Flurry of Recent New York Employment Law Developments Keeps Employers on their Toes

In September, we published an Alert concerning the New York Retail Workers Safety Act that will take effect on March 4, 2025. In addition to those new obligations for retail employers, all New York employers need to be aware of several other recent workplace law developments.

Paid Prenatal Personal Leave

On April 20, 2024, Governor Kathy Hochul approved the $237 billion New York State Budget for Fiscal Year 2025 (the “Budget”).

The Budget created a new form of paid leave for New York employees. Beginning on January 1, 2025, employers will be required to provide employees with up to 20 hours of paid leave for “Prenatal Personal Leave,” which is defined as “leave taken for the health care services received by an employee during their pregnancy or related to such pregnancy.” The legislation creates this new leave entitlement by amending the existing New York State Paid Sick Leave Law, New York Labor Law Section 196-b (“Section 196-b”). Below are some answers to common questions about this new leave requirement and employers’ associated obligations.  

Q:     Who is covered?

A:     As with the existing Paid Sick Leave obligation, this new Prenatal Personal Leave obligation will apply to virtually all private sector employees in New York, even those who are part-time or temporary. However, it appears that this leave will only be available to an employee who is pregnant and not, for example, the spouse of a pregnant person.

Q:     How much leave will an employee be eligible for in a benefit year?

A:     Employees will be eligible for up to 20 hours of paid Prenatal Personal Leave per 52-week period (half of the 40 hours proposed by Governor Hochul at the outset of budget negotiations). This is in addition to the Paid Sick Leave provided under Section 196-b. However, unlike Paid Sick Leave, which generally accrues at a rate based on hours worked, it does not appear that the employee must accrue Prenatal Personal Leave by working.

Q:     For what reasons may an employee take paid prenatal personal leave?

A:     Employees may use Prenatal Personal Leave for reasons such as physical exams, medical procedures, monitoring, testing, and discussions with health care providers related to their pregnancy. 

Q:     How much of the employee’s pay will the employee receive for hours taken as paid prenatal personal leave? 

A:     The employee must be paid the employee’s regular rate of pay or the applicable minimum wage rate, whichever is greater, for Prenatal Personal Leave.  The statute also specifies that Prenatal Personal Leave may be taken in hourly installments.

Q:     Are employers obligated to pay employees the value of their unused paid prenatal personal leave upon separation of employment?

A:     No.  The statute makes clear that employers are not required to pay out any unused Prenatal Personal Leave at the end of the employment relationship. However, this should be clearly stated in the employer’s written policy on Prenatal Personal Leave.

The Budget does not address all of the considerations necessary to implement the new leave requirement, including any requirements for carryover or payout at the end of the benefit year, for employee notice to the employer prior to taking leave, and for documentation. We anticipate that additional guidance from the New York State Department of Labor will be forthcoming.

1. Sunset of New York COVID-19 Paid Sick Leave Law

The Budget also provided that New York State’s long-standing COVID-19 Paid Sick Leave Law will finally come to an end on July 31, 2025.  Notably, this sunset date is a year later than that originally proposed by Governor Hochul during budget negotiations. However, as Governor Hochul herself noted, employees are only eligible for this leave under the law’s terms if they or their minor child is subject to a mandatory or precautionary order of quarantine or isolation because of COVID-19.

2. Paid Lactation Breaks Now Required

In addition, the Budget provided that, beginning on June 19, 2024, New York employers are required to provide paid lactation breaks to their employees. The Budget amended Section 206-c of the New York Labor Law, which has long required employers to provide “reasonable unpaid break time” to allow an employee to express breast milk at work for up to three years following the birth of the employee’s child.  

Now, employers must provide at least a 30-minute paid lactation break each time a covered employee has reasonable need to express breast milk. In addition, employees must be permitted to use existing paid break time or meal periods for lactation break time in excess of the paid 30-minute break. 

3. Disability Benefits Remain Capped at Current Levels

Importantly, the Budget did not include changes to the New York short-term disability benefit program that Governor Hochul originally proposed. Weekly wage replacement benefits for employees eligible for short-term disability have remained capped at $170 per week. 

