“It feels like forever since we’ve had a chance to catch up!” How many of us have said something similar repeatedly in the last few weeks and months? So many of the disconnects stem from “two weeks to flatten the curve” expanding beyond anyone’s expectations (are you talking about COVID or your waistline?). My sense of time passage is so distorted that I regularly find myself asking, “has it really been more than two years since…?”
There’s been no disconnect in the pipeline of new and revised employment laws and regulations (I see what you did there). Here are a few of the highlights (don’t you mean lowlights?) employers need to know about:
Employee Notice of Employer Electronic Monitoring
Please don’t skip over this one because you don’t think it applies to your business! Essentially all software and business services provided for employee use – including phones, email, and Internet access – allow employers to monitor or otherwise intercept electronic communications, transmissions, or internet access or usage. So, if you provide anything more than pencils to your employees, this applies to your business.
This amendment to the NY State Civil Rights Laws mandates that private employers in the state notify employees that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system including, but not limited to, the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.” (Who writes this stuff?!)
What does that mean for employers? As NY State employer mandates go, this one isn’t too bad (is that supposed to be comforting?). Here’s what employers must do by May 7, 2022, the statute’s effective date:
- Provide all employees with a written notice containing the italicized language above;
- Require all employees to sign and return a written acknowledgment form – many legal experts are strongly suggesting the acknowledgment form also include the statute’s language;
- Post a copy of the same written notice in a conspicuous workplace location – preferably with other required employment posters – and/or on the company intranet where it is accessible to all employees;
- Update the company’s electronic monitoring and IT policies contained in the employee handbook; and
- Revise new employee onboarding processes to provide the written electronic monitoring notice and receive a signed acknowledgment before a new employee is subject to any electronic monitoring.
Employers should also note four additional points: (i) the law appears to require notification to all employees, regardless of whether they are physically located in NY State, (ii) this is an annual notice and acknowledgment requirement (I wouldn’t expect anything less), (iii) each failure to properly notify an individual employee is a separate violation, and (iv) penalties of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.
Amendments to the NY Paid Family Leave Law
As most employers are aware, under the NY Paid Family Leave Law (“PFLL”), eligible employees are allowed up to 12 weeks of paid family leave over a 52-week period. Until recently, when an employee used PLF leave intermittently, the maximum amount of leave was capped at 60 days. This cap assumed the employee worked, at most, a five-day workweek, i.e., five days per week for 12 weeks equals 60 days of leave. However, the NY State Workers’ Compensation Board amended the PFL regulations to eliminate the 60-day cap.
Effective January 1, 2022, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week during the measurement period. For example, an employee working an average of six days per week is now entitled to 72 days of intermittent leave – and an average of seven days per week equals 84 days of intermittent leave – over a 52-week period. Also, this amendment is applied prospectively for claims filed on or after the effective date.
While we’re on the topic of PFL, effective January 1, 2023, the current list of covered family members – the employee’s spouse, domestic partner, children, stepchildren, parents, stepparents, parents-in-law, grandparents, and grandchildren – will expand to include the employee’s biological, adopted, step-, and half-siblings.
Updates to the NY State Human Rights Law Regarding Workplace Sexual Harassment
The significant number of sexual harassment complaints raised against Andrew Cuomo once again put the spotlight on how employers handle allegations of inappropriate workplace behaviors. Effective March 16, 2022, an amendment to the NY State Human Rights Law (“HRL”) modified the definition of “unlawful retaliation” to include “disclosing an employee’s personnel files because he or she has opposed any practices forbidden under [the HRL] or because he or she has filed a complaint, testified, or assisted in any proceeding.” However, the amendment still allows employers to disclose personnel information “where such release is necessary to respond to a complaint, civil or criminal action, or judicial or administrative proceeding.”
Another amendment to the State’s HRL requires the NY State Division of Human Rights (“DHR”) to establish a confidential sexual harassment complaint hotline. Expected to be operational by July 14, 2022, the hotline will be staffed by “attorneys experienced in providing counsel related to sexual harassment matters who can provide pro bono assistance and counsel to individuals [who] contact the hotline.” Although the DHR is yet to issue compliance guidance, the amendment does require employers to post information about the hotline in the workplace (they can’t post what they don’t have!).
NY State Mandates Retirement Savings Plans for All Employees
In an effort to “promote greater retirement savings for private-sector employees in a convenient, automatic, low-cost, and portable manner,” NY State has enacted legislation establishing the Secure Choice Savings Program (“Secure Choice IRA”). The legislation also requires “certain private-sector employers” to automatically enroll employees 18 years of age and older in the Secure Choice IRA program and deposit the employee’s after-tax contributions into a Roth individual retirement account.
For purposes of the Secure Choice IRA program, the state defines “certain private-sector employers” as any “person or entity engaged in a business, industry, profession, trade, or other enterprise in New York State” – including not-for-profit organizations – that has:
- At all times during the prior calendar year [without interruption], employed at least 10 employees in the state;
- Been in business for at least two years; and
- Not offered a qualified retirement plan, including, but not limited to, a plan qualified under sections 401(a), 401(k), 403(a), 403(b), 408(k), 408(p), or 457(b) of the Internal Revenue Code of 1986, in the preceding two years.
Although the law requires their automatic enrollment in the Secure Choice IRA program, employees have the right to:
- Participate in the Secure Choice IRA program and select the contribution level, expressed as a percentage of wages or as a dollar amount up to the applicable annual limit;
- Change their contribution level at any time, subject to rules established by the state’s Secure Choice Savings Board (“Board”);
- Take their IRA with them if and when they change jobs; and
- Affirmatively elect to opt-out of the Secure Choice IRA program using the appropriate opt-out form.
Where an employee fails to select a contribution level, or affirmatively opt-out of participation, the employer is required to automatically enroll the employee at the three percent default contribution rate.
No employer contributions are made to Secure Choice IRAs. Also, employers are prohibited from terminating an existing qualified plan to participate in the Secure Choice IRA program.
Lastly (a sweeter word has never been written), there is no need for employers to take any immediate action (you couldn’t have started with that little tidbit?). The state’s Secure Choice Savings Board, which is responsible for administration and operation, has up to two years to implement the program. Then, once the Board opens the program, employers will have nine months to begin enrolling employees and comply with the program’s requirements. Although no firm date has been set, the Board held its first meeting in late January, and many experts believe the program will be up and running no later than December 31, 2022.
If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email theexperts@hrcexperts.com.
Posted by Frank Cania, president of HR Compliance Experts LLC.
© 2022 HR Compliance Experts LLC
Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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