As 2025 begins, New York employers should keep in mind the following New York State laws taking effect in 2025:

Minimum Wage Increases

• The state minimum wage increased by $0.50 on January 1, 2025 and is scheduled to increase again by $0.50 on January 1, 2026.
• Up from $16.00, the hourly minimum wage for non-tipped workers New York City, Westchester County and Long Island increases to $16.50.
• Up from $15.00, the hourly minimum wage for non-tipped workers throughout the rest of New York State increases to $15.50.

Paid Prenatal Leave

Paid prenatal leave is a separate benefit from NYS sick leave or any other leave policies and laws. Accordingly, employees are entitled to 20 hours of paid prenatal leave in addition to any other available leave options. Employers cannot require an employee to choose one leave type over another or exhaust one type of leave before using paid prenatal leave. 

As mentioned in last week’s article, pregnant employees in New York who work for private employers are eligible for 20 hours of paid leave for prenatal care.

Effective January 1, 2025, New York employers will be required to provide up to 20 hours of paid prenatal leave to pregnant employees during any 52-week period for a long list of pregnancy-related doctor visits.

Effective June 19, 2025, the Fashion Workers Act will require model management companies to register their business within one year of the effective date, i.e., June 19, 2026. The Fashion Workers Act will also impose several duties and responsibilities on both model management companies and clients related to working with models in New York. As detailed herein, the Fashion Workers Act is aimed at providing greater protections for fashion workers and introduces regulations aimed at implementing labor protections for models and creatives.

Such duties and responsibilities include: (1) a fiduciary duty to the models that the model management company represents, (2) conducting due diligence to ensure that any employment or engagement “does not pose an unreasonable risk of danger to the model,” (3) using “best efforts to procure employment” for models signed to the model management company, (4) providing models with copies of the “final agreements” that the model management company has negotiated with clients and “any deal memos memorializing such agreements” at least 24 hours before the start of the model’s services, (5) clearly specifying the items that will be paid for initially by the company but that will ultimately be deducted from the model’s compensation, (6) disclosing any financial relationship that may exist between the model management company and the client, (7) notifying former models if the company collects royalties due to a model whom the company no longer represents, (8) obtaining “clear written consent for the creation or use of a model’s digital replica, detailing the scope, purpose, rate of pay, and duration of such use,” which must be separately obtained from the representation agreement, and (9) posting a physical copy of the company’s certificate of registration in their office, posting a digital copy on the company’s website, and including “the registration number of the [company] in any advertisement, including social media profiles for the [company], for the purpose of solicitation of models . . . and in any contract with a model or client.”

The Fashion Workers Act also outlines a number of prohibitions placed on model management companies, including, among other things, that a model management company cannot “require or collect any fee or deposit from a model” at the time of signing or as a condition to entering into any agreement, and cannot require a model to sign a model management company contract that contains a term greater than three years or renews without the model’s affirmative written consent. Any power of attorney agreement between a model management company and a model must also be optional and “subject to termination by the model at any time and for any reason.”

Clients will also have duties under the Fashion Workers Act, including, among other things, the requirement that they compensate models at an hourly rate at least 50% higher than their contracted rate for anything that exceeds eight hours in a 24-hour period, provide a 30-minute meal break for any employment that exceeds eight hours in any 24-hour period, ensure that any employment that requires nudity or sexually explicit material complies with the requirements set out in Section 52(c)(3) of the Civil Rights Law, “provide adequate levels of liability insurance,” and “obtain clear and conspicuous prior written consent for any creation or use of a model’s digital replica, detailing the scope, purpose, rate of pay, and duration of such use.”

The relevant definitions relating to the Fashion Workers Act include the following:

• A “model management company” is defined as any person or entity in New York that “(a) is in the business of managing models participating in entertainments, exhibitions or performances; (b) procures or attempts to procure, for a fee, employment or engagements [for] models; or (c) renders vocational guidance or counseling services to models for a fee.”
• A “model” is defined as “an individual, regardless of the individual’s status as an independent contractor or employee, who performs modeling services for a client and/or model management company or who provides showroom, parts, or fit modeling services.”
• “Client” is defined as “a retail store, a manufacturer, a clothing designer, an advertising agency, a photographer, a publishing company or any other such person or entity that receives modeling services from a model, directly or through intermediaries.”

Model management companies with five or less employees must pay a $500 registration fee, and those with more than five employees must pay a $700 registration fee. Registration must be renewed every two years. The only exemptions to this are for those model management companies (1) domiciled outside the state, (2) registered in another state with the same, or greater, requirements than the Act, and (3) that do not maintain an office in New York or solicit clients in New York.

