As a reminder, beginning March 12, 2024, Labor Law 201-i prohibits employers 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; (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 also prohibits an employer from discharging or disciplining an employee or refusing to hire an applicant for failure to disclose such information.

The legislation is subject to certain exceptions and limitations. For example, an employer may require disclosure of information to access nonpersonal accounts that allow admission to “the employer’s internal computer or information systems.”[1] Employers may also view, access and rely on information that is publicly available.

The law also sets forth certain notice and acknowledgement requirements which employers must closely review. Specifically, under Section 5(i), an employer may 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.”[2] However, the employee must have received prior notice of the condition and explicitly agreed to it. Nonetheless, the employer is prohibited from accessing any personal accounts on the device.

This law excludes law enforcement agencies, fire departments and departments of corrections and community supervision.

If you have any questions regarding the NLRB’s new rule, please contact Kali Schreiner, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.

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[1] N.Y. Lab. Law § 201-i (2)(b).

[2] Id. at § 201-i (5)(iii).

On March 1, 2024, New York City’s Department of Consumer and Worker Protection (DCWP) released its newly expanded Workers’ Bill of Rights.

The Workers’ Bill of Rights provides information about the rights and protections of employees, independent contractors, and prospective employees in New York City under City, State and federal laws.

By July 1, 2024, employers are required to provide a copy of the Workers’ Bill of Rights to each of their current employees. Thereafter, employers must provide the Workers’ Bill of Rights to each new hire on an employee’s first day of work. Also by July 1, 2024, employers will be required to post the provided poster in a conspicuous location that is accessible and visible to employees. The Workers’ Bill of Rights should also be posted online or on the employer’s mobile application “if such means are regularly used to communicate with [the employer’s] employees.” The distribution and posting must be provided in English and in any language spoken as a primary language by at least 5% of employees, if the DCWP has the Workers’ Bill of Rights available in that language.

Employers that fail to adhere to the posting requirement will incur a $500 penalty, but first-time violators will be given a 30-day window to cure any violation.

If you have any questions about the information presented in this memo, please contact Mallory Campbell, any attorneys in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.

On March 1, 2024, the Centers for Disease Control and Prevention (CDC) issued updated guidance related to COVID-19 prevention and treatment. Prior to March 1, 2024, the CDC recommended that individuals who test positive for COVID-19 should isolate for a minimum of five days following a positive test and also follow a period of post-isolation precautions.

The CDC’s new Respiratory Virus Guidance

The CDC’s new Respiratory Virus Guidance includes several changes to its prior COVID-19 specific guidance. Initially, the new guidance applies to individuals who contract respiratory illnesses including COVID-19, flu and RSV, and no longer focuses on COVID-19 alone. The guidance explains that this change was made to address the most common respiratory viruses that cause significant amounts of disease, especially in the fall and winters seasons.

Next, the new guidance eliminates the five day isolation requirement, and instead recommends that individuals with these respiratory illnesses stay home and away from others until at least 24 hours after both their symptoms are getting better overall and they have not had a fever without the use of fever-reducing medication. According to FAQs provided by the CDC, “improving symptoms” means that a person is starting to feel better, and the body is returning to normal after an infection. The guidance also encourages added precautions over the next five days after time at home is over.

Finally, the guidance states that it is intended to apply in general community settings but not in healthcare settings. The CDC offers separate and specific guidance for COVID-19 in healthcare settings, which can be found here. The CDC also states that it has been working with education partners to develop infection prevention and control guidance for schools, and that this guidance should be released prior to the 2024-2025 school year.

NYS COVID-19 Leave Statute

Employers across New York state are likely wondering what impact, if any, the change in CDC guidance has on New York’s COVID-19 Paid Leave statute.

By way of review, New York’s COVID-19 Paid Leave law states that employers are required to provide employees paid leave if they are subject to a mandatory or precautionary order of isolation or quarantine issued by the New York State Department of Health (NYSDOH) (or any governmental entity similarly authorized). The length of leave depends on the employer’s size and income.

As reported on our blog here, as of Sept. 14, 2022, the NYSDOH issued updated COVID-19 quarantine and isolation guidance stating that it would follow the CDC guidelines on quarantine and isolation. With respect to obtaining an order of isolation or quarantine, NYSDOH guidance currently states, “The New York State Department of Health is following the Centers for Disease Control and Prevention’s (CDC) isolation and precautions for people with COVID-19 guidance, which provides information to those who tested positive. Currently, only orders of isolation are required.”

Effect of the CDC Guidance on Employers’ Obligation to Provide NYS COVID-19 Leave

With the CDC’s elimination of the five day isolation requirement, New York employers are faced with the question of whether they must continue offering COVID-19 Paid Leave. Arguably, without a specific CDC isolation requirement, COVID-19 paid leave will no longer be required. However, the new CDC guidance still recommends that individuals who have respiratory illness, including COVID-19, stay home and away from others until at least 24 hours after both their symptoms are getting better overall and they have not had a fever. It is not clear if New York state will continue to interpret this as an isolation requirement that would entitle employees to COVID-19 Paid Leave. As such, whether New York employers must continue to provide COVID-19 Paid leave is unclear.

It is also worth noting that Gov. Hochul’s 2025 Executive Budget Proposal includes proposed legislation that would end the State’s COVID-19 Paid Sick Leave Law as of July 31, 2024. To date, that legislation has not been voted on or passed, but it may be adopted in the near future.

