As we have entered 2022, it is a good New Year’s resolution for employers to ensure that they know what new obligations they will have under New York State’s ever changing employment laws. Here’s what you need to know to make sure your company is in compliance with these new and shifting obligations in 2022.
Minimum Wage Increase
Most, if not all, New York employers will again face minimum wage increases for their employees. New York’s minimum wage rates are set to increase on December 31 of each year until the statewide rate reaches $15.00 per hour in all counties. As of December 31, 2019, the minimum wage rate reached $15.00 per hour in New York City. Fast-food employees everywhere in New York State also reached $15.00 per hour as of July 1, 2021. As of December 31, 2021, the minimum wage in Nassau, Suffolk and Westchester counties reached $15.00 per hour (up from $14.00). For employees in the remainder of the state, excluding fast-food employees, the minimum wage was raised to $13.20 per hour (up from $12.50 per hour), and will gradually increase each year until it reaches $15.00 per hour.
Tip Credit Increase
As of December 31, 2021, hospitality employers with food service workers or service employees will see an increase in the tip credit that can be taken against an employee’s minimum hourly wage so long as the weekly average of tips at least equals a specified hourly tip threshold (this applies for service employees only), and the total of tips received in addition to wages equals or exceeds the basic minimum wage, as follows:
Also, as of December 31, 2021, the salary basis threshold for both executive and administrative employees to be classified as exempt increased to $1,125.00 per week ($58,500.00 annually) for employees working in Nassau, Suffolk, or Westchester counties, thus matching the salary threshold already in place for executive and administrative employees to be classified as exempt in New York City. For employees working in the remainder of New York State, the salary threshold rose to $990.00 per week ($51,480.00 annually).
New York State COVID-19 Leave
In accordance with the New York COVID-19 Sick Leave Law, employers are required to provide certain paid and unpaid job-protected leave to employees if they are subject to either mandatory or precautionary orders of quarantine or isolation issued by an authorized governmental entity. Employers must note that they must provide an employee with this leave in addition to the leave required under the New York Paid Sick Leave Law. Employers’ obligations under the New York COVID-19 Sick Leave Law vary depending on the employer’s size and net income. See the chart below to determine the amount of leave.
The New York Department of Labor (DOL) has provided guidance that requires employers to provide eligible employees with up to three leaves under the COVID-19 Sick Leave Law. However, employees seeking to take leave for the second or third time must quarantine as a result of a positive COVID-19 test.
COVID-19 Vaccination Leave
Employers are required to provide employees with up to four hours (per injection) of paid leave to receive the COVID-19 vaccine. Employers should also take note that they will be required to provide employee with up to a total of twelve hours of leave to include the time required to receive a booster injection. This law will remain in effect through December 31, 2022.
The DOL has also provided guidance clarifying that employees are permitted to use sick leave as set forth under New York’s paid sick leave law to recover from side effects of the COVID-19 vaccine.
New York City employers should also note that on November 23, 2021, the New York City Council enacted an amendment to its Earned Safe and Sick Time Act that requires all private sector employers to provide employees with four hours of paid leave to employees who (i) accompany their children to COVID-19 vaccine injections and/or (ii) care for their child who is experiencing temporary side effects from a COVID-19 vaccine injection. The child must be under the age of 18 or the child must otherwise be incapable of self-care due to physical or mental disability. It is also important to note that a parent is entitled to up four hours of paid leave per injection for each child.
Recreational Marijuana Legalization
As of March 31, 2021, the New York Marijuana Regulation and Taxation Act (MRTA) legalized the recreational use of cannabis (marijuana) for adults 21 years of age and older. Employers are prohibited from taking any adverse employment action against an applicant or an employee for using cannabis outside of the workplace, outside of work hours (including paid and unpaid breaks and meals) and without the use of the employer’s property or equipment. However, employers are permitted to take an employment action related to an employee’s use of cannabis if (a) the employer’s action is required by federal or state regulation or statute, (b) the employer would lose a federal contract or federal funding, or (c) the employee displays articulable symptoms of impairment while working that are decreasing or lessening the employee’s performance or interfering with the employer’s obligation to provide a safe and healthy workplace.
The DOL has issued guidance stating that employers are not permitted to test employees for cannabis if one of the above-mentioned grounds for taking employment action applies. It should also be noted that the smell of marijuana cannot, on its own, be deemed an articulable symptom of impairment.
Expansion of Whistleblower Protections for Employees
Effective January 26, 2022, employers will face strengthened protections for employees under the whistleblower laws. Under the old law, employees were only protected if they reported unlawful practices of their employer that created a substantial and specific danger to the public health and safety. Under the new amendments, employees will be protected from retaliation for reporting any actual or suspected violation of law so long as the employee reasonably believed the violation to be illegal or a danger to public health or safety. Further, the new amendments expand the definition of “employee” to not only include current employees, but also former employees and independent contractors. The new law also expands what is considered to be retaliatory conduct. The statute prohibits not only adverse employment action, such as discharge, demotion or suspension, but also (i) prohibits actions or threats that would adversely impact a former employee’s current or future employment and (ii) prohibits employers from contacting or threatening to contact immigration authorities about an employee’s suspected citizenship or immigration status, or the suspected citizenship or immigration status of an employee’s family member or household member. Employers should also note that the statute of limitations for claims under this law has been extended from one year to two years.
Notice of Electronic Monitoring
Effective May 7, 2022, any private employer with a place of business in New York must provide a written notice to employees before engaging in electronic monitoring of telephone, e-mail, or internet access or usage. In addition, the law requires that employers must post a notice of electronic monitoring in a conspicuous place which is readily available for viewing by affected employees. Employers should note that this law does not apply to general computer system protection or maintenance.
New York Paid Family Leave Increases and Expansion of Definitions
As of January 1, 2021, New York’s Paid Family Leave (PFL) reached its maximum leave benefit (12 weeks leave paid at 67% of the employee’s average weekly wages, up to a cap that is determined by the state). For 2022, an employee’s wage replacement benefit increases to $1,068.36 per week. The employee’s payroll contribution will remain at 0.511% of gross wages for the pay period and will still be capped at an annual maximum of $423.71. Employers must note that all employees are eligible for PFL regardless of their citizenship or immigration status.
Effective January 1, 2023, the definition of family member will expand to include siblings for the purposes of any leave under PFL. This means that employees may take leave under the PFL to care for a sibling, which includes biological, adopted, step- and half-siblings.
No Wage Theft Loophole Act
Effective August 19, 2021, the No Wage Theft Loophole Act amended the New York Labor Law (NYLL) to make it easier for employees to bring claims against an employer for any alleged unpaid wages. These amendments aimed to close a loophole that was created over the years under the NYLL. Specifically, employers must note that the amendments state that “there is no exception to liability under this section for the unauthorized failure to pay wages, benefits or wage supplements.”
Next Steps for Employers
What next steps must employers take to ensure they are in compliance with New York’s ever-changing laws? As it is clear that New York’s employment laws are continuing to evolve and change, we encourage employers to review their handbooks and policies to make sure they are compliant with these new laws.