On Dec. 27, 2023, the New York State Department of Labor (NYSDOL) published a Notice of Adoption of its proposed regulations in the State Register, which means the minimum weekly salary to qualify for the executive and administrative exemptions will officially increase effective Jan. 1, 2024. The NYSDOL did not make any changes to its proposed regulations, so the following increases will occur:
On Dec. 23, 2023, Gov. Kathy Hochul vetoed Senate Bill S3100, blocking the Legislature’s attempt to ban noncompete agreements across the state. The proposed legislation sought to add a new section to the New York Labor Law banning essentially all noncompete agreements throughout New York. The proposed legislation seemingly had no exceptions, including the almost uniformly accepted exception for situations involving the sale of a business. The sweeping language of the proposed legislation also raised concerns that other types of agreements, including broad nonsolicitation agreements and nondisclosure agreements, could be banned as well. These concerns, among others, drew harsh criticism from the business lobby and employers throughout the state.
Senate Bill S3100 passed the New York State Senate on June 7, 2023, and passed the New York State Assembly on June 20, 2023. However, the proposed legislation was not delivered to the governor’s office until Dec. 12, 2023. During this delay, lobbyists pushed hard for the governor to either veto the proposed legislation or amend it. Following delivery, the governor’s office sought to accomplish the latter, attempting to negotiate a salary threshold that would allow employers to enter into noncompete agreements with employees making over a set yearly income. However, Gov. Hochul and the Legislature could not agree on an acceptable salary threshold, resulting in the governor vetoing the proposed legislation on the last day of the legislative session.
Noncompete agreements remain permissible in New York State, so long as they are reasonable in scope and no broader than necessary to protect a legitimate interest recognized by law (e.g., protection of confidential and/or trade secret information and customer relationships and goodwill). The Legislature will need to go back to the drawing board should it wish to ban noncompete agreements in the new legislative session and will likely need to narrow the scope of the ban should it expect Gov. Hochul to sign it. Bond will be closely monitoring this situation and will provide updates on any proposed noncompete bans in the new year, including with respect to the Federal Trade Commission’s proposed rule seeking to ban certain noncompetes nationwide.
For any questions about this issue, please feel free to contact Bradley A. Hoppe, Kevin G. Cope, any attorney in Bond’s litigation or labor and employment practices or the attorney at the firm with whom you are regularly in contact.
Effective on Jan. 1, 2024, the minimum hourly wage in New York will increase from $15 to $16 in downstate New York (New York City and Nassau, Suffolk and Westchester counties), and from $14.20 to $15 in upstate New York. In all regions of New York, the minimum wage will increase by $0.50 on Jan. 1, 2025, and by another $0.50 on Jan. 1, 2026.
Effective Nov. 17, 2023, New York General Obligations Law 5-336 was amended to further restrict employers’ use of non-disclosure or confidentiality provisions in settlement agreements when the factual foundation involves discrimination, harassment or retaliation. Since its enactment, the law has broadly prohibited non-disclosure provisions in agreements to settle discrimination claims “unless the condition of confidentiality is the complainant’s preference.”[1]
On Nov. 16, 2023, New York State Gov. Kathy Hochul signed legislation, also known as the Clean Slate Act, to automatically seal from public access criminal records for most individuals convicted of a crime.
The Act takes effect in one year, on Nov. 16, 2024, and its key intent is to increase employment opportunities for individuals with criminal histories who have no recent criminal convictions. The law amends New York’s criminal procedure law, the executive law, the correction law, the judiciary law and the civil rights law with respect to the automatic sealing of select convictions. New York follows several other states, such as California, Connecticut, Colorado, Pennsylvania, Oklahoma and Utah, who have also enacted similar laws.
To be eligible for automatic sealing of their records, individuals must complete their sentences (including probation or parole time) and do not reoffend within a stipulated period of time. This statutory period ranges from three years for misdemeanors to eight years for eligible felonies. The clock restarts if parole or probation is revoked or if there is a new conviction. All records of sex crimes, and Class A felonies (such as first or second-degree murder, first degree kidnapping), except those related to drug possession, are ineligible for sealing.
The law provides for several exceptions where sealed records could still be accessed and used for law enforcement, in criminal proceedings under certain circumstances, and other necessary purposes such as determining suitability for various licenses, and for employment and other activities where federal or state law requires or authorizes a criminal background check to be performed prior to granting licenses to or employing individuals in certain jobs.
