NYC Updates Sick Time Requirements

On September 15, 2023, the New York City Department of Consumer and Worker Protection updated the City’s Earned Safe and Sick Time Act (ESSTA) regulations.  The changes are effective October 15, 2023. Here, we summarize the changes that covered New York City employers must be aware of:

  1. Coverage under ESSTA

The revised regulations now explicitly state that an employee who works entirely remotely is not covered by ESSTA, even if the business for which they work is in NYC.  However, if the employee comes to New York City to “regularly perform” work in the City, any hours worked in New York City would be covered by ESSTA and would “count” towards any ESSTA accruals.  Again, however, the amended regulations make it clear that de minimis time in New York City from an otherwise remote or hybrid worker would not trigger ESSTA’s coverage.  Some discretion and judgment will have to be used by employers to assess the coverage status of any employees who potentially fall into this “de minimis” category.

  1. Employer Size and Coverage

The amended regulations clarify that, for purposes of determining employer size under ESSTA, the employer’s total employee number counts, not just the number of employees working in New York City.  This is important because employers with 100 or more employees are required to provide up to 56 hours of ESSTA time to an employee per year, while smaller employers are only obligated to provide up to 40 hours.

  1. Notice of Leave

The amended regulations require that an employer identify the manner and method that employees will seek leave in a written policy. The regulations  continue to differentiate between when notice may be required for an “unforeseeable” absence (“as soon as practicable”) and a “foreseeable” absence (up to seven days in advance of the absence), but make clear that an absence may only be considered “foreseeable” if the employee is aware of the need to use safe and sick time seven days or more before the use. Short of that, the absence is “unforeseeable.” Employers can require “reasonable methods” of providing advance notice, which now also may include sending an email to a designated email address or submitting a leave request in a scheduling software system, provided the employee has access to such system on non-work time, and has been trained on and given written instructions on how to use the system.

To align with the 2020 amendments to the ESSTA, the regulations now indicate that employers requiring written documentation of an employee’s need for sick time must reimburse employees for all fees charged by a licensed health care provider. Likewise, the employer must reimburse the employee for all reasonable costs or expenses incurred in obtaining documentation for safe time. Employers requiring written documentation for sick and safe time use must include the following information in a written policy: a statement of the requirement, the types of written documentation the employer will accept, and instructions on how employees can submit the documentation to the employer.

  1. Paystub Reporting Changes

The 2020 amendments to the ESSTA created a requirement for employers to show “the amount of safe/sick time accrued and used during a pay period and an employee’s total balance of accrued safe/sick time . . . on a pay statement or other form of written documentation provided to the employee each pay period.”  The revised regulations clarify that employers must specify (1) the total balance and (2) the amount of time available for use if those two values differ (e.g., an employee with an 80-hour balance due to carryover of unused time from a prior calendar year may only have 56 hours “available” for use in the current calendar year if the employer imposes an annual usage cap).

Shortly after the 2020 amendment to the ESSTA, the Department issued informal guidance on its webpages indicating that employers could meet this reporting requirement “on a paystub or through an employee-accessible system.” The amended regulations now formalize this compliance option, and indicate that employers using an electronic system to issue pay statements or other documentation related to sick and safe time must: (i) electronically alert the employee each pay period to the availability of the required information; (ii) make the required content readily accessible by the employee outside of the workplace within the electronic system; and (iii) maintain accrual, use, and balance information for any past pay period in the electronic system so that it is readily accessible to the employee outside of the workplace.

The amended regulations make significant substantive changes to compliance requirements for ESSTA-covered employers.  In addition to procedural changes, employers will be required to amend their employee handbook policies and paystub reporting by the October 15, 2023 effective date.  @Forework, our team of employment attorneys and payroll experts are working on these changes already for our payroll clients and making the necessary changes to paystub reporting requirements. 

