2023 ushers in a raft of new employment-related laws across the country and especially in New York and California. Here we focus on a few key changes in both states. Note: This is a brief list of key updates. Please reach out to us if you would like further information on these or other changes for 2023.
KEY NEW YORK UPDATES:
New York CITY - Pay Range Disclosure
This law has implications for your business, even if you do not have an office in New York City!
November 1st, 2022, saw a new law go into effect requiring most New York City employers to include salary ranges on their job postings. As an amendment to the New York City Human Rights Law, the new law states that NYC covered employers must disclose the minimum and maximum salary or hourly rate that the employer believes they would pay for the position. This disclosure must be posted “in good faith”, meaning that the employer cannot mislead employees or potential new hires by stating incorrect or unrealistic pay disclosures. Under the new law, these disclosures need to be included if the employer posts a “job, promotion, or transfer opportunity for a position that can or will be performed, at least in part, in New York City.”
Not all employers are covered by the new law. Below are the criteria used to judge whether the new law applies to your business:
Employers Covered by the Law:
- Employers with 4 or more employees (including independent contractors and owners)
- Employers with 1 or more domestic workers, so long as at least one of the employees works in NYC. Note that the definition of a domestic worker in NY is someone who works in another person's home to care for a child; serve as a companion for a sick, convalescing or elderly person; do housekeeping; or perform any other domestic service purpose.
- Additionally, the law applies to all employment agencies, regardless of their size. However, job postings for temporary employment at a temporary help firm (such as a staffing agency) are not required to include pay disclosures.
What Employers Need to Know:
BASE PAY ONLY: The new pay disclosure law only requires employers to state the minimum and maximum hourly pay rate or annual salary that they believe the position will earn, in good faith. Employers do not need to include any other compensation information (for example, benefits, bonuses, commissions, tips).
WHAT IS A “RANGE”? The rates posted on the job ad must be a range, meaning it includes a minimum and maximum salary or hourly rate that the person in the position can reasonably expect to make. If the employer has no flexibility in the pay rate they can offer, they can post a range where the minimum and maximum pay are identical.
WHAT DOES “IN GOOD FAITH” REALLY MEAN? Employers cannot post an open-ended pay rate disclosure (Example: “$20/hour and up”). And we also do not recommend extremely wide pay ranges that try to “cover all bases” without providing a realistic pay range (for example, “15/hour to 50/hour”). Remember, the pay range needs to be “in good faith” and an unreasonably large range would be unlikely to be in the spirit of that rule.
WORK DONE IN NYC – EVEN IF EMPLOYER NOT BASED THERE: This law only applies to employees who can or will perform, at least in part, their job functions in New York City – even if the business office is not located in New York City (or even in New York State). IMPORTANT NOTE: A comparable bill has been introduced to have a similar law enacted in all of New York State, and this bill has been passed by the NYS Legislature and is currently under consideration by the governor. If passed, it would take 270 days for the law to be put into effect after being signed.
APPLIES ONLY TO JOB POSTINGS: Another important point to note is that this law only applies to job postings. This means that if employers do not plan on advertising their jobs, they do not need to worry about pay disclosures. The state defines a job advertisement as a “written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicants” (which may include existing employees) and includes advertisements “on internal bulletin boards, internet advertisements, printed flyers distributed at job fairs, and newspaper advertisements.”
An Important Note for Employers Who Hire Remote Employees:
Employers that are located outside of NYC should include target salary ranges if there is any chance that you may hire an employee that will be based (in full or in part) in New York City. When you add this law to the growing number of laws across the country that require pay disclosures, there is a strong argument to support use of pay ranges in ALL remote job postings just to be safe.
New York STATE - Pay Range Disclosure
This law has implications for your business, even if you do not have an office in New York State.
On December 21st, Governor Kathy Hochul signed into law S.9427A which enacts pay transparency laws very similar to those now in effect for New York City but is even more stringent in some ways. This law stakes effect on September 17, 2023 and we encourage New York State employers to start planning now by building your pay ranges, updating job descriptions, and ensuring that any systems in place for job postings include maintaining the record of those postings and pay rates in the future.
Key aspects of this law:
- Affects employers with 4 or more employees in NYS and any job that will be performed “at least in part” in NYS
- Employers must include on job postings the range of compensation for new jobs, promotions, or transfer opportunities
- If a job is 100% commission, then it’s OK to post “a general statement” that says so while not posting a range of compensation
- Records of the history of job postings and associated descriptions (if they exist) as well as the ranges must be kept
- Like the NYC law, the pay range must reflect what “the employer in good faith believes to be accurate at the time of the posting”
New York STATE - updated obligations related to nursing mothers
Amendments to additional laws provide employers with even more obligations.
While NYS and NYC already have comprehensive laws and employer obligations related to accommodating nursing mothers, this new law that goes into effect on June 7, 2023 raises the bar and requires employers to do even more.
What was already in effect for NYS employers:
- employers must provide reasonable unpaid time to permit employees to nurse for up to three years following childbirth
- prohibits discrimination against such employees who nurse in the workplace
- employers shall make “reasonable efforts” to provide a lactation room or private location that is not a bathroom.
