New York State Employment Law Updates for 2021

New York leads the country in providing protection for its workers. Its progressive attitude toward workers’ rights results in numerous and frequent state law changes that impact most employees in the state. Generally, employers should be aware of how these changes impact their legal obligations. Many employers may find themselves in violation of laws that changed without their knowledge. This is especially true for small employers who are exempt from some state laws but not all. If you are an employer in New York state, here are a few recent changes you should be aware of for 2021.

Changes to 5 Employment Laws You Should Know

New York state had an active 2020 pertaining to the rights of workers within the state. While many of these changes were in response to the Covid-19 pandemic and the hardship faced by many New Yorkers, many of these employment law updates were in place well before the term “front line workers” became common vernacular. The 5 most important new 2021 laws you should know are the following:

1. Paid Sick Leave Benefit Increases
2. Paid Family Leave Benefit Increases
3. Single Occupancy Gendered Bathroom Ban
4. New York City Paid Leave and Safe Time Increases
5. New York City Ban the Box

If you are an employer in New York state or New York City, your employees are entitled to significant protections under the law. Many employers are unaware of the protections their employees have, which may cause them to be liable for violations, including the potential to be sued for undue stress and anxiety. If you are unsure of what rights your employees have, contact an employment law attorney at Moshes Law, P.C., today for a free consultation. 

New York Paid Sick Leave

New York continues to lead the way in employees’ rights pertaining to paid and unpaid sick leave. In April of 2020, just as the Covid-19 Pandemic was in full swing, New York Governor Andrew Cuomo signed the New York Paid Sick Leave Law. While many other states have unpaid sick leave requirements for employers, New York is one of the first to guarantee paid sick leave to certain employees. Pursuant to the law, eligible employees will begin to accrue sick leave starting on September 1, 2020. These sick days could not be used, however, until January 1, 2021. So as of today, all eligible employees are able to use any accrued sick days.

Not all employees are eligible for paid sick leave; however, it appears that the vast majority will. Whether an employee is eligible for paid or unpaid sick leave depends entirely on the size of their employer. The new law requires sick leave to be given to employees as follows:

• Employers with 100 or more employees during a year – Required to provide a minimum of 56 hours (7 full days) of paid sick leave per employee per year.
• Employers with between 5 and 99 employees during a year – Required to provide a minimum of 40 hours of paid sick leave per employee per year.
• Employers with less than 4 employees fall into one of two categories:
  • If the employer had greater than $1,000,000 in net taxable income in the previous year – Required to provide 40 hours of paid sick leave per employee per year
  • If the employer had less than $1,000,000 in net taxable income in the previous year – Required to provide 40 hours of unpaid sick leave per employee per year.

Thus, the only employees not eligible for paid sick leave will be those who work for an employer with less than 4 employees and less than $1,000,000 in net taxable income. This should in theory cover a large majority of New Yorkers, except for the smallest businesses. It is illegal for an employer to retaliate against an employee for asserting these rights or creating an otherwise hostile work environment.

With how new the New York Paid Sick Leave Law is, it is possible that many smaller employers will not know about their obligations under the law. Paid sick leave, however, is now a legal right. If you are an employer and want to better understand your obligations under the new law, contact the Moshes Law Firm today. Our experienced paid sick leave attorneys are standing by for free consultations. 

New York Paid Family Leave Increases

New York state has had one of the strongest and most robust paid family and medical leave laws since it was enacted in 2016. Starting on January 1, 2021, the protections under the New York Paid Family Leave Act have become stronger than before. Eligible employees can take paid time off to care for a family member who is sick, bond with a newly born child or adopted child (including foster children), and assist family members deployed on active duty. Employees caring for family members with Covid-19 are eligible for paid leave under the law. 

In order to qualify for the New York State Paid Family Leave Act, an employee must work for a private employer and be either (1) a full-time employee who has worked a minimum of 20 hours per week for 26 weeks in a row for the same employer or (2) a part-time employee who has worked less than 20 hours a week for the same employer but has worked for at least 175 days total for the same employer. 

Starting on January 1, 2021, the amount of paid family leave has been increased to 12 weeks per year. While the employee is on paid leave, he or she will not receive their entire pay. Rather, he or she will receive the lesser of (1) 67% of the average weekly pay they received over the time period above or (2) $971.61 per week. Previously, this benefit was capped to 10 weeks and only 60% of the employee’s average weekly pay. Employees must contribute out of their paychecks to this program. The amount of contribution in 2021 has been increased as well to the lesser of (1) .551% of the employee’s average pre-tax wages, or (2) $385.34 per year.

