It’s important to stay up to date on all of the employment laws in your state so that you can maintain compliance in your business. We did some of the hard work for you and put some of the most important New York statutes in one place so you can either learn them for the first time or give yourself a refresher. 

However, remember that our summary is not qualified legal advice, laws are always subject to change, and they can vary from municipality to municipality. 

It’s up to you to make sure you’re compliant with all laws and statutes in your area. Consult with a qualified lawyer and/or your local government agencies if you have questions or concerns. 

Here are a few employment laws every New York small business owner should know.

Resources

First, here are a few helpful links and resources for you to bookmark and refer back to:

Leave

  • Sick Days: Employers are not required to provide sick leave, but if they do, they must comply with the terms of the established policy. 
  • New York City Sick Leave: All employees who work in New York City will accrue one hour of paid sick leave for every 30 hours worked.
    • Accrual will begin immediately upon employment. Exempt employees will be presumed to work 40 hours per week unless they are regularly scheduled to work fewer hours, in which case accrual will be based on their usual schedule.
    • Up to 40 hours of unused sick leave will carry over from year to year. Employers who choose to front load 40 hours at the beginning of each benefit year do not need to allow carryover.
  • Medical Leave: No statute, but some employers may be required to provide unpaid medical leave under the federal Family and Medical Leave Act. 
  • Paid Family Leave: New York State’s Paid Family Leave law provides partial income replacement and job protection while workers are on leave for covered reasons. Employers are required to purchase a PFL insurance policy or self-insure.
    • Employees taking Paid Family Leave will receive 60% of their average weekly wage, up to a cap of 60% of the current Statewide Average Weekly Wage of $1,401.17. The maximum weekly benefit for 2020 is $840.70.
  • Vacation Days: Employers are not required to provide vacation days, either paid or unpaid, but if they do, they must comply with the terms of the established policy.
    • An employer is required to pay out any remaining vacation days to an employee when they separate from the position if its policy or contract requires it. 
  • Jury Duty: Employers with more than 10 employees must pay the first $40 of the employee’s daily wages for the first three days of jury service. 
    • An employee may not be penalized or terminated for responding to a jury summons. 
  • Holiday Leave: Private employers are not required to provide paid or unpaid holidays, but if they choose to do so, they must comply with the terms of the established policy. 
  • Voting Leave: Employers are required to provide time off so that an employee has enough time to vote while the polls are open. 
    • The employer must only provide two hours of paid time off. 
    • An employee must give 10 days notice before an election, and employers must post a notice informing employees of their rights to take voting leave in a conspicuous location. 
  • Bereavement Leave: Private employers are not required to provide paid or unpaid bereavement leave, but if they choose to do so, they must comply with the terms of the established policy. 
  • Witness Leave: Employers cannot take any adverse action against an employee for appearing as a witness in a criminal proceeding or exercising their rights under the family court act if the employee provided prior notice. An employer is not required to pay an employee for such leave.
  • Crime Victim Leave: If the employee provides prior notice of the need for crime victim leave, employers cannot take any adverse action against them for appearing as a witness, consulting with the district attorney, or exercising their rights as a crime victim. An employer is not required to pay an employee for crime-victim leave.
  • Volunteer Emergency Responder Leave:  Employers must allow their employees to take leave to serve as a volunteer firefighter or a member of a volunteer ambulance service in response to an emergency. However, if an employee’s absence would cause an undue hardship, the employer can deny the request for leave.
  • Blood and Bone Marrow Donation Leave: Employers in New York that have 20 or more employees must allow their employees to donate blood in one of two ways, at the option of the employer.
    • Employees may use any applicable accumulated leave time to donate blood during work hours two times per year at a convenient time and place set by the employer, including allowing an employee to participate in a blood drive at their workplace. Alternatively, an employer may provide an employee with three hours of leave in any 12-month period to donate blood.
    • Employers with 20 or more employees must provide their employees with leave to donate bone marrow.
    • The combined length of bone-marrow-donation leaves must be determined by a physician, but the employer may limit it to 24 work hours. The employer may require verification by a physician for the purpose and length of each leave.
  • Military Leave: Employers may not discharge an employee for taking military leave.  Additionally,  employers must reinstate an employee who leaves a job, other than a temporary one, in order to perform military service.
    • However, such an employee must receive a certificate of completion, still be qualified for the job, and apply for re-employment in the specified time period:
      • Within 90 days of release from active military duty
      • Within ten (10) days of release from temporary service such as drill or annual training
      • Within 60 days of release from full time or active duty training
  • Military Family Leave: Employers with 20 or more employees are required to grant an unpaid leave of absence of up to 10 days to an employee whose spouse is on leave from service with the armed forces in a combat zone.