4. New York State Freelance Isn’t Free Act Now in Effect

New York State’s Freelance Isn’t Free Act (the “Act”), about which we published an Alert on April 18, 2024, went into effect August 28, 2024. The Act requires every New York State business that retains the services of a freelance worker, as defined in the Act, to memorialize the terms of its relationship with the freelance worker in a written contract if:

• the cost of a single project is equal to or exceeds $800, or
• the freelance worker has provided multiple services to the business within a 120-day period that equals or exceeds $800 in the aggregate.

The Act specifies the terms that must be set forth in the written contract between the business and the freelance worker. It also requires that the freelance worker be paid timely under the terms of the contract, and prohibits employers from discriminating against a freelance worker for exercising that individual’s rights under the Act.

Notably, the New York State Legislature amended the Act before it took effect by moving it from the New York Labor Law, which the New York State Department of Labor enforces, to the New York General Business Law, which New York State Attorney General (“NYSAG”) enforces. Accordingly, freelance workers who believe that a business has violated the Act may file a complaint with the NYSAG. The NYSAG will investigate such complaints and, if appropriate, award relief, including civil and criminal penalties. Alternatively, a freelance worker alleging a violation of the Act may bring a claim in any court of competent jurisdiction. A freelance worker who prevails on a claim under the Act may receive double damages, reasonable attorneys’ fees and costs, injunctive relief, and other remedies as may be appropriate. A freelance worker who prevails in a retaliation claim can recover statutory damages equal to the value of the underlying contract.

Further, if reasonable cause exists to believe that a business has engaged in a pattern or practice of violations of the Act, the NYSAG may commence a civil action on behalf of the State and seek civil penalties of up to $25,000, injunctive relief, and “any other appropriate relief.”

5. New York City Workers’ Bill of Rights Now in Effect

New York City’s Workers’ Bill of Rights went into effect on July 1, 2024. Employers in New York City must now provide their employees with the multilingual “Know Your Rights at Work” notice that is available from the NYC Department of Consumer and Worker Protection (“DCWP”), and which refers employees to the DCWP’s Workers' Bill of Rights webpage. Employers must also post a copy of the notice in the workplace as well as online and in mobile applications. Such postings must be in the primary languages of five percent of the employees at any location of the employer in NYC, if the DCWP makes a notice in that language available. The DCWP can impose civil penalties on employers for failing to comply with these requirements.

6. Agreements to Shorten NYC Human Rights Law Statutes of Limitation Are Not Enforceable

An amendment to the New York City Human Rights Law (“NYCHRL”) that became effective on May 11, 2024, now prohibits provisions in employment agreements that shorten the period in which claims and complaints of unlawful discriminatory practices, harassment, or violence may be filed, or in which civil actions may be commenced, under the NYCHRL. The NYCHRL provides that employees have one year in which to file an administrative complaint or claim with the New York City Commission on Human Rights (the “Commission”) for unlawful discriminatory practices, harassment, or violence. However, under the NYCHRL employees have three years in which to file with the Commission an administrative complaint or claim of gender-based harassment. The NYCHRL further provides that employees have three years in which to commence a civil action in court under the NYCHRL.

Section 8-109 (e-1) of the NYCHRL now provides that any provision of an agreement involving an employer, employment agency, or agent thereof pertaining to terms of employment that purports to shorten the periods in which an employee may file an administrative complaint or claim with the New York City Commission on Human Rights is unenforceable and void as against public policy.

In addition, Section 8-502 (d-1) of the NYCHRL now provides that any provision of an agreement involving an employer, employment agency, or agent thereof pertaining to terms of employment that purports to shorten the periods in which am employee may commence a civil action in court under the NYCHRL is unenforceable and void as against public policy.

The amendment to the NYCHRL further expressly provided that even though an agreement’s provision shortening the statute of limitations is no longer enforceable, the other provisions of such agreement remain enforceable.

If you have any questions about these developments or their implications for your organization, please contact Glen P. Doherty (518.433.2433), Charles H. Kaplan (646.218.7513), Kinsey O’Brien (716.848.1287), or any other member of the Hodgson Russ Labor & Employment Practice.

Disclaimer:

This client alert is a form of attorney advertising. Hodgson Russ LLP provides this information as a service to its clients and other readers for educational purposes only. Nothing in this client alert should be construed as, or relied upon, as legal advice or as creating a lawyer-client relationship.