What was already in effect for NYC employers:
- applies to employers with 4 or more employees
- employers must provide reasonable unpaid time to permit employees to nurse for up to three years following childbirth
- prohibits discrimination against such employees who nurse in the workplace
- employers must – upon request and unless it presents an undue hardship - designate a lactation room for an employee to nurse in the workplace and the room must not be a bathroom and must be near to running water.
In June 2023, the NYS law will align much more closely with the NYC law:
- applies to all size employers
- employers must – upon request and unless it presents an undue hardship - designate a lactation room for an employee to nurse in the workplace, and that location must be:
- in close proximity to the work area
- well lit
- shielded from view
- free from intrusion from others in the workplace or public
- must include a chair, a working surface, nearby access to clean running water and, if the workplace has electricity, an electrical outlet.
- The location cannot be a restroom or toilet stall.
- If the space is not solely designated for nursing, it must be made available to nursing employees when needed and cannot be used by others while being used for nursing.
- Employers must provide notice as soon as practicable when the location is being used for nursing.
- If the workplace has access to refrigeration, employers must provide access for the purpose of storing expressed milk.
There is a policy requirement: The state is going to create a model policy that employers must provide to employees at hire, annually, and when returning from a leave for child birth.
New York STATE - protections against absences from work that are already lawful
This about protecting against retaliation for taking a lawful absence from work.
Though it may sound duplicative, Governor Hochul signed into law an update to Section 215 of the New York Labor law that does not allow “retaliation” for using protected absences or leaves. This includes banning use of “points-based policies” that automatically apply “demerits” to an employee for being absent.
In summary, if an employee avails themselves of a “protected” absence, employers may not:
- “threaten, penalize, or in any other matter discriminate or retaliate”
- apply “any demerit, occurrence, or any other point, or deduction from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.”
Again, for most employers, this may seem like a head-scratcher to say that it’s illegal to retaliate against use of legally protected leaves, but some employers have automatic policies of “demerits” and this clarifies that they cannot be used in these instances.
New York STATE - Paid Family Leave – Slight Expansion
Care for siblings now included.
A small change goes into place for NY Paid Family Leave (PFL) which allows employees to take a leave for care for siblings with a serious health condition. A “Sibling” is defined as a biological or adopted sibling, a half-sibling or a stepsibling. We’re updating any policies related to PFL and just note that if an employee asks for a leave related to the sibling, they may be eligible for it.
New York STATE – COVID vaccination and COVID sick leave still in effect
Employers must still provide paid time for vaccinations and paid time for verified COVID sick leave.
Employers must provide up to 4 hours of paid time for employees to get vaccinated or boosted, and this is set to expire at the end of 2023. Employers must also still provide up to 14 days of paid COVID sick leave, but employees may return to work after 5 days if their symptoms have resolved.
New York STATE – Minimum Wage Updates
The rest of the state is catching up steadily with NYC, Long Island, and Westchester
In NYC, Westchester, and Long Island, the minimum wage had already reached the max of $15/hour. 2023 sees the next rise in minimum wages for the rest of the state to $14.20/hour.
KEY CALIFORNIA UPDATES:
California – Pay Range Disclosure
California joins NY and other states in requiring transparency of pay.
Employers with 15 or more employees must provide the pay scale (min and max) for a position in any job posting. Also, employers with 100 or more employees must also submit pay rate reporting to the state on an annual basis (much like the EE01 reporting required at the federal level for employers of 100 or more employee).
California – Mandatory Bereavement Leave
Bereavement is not a protected leave – but does not have to be paid.
Employers with five or more employees must provide up to five days of unpaid bereavement leave for an employee within three months of the death of a family member. “Family member” is defined as a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law
California – Reproductive Health Benefits
Religious employers who opt out (legally) of abortion and contraceptive coverage still have obligations.
Existing California law authorizes a religious employer to request a healthcare contract or policy that does NOT include contraception coverage for its employees. However, recent legislation as of Jan 1, 2023 requires these plans and insurers to provide insured employees with written information about free abortion and contraception benefits or services available through the California Reproductive Health Equity Program.
California - California Family Rights Act (CFRA) and California’s Healthy Workplaces Healthy Families Act (HWHFA) to include a “designated person.”
The definition of a family member just went wide.
Under both CFRA and HWHFA leaves, a person may take a leave to care for someone else. The definition of who that someone else is, however, is now going to be quite broad:
- CFRA: a designated person is “any individual related by blood or whose association with the employee is the equivalent of a family relationship.”
- Expect the possibility of a complicated discussion with employees related to “what is the equivalent of a family relationship”
- HWHFA: a designated person is “a person identified by the employee at the time the employee requests paid sick days”
- This is so broad it could possibly mean an employee could take WHHFA leave to care for basically anyone (if your neighbor sick? That may be enough to qualify!)
California – Minimum Wage Updates
As always, there is a patchwork of min-wage updates throughout the state of California but the top news is the overall state minimum now second only to Washington State
California state minimum wage is $15.50 as of January 1, 2023. But many local rates are higher. For a complete list click here.
By: Katherine Posniak & David Freedman