Busting Myths
Myth: The law will erase all criminal records. Fact Check:The law automatically seals certain criminal records but does not expunge them. Notably, the Clean Slate Act would only seal convictions under New York's penal law. The Act would not seal criminal convictions under federal law or the criminal law of any state other than New York. Sealing is not automatic when the convicted individual has a criminal charge pending or is on probation or under parole supervision when the statutory time period for automatic sealing elapses.
Myth: Law enforcement will not have access to criminal records. Fact Check: Records automatically sealed under this Act could still be accessed and used by law enforcement for permissible purposes including to assess the employment of law enforcement officers, or when conducting investigations.
Myth: Background checks for vulnerable populations, such as children, the disabled and the elderly, are now compromised because employers can hire individuals with criminal records. Fact Check: Entities, including those that work with children, the elderly or vulnerable adults, that are required or authorized by law to conduct a fingerprint-based background check, are not impacted by the Clean Slate Act. Under the Act, such background checks are considered relevant and necessary prior to the employment of individuals working with these vulnerable populations and will include criminal records which have been sealed under this Act. The Act will also not seal the records of individuals who are required to register as a sex offender.
Myth: Gun licenses will be issued without a proper background check. Fact Check:The law does not apply when licensing officers are processing a firearm license application. In this instance, the criminal records will not be sealed.
Myth: Individuals who have a criminal record may get preferential treatment for a job over an individual with no criminal record. Fact Check: New York state law prohibits discrimination against an individual because of their criminal conviction status. The Clean Slate Act does not impact this protected status. This means that New York employers cannot make employment decisions such as terminating a current employee or refusing to hire an applicant because of their pre-employment criminal conviction record. Article 23-A of the New York State Correction Law provides an exception to this rule, where an employer may still deny employment based on a criminal conviction record if the employer can establish a direct relationship between one or more of the previous criminal offenses and the specific employment sought; or where there is an unreasonable risk to the property or to the safety or welfare of specific individuals or the general public. Employers must consider several factors when making the above determination. New York City employers must also consider the intersection of the Fair Chance Act, which prescribes additional requirements for inquiring about or making decisions based on an individual’s criminal record. Once the Clean Slate Act is in effect, employers should be aware of their additional obligations under New York state law. For example, employers should not consider sealed criminal records in employment decisions. Further, employers that receive unsealed criminal records in response to a request for criminal conviction history should provide the employee or applicant with a copy of the criminal records received, a copy of Article-23 of the New York State Correction Law and notice to the employee or applicant of their right to correct any incorrect information pursuant to the regulations and procedures established by the Division of Criminal Justice Services. Legal counsel is recommended when considering criminal conviction history in employment decisions.
Myth: Sealed conviction records can later be used against an employer as evidence of employer negligence. Fact Check:The Clean Slate Act provides that a conviction record that was sealed pursuant to the Act and was not provided to an employer upon request for conviction record history cannot be introduced as evidence of negligence against the employer.
Considerations for Healthcare and Human Services Employers
For healthcare and human services employers, the Clean Slate Act broadly preserves access to criminal records where federal and state statutes have previously required such employers to screen potential employees in the interest of protecting patients or service recipient safety. Depending on their specific regulatory requirements, employers may be required to perform various background checks such as a Criminal History Record Check, a Staff Exclusion List (SEL) clearance through the New York State Justice Center, and the Statewide Central Register (SCR) database check through the New York State Office of Children and Family Services. As part of these checks, employers will be able to access permissible criminal records, including records that were automatically sealed under the Clean Slate Act.
As detailed above, the existing provisions of Corrections Law Article 23-A, continues to apply to any employer using such records in its employment decisions, including the requirement that there be a nexus between the prior criminal conduct and the reason an employer chooses not to employ a particular person.
Next Steps
Employers should review and update policies specifically related to hiring, background screening, use of conviction records and nondiscrimination policies. Once the law is effective, it is recommended that employers consult with legal counsel prior to taking an employment action in New York State based upon an individual's criminal history.
If you have any questions about the information presented in this information memo, please contact Natalie Vogel, Roger Bearden, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.
On Nov. 17, 2023, Gov. Kathy Hochul signed Senate Bill S.3255, which amends Section 297 of the New York Executive Law by extending the statute of limitations for filing complaints of unlawful discrimination with the Division of Human Rights (DHR) to three years.