NYS Publishes Proposed Regulations on Pay Transparency

The New York State Department of Labor (DOL) has posted proposed regulations to implement New York’s Pay Transparency Law that was effective September 17, 2023.  Under this law, employers with four or more employees who advertise a job, promotion or transfer opportunity in New York are required to disclose the following: (i) compensation or a “range of compensation” for such job, promotion or transfer; and (ii) the job description for such job, promotion or transfer, if it exists.   Range of compensation means the minimum and maximum annual salary or hourly range of compensation for a job, promotion or transfer that the employer in good faith believes to be accurate at the time of posting of an advertisement. 

Remote Workers

The pay disclosure obligations in the law apply to advertisements for job, promotion, or transfer opportunities that “will physically be performed” in the state (emphasis added) or “that will physically be performed outside the state of New York” but “report[] to a supervisor, office, or other work site in the state of New York.”  Thus, the proposed regulations suggest that pay disclosure obligations apply to positions that could be filled remotely out of the state if the remote employee would report to an office in New York. At the same time, the proposed regulations state that “[i]ncidental or infrequent” visits to New York for work-related purposes, such as “for an occasional meeting or conference” would not alone be sufficient for the opportunity to be considered “physically” performed in the state. Additionally, “mere communication with employees based” in New York alone would not mean a job is “physically” performed in the state.

By its terms, the pay transparency law will not apply to temporary help firms as defined by New York labor law. However, the proposed regulations clarify that while the pay disclosure requirements do not apply to temporary help firms in hiring temporary workers for other businesses or organizations, the requirements would apply to temporary help firms when they advertise “opportunities to work for the temporary help firm itself.” For example, a temporary help firm would have pay disclosure obligations in an advertisement to fill an administrative assistant position at the firm.

Advertisements for a Job, Promotion, or Transfer Opportunity

The proposed regulations clarify that if an employer does advertise the opportunity, the pay range disclosure obligations would apply “regardless of the medium in which they are posted,” including but not limited to newspaper advertisements, printed flyers, a social media post, or an email to a pool of potential applicants.

The proposed regulations clarify that a job description would not be required in an advertisement if such a description does not exist. Additionally, the proposed regulations specify that in situations where an employer lists a job opportunity to cover multiple geographic locations or the listing is for an opportunity with differing levels of seniority, the employer would be required to provide “multiple ranges of compensation for each individual opportunity.”

Compensation Range Refers to Base Rate of Pay

The proposed regulations provide specifics on what would or would not be required to be included in the disclosed compensation range under the pay transparency law. According to the proposed regulations, employers would be required to disclose the “base rate of pay, regardless of the frequency of payment,” such as “an annual salary, an hourly wage, or a piece rate.” The compensation range would not include other benefits that may be offered in connection with the opportunity, such as health or life insurance, paid time off or vacation days, sick leave, retirement or savings plan contributions, severance pay, overtime pay, or “other forms of compensation such as commissions, tips, bonuses, stocks, or the value of employer-provided meals or lodging.”

According to the pay transparency law, employers must base the minimum and maximum annual salary or hourly rate on what they “believe[] in good faith” are the highest and lowest compensation amounts they will pay the position at the time of the advertisement. The proposed regulations would further define “good faith” belief as the range employers “legitimately believe[] they are willing to pay” for the position in consideration of other contextual factors, “such as the job market, current compensation levels, hiring budget,” and the experience and education level required for the position.

According to the proposed regulations, employers would be allowed to adjust the range if needed, based on information from the hiring process. For example, an employer would be able to raise the pay ranges if after posting for the position it determines that an increased hiring budget is necessary to attract candidates with the desired qualifications.

There will be a 60-day public comment period, during which employers and other stakeholders can provide comments. The comment period is set to expire on November 12, 2023.  In the meantime, the law is in effect and covered New York employers are expected to comply with its requirements.

IRS Imposes a Moratorium on Processing of new ERTC Claims

On September 14, 2023, the IRS announced it has ceased processing new ERTC claims. The moratorium will last at least through the remainder of 2023.