Enforcement of the Act will be conducted by the New York State Department of Labor (NYSDOL). Model management companies should be on the lookout for further guidance from the NYSDOL as to the required forms necessary to meet the registration requirements and other relevant guidance relating to the significant compliance burdens. In the meantime, management companies and fashion businesses operating in New York should review existing policies and practices with an eye towards payment and overtime, and should aim to establish comprehensive policies and training programs focused on workers’ rights, financial transparency and anti-harassment, as the legislation may require significant adjustments to current practices.

In the midst of the ongoing regulatory scrutiny of noncompete agreements, an NLRB judge issued a favorable finding to an employer enforcing its employment agreement which contained a noncompete provision.

As a condition of employment, Permobil Inc. gave its workers an employment agreement which contained a noncompete provision barring employees from working for competitors in the United States for one year after leaving the company. Permobil sued a former employee for violating the noncompete provision and alleged that the former employee took top-secret company information to their main competitor.

National Labor Relations Board (“NLRB”) General Counsel brought the matter before the NLRB, contending that Permobil’s employment agreement was overly restrictive and that the noncompete provision violated an employee’s Section 7 rights under the National Labor Relations Act (“NLRA”) by preventing the employee from voluntarily quitting to force their employer to meet their demands.

An NLRB Judge found that, based on the current law, the noncompete provision did not violate the employee’s Section 7 rights, reasoning that the employer had legitimate business reasons for the provision and was not driven by any unlawful motive to retaliate against the former employee. Specifically, the provision was limited to employees working on a certain secret project, indicating the importance of the confidentiality of said secret project and “whose primary thrust is the protection of [Permobil’s] business and technological interests.” The NLRB reasoned: “Any Section 7 rights affected by employees agreeing not to be employed by a competitor is remote and, in any event, overridden by the language spelling out the business reasons for the ban.”

This ruling is favorable to employers and their non-compete provisions and further indicates support for enforcing non-competes. If you have any questions about the subject of this article and its implications for your business, please contact Forework.

On January 2, 2025, the Second Circuit in CompassCare v. Hochul, vacated a lower court’s injunction that halted the implementation of a requirement that New York State employers include a notice in their employee handbooks regarding the prohibition on discrimination based on reproductive health care choices. As a result, employers statewide will once again be required to include such notice in their handbooks.

Background

The Second Circuit’s recent ruling arises from a dispute regarding employers’ obligations to provide their employees with notice of their rights under the Act, titled “Prohibition on discrimination based on an employee’s or a dependent’s reproductive health decision making,” which became effective Jan. 7, 2020. The law was intended to “ensure[] that employees or their dependents are able to make their own reproductive health care decisions without incurring adverse employment consequences.” (See New York State Assembly Bill A584 Summary, Senate Bill 660 Bill Summary; Sponsor Memo).

New York’s Reproductive Health Bias Law

Under the Act, an employer is not permitted to “discriminate nor take any retaliatory personnel action against an employee with respect to compensation, terms, conditions or privileges of employment because of or on the basis of the employee’s or dependent’s reproductive health decision making, including, but not limited to, a decision to use or access a particular drug, device or medical service.” Employers are also prohibited from “accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making, including, but not limited to, the decision to use or access a particular drug, device or medical service, without the employee’s prior informed affirmative written consent.”

The Act requires that employers provide an employee handbook to employees to include a notice of the employees’ rights and remedies under the Act.

Employees claiming a violation of the Act may file a civil action and can recover (i) damages, including back pay and attorneys’ fees and costs; (ii) injunctive relief; (iii) reinstatement; and/or (iv) liquidated damages. The Act also permits civil penalties against an employer that retaliates against an employee for exercising rights under the Act.

Takeaways for Employers

New York employers are required to provide an employee handbook that includes a notification to employees of their rights and remedies under the Act.

For questions or concerns regarding this alert, please contact any member of the Poricanin Law team.

The federal government is urging the U.S. Supreme Court to rule that anti-discrimination protections under Title VII should apply equally to all employees, without special pleading requirements for “reverse discrimination” cases.

In Ames v. Ohio Department of Youth Services, the Supreme Court agreed to clarify the pleading standard for “majority” group plaintiffs (e.g., white, male, or heterosexual employees) who allege discrimination under Title VII of the Civil Rights Act. Currently, five federal circuits apply a heightened standard for these cases, requiring plaintiffs to show “background circumstances” suggesting the employer discriminates against majority groups.

