Andrew I. Bart in Legal/Financial on April 19, 2022
A surge of new employment laws and regulations is on the way this spring, and co-op and condo boards need to be prepared. Here are the big ones:
Arbitration. A new federal law voids pre-dispute arbitration agreements that require a party to arbitrate sexual assault or sexual harassment claims. An employee, even though he or she may have previously entered into such an agreement with an employer, will have the option to litigate his or her state or federal harassment claims either in the courts or through arbitration. While New York State enacted a law in 2018 that invalidated such agreements, there was a question about whether it was preempted by the federal law. This new federal law takes precedence.
Secondly, New York is establishing a hotline that, no later than July 14, 2022, will enable individuals to be in contact with pro bono attorneys who will provide sexual harassment-related counsel upon request. Employers will have to include the hotline number in their employment policies.
Whistleblowers. New York State recently expanded the scope of its general employee-whistleblower law, which prohibits employers from retaliating against employees who report concerns about violations of public health or safety. The law now protects whistleblowers who raise a concern regarding any “violation of law, rule or regulation.” The employee no longer has to afford the employer an opportunity to remedy the situation before reporting the alleged violation; the employee only has to “reasonably” believe that a supervisor is aware of the situation and will not correct it.
The law was further amended to cover former employees and independent contractors and to punish employers who threaten or take any action that would adversely affect the whistleblower’s future employment. Another new wrinkle is that employers must post written notice of the law in a location frequented by employees and job applicants.
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Human rights. There are also changes coming to the New York State Human Rights Law. First, an employer cannot publicly disclose an employee’s personnel files because he or she has opposed discriminatory practices by an employer or filed a complaint, testified or assisted in any judicial proceeding. If an employer does so, that will be considered an unlawful retaliation. However, an employer will not be penalized for disclosing the file during the judicial proceeding itself.
Employee monitoring. As of May 7, 2022, New York State is also requiring that employers who electronically monitor employees’ phone calls, emails and/or internet usage give prior written notice of that monitoring to all new employees. The employer must also obtain a written acknowledgment from the employee before monitoring such communications. Employers do not need to give notice or receive acknowledgement from existing employees. However, employers must post written notice regarding the monitoring where all employees can see it. I recommend that employers put notice of a monitoring policy in an employment handbook and send it to employees via email.
Salary range. The New York City Council is mulling changes to a law that would have required employers, as of May 15, 2022, to include salary ranges in any job posting. The law, which will likely become effective on Nov. 1, 2022, will apply only to employers with 15 or more employees. The salary range must include a minimum and maximum amount the employer believes “in good faith” it will pay for the job, promotion or transfer at the time of the posting. “Salary" includes only the base wage or rate of pay — and not other forms of compensation or benefits. Advertisements for fully remote positions would be exempt from the law. It does not prohibit employers from hiring without an advertisement, nor does it require them to create an advertisement for a particular position.
Given this surge of new employment regulations, co-op and condo boards should consult an attorney about the best ways to protect their interests.
Andrew I. Bart is an attorney at Borah, Goldstein, Altschuler, Nahins & Goidel.
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