The IRS has received over 3.5 million ERTC claims, and is behind on processing. They are now linking a recent influx of claims from ineligible taxpayers to illegal activity by third parties pressuring employers to apply by convincing them they are eligible for large refunds. Thousands of claims are being audited, and the IRS’ Criminal Investigation unit has begun over 250 investigations into nearly $3 billion in suspicious ERTC claims. Fifteen of those have yielded federal charges, including six convictions to date. Average incarceration time is 21 months. Note that employers who are deemed ineligible for the credit will not only have to repay the refund, but they will also owe interest and penalties. Businesses who already submitted an ERTC claim before September 14, 2023, can still expect their application to be processed, albeit at a slower pace. This applies to refunds as well, in light of the added compliance scrutiny now being done. Prior to the announcement, turnaround time for ERTC claims was about 90 days. Applicants can expect double that wait time now, and may get requests from the IRS for additional documentation.

Hochul Makes Wage Theft a Larceny

Employers who commit wage theft in New York will now face larceny charges after Gov.  Hochul signed a bill into law Wednesday that amends the New York Penal Law prosecuting wage theft “as the crime that it is.”  Hochul signed Senate Bill 2832-A and Assembly Bill 154-A into law during a Labor Day parade breakfast reception as part of an employment-related legislation package, saying it will be a step toward ending wage theft in the state.

“Let’s talk about what it is like when you are working hard every day, and you think you are getting a certain sized paycheck, and you look at it and you are like, ‘Wait a minute, this isn’t what I thought it would be,'” Hochul said. “But guess what? That is a crime now in the State of New York. You will not get away with that. That will get prosecuted as the crime that it is.”

Under the law, employers would commit wage theft if they fail to pay workers the minimum wage rate, overtime or promised wage if greater than the minimum wage rate and overtime.

Democratic state Sen. Neil Breslin, one of the law’s sponsors, said “Wage theft is one of the more serious forms of worker exploitation,” Breslin said. “Oftentimes it is perpetrated against some of our most vulnerable populations, including undocumented immigrants and low-income workers.” 

Manhattan District Attorney Alvin L. Bragg Jr. announced in February the creation of the Worker Protection Unit “to investigate and prosecute wage theft and other forms of worker harassment and exploitation across Manhattan’s many industries.”

Employers in regulatory-sensitive industries, like hospitality and healthcare, should be mindful of these additional potential consequences for incorrect wage practices.  Although the level of intent required to prove culpability in a criminal matter is significantly higher, and district attorneys are unfamiliar with federal and state labor laws, the threat of a larceny charge will certainly force many employers to be more mindful of how they pay their employees.

Employers should ensure all their wage practices comply with all laws and seek competent counsel to understand what their legal obligations are. 

A Company’s Problem with one Regulator can become a Problem with Other Government Regulators

As most employers know, various employment and tax government agencies have memoranda of understanding (MOUs) in place whereby those agencies agree to share information with one another about “bad actor” employers.  As a result of these intra-agency agreements, an employer who may be audited or found guilty of some regulatory impropriety (such as worker misclassification, or unpaid overtime) by the U.S. Department of Labor (“DOL”) may be referred to the IRS for review of the impact of such misclassification on the employer’s employment taxes.  Beyond the formal MOUs that are in place between the agencies, there are more informal arrangements in place whereby agency representatives will refer cases to one another. 

In a recent example, a worker called the DOL’s Wage and Hour Division to complain that he and several other co-workers had not received their wages on their regular payday.   The DOL investigated the matter and contacted the employer of the worker.  One of the company supervisors was able to identify the employee who had complained to the DOL and, allegedly, threatened that “there would be consequences.” The worker was then summoned to a meeting with a manager and human resources, where he was questioned about a number of issues, including the DOL complaint. He was then terminated, for violations of various policies about which he had never been previously warned. 

