Major Employment Law Changes for 2022

MAJOR EMPLOYMENT LAW CHANGES FOR 2022

Employers need to be aware of significant changes to human resources and employment law in effect this year.  In many instances, employers will need update their policies and employment handbooks to come into compliance with these new and revised requirements.  We summarize each of these changes and provide a “Skinny” for each suggesting compliance steps employers should take.

Increased State Minimum Wage and Overtime-Exempt Salary Levels.  As of December 31, 2021, the Empire State increased the minimum wages, hospitality tip credits, and the minimum salary levels for overtime-exempt employees.

The minimum hourly wage rates are now as follows:

• New York City - the rate remains $15.00 per hour.
• Nassau, Suffolk, and Westchester counties –increased from $14.00 to $15.00 per hour.
• Remainder of New York State –increased from $12.50 to $13.20 per hour.

There is an exception for individuals working at fast-food establishments anywhere in New York State.  The minimum wage for these employees was increased to $15.00 per hour on July 1, 2021, and were not further increased on December 31, 2021.

The minimum hourly rates for tipped employees in the hospitality industry (that is, businesses running a restaurant or a hotel) are now as follows:

• New York City - food service workers remain at $10.00 in cash with a $5.00 tip credit per hour.
• Nassau, Suffolk, and Westchester counties:  food service workers increased from $9.35 in cash with a $4.65 tip credit per hour, to $10.00 in cash with a $5.00 tip credit per hour.
• Remainder of New York State (other than New York City):  food service increased from $8.35 in cash with a $4.15 tip credit per hour, to $8.80 in cash with a $4.40 tip credit per hour.
• New York City - service employees workers remain at $12.50 in cash with a $2.50 tip credit per hour.
• Nassau, Suffolk, and Westchester counties:  service employees increased from $11.65 in cash with a $2.35 tip credit per hour, to $12.50 in cash with a $2.50 tip credit per hour.
• Remainder of New York State (other than New York City):  service employees increased from $10.40 in cash with a $2.10 tip credit per hour, to $11.00 in cash with a $2.20 tip credit per hour.

The minimum salary threshold to classify employees as exempt from overtime under the executive and administrative exceptions:

• New York City: is unchanged from the $1,125.00 weekly threshold (which went into effect on December 31, 2019).
• Nassau, Suffolk, and Westchester counties:  weekly threshold for executive and administrative employees increased from $1,050.00 to $1,125.00.
• Remainder of New York State (other than New York City):  weekly threshold for executive and administrative employees increased from $937.50 to $990.00.   

Under New York law there is no minimum salary requirement for the professional employee exemption.  As such, employers classifying employees as exempt professionals must comply with the federal weekly salary threshold, currently set at $684.00, unless an exemption from this salary requirement otherwise applies.

THE SKINNY:  Review your pay scales to ensure compliance and that your annual wage rate notifications reflect these new rates.  This is also a good opportunity to review how you’ve classified your exempt employees and verify that they still qualify for such exemptions, both in terms of their substantive job duties and that they meet or exceed the new minimum salary thresholds.

Expanded Whistleblower Protections.  New York amended and significantly expanded its Whistleblower law in November of last year.  These increased protections became effective on January 26, 2022, and include the following:

Expanding the definition of an “employee.”  The Whistleblower protections will no longer only apply to individuals currently employed by the employer but will also include former employees and independent contractors.

Broadening the scope of protected activities.  The law prohibits employers from retaliating against any employee (remember, that now includes former employees and independent contractors) because they reasonably believe the employer’s action violates the law or poses a substantial and specific danger to the public health or safety.  Before this change, employees were only protected for reporting or complaining about actual violations of the law.  Under the old Whistleblower law, a reasonable, but mistaken, belief that a violation had occurred was not protected; it is now.

Employee Notification.  The amended Whistleblower law reduces the notification an employee must give their employer to trigger the law’s protections.  Employees now only need to make a “good faith effort” to notify their employer of any potential violation, before providing the employer an opportunity to cure.  Additionally, employees do not need to notify the employer of a potential violation if: (1) there is imminent and serious danger to public health and safety; (2) the employee reasonably believes that telling the employer would result in the destruction of evidence or concealment of the activity; (3) the activity could reasonably be expected to lead to the endangering of a minor; (4) the employee reasonably believes that reporting to the supervisor would result in harm to the employee or other person; or (5) the employee reasonably believes that the supervisor is already aware of the activity, policy or practice and will not correct such activity, policy, or practice.

Expanding what is a “retaliatory act.”  The amended Whistleblower law broadens the definition of what is retaliatory action as including “an adverse action taken by an employer or his or her agent to discharge, threaten, penalize, or in any other manner discriminate against any employee or former employee exercising his or her rights under this section.”

Giving Employees more time to sue for Whistleblower protection.  The amended law extends the statute of limitations for bringing a Whistleblower claim from one to two years, running from the date of the claimed retaliatory act against the employee.

Providing employees with the right to jury trial & enhanced remedies.  The amended law now entitles employees to a jury trial, and further expands their available remedies and damages.  These include front pay in lieu of reinstatement, punitive damages for willful, malicious, or wanton violations and eligibility for a civil penalty not to exceed $10,000.00.

Posting requirement.  Employers must post notice of the protections, rights, and obligations of employees under the Whistleblower law.  This notice must be posted conspicuously and in “accessible and well-lighted places.” (So, make sure the lights are working and the bulletin boards in your break, lunch and locker rooms are easily readable).