Final Paycheck

  • If an employee is discharged from employment by the employer for any reason (fired, terminated, laid off), the employer must pay any remaining wages no later than the next regular pay date. 
    • The employer must mail the wages if the employee requests they do so. 
  • An employer must notify an employee of their termination in writing within five days of the date of termination, as well as the exact date that the employee’s benefits will end. 
  • There are no statutes for payment of wages to employees who quit or who separate from employment due to a labor dispute, but employers should pay employees all wages due by the next pay date to ensure compliance with known laws. 

Minimum Wage

  • The current minimum wage for New York (except for fast food workers) is as follows: 
    • Employers in New York City with 11+ employees: $15 
    • Employers in NYC with 10 or fewer employees: $15 
    • Remainder of downstate: $14
    • Rest of state: $12.50
  • The minimum wage for fast food workers in NYC is $15
  • Fast food workers in the rest of the state receive a minimum wage of $12.75
  • The minimum wage (except that of fast food workers) will increase over the next few years in the following manner: 
    • Remainder of downstate employers 
      • December 31, 2021: $15
    • Rest of New York
      • The New York Labor Commission will increase the minimum wage annually for the rest of New York State starting in 2021 until the minimum wage reaches $15.00. The increase will be announced by October 1 of each year.

Tipped Wages

New York employers are allowed to take tip credits toward their minimum wage obligations for service workers and food service employees. The rates for service workers other than those at resort hotels are as follows: 

  • NYC employers with 11+ employees: $12.50 cash wage, $2.50 credit, $3.25 tip threshold
  • NYC employers with 10 or fewer employees: $2.25 credit, $2.95 tip threshold
    • The rate will change December 31, 2019 to $12.50 cash wage, $2.50 credit, $3.25 tip threshold.
  • Remainder of downstate: 
    • Current: $11.65 cash wage, $2.35 credit, $3.05 tip threshold
    • December 31, 2021: $12.50 cash wage, $2.50 credit, $3.25 tip threshold
  • Remainder of New York State: $9.85 cash wage, $1.95 credit, $2.55 tip threshold
    • December 31, 2020: $10.40 cash wage, $2.10 credit, $2.70 tip threshold

The rates for food service workers are as follows: 

  • NYC employers with 11+ employees: $10.00 cash wage, $5.00 credit, $15.00 total
  • NYC employers with 10 or fewer employees: $9.00 cash wage, $4.50 credit, $13.50 total
  • Remainder of downstate
    • Current: $8.65 cash wage, $4.35 credit, $13.00 total
    • December 31, 2020: $9.35 cash wage, $4.65 credit, $14.00 total
    • December 31, 2021: $10.00 cash wage, $5.00 credit, $15.00 total
  • Remainder of New York State
    • Current: $7.85 cash wage, $3.95 credit, $11.80 total
    • December 31, 2020: $8.35 cash wage, $4.15 credit, $12.50 total

The rates for service employees at resort hotels are as follows: 

  • NYC employers: $12.50 cash wage, $2.50 credit, $8.40 tip threshold
  • Remainder of downstate
    • Current: $10.74 cash wage, $2.15 credit, $7.30 tip threshold
    • December 31, 2020: $11.65 cash wage, $2.35 credit, $7.85 tip threshold
    • December 31, 2021: $12.50 cash wage, $2.50 credit, $8.40 tip threshold
  • Remainder of New York State 
    • Current: $9.85 cash wage, $1.95 credit, $6.60 tip threshold
    • December 31, 2020: $10.40 cash wage, $2.10 credit, $7.00 tip threshold
  • Employers are allowed to require food service employees to participate in a tip pooling arrangement with a set percentage of tips being distributed to each occupation. 
    • Employer-mandated tip pooling is not allowed for tipped employees outside of the food service industry, but a voluntary tip pool may be established. 