The employee filed a complaint under the National Labor Relations Act (the “NLRA”) with the National Labor Relations Board.  The NLRA protects employees’ rights to engage in concerted activity about their terms and conditions of employment. The NLRB argued on behalf of the employee, and an NLRB Administrative Law Judge agreed, that the worker engaged in “protected concerted activity” when he called the DOL to complain about the employer’s failure to pay wages. The ALJ further found that the employer failed to show that it would have fired the worker absent his protected concerted activity.

In the NLRB’s press release about this case, the NLRB specifically noted that it had worked in collaboration with the US DOL in prosecution of this case.

The lesson for employers is to be mindful of all the potential government agencies that could become involved from one single employee complaint or inquiry.  Employers should consult counsel in any situation that might have employment law implications, and even situations where there is even the possibility of such consequences. 

NY Passes Law Prohibiting Management from Holding Anti-Union “Captive Audience” Meetings

New York Governor Hochul signed legislation yesterday, banning employers from disciplining workers who do not wish to attend “captive audience” meetings, joining a list of other states that passed laws to place limits on anti-union gatherings in the workplace. When an employer holds a captive audience meeting, workers are required to attend a meeting hosted by the Company and may hear a company’s opinion on unionization, politics or religion.  Management often uses such meetings to educate staff and promote an anti-union position.  Unions, for these reasons, challenge captive-audience meetings and in the recent years Starbucks and Amazon have been sued at the National Labor Relations Board for allegedly violating the National Labor Relations Act by holding such meetings with staff. 

State Senator Jessica Ramos, D-N.Y., who is chair of the Senate Committee on Labor and a sponsor of the law, said in a statement Wednesday that the State is “clearing roadblocks” for organizing efforts through the captive audience meeting law. “You don’t check your first amendment rights and freedom of conscience at the door when you clock in at work,” Ramos said. 

Already, however, management advocates and attorneys are pointing out that the State law is pre-empted by a 2008 United States Supreme Court, Chamber of Commerce of the U.S. v. Brown, in which the high court ruled that the National Labor Relations Act preempted a California law that barred certain employers from using state funds to support or dissuade union organizing.  Thus, this newly passed law might not survive scrutiny from the U.S. Supreme Court, should a business group choose to challenge the law.

In the meantime, until the law is subject to reversal, employers are advised to take note of this development and adhere to its requirements. 

U.S. DOL Proposes Allowing Unions and other Third Parties to Participate in OSHA Inspections of Businesses

The U.S. Department of Labor (DOL) has announced a Notice of Proposed Rulemaking to amend its regulations to allow employee-authorized third-party representatives to accompany Occupational Safety and Health Administration (OSHA) officials during facility inspections. The proposed regulations would pave the way for union representatives and interest groups to join the inspection, provided the OSHA official determines participation of the third party is “reasonably necessary.”


By way of background, the Occupational Safety and Health Act (OSH Act) allows a representative of the employer and a representative authorized by employees to join OSHA officials during a workplace inspection. Section 1903.8(c) states that the employee-authorized representative “shall be” an employee of the employer. However, it provides a caveat that the compliance safety and health officer (CSHO) can allow a third-party representative “such as an industrial hygienist or a safety engineer” if they determine good cause is shown that the third party is reasonably necessary.

The question has arisen whether third parties are limited to only industrial hygienists and safety engineers or, and to what extent, it included others, such as union representatives. This is a particular concern for employers who are not unionized or have a location undergoing an OSHA inspection that is not unionized, especially given the increased organizing activity around the country in recent years.

OSHA has provided guidance periodically; most recently, in 2013, the agency issued a letter of interpretation stating that a union representative could serve as the employee representative. It also expressed that the CSHO had authority to determine who can join the inspection.

Following a 2016 lawsuit challenging the letter on statutory and promulgation grounds, OSHA rescinded the guidance and “is now engaging in notice and comment rulemaking to clarify who may serve as a representative authorized by employees for the purpose of walkaround inspections.”

