2020 New York Employment Law Update

As outlined in our prior alert, a multitude of changes in New York employment law have either gone into effect or will be in effect soon. We encourage employers with New York operations to review our prior guidance, particularly with regards to compliance with harassment and discrimination laws.

In addition, employers should take note of the following issues as they plan for the year ahead.

Wage and Hour Changes

New York State and New York City Minimum Wage Increases

As of December 31, 2019, the minimum wage for New York employers is:

• $15 per hour for New York City employers
• $13 per hour for Westchester, Nassau and Suffolk County employers
• $11.80 for employers in the remainder of New York State

Minimum Exempt Salary Increase

New York has increased the minimum salary an employee must be paid in order to qualify for the administrative or executive exemption under state wage and hour law. Exempt status under both exemptions is based on (1) the payment of a minimum exempt salary; and (2) whether the employee meets the duties test of the applicable exemption. While the duties test for these exemptions remains unchanged, effective December 31, 2019, the minimum exempt salary is:

• $1,125.00 per week ($58,500 annually) for New York City employers
• $975.00 per week ($50,700 annually) for Westchester, Nassau and Suffolk County employers
• $885.00 per week ($48,750 annually) for employers in the remainder of New York State

Effective January 1, 2020, the minimum exempt salary under the federal Fair Labor Standards Act increased to $684 per week ($35,568 annually) for the executive, administrative and professional exemptions. Because New York’s salary threshold for the administrative and executive exemptions is greater than the federal threshold, New York employers must comply with the higher state threshold for those exemptions.

However, New York’s minimum salary threshold applies only to the administrative and executive exemptions, not the professional exemption. Accordingly, New York employers who rely upon the professional exemption must only comply with the federal salary threshold.

New York City Bans Testing Job Applicants for Cannabis

Effective May 10, 2020, New York City employers are prohibited from requiring job applicants to submit to a pre-employment drug test that screens for cannabis. Subject to exceptions for a limited number of specific occupations (e.g., police officers, commercial truck drivers), the new law considers it an “unlawful discriminatory practice” to require applicants for employment to “submit to testing for the presence of any tetrahydrocannabinol or marijuana.”

Notably, the ban applies only to applicants for employment. As a result, employers may still prohibit cannabis use as a matter of policy, test current employees for cannabis use and administer discipline for violations of the employer’s drug policy. That said, employers should avoid any disciplinary action against employees who are certified medical marijuana users, as they may be considered to have a recognized disability under New York law.

While cannabis use remains illegal under federal law, and is only permitted for medical use in New York and in many other states, an increasing number of states have legalized cannabis use for off-duty recreational purposes. To prepare for compliance with the new law, employers should work with their drug screening vendors to ensure that they do not screen for cannabis.

Discrimination and Retaliation Based on Employees’ Reproductive Health Decision-Making Is Now Prohibited

Effective January 7, 2020, New York employers are now prohibited from discriminating or retaliating against employees (or employees’ dependents) based on reproductive health decision-making. Specifically, the law provides that an employer shall not “discriminate nor take any retaliatory personnel action against an employee with respect to compensation, terms, conditions or privileges of employment because of or on the basis of the employee’s or dependent’s reproductive health decision-making, including, but not limited to, a decision to use or access a particular drug, device or medical service.”

In addition, the law restricts employers from accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision-making. Importantly, the law requires employers who have a handbook to include in the handbook a notice of rights and remedies available under the new law.

While no specific guidance has been issued on the appropriate form of notice, employees should amend their handbooks to specify “reproductive health decision-making” as a protected class and include an appropriate notification regarding available rights and remedies.

New Administrative Guidance on New York Salary History Law

As we previously reported, all New York State employers are prohibited from inquiring about a job applicant’s (or current employee’s) salary or wage history when interviewing, hiring, promoting or making employment decisions. The New York State Department of Labor has issued new guidance clarifying employers’ obligations under the law. The pertinent points are as follows:

• Employers may ask job applicants for their salary expectations for the open position.
• The prohibition on inquiring into salary history also includes inquiries into benefits and other forms of compensation the employee or applicant received from prior employers.
• The term “applicant” expressly includes part-time, seasonal and temporary workers.
• For current employees applying for new positions within the same company, the employer may consider information within its possession regarding compensation history with that employer, but cannot ask about compensation from prior employers.
• An employer may consider salary information disclosed by the employee voluntarily, but only if it is disclosed without prompting. Additionally, such information cannot be used to justify paying an employee less than employees in other protected classes who are performing substantially similar work under the Equal Pay Act.
• Employers are strictly prohibited from including any salary history questions on a job application, even if those questions are marked “optional.”
• Employers are encouraged but not required to proactively state in their job postings that they do not seek salary history information from job applicants.