Pay Practices

  • The frequency with which employers must pay their employees depends on the type of work, as follows:
    • At least semimonthly on regular paydays the employer chooses in advance for clerical and other workers
    • At least weekly for manual workers, with certain exceptions
    • At least weekly for railroad workers, except for executive employees
    • At least monthly for commissioned salespeople
    • At any agreed-upon interval for bona fide executive, administrative, or professional employees who are properly classified as exempt.
  • Employers must provide the following information with an employee’s wages:
    • Beginning and end dates of the pay period
    • The employee’s name
    • The employer’s name
    • The employer’s address and phone number
    • Their rate of pay
    • The basis of pay (such as by the hour, shift, day, week, salary, piece, or commission)
    • Gross wages
    • Itemized deductions
    • Allowances claimed as part of the minimum wage (such as tip, meal, or lodging allowances)
    • Net wages
    • Nonexempt employees must also receive the following information:
      • The regular hourly rate
      • The overtime rate
      • The number of regular hours worked
      • The number of overtime hours worked
    • If piece rates are used, the number of pieces completed at each rate
    • Railroad workers must also receive the following information:
      • Accrued total earnings
      • Accrued total taxes
      • Daily wages
      • How the employee’s wages were computed

Child Labor

  • Minors 14 and 15 years of age may work after school hours and during vacations, but not in factories. 
    • They may work no more than three hours on school days, and eight hours on other days with a weekly maximum of 18 hours and six days a week between the hours of 7 a.m. and 7 p.m.
    • When school is not in session, they may work no more than 8 hours daily and 40 hours a week between 7 a.m. and 9 p.m. 
  • Minors 16 and 17 years of age may work no more than four hours Monday through Thursday and eight hours on Friday, Saturday and Sunday, as well as holidays.
    • They may work a maximum of 28 hours and 6 days per week between 6 a.m and 10 pm. 
    • When school is not in session, they may work a maximum of 48 hours and 6 days per week between the hours of 6 a.m and midnight. 

Hiring

  • Background Checks: Employers who run background checks should ensure they’re following the requirements of the Fair Credit Reporting Act, which are available here.
  • Credit and Investigative Checks: Employers may not obtain a credit or investigative report on an applicant or employee unless they inform them that they will request it for employment purposes and the employee agrees in writing.
    • This notice must be written with other disclosures required under New York’s fair credit reporting act. Employers must also tell an applicant or employee before they take an adverse employment action even in part because of a credit or investigative report.
  • Arrest and Conviction Checks: Employers in New York state are prohibited from asking applicants about arrests or charges that did not result in conviction. Employers with 10 or more employees are also prohibited from asking about conviction records, unless the conviction relates directly to the job, or hiring an applicant with such a record would be an unreasonable risk to property, personal safety, or public safety.
  •  New York City has a “Ban the Box” ordinance that prohibits employers from inquiring into an applicant’s criminal history prior to a conditional offer of employment. The ordinance also bans job ads that indicate that applicants will be eliminated from consideration or hiring if they have a criminal history. If a New York City employer chooses to run a background check following a conditional offer of employment, they must do the following:
    • Provide the applicant with a copy of the background check(s)
    • Conduct the analysis required by New York state law
    • Provide the applicant with a written copy of their analysis
    • Provide the applicant with three days to respond, while holding the job open.
  • Mandatory Background Checks: New York requires that employers conduct background checks on the following types of employees:
    • School personnel
    • Those who install, service, or maintain security or fire alarms
    • Those working for an entity registered with the federal securities exchange commission or department of law
    • Those working for a clearing corporation that is affiliated with an entity registered with the federal securities exchange commission
    • Private detectives
    • Bail enforcement personnel
    • Childcare center personnel, including volunteers who may have regular and substantial contact with children

Drug and Alcohol Testing

  • New York does not regulate or prohibit testing of applicants or employees. However, use of marijuana for medical purposes must be accommodated unless the employee is in a safety-sensitive position.
  • Employers in New York may not discharge or discriminate against an employee or applicant because of their legal use of consumable products outside of work or their legal recreational activities outside of work.
  • New York City will prohibit pre-employment testing for marijuana, with some exceptions, beginning May 10, 2020.

