Employer Obligations and Employee Rights
Under Recently Promulgated NYC and NYS Laws In The Workplace

©Dean L. Silverberg Epstein Becker & Green, P.C.

2018

New York City Bans Inquiries About Salary History

Introduction

Effective October 31, 2017 all New York City employers (subject to some very narrow exceptions) are prohibited from (i) requesting a job applicant’s salary history or (ii) using a job applicant’s salary history to determine his or her salary, benefits, or other compensation during the hiring process (the “New Law”). This New Law applies to employers regardless of the number of employees.

A Pertinent Definition

“To inquire” means to communicate (in writing or otherwise) any questions or statements directed to: an Applicant; a Current/Former Employer; a Current/Former Employee or Agent of a Current/Former Employer

Prohibitions

First, what is prohibited here?

It is unlawful to inquire about an applicant’s salary history.  Similarly, an employer cannot rely on salary history to determine salary, benefits or other compensation.  Further, it prohibits a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history.

Permissible Conduct

So, just what is permitted? The New Law does not prohibit the employer and the applicant from talking about salary and other compensation and benefits being offered in the following manner. The employer can:

• Inform the applicant about the anticipated salary of the position to which the applicant has applied;
• Inquire about and discuss the applicant’s salary expectations, including whether any unvested equity or deferred compensation would be forfeited by the applicant for leaving the current employer;
• Consider the prior salary of a current employee who is seeking an internal transfer or promotion; and
• If the applicant voluntarily discloses, without any prompting or encouragement whatsoever, his or her salary, the employer may both verify and consider the salary. CAUTION: The disclosure must be purely, completely and unequivocally voluntary.

New York State Paid Family Benefits Law

Introduction

Beginning January 1, 2018, New York’s Paid Family Law Benefits Law (“PFLBL”), in accordance with a graduated schedule of leave over the next several years, will by 2021, provide up to 12 weeks of job protected, paid family leave (“PFL”) during a 52-week calendar period for most employees working in New York State who seek to:

• care for a family member  with a serious health condition,
• bond with their newborn or newly placed adoptive or foster child, or
• address certain exigencies arising when a family member is called to active military service.

(Note: As of January 1, 2018, the law will provide 8 weeks of leave)

Eligibility

Employees become eligible for the PFLBL upon working either:

• 26 consecutive weeks (for employees whose regular employment schedule is 20 or more hours per week) or
• 175  days (for employees whose regular employment schedule is less than 20 hours per week).

The PFLBL only applies to employees who work in New York State. Employees who primarily work out of New York State, but only “incidentally”  work in New York are not covered by this law.

Amount of Leave

The length of available leave benefits, and amount of weekly benefits, will increase yearly, on the following schedule:

Note: Based on the current NYS average weekly wage of $1,305.92, the maximum amount of PFL benefits will be $652.96 per week as of January 1, 2018. Employers are not responsible for actually providing pay to employees during a period of PFL. Instead employees will receive PFL benefits through an insurance policy that may be funded by employee payroll deductions that will be self-funded or administered by an insurance carrier.

Summary of New York City’s “Ban the Box” Law

Introduction

The NYC Fair Chance Act (“FCA”), which became effective October 27, 2015, makes it an unlawful discriminatory practice to inquire about or consider the criminal history of job applicants until after extending conditional offers of employment. Once a conditional offer of employment has been made to the applicant, employers may inquire about an applicant’s record of criminal convictions.  An employer may also inquire about arrests – BUT only those arrests currently pending, either directly or through a background check.

Rescinding The Conditional Offer of Employment

If the employer ultimately decides not to hire the applicant based on the results of such inquiry, or background check, the employer will be well advised to proceed under the FCA as follows:

1. Provide the applicant with a written copy of the results of the inquiry and/or background check.
2. Perform a full and detailed analysis of the “Eight-Factor Test” set forth in Article 23-A of the New York Correction Law and provide the applicant with a copy of the analysis, the documents the employer relied upon, and a detailed statement as to the reason(s) for the adverse action. This analysis must take into account under the Correction Law the following:
3. The public policy of the State of New York to encourage the employment of persons previously convicted of one or more criminal offenses;
4. The specific duties and responsibilities necessarily related to the employment sought;
5. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or  ability to perform one or more such duties or responsibilities;
6. The time which has elapsed since the occurrence of the criminal offense or offenses;
7. The age of the person at the time of occurrence of the criminal offense or offenses;
8. The seriousness of the offense or offenses;
9. Any information produced by the person, or produced on his/her behalf, in regard to his/her rehabilitation and good conduct; and
10. The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public

Note that if the employer uses a third party to conduct the criminal background check that will implicate the statutory protections for the employee, and corresponding obligations of the employer, under the Federal Fair Credit and Reporting Act and its state counterparts, strict adherence to that law is required.  Therefore, please consult your in-house or outside employment law counsel for the specific requirements, as non-compliance may subject an employer to potential damages and penalties.

**********************

The author, Dean L. Silverberg, a Shareholder with Epstein Becker & Green, P.C. is a long time contributor to NYC ALA’s NY/NY Newsletter. This article provides highlights and updates of Mr. Silverberg’s presentations at a May 24, 2017 Breakfast Program sponsored by the NYC Chapter on the topics covered. Note that he also reprised and updated his May 24th presentation when he participated in the October 6, 2017 ALA Symposium. Mr. Silverberg was assisted in the preparation of this article by Epstein Becker & Green, P.C. associate Marc-Joseph Gansah.

* This article has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your firm or company.