The EEOC and DOJ filed a brief urging the Court to reject this heightened standard, arguing it undermines Title VII’s purpose and legal precedent.

In Ames v. Ohio Department of Youth Services,Marlean Ames, a heterosexual employee, sued for reverse discrimination, claiming her promotion was given to a less-experienced gay woman, and she was replaced by a gay man with less tenure.The district court and Sixth Circuit ruled in favor of the employer, applying a “background circumstances” test for majority group plaintiffs.This test requires evidence, like statistical patterns or a minority group member making the decision, to show potential bias against majority groups. Ames did not provide such evidence.

The EEOC and DOJ argue that the “background circumstances” test is contrary to Title VII’s intent, which focuses on individual discrimination, not group patterns. The EEOC and DOJ further argue that even if an employer ordinarily treats members of the plaintiff’s class well, that is no defense to discrimination against a particular plaintiff. They cite the landmark equal-treatment decision in Bostock v. Clayton County, Ga., where the Court held that Title VII’s protections extend to sexual orientation and transgender status.

Implications for Employers

The Supreme Court will hear oral arguments on February 26. If the Court removes the “background circumstances” requirement, reverse discrimination cases will be easier to pursue in the five circuits that apply the heightened standard. Employers should always continue to base decisions on legitimate, nondiscriminatory reasons and maintain proper documentation to defend against potential claims.

For questions or concerns regarding this alert, please contact any member of the Poricanin Law team.

The Equal Employment Opportunity Commission (EEOC) has recently issued a fact sheet addressing the use of wearable technologies in the workplace. These devices range from fitness trackers to biometric monitors offering employers different ways to enhance company productivity and safety. The EEOC warns that improper use of data collected through these technologies could potentially violate federal discrimination laws.

Wearable Technology

While the fact sheet does not provide a precise definition, wearables are described as “digital devices with sensors worn on the body that track movement, gather biometric data, or monitor location.” These devices include items like:

• Smartwatches or rings that track activity and monitor physical or mental health;
• Environmental or proximity sensors that warn users of nearby dangers;
• Smart glasses or helmets that measure brain activity (EEG) or detect emotions;
• Exoskeletons and other physical aids that reduce fatigue; and
• GPS devices that track location.

Data Collection Concerns

Although employees typically must consent to their employer’s ability to access data collected from wearable devices, consent alone does not absolve the employer from complying with laws like:

• Americans with Disabilities Act (ADA): Restricting collection of disability-related information.
• Genetic Information Nondiscrimination Act (GINA): Preventing collection of genetic data.
• Title VII of the Civil Rights Act (Title VII): Prohibiting discrimination based on collected data.

The data collected by wearable devices, such as heart rate, activity level, or location tracking, may seem harmless but could reveal sensitive information indirectly. For example, an elevated heart rate or irregular sleep patterns could suggest pregnancy or a medical condition or reduced activity levels might lead to assumptions about an employee’s health, age, or disability.

Reasonable Accommodations

The fact sheet reminds employers that any wearable technology policy must allow for reasonable accommodations related to religious beliefs (Title VII), disabilities (ADA), or pregnancy (Pregnancy Workers Fairness Act).

What Should Employers Do Now?

1. Ensure that data collected is directly tied to job performance and business necessity.
2. Work with vendors to ensure wearables provide accurate data for all demographics and avoid bias.

Establish written policies covering: (i) what data will be collected and why, (ii) how data will be stored, used, and shared, (iii) employees’ right to opt-out without fear of retaliation and (iv) employees’ right to request accommodations.

3. Provide training on the proper use of wearable technology and handling sensitive information.
4. Consult with legal experts to assess potential risks and ensure compliance with federal employment laws.

If you have questions about wearable technology policies, please feel free to contact any member of the Poricanin Law team.

On December 27, 2024, the United States Court of Appeals for the Third Circuit (“the Third Circuit”) vacated a portion of the National Labor Relations Board’s (NLRB) order requiring Starbucks to compensate two allegedly wrongfully terminated employees for “all direct or foreseeable pecuniary harms” resulting from Starbucks’ alleged unfair labor practices. The Third Circuit held that such a remedy exceeded the NLRB’s authority under the National Labor Relations Act (NLRA).

The decision stems from a case where two Starbucks employees were terminated after engaging in labor organizing activities. Starbucks claimed the terminations were due to policy violations and poor performance. However, the NLRB found that the terminations were motivated by the employees’ organizing activities, violating Sections 8(a)(1) and 8(a)(3) of the NLRA.