Meal Breaks, Rest Periods, Overtime

  • The federal overtime rule stipulates that the minimum salary requirement for administrative, professional, and executive exemptions is $684 per week, or $35,568 per year.
  • Employers are required to pay an overtime rate of 1 ½  times the normal rate to non-exempt employees for all hours worked in excess of 40 hours in a workweek.
  • Certain employers such as those operating factories, hotels and restaurants are required to provide employees at least 24 consecutive hours rest in any calendar week. 
  • Employers are required to give meal breaks to all employees who work at least six hours. 
    • Non-factory workers are entitled to a 30-minute lunch break between 11 a.m and 2 p.m. for shifts six hours or longer, or a 45-minute break midway through a shift of more than six hours that starts between 1 p.m and 6 a.m. 
    • Factory workers are entitled to a 60-minute lunch break between 11 a.m. and 2 p.m. for shifts six hours or longer, or a 60-minute break midway through a shift of more than six hours that starts between 1 p.m and 6 a.m.
  • New York law requires that accommodations be made for employees who are lactating. Reasonable unpaid break time (or paid break time, meal time, or both) must be provided to employees to express breast milk for their nursing children.
    • Employers must provide a place (other than a bathroom) that is reasonably close to the employee’s workplace and is shielded and private.
      • This must be provided for up to three years after the child’s birth.

Required Posters

The State of New York requires that employers post the following notices in a prominent location:

  • Criminal Convictions Records
  • Discrimination
  • Attention Employees Minimum Wage Information
  • Deductions from Wages (LS 605) (employers that sell food or beverages)
  • Tip Appropriation (LS 204) (employers that sell food or beverages)
  • Safety & Health (public employees)
  • Equal Pay
  • Public Work/Prevailing Wage Rates (employers who have a public work project)
  • Public Work Project (employers who have a public work project)
  • Construction Industry Fair Play Act (employers in the construction industry)
  • Notice to Employees (regarding Unemployment Insurance)
  • No-smoking signs
  • Notice of Compliance (White) for Workers’ Compensation
  • Notice of Compliance (Blue) for Disability Benefits
  • Form PFL-120 (provided by your insurance carrier when PFL is purchased)

Employment Discrimination

  • Federal law makes it illegal for an employer to discriminate on the basis of:
    • Race
    • Color
    • Age
    • Sex
    • Sexual orientation
    • Gender
    • Gender identity
    • Religion
    • National origin
    • Pregnancy
    • Genetic information, including family medical history
    • Physical or mental disability
    • Child or spousal support withholding
    • Military or veteran status
    • Citizenship and/or immigration status
  • Additionally, the state of New York prohibits discrimination based on the following for employers with four or more employees:
    • Marital status
    • Familial status
    • Traits historically associated with race, including hair texture and hairstyles
    • Domestic violence or stalking victim status
    • Legal use of consumable products outside of work hours
    • Legal recreational activities outside of work hours
    • Political activities
    • Child or spousal support withholding
    • Wage garnishment for consumer debt
    • Non-conviction arrest records, unless pending
    • Wearing a depiction of the American flag or displaying an American flag at the employee’s workstation (1+ employees)
    • Conviction record, unless directly related to the job or could endanger the public (10+ employees)
  • If an employer provides funeral or bereavement leave for the death of an employee’s spouse or the spouse’s child, parent, or other relative, then they must provide the leave for the death of an employee’s same-sex partner or their partner’s child, parent, or other relative.
  • New York’s pay equity law requires pay equity among all the following classes: age, race, religion, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status.
    • Pay must be equal for substantially similar work, when viewed as a combination of skill, effort, and responsibility and when performed under similar working conditions in the same establishment.
    • Differentials in pay may be based on:
      1. A seniority system
      2. A merit system
      3. A system which measures earnings by quantity or quality of production
      4. A bona fide factor other than sex, such as education, training, or experience

Click here to read our blog on what is acceptable and unacceptable to ask during an interview. 