Summary of Proposed Rule

The proposed rule would amend the OSH Act to clarify that, “for the purpose of the walkaround inspection, the representative(s) authorized by employees may be an employee of the employer, or, when they are reasonably necessary to aid in the inspection, a third party.” The clarification will “ensure employees are able to select trusted and knowledgeable representatives of their choice, leading to more effective inspections,” according to the proposed rule.

The proposed rule also seeks to clarify that the authorized third-party employee representatives “may have a variety of skills, knowledge, or experience that could aid the CSHO’s inspection.” This change would delete the industrial hygienists and safety engineer examples that caused the discrepancies in how the rule has been interpreted over time. As a result, the rule’s goal is to focus on the “knowledge, skills, or experience of the individual, rather than their professional discipline.” The proposed rule provided union representatives as one such example. Additional examples are translators or representatives of local safety councils or worker advocacy organizations.


The proposed rule faces sharp criticism from employers concerned with the broad range of third parties who might be allowed entry into their facilities during an OSHA inspection. The rule could provide an entry point for union representatives to organize workers or to further expand their footprint in a workplace. There are additional concerns over leaving the decision to the discretion of individual CSHOs in the field.

Despite the significant concerns, the proposed rule retains the condition that the CSHO “must determine that any third-party employee representative’s participation is reasonably necessary” for the inspection. Employers are still entitled to request that certain areas of the facility containing trade secrets be off-limits to employee representatives who do not work in that specific area of the workplace.

While the proposed rule must undergo public comment before it is final, employers should speak with legal counsel to discuss how the proposed rule will affect them. Implementing a proactive strategy may better position employers for navigating third-party representatives during a workplace inspection.

Public comments on this proposed rule must be received by the DOL on or before October 30, 2023.

US DOL to Increase Minimum Salary Requirements for Overtime Exempt Workers

The U.S. Department of Labor (“DOL”) announced that it will be proposing a new regulation to raise the minimum salary threshold for overtime exempt employees under the Fair Labor Standards Act (“FLSA”). The proposed regulation would raise the minimum salary requirement to $55,068 per year for employees who are exempt from the FLSA’s minimum wage and overtime requirements for executive, administrative, and professional employees. Employees who do not receive at least that amount would need to be re-classified to non-exempt status (and entitled to overtime).

The proposed rule, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, which the DOL plans to publish in the Federal Register, would raise the threshold under the Fair Labor Standards Act to $1,059 per week, or $55,068 per year. The current FLSA rate is $684 a week, which amounts to a salary of $35,568 per year.

The proposed new standard salary threshold would be pegged to the 35th percentile of weekly earnings of full-time salaried workers in the Southern U.S., which is currently the lowest-wage U.S. Census region.  Meanwhile, the salary threshold for highly compensated employees under the proposal would be $143,988, tied to the 85th percentile of salaried workers nationally. (That would be an increase from the current minimum salary threshold of $107,432 for highly compensated workers). In addition to raising the salary threshold, the proposed rule would automatically update that ceiling every 3 years, based on then-current earnings data.

For New York employers, the proposed federal threshold is less than the current New York salary threshold for executive and administrative employees of $1,125.00 per week (in NYC, Long Island and Westchester) and $1,064.25 per week (for the rest of New York State). Thus, for employees who are exempted under the executive and administrative overtime exempt categories, the federal minimum salary requirements would be inapplicable.  However, there is no New York State minimum salary threshold for employees exempt under the professional exemption.  Thus, for such employees (e.g., nurses, therapists), the minimum salary would need to comport with the federal standard in order for the employees in that category to continue to be exempt from overtime.

Notably, our readers will recall that New York State’s own minimum salary thresholds for overtime exempt workers are calculated as being 75 times the State’s minimum wage rates.  Thus, as New York’s minimum wage rate goes up, again, in January 2024 (and again for the next 2 years), the minimum salary threshold will also increase.  Thus, again, the federal salary threshold changes will be largely irrelevant for New York employers with exempt employees who work in New York and who are exempt from minimum wage and overtime pay under the administrative and executive exemptions.  And it is unlikely that the federal minimums will surpass New York’s own requirements for minimum salaries for overtime exempt employees.   But, with respect to exempt workers under the professional exemption, New York employers should pay attention.