Gender-Neutral Single-Occupancy Bathrooms 

New York also has a robust Civil Rights and Education Law providing important protections to New York residents, including protection against gender discrimination. In December of 2020, Governor Andrew Cuomo amended the New York Civil Rights Act to mandate that all public single-occupancy bathrooms must be gender-neutral starting in March of 2021. 

This amendment means that all single-occupancy public bathrooms must, by law, be available for use by both males and females. This law will apply to bathrooms in restaurants, schools, grocery stores, and all other buildings that are open to the public. While New York City has had a similar law in place for nearly 5 years now, the Governor’s action spreads this mandate beyond the city, to the entire state of New York.

It should be noted that this law will in no way require the construction of new, single-use bathrooms. If a public building has existing multi-occupancy gendered bathrooms, they may remain gendered. Rather, only existing and newly constructed single occupancy bathrooms must have their “male” or “female” signage removed. Single occupancy bathrooms are in no way required for public buildings under this law. 

Amendments to the New York City Earned Sick and Safe Time Act

Residents of New York City benefit from the Earned Sick and Safe Time Act. This Act is nearly identical to the protections under the New York Paid Sick Leave law. The “safe” leave, however, also provides paid or unpaid time off to an employee to tend to matters involving domestic violence, sexual abuse, and other family offenses. Safe time may be used to attend court hearings, file for protective orders, meet with attorneys, and more, as long as the action is taken to protect the employee or a family member. 

Mayor de Blasio amended the Act in 2020 to provide paid and unpaid leave on the same schedule as the New York Paid Sick Leave Law, described above, starting on January 1, 2021. This means that all private-sector employees will be eligible for paid sick leave of either 56 or 40 hours, depending on the size and income of their employer. Employees of businesses with less than 5 employees and less than $1,000,000 in taxable income will be eligible for 40 hours of unpaid leave. 

In addition to the changes above, the amendment to the Act requires that employers provide to employees on their pay stubs, or in some other regular writing, the exact amount of accrued paid and unpaid leave they have earned. 

Ban the Box (New York City)

“Ban the Box” is a widely used phrase that gained popularity in the last few years. Ban the Box generally is a prohibition against the “check box” on employment applications inquiring into whether an applicant has committed a felony or misdemeanor in the past, which generally disqualified the application for consideration. 

New York City has had a ban the box law in place since 2015. Under the existing law, an employer cannot ask an applicant about his or her criminal background until a conditional offer of employment has been extended. If an employer then decides to run a background check and potentially not hire the employee, certain rights are provided to that employee, such as allowing the applicant to respond.

In January 2021, the ban on the box law in New York State was expanded. Now, the law requires that employers wishing to take “adverse action” against an employee or applicant must consider numerous “relevant fair chance factors” in that decision. These factors consider the seriousness of the offense, the age of the individual when the offense was committed, and the employment duties held by the individual. 

While it has good intentions, ban the box is a complicated law. Employers are oftentimes confused about what they can and cannot do, sometimes risking violating an applicant’s or employee’s rights under the law. The spirit of the law, however, is to protect applicants and employees with previous criminal records. If you wish to make adverse employment decisions based on an individual’s criminal record, you must do so carefully. If you have any questions regarding the new law, or concerns that an employee may be lying on an application for employment, contact an employment attorney at the Moshes Law Firm today. 

What About Minimum Wage in NYS

As normal, the minimum wage in New York state will be increased for 2021. The minimum wage for New York City, however, has not changed and remains at $15.00 per hour.  As of 2021, the minimum wage for non-tipped employees is as follows:

• Upstate – $12.50 per hour
• New York City – $15.00 per hour (no increase from 2019)
• Westchester and Long Island – $12.50 per hour

The minimum wage for tipped employees is as follows:

• Upstate – $8.35 for food service workers and $10.40 for others per hour.
• New York City – $10.00 for food service workers and $12.50 for others per hour.
• Westchester and Long Island – $9.35 for food service workers and $11.65 for others per hour.

Need Legal Advice About State Law Changes

Employment laws in New York are constantly changing. As an employer, it can be difficult to monitor these changes on a regular basis, and even more difficult to comply with them.

If you have any questions regarding the numerous changes to New York employment laws in 2021, contact a labor and employment law attorney at the Moshes Law firm today. Our employment law attorneys have a long history of helping employers ensure they are complying with all of New York’s complex and variable state laws.