THE SKINNY:  Employers should immediately update their Whistleblower policies and those sections of their handbooks to reflect these expanded protections.  Of course, notice of these protections, rights and obligations must be posted.  Be sure that the lights in your break, lunch and locker rooms are working and that your bulletin boards are easily readable (don’t allow the notice to be obscured by other postings, such as wage and hour notices or employee flyers offering guitar lessons or puppies for adoption).

Electronic Monitoring of Employees.  In November of last year, New York enacted a law that, as of May 7, 2022, requires Empire State private employers to give their employees prior written notice that they are being subjected to electronic monitoring. 

The notice can also be an electronic record (such as an email) or in another electronic form, but it must be acknowledged by the employee either in writing or electronically.  Paper acknowledgement forms or employee replies to the email versions of the notice should be saved to each employees’ personnel file.  Employers must also post the notice of electronic monitoring in a conspicuous place (again, use those bulletin boards) that is readily available for employees subject to electronic monitoring.

As for the substance of the notice, it should advise employees that all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by employees using any electronic device or system (e.g., computer, telephone, smart device, wire, radio or electromagnetic, photoelectronic or photo-optical systems) may be subject to continual monitoring by any lawful means.

Employers violating this section are exposed to a maximum civil penalty of $500.00 for the first offense, $1,000.00 for the second offense, and $3,000.00 for the third and each subsequent offense.  The law isn’t clear whether each instance of monitoring without notice, or failure to provide the required notice, is a violation.  Either way, the law creates the potential for the non-compliant to quickly accumulate significant fines.

This law contains several carve outs.  These include processes: designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage; that are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual; and that are performed solely for the purpose of computer system maintenance and/or protection.

THE SKINNY:  Regardless of whether you plan to monitor your employees’ telephone, smart phone, tablet, video conferencing, email, or internet usage, as of May 7, 2022, employees should be given written notification that they are subject to such monitoring, their acknowledgement of receipt of the notice should be collected and saved, with a copy of the notice being conspicuously posted in the workplace.  You should also make corresponding updates to their policies and handbooks.

Airborne Infectious Disease Exposure Prevention Plans.   In response to the COVID-19 Pandemic Last year, New York passed the “HERO” Act.  The Act mandates employers to adopt, distribute and implement airborne infectious disease exposure prevention plans.  Employers may either use one of the various industry-specific model plans released by the New York State Department of Labor or by establishing an alternative plan meeting or exceeding specified minimum requirements.  Employers must implement their plans whenever an airborne infectious disease is designated by the New York State Commission of Health as a highly contagious communicable disease presenting a serious risk of harm to the public health.  Currently, the New York State Commission of Health has so designated COVID-19, and employers must continue implementing their plans through at least January 15, 2022.  The commissioner will decide whether to extend the designation further into the new year.  Given the transmission rates of the Omicron variant, we suspect such an extension is likely.

The Act also requires employers to give a copy of the plan to new hires, post it in a prominent location (such as bulletin boards in lunch, break and locker rooms) and include it in their employee handbook. Unionized employers are subject to additional compliance requirements.  Employers failing to comply with the Act face fines assessed by the state, along with potential private lawsuits from employees.

THE SKINNY:  If you haven’t already adopted a Plan, do so immediately to comply with the Act and limit your exposure to fines and possible liability from private lawsuits brought on behalf of their staff by enterprising employee attorneys.

COVID-19 Vaccine Paid Leave.  Last year, former Governor Cuomo signed into law a requirement that public and private employers give their employees up to four hours of paid leave per vaccination for getting a COVID-19 jab, unless an employee is afforded greater leave under a collective bargaining agreement or as otherwise authorized by an employer.  This law remains in effect through December 22, 2022.

The leave must be paid at the employee’s regular rate of pay for each COVID-19 vaccination (boosters included).  This leave cannot be charged against any other leaves, such as paid time off, sick leave or any rights and benefits which employees may have under a collective bargaining agreement.  This leave must be provided in addition to any such leave.

THE SKINNY.  Given the current trends in COVID-19 case resurgences, employers should be aware of their continuing obligation throughout most of 2022 to provide paid vaccination leave and the likelihood that employees will continue using this leave.  Employers should update their policies and handbooks to reflect this continuing obligation.

Paid Family Leave Law to Include Care For Siblings.  New York’s Paid Family Leave law (the “PFL Law”) provides eligible employees up to 12 weeks of job protected, paid time off to bond with a newly born, adopted or foster child; care for a family member with a serious health condition; or to assist with family situations when a spouse, domestic partner, child, or parent is deployed on active military service.  As of now, the PFL Law covers caring for a spouse, domestic partner, child, parent, parent-in-law, grandparent, or grandchild with a serious health condition.  However, starting next year on January 1, 2023, the PFL Law will include an employee’s biological, adopted, step, and half-sibling(s).

THE SKINNY:  Employers should update their leave policies and vacation/PTO/sick time provisions of their handbooks to reflect this expansion of the PFL Law.

This article is intended to be used for informational purposes only. Legal advice is neither implied by the author nor should be inferred by the reader. If you have specific legal questions, you should consult with your attorney.

Jeffrey Sculley, who may be reached at jsculley@cmrlaw.com, is an attorney and counselor at law focusing his practice on representing commercial and residential landlords; providing backroom human resource and employment support to businesses and not-for-profits; appealing adverse trial-court and administrative decisions; counseling clients on logo and brand development and trademark protection; and representing clients in all types of administrative, regulatory and compliance matters, before governmental agencies and administrative hearing officers and law judges.