Termination

  • New York is an employment-at-will state, which means that without a written employee contract, employees can be terminated for any reason at any time, provided that the reason is not discriminatory. 
  • As stated before, an employer must notify an employee of their termination in writing within five days of the date of termination, as well as the exact date that the employee’s benefits will end. 

Layoff and Reduction in Force

The WARN Act requires that employers provide 90 days’ written notice to affected employees and their representatives, the New York State Department of Labor, and the Local Workforce Investment Board before certain workforce reductions. The notice requirement applies to employers with 50 or more full-time workers in New York State in the following situations:

  • Closings affecting 25 or more workers
  • Mass layoffs involving 25 or more full-time workers if they comprise at least 33% of all workers at the site
  • Mass layoffs involving 250 or more full-time workers
  • More than a 50% reduction of work hours each month during any six-month period
  • Relocations (i.e., the removal of all or substantially all operations to another location 50 miles or more away)

Whistleblower Protection

Employers may not discharge or discriminate against an employee for doing any of the following:

  • Reporting or threatening to report a violation of the law that creates a danger to public health or safety if the employee gave the employer a chance to fix the violation
  • Participating in an investigation regarding a violation of the law
  • Refusing to participate in a violation of the law
  • Exercising their rights under the Labor Law

COBRA

  • COBRA is a federal law that allows many employees to continue their health insurance benefits after their employment ends. Because federal COBRA only applies to employers that have 20 or more employees, many states have adopted their own versions of the law, which are known as “mini-COBRAs.”
  • New York’s mini-COBRA allows employees to continue their coverage for up to 36 months. Each individual certification of coverage must contain a notice of the right to continue coverage. Employers should provide an employee with a notice of their COBRA rights by first class mail as soon as a triggering event occurs.

Shift Scheduling

  • Employees who report for work by request of the employer on any day shall be given call-in pay. This means they must be paid regular wages for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less. 
  • Hourly workers whose workday takes place over more than 10 hours are entitled to an extra hour’s pay. 
    • The 10 hours includes an off-duty time, meal breaks and time between shifts. 
  • Most employers must allow their employees to have at least 24 consecutive hours off from work every calendar week.
    • Before operating on Sunday, employers must notify each employee which day of the week they have for their day of rest. Unless otherwise exempted, employees may not work on their rest day.

Miscellaneous Laws

Uniforms

  • Employers may require employees to purchase and maintain uniforms required on the job. However, the cost of purchasing or maintaining the uniform (e.g. daily laundering, dry cleaning) must not bring the employee below the minimum wage.
  • Uniforms required for minimum wage employees must be provided and maintained by the employer, or the employer must pay the employee for the cost of purchase and maintenance.
  • Ordinary clothing (such as black trousers and white shirts) are generally not considered uniforms for the purpose of cost shifting.

Collecting Biometric Data

  • Employers may not make fingerprinting a condition of employment.
    • They may request that employees submit to fingerprinting, but if an employee refuses they may not be terminated or discriminated against in any way as a result.
  •  Employers who wish to use biometric data for timekeeping or other purposes may instead require different identifiers, such as scans of facial or hand geometry.

Employee Monitoring

Employers may not video record in any location where an employee would have a reasonable expectation of privacy (e.g., restroom, locker room, area designated for changing, lactation room).

Sexual Harassment Training

  • All employers must adopt and distribute a sexual harassment prevention policy and provide interactive sexual harassment prevention training to all employees.
  • The state has provided compliant materials, so employers will not need to create their own. The materials – including a model policy, training materials, poster, and complaint form – can be found here.
  • Employers have the option of creating their own policy and training program, so long as it meets the requirements set by the state.
  • Employees should receive training on at least a yearly basis.The training may be presented to employees individually or in groups. It may be presented in person, on the phone, or as a webinar or recorded presentation. The training should do as many of the following as possible to meet the requirement that it be interactive:
    • Ask employees questions as part of the program
    • Allow employees to ask questions, with answers provided in a timely manner
    • Require feedback from employees about the training and the materials presented

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