An ALJ found substantial evidence that the terminations and reduction in hours were motivated by anti-union animus, supported by internal communications and the timing of disciplinary actions, and the NLRB adopted the ALJ’s findings and ordered Starbucks to reinstate the employees and compensate them for lost earnings and benefits. Specifically, the NLRB cited the NLRB’s 2022 decision in Thryv, Inc. where the NLRB determined that in cases involving remedies of make-whole relief, the respondent must also compensate affected employees for “all direct or foreseeable pecuniary harms” caused by the unfair labor practices.

The Third Circuit reviewed the case and found, among other things, that the NLRB had exceeded its authority under the NLRA, explaining that the NLRA limits the NLRB’s remedial authority to equitable relief, such as cease and desist orders to entities engaging in unfair labor practices and reinstatement orders that may include back pay, and that the NLRB’s remedial authority does not extend to imposition of consequential damage orders.  In essence, the Third Circuit altered the NLRB’s holding in Thryv that all cases involving a make-whole remedy would necessarily include compensation for the affected employee’s direct or foreseeable pecuniary harms suffered because of the unfair labor practices.

The Third Circuit is the only U.S. Court of Appeals to recognize such a limit, so NLRB decisions that order compensation for direct or foreseeable pecuniary harms will still be enforceable in all states and territories outside of Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands. If you have any questions about the subject of this article and its implications for your business, please contact Forework.

As 2025 begins, New York employers should keep in mind the following updates and key dates as it pertains to employee leave and benefit entitlements:

January 1, 2025: Paid Prenatal Leave

• New York has become the first state in the United States to offer paid prenatal leave.
• Effective January 1, 2025, New York employers will be required to provide up to 20 hours of paid prenatal leave to pregnant employees during any 52-week period for a long list of pregnancy-related doctor visits.
• Employees may use such leave to receive “health care services received by an employee during their pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy.” Fertility care and treatment and end-of-pregnancy care appointments are qualifying reasons for paid prenatal leave, but post-natal or postpartum appointments are not.
• Paid prenatal leave is a separate benefit from NYS sick leave or any other leave policies and laws. Accordingly, employees are entitled to 20 hours of paid prenatal leave in addition to any other available leave options. Employers cannot require an employee to choose one leave type over another or exhaust one type of leave before using paid prenatal leave. 
• Employers cannot ask employees for details about their prenatal appointments, require corroborating documentation, or require employees to disclose confidential information as a condition to requesting use of leave.
• These benefits are available immediately upon hire, and the leave can be taken in hourly increments and is paid at the employee’s regular rate of pay. Employers are not required to pay out unused prenatal care leave at termination.
• The employee contribution rate and benefit amounts under New York Paid Family Leave will increase:
  • the employee contribution rate will increase from .373 percent to .388 percent
  • the maximum weekly benefit amount will increase from $1,151.16 per week to $1,177.32 per week.

• New York employers should ensure this type of leave is available to employees as of its effective date. Employers should also consider adopting a written policy detailing this new leave so employees and managers are aware of these entitlements.

January 1, 2025: Work-Related Stress & Worker’s Compensation Law

• Effective January 1, 2025, New York’s Workers’ Compensation Law will permit all workers to file claims for mental injury based on extraordinary work-related stress.
• This amendment to the Workers’ Compensation Law under A5745 (the “Amendment”) expands coverage to all workers in the State of New York whereas previously, only certain first responders were eligible for such benefits. The Amendment eliminates the requirement for the stress to be a result of a work-related emergency.
• Similar to physical injuries, the question of whether a causal relationship exists between a work activity and the mental injury is an issue of fact for the Workers’ Compensation Board and will likely be decided on a case-by-case basis.
• With the implementation of the Amendment, employers should consider the potential impact of an employee filing a workers’ compensation claim for mental injury on a subsequent claim of discrimination against the employer.

July 31, 2025: COVID-19 Paid Leave Expires

• New York’s COVID-19 paid quarantine leave expires.
• Currently, New York law requires employers to provide paid sick leave in the event of an order of quarantine or isolation related to COVID-19, in addition to other leave entitlements. Effective July 31, 2025, employers will no longer be required to provide employees with separate Paid Emergency Leave for COVID-19-related quarantines and isolations.
• After July 31, 2025, employees who need time off to manage care or isolate for COVID-19 will need to use existing paid leave laws including New York State’s Paid Sick Leave and New York City’s Earned Sick and Safe Time.
• As this date approaches, employers should ensure that their policies and practices reflect these updates, and that human resources personnel are apprised of these changes.

