Massachusetts … Employers in New York are preparing to implement the new Paid Family Leave law, joining California, New Jersey and Rhode Island as the fourth state to provide this paid leave through employee-paid payroll taxes … The Supreme Court heard oral arguments in the class action waiver case … the NYC Council passed a bill to expand the Earned Sick Time Act … and the Third Circuit cited to a Harry Potter novel in an FLSA decision.
Beginning on October 31st, New York City employers will be prohibited from inquiring about or relying on salary history during the hiring process. As a reminder, this ban makes it an unlawful discriminatory practice for an employer, employment agency, or employee or agent of the employer to: (1) inquire about the salary history of an applicant; or (2) rely on salary history of an applicant to determine salary, benefits, or other compensation for such applicant during the hiring process. Employers should revise their hiring processes in order to comply with the new law as soon as possible.
Recently, the New York City Commission on Human Rights released guidance regarding the ban on salary history inquiries in the form of two “Fact Sheets.” Both Fact Sheets answer the same questions, one from the perspective of employers, the other from the perspective of job applicants. The Fact Sheet for Employers provides the following questions and answers:
Mayor de Blasio recently signed into law five bills collectively called the “Fair Workweek” legislative package, which will significantly impact employers in the retail and fast food industries. The laws are scheduled to take effect on November 26, 2017 – just after Thanksgiving.
As we recently blogged about here, efforts to ban inquiries related to applicants’ salary history have gained momentum across the country. Last Friday, New York City Mayor Bill de Blasio joined this trend by signing into law a bill prohibiting New York City employers from inquiring about prospective employees’ salary history. When it takes effect on October 31, 2017, the law will prohibit employers from communicating “any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant’s salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history.” “Salary history” includes the applicant’s current or prior wage, benefits or other compensation.
We had such a spirited panel discussion on pay equity at our Third Annual Employment Law Summit recently that we wanted to follow up with a post addressing the current state of play on pay equity legislation, particularly with respect to salary history disclosure laws. This is a rapidly advancing area of the law in which we continue to see new developments.
Over the next two weeks we will release our Year in Review segment, which will look at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California while offering our thoughts about 2017. Today we kick off this segment with New York. In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017. Register here.
2016 brought big changes for New York State and City employers, including expansive new discrimination protections and substantial increases in the minimum wage and exempt salary thresholds. While New York employers who successfully navigated 2016’s rush of legislative, regulatory and judicial obstacles might feel they’ve earned the right to shift their focus back from compliance issues to running their businesses, they should not lose sight of the additional challenges expected in 2017.