The DOL has previously stated that it would publish the proposed rule in August but, as of the date of this publication, August 31, the regulation has not yet been published in the Federal Register.

EEOC Announces Enforcement Priorities

On August 22, 2023, the Equal Employment Opportunity Commission (“EEOC”) unveiled its four-year Strategic Plan for FY 2022-26, which it will use as a framework for its priorities and enforcement activity.  As relevant to employers, the Strategic Plan establishes 3 main goals for the EEOC:  

  1. Combat and prevent employment discrimination through the strategic application of the EEOC’s law enforcement authorities. Here, the EEOC notes that it will seek to ensure more conciliations and equitable relief versus “simply providing monetary damages.”
  2. Prevent employment discrimination and advance equal employment opportunities through education and outreach.
  3. Strive for organizational excellence through its people, practices, and technology.

With the exception of the note about equitable versus monetary relief, the EEOC’s strategic plan is otherwise insignificant and provides the same general priorities as plans in prior years.

EEOC Issues Guidelines for Accommodating Workers with Visual Disabilities

Over the summer, the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document titled “Visual Disabilities in the Workplace and the Americans with Disabilities Act.” This guidance explains how the Americans with Disabilities Act (ADA) applies to job applicants and employees with visual disabilities.  The new guidance is part of a Q & A series addressing how the ADA applies to particular disabilities in the workplace. It outlines such topics as when an employer may ask an applicant or employee questions about their vision, how an employer should treat voluntary disclosures about visual disabilities, and what types of reasonable accommodations those with visual disabilities may need in the workplace.

Proper Questioning Surrounding Employers with Vision Impairments The guidance makes clear that “not everyone who wears glasses is an individual with a disability under the ADA.” Instead, when deciding if someone with a vision impairment who uses (or used, in the case of a past impairment) “ordinary eyeglasses or contact lenses” is an individual with an “actual” or “record of” a disability, the guidance instructs that an employee’s impairment should be assessed as it is corrected by the lenses. If using ordinary lenses results in no substantial limitation to a major life activity, then a person’s vision impairment does not constitute a disability under the ADA’s definitions of “actual” or “record of” a disability. The guidance provides that employers are generally not allowed to ask applicants about whether they have a vision impairment. However, if an applicant has an obvious impairment or voluntarily discloses the existence of a vision impairment, and based on that information the employer reasonably believes that the applicant will require an accommodation to perform the job, the employer can inquire whether the applicant will need an accommodation and the kind of accommodation the applicant will need. As to current employees, employers can ask about an employee’s vision impairment if they observe performance problems and reasonably believe that the problems are related to a vision impairment. Employers can also ask for such an employee’s medical information if they have observed symptoms or receive reliable information from someone like a family member or coworker that the employee may have a vision impairment.

Safety Concerns As with other types of disabilities, if an employer wishes to refuse to hire an applicant, or terminate or restrict an employee’s duties based on safety concerns related to the applicant or employee’s vision impairment, the employer must conduct an individualized assessment as to whether the individual can safely perform the essential functions of the job. Such determination must be based on reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence, and not on speculation or stereotyping.  Employers must also remember to consider whether any reasonable accommodation may be available that would reduce or eliminate the safety hazard.

Reasonable Accommodations The guidance also highlights that a wide range of possible modifications to the application process, or in the way an employee performs their work, can serve as reasonable accommodations for individuals with vision impairments. It lists many potential accommodations, including “assistive technology (such as text-to-speech software); accessible materials (such as braille or large print); modification of workplace/employer policies or procedures (such as allowing the use of guide dogs in the work area), testing (such as allowing alternative testing), or training; ambient adjustments (such as brighter office lights); [and] sighted assistance or services (such as a qualified reader).”  The guidance emphasizes, however, that this is not an exhaustive list and applicants and employees may need other forms of changes or adjustments.