Bond will continue to monitor developments related to COVID-19 Paid Leave and will publish updated guidance and information as it becomes available. Employers with questions about COVID-19 Paid Leave, or any of the information contained in this memo, can contact Adam Mastroleo, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are in regular contact.

On Jan. 20, 2024, The New York City Council amended the City’s Earned Safe and Sick Time Act (ESSTA), to create a private right of action for employees claiming violations of ESSTA. The new law amends Section 20-924 of the New York City Administrative Code and allows employees to commence a civil action alleging a violation of ESSTA within two years of the date the employee knew or should have known of the alleged violation. The new law becomes effective March 20, 2024.

Currently, the sole redress for employees alleging violations of ESSTA is to submit an administrative complaint to the New York City Department of Consumer and Worker Protection (DCWP). The new amendment will allow employees to file both an administrative complaint with the DCWP and a civil action in a court of competent jurisdiction for the same alleged ESSTA violation. Employees are not required to file an administrative complaint with the DCWP prior to commencing an action in court for alleged ESSTA violations.

If an employee files both a civil suit and a DCWP complaint against the employer for the same alleged ESSTA violation, the DCWP will stay its investigation until it receives notice that the civil suit has been withdrawn or dismissed without prejudice. Once DCWP receives notice of a final judgment or settlement of the civil action, DCWP may dismiss the complaint unless it determines that the complaint alleges a violation that was not resolved by such judgment or settlement. The employee must notify DCWP within 30 days after the time for any appeal has lapsed that such complaint is withdrawn, dismissed without prejudice, or resolved by final judgment or settlement.

Employees who prove a violation of ESSTA may recover:

• Three times the wages that should have been paid pursuant to ESSTA or $250, whichever is greater, for every instance where an employee is not compensated properly by the employer for safe and sick time taken.
• $500 for every instance where an employee requested safe and sick time that was (a) wrongfully denied by the employer and not taken by the employee; (b) wrongfully conditioned upon a requirement that the employee search or find a replacement worker prior to approval; or (c) wrongfully subjected to a requirement that the employee work additional hours to make up for the original hours for which the employee was scheduled, without the mutual consent of the employer and employee.
• Full compensation for wages and benefits lost, plus $500 and equitable relief as deemed appropriate, for every instance of retaliation and interference.
• $2,500, full compensation, including wages and benefits lost; and equitable relief, including reinstatement, as deemed appropriate for each instance of unlawful discharge from employment.
• $500 for each employee covered by a policy that does not provide or allow for the use of safe and sick time pursuant to ESSTA.

In addition, the amendment permits an employee to seek injunctive relief and declaratory relief, attorney’s fees and costs, and any other relief that the court deems appropriate.

The amendment also expands ESSTA’s civil penalty provisions for entities found to be in violation of provisions regarding the accrual and use of sick or safe time or retaliation, on a per employee basis, of up to $500 to be paid to the city for the first violation. Subsequent violations that occur within two (2) years of any previous violation, entities will be liable of up to $750, not to exceed $1,000 for each succeeding violation.

If you have any questions about the information presented in this news alert, please contact Lance Willoughby-Hudson, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.

A new Occupational Safety and Health Association (OSHA) rule, “Improve Tracking of Workplace Injuries and Illnesses,” recently took effect on Jan. 1, 2024. This rule requires certain high-hazard employers with 100 or more employees to electronically submit OSHA Forms 300 and 301 by March 2 of each year—starting this year. Below is a list of general questions and answers relating to the new rule.

Read More >> New Year, New OSHA Reporting Rule

Governor Hochul’s 2025 Executive Budget Proposal released last week includes a number of significant legislative proposals that would directly impact employers in New York state.

Read More >> COVID Paid Leave Repeal, New Paid Prenatal Leave, Paid Breaks for Breastmilk Expression and More: Labor & Employment Law Proposals to Watch in Gov. Hochul’s Executive Budget Proposal

On Jan. 17, 2024, the New York State Appellate Division, Second Department decided a pivotal case for employers after years of uncertainty. In Grant v. Global Aircraft Dispatch, Inc., the Second Department decided against following Vega v. CM & Associates Construction Management, LLC, a First Department decision that carried steep consequences for employers in New York for violations of New York Labor Law Section 191 (Section 191).

Read More >> Second Department Weighs in on Employees Fully Paid But Who Seek Liquidated Damages for Not Being Paid Weekly: You Can’t Get Something for Nothing

The Securities and Exchange Commission (the SEC or Commission) made clear in 2023 that it intends to aggressively enforce its whistleblower protection laws, namely Rule 21F-17, which prohibits employers from taking any action that impedes an individual from communicating potential securities violations to the Commission.

Read More >> Eyes on 2024: Will the SEC Continue Its Aggressive Enforcement of Whistleblower Laws in 2024?

As we previously reported here, on Oct. 11, 2022, the U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking that would revise the analysis for determining independent contractor status under the Fair Labor Standards Act (FLSA or Act).  On Jan. 9, 2024, the DOL announced its final rule.

Read More >> U.S. Department of Labor Announces Final “Independent Contractor” Rule

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:

Read More >> Update: The NYSDOL’s Proposed Regulations Increasing the Exempt Salary Levels Have Been Adopted as Final Regulations

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.

Read More >> Reminder: The New York Minimum Wage Will Increase on Jan. 1, 2024