As reported in our previous blog post, on May 26, 2023, New York City Mayor Adams signed a bill into law prohibiting height and weight discrimination within employment, housing and public accommodations under the New York City Human Rights Law. That law will go into effect tomorrow, November 22, 2023. Although these prohibitions are accompanied by a few exemptions, employers should note that such exemptions are narrow and dependent on allowances contained within either federal, state, or local laws or regulations, or as expressly permitted by the Commission on Human Rights.
On October 27, 2023, the National Labor Relations Board (NLRB) issued a final rule that vastly expands the definition of joint employment under the National Labor Relations Act (NLRA). As we reported previously, this new rule rescinds and replaces the 2020 focus on “direct and immediate control” with a less-demanding standard intended to expressly ground the joint-employer rule in common-law agency principles.
On Sept. 15, 2023, New York State Gov. Kathy Hochul signed an amendment to a New York Labor Law that would invalidate certain intellectual property provisions in employment agreements, effective immediately. Under this amendment, Section 203-f, any provision in an employment agreement that requires employees to assign the rights to inventions to their employer will now be unenforceable if the invention was developed by the employee using the employee’s own property and time. The introduction of Section 203-f has significant implications for employers wishing to secure patent protection of inventions made by employees while under an employment contract. To obtain the best protection possible,it is recommended that New York employers review their employment agreements with respect to restrictions and assignment clauses to ensure compliance with this new labor law.
On Sept. 14, 2023, Gov. Kathy Hochul signed three pieces of legislation into law, all of which are reflective of Gov. Hochul’s ongoing efforts to strengthen workers’ rights in New York State.
Written Notice of Unemployment Benefits
Bill (S. 4878-A/A. 398-A) amends Section 590 of the Labor Law. Under this new legislation, employers must provide written notice of eligibility for unemployment benefits to any employee who has been terminated, temporarily separated, experienced a reduction in hours or any other interruption of continued employment that results in total or partial unemployment. This information must be disclosed on a form furnished or approved by the Department of Labor (DOL).
The new law will take effect on Nov. 13, 2023.
Personal Account Information Disclosure
Beginning March 12, 2024, employers are prohibited from requesting, requiring or coercing an employee or job applicant to: (i) disclose a username and password or other login information in order to access a personal account through an electronic communication device; (ii) access a personal account in the employer’s presence; or (iii) reproduce information contained within a personal account through unlawful measures. This new legislation, which amends the Labor Law to add section 201-i, prohibits an employer from discharging or disciplining an employee or refusing to hire an applicant for failure to disclose such information.
This law is also subject to certain exceptions and limitations. For example, an employer may require disclosure of personal information in order to access nonpersonal accounts that allow access to the employer’s internal computer or information systems. Employers may also view, access and rely on information obtained through the public domain. The law also allows an employer to obtain login information for accounts provided by the employer where the account is used for business purposes and the employee was provided prior notice of the employer’s right to inquire about such information.
An employer is also permitted to access an electronic communications device which is paid for in whole or in part by the employer where the provision of or payment for such device was conditioned on the employer’s right to access. However, the employee must have been provided with prior notice of the condition and explicitly agreed to it. Nevertheless, the employer is still prohibited from accessing any personal accounts on the device.
This law excludes law enforcement agencies, fire departments and departments of corrections and community supervision.
DOL Notices to Unemployment Applicants
Under this new legislation, the DOL is now required to provide notice to unemployment applicants of the supplemental nutrition assistance program (SNAP) and the special supplemental nutrition program for women, infants and children (WIC). This new law takes effect Jan. 12, 2024.
If you have any questions about the information presented in this memo, please contact Kali Schreiner, any attorney in Bond’s labor and employment practice or the attorney at Bond with whom you are regularly in contact.
On Dec. 22, 2020, New York State Technology Law Section 106-b took effect, which prohibited all school districts, including public, private and charter schools, from using any biometric technology (including but not limited to fingerprint or facial recognition) for any purpose other than: 1) as required by the Education Law, or 2) to identify employees who have consented, individually or through their union, to such use. Such prohibition against the use of such biometric technology was to remain in effect until at least July 1, 2022 and until the Commissioner of Education authorized the purchase and utilization of such technology in schools.
On October 4, 2023, the COVID-19 vaccine mandate for health care workers in New York will officially be repealed. On September 18, 2023, the New York State Department of Health (NYSDOH) submitted a Notice of Adoption to repeal 10 N.Y.C.R.R. 2.61 (the Regulation), which was the emergency regulation requiring covered health care employers to ensure that their personnel were fully vaccinated against COVID-19.