If you have any questions about the subject of this article and its implications for your business, please contact your designated Forework representative.

On December 23, 2024, President Biden signed into law the Paperwork Burden Reduction Act (PBRA) and the Employer Reporting Improvement Act (ERIA), intended to simplify employer’s Affordable Care Act reporting requirements. The laws allow (i) flexibility for employers to furnish 1095-B and 1095-C tax forms to employees electronically and only upon request, (ii) the use of employees’ birthdates instead of taxpayer identification numbers (TINs), and (iii) employers more time to respond to penalty assessments in IRS Letter 226-J.

The Paperwork Burden Reduction Act

The PBRA amends the Internal Revenue Code (the “Code”) and reduces unnecessary paperwork related to health insurance coverage reporting for employers and employees. Under the PBRA, employers and health insurance providers are no longer required to send a copy of the 1095-B and 1095-C tax forms to covered individuals showing proof of minimum essential coverage unless a form is requested.  Accordingly, forms which would otherwise be required to be sent out this month, January 2025, will now only be required to be sent upon request.

Previously, employers that provided minimum essential coverage were required to report this information to the IRS and provide each covered individual with a 1095-B or 1095-C tax form by January 31 of each year.  Effective for tax forms starting with the 2024 calendar year, employers are no longer required to send the 1095-B and 1095-C tax forms to covered individuals unless a form is requested.  However, note that employers must inform covered individuals of their right to request a form.  The PBRA requires the employer or health insurer to “provide clear, conspicuous, and accessible notice (at such time and in such manner as the Secretary may provide)” that any covered individual may request a copy of such statement.  If a 1095-C tax form is requested, it must be furnished to the individual by January 31 or 30 days after the date of the request, whichever is later.

The Employer Reporting Improvement Act

As mentioned above, previously employers were required to provide each covered individual with a 1095-B or 1095-C tax form by January 31 of each year; employers had to report required information using the covered individual’s TIN; and if an applicable large employer (i.e., 50 or more full-time employees) received a proposed assessment from the IRS (i.e., a Letter 226-J), the employer only had 30 days to respond. 

The ERIA, intended to streamline employer reporting requirements and reduce administrative burdens of ACA compliance, now provides TIN reporting flexibility, allows electronic delivery, and extends applicable large employers response times around penalty assessments.

Effective for tax forms due after December 31, 2024, the ERIA provides for the following changes:

• Employers may use an individual’s date of birth to be substituted for the individual’s TIN if the TIN is not available.
• Employers can offer the 1095-B and 1095-C tax forms to individuals electronically if an individual affirmatively consented to receive forms electronically at any prior time. However, note that an individual may revoke such prior consent in writing.
• Employers now have at least 90 days to respond after the IRS sends its first Letter 226-J regarding a notice of proposed assessment (an increase from 30 days); and
• There is now a six-year statute of limitations for collecting penalty assessments. The six-year period begins “on the due date for filing the return under section 6056 (or, if later, the date such return was filed) for the calendar year with respect to which such payment is determined.”

These bills provide relief to large employers and reduce their burden under the ACA’s reporting requirements.  If you have any questions about the subject of this article and its implications for your business, please contact Forework.

The lawfulness of an employer’s use of GPS Tracking in workplaces, specifically related to company-issued cars and cellphones, is dependent on whether the workplace is unionized or non-unionized.

Unionized Workplace

GPS technology is a mandatory subject of collective bargaining in a unionized workplace when it comes to installing GPS devices on company property or company-issued cell phones. However, whether the employer has the right to install GPS devices is determined by reviewing the collective bargaining agreement.

The NLRB has also ruled that employers can use GPS devices to track employees if it’s not a significant change to their employment terms and conditions. The NLRB GC has proposed that employers must disclose the technology they use to monitor employees, the purpose of the monitoring, and how the data is used.

Non-Unionized Workplaces

In a non-unionized workplace, employers can implement GPS tracking on company-issued vehicles and cell phones so long as they strictly follow the Employee monitoring laws, which became effective on May 7, 2022. The various Employee monitoring laws require private employers who will be lawfully monitoring employees to: (i) provide a prior written notice upon hiring to the affected employees; (ii) obtain the employees’ written or electronic acknowledgement of the notice; and (iii) post the notice of electronic monitoring in a conspicuous place visible to the employees.

Summary

Employers who utilize any form of employee-tracking technology with their employees should review this article carefully to determine if any changes in their policies and procedures are warranted.