The New York Employment Law Guide

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; 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.

Employers who run background checks should ensure they’re following the requirements of the Fair Credit Reporting Act, which are available here.

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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).

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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