By Mark F. Kluger and William H. Healey
Most often, Santa’s legislative Elves spend the year writing up lots of new employment laws for Santa to leave in employers’ stockings. This year, apparently exhausted from the last two, those little guys weren’t as prolific as usual. But that doesn’t mean they’ve left us completely empty handed for 2023.
For a change, the California of the East did not get a bunch of new oppressive employment laws to start off the new year. In fact, all we’ve got are minimum wage increases. Starting January 1, the minimum wage for most workers rises to $14.13. That’s an odd number given that we were supposed to see $1.00 per year until we get to $15.00. Instead, for 2023, we’ve got this random $.13. Where did that come from? That is a gift of the substantial increase in the Consumer Price Index exception to the NJ minimum wage law that allows for the upward adjustment…..and to all a good night.
New York employers were not so lucky. Here’s what those employers found under their trees:
- State Pay Transparency
The biggest package for NYS employers to unwrap is a state version of pay transparency legislation. You may remember that back in May 2022, we told you about the NYC pay transparency law. Well, not to be outdone, Ho, ho, Hochul has enacted a state version for 2023. The NYS pay transparency law requires all employers with 4+ employees (located anywhere) to include in any ad or posting for a job, promotion or transfer opportunity, the actual salary, wage or the range, a job description (if existing), and a general description of the other forms of compensation…including…fringe benefits, bonuses, stock options or commissions. Now get this—the new law covers any position that can or will be performed, at least in part” in NYS. Excuse us legislative Elves, but can’t any job be performed in NYS except maybe like Governor of Hawaii? It certainly means that employers anywhere, advertising any job that can be performed, at least partially remotely, by a NYS resident, must comply. One last annoyance: employers will be obligated to keep records of the history of the salary/wage ranges for each job together with the job descriptions. Violations of this law can result in fines up to $3,000 per violation, but the good news is you can’t get sued. Heads up NYC employers: the state version (with which you must also comply) requires more stuff than the NYC law, like the whole benefits description and record keeping. But violations of the city law can cost up to $250,000 in penalties and you can get sued by employees under that one. The NYS law becomes effective September 18, 2023. Mark your calendars.
Paid Family Leave
Gather round brothers and sisters and hear the news that effective January 1, 2023, you will be included in the definition of “family member” under the NYS Paid Family Leave Law. That’s right, siblings will be added to spouse, domestic partner, child, stepchild, parent, parent-in-law, stepparent, grandparent, or grandchild.
Paid Vaccination Leave
Remember that pesky pandemic and all the new laws that went with it? Well NYS has extended for another full year the one that grants 4 hours per dose of paid leave to get vaccinated against Covid-19, deal with any side effects and get back to work. That is 4 hours of additional PTO not to be taken from any other form of PTO.
No Fault Attendance Policies
If you have one of those attendance policies in which employees accumulate points for every absence, regardless of the reason and after a certain number of points they receive progressively painful punishments—this new law is not welcome news. The law, effective on February 20, 2023, guts the no fault part of your policy. Employers will be prohibited from imposing any form of discipline, even non-painful kinds, for an absence taken pursuant to state, federal or local law. That means, an employee cannot accumulate points, or have counted against them in any other way, absences under the sick leave law, PFL, FMLA, or for jury duty, domestic violence leave, or voting leave. Here’s a thought: does that include time off as a reasonable accommodation under the ADA or the NYS Human Rights Law? Our guess—yup! So basically, you need to understand that your employees can come and go as they please and you just need to let them.
For those parts of NYS that are not up to the $15 minimum wage, effective on December 31, 2022, the minimum wage increases to $14.20.
So overall, we know you New York State employers would have preferred that Santa left you a large hunk of coal this year. At least you could have burned it to stay warm!!
Happy New Year to all!!