Small business owners in New York must be aware of a number of employment law topics. There are many state and federal laws that small businesses must follow in New York, but here are some of the main areas of concern and any updates that have occurred in the past year:
Minimum Wage. As of December 31, 2020, the minimum wage in New York City is $15.00/hour; in Long Island and Westchester it is $14.00/hour; and $12.50/hour in the rest of New York State. Federal and State law requires that you must provide equal pay for equal work to male and female employees.
Overtime. New York’s overtime requirement is based on the hours an employee has worked in a given week. Generally, if an employee has worked more than 40 hours in a pay week and are not “exempt,” employers must be pay them an overtime rate for all hours over 40. For covered employees, the rate is 1½ times the employee’s regular, “straight-time” hourly rate of pay for all hours over 40 in a payroll week.
Human Rights. Starting February 8, 2020, employers of any size fall under the worker protection laws in the New York State Human Rights Law (NYSHRL). By comparison, Title VII of the federal Civil Rights Act applies to businesses with 15 or more employees. The New York Human Rights Law now includes protection for workers from harassment based on any protected class.
Sexual Harassment. Effective August 12, 2020, the one-year deadline for filing a complaint with the state was extended to three years for sexual harassment in employment cases. The sexual harassment laws apply to all New York employers, no matter the number of employees they have.
Discrimination (generally). If you have 15 to 19 employees, your business is covered by the laws that prohibit discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, and genetic information (including family medical history). Also, you can’t use employment policies or practices that have a negative effect on applicants or employees who are age 40 or older (There is an exception for policies or practices that are based on a reasonable factor other than age.)
Religious Beliefs or Disability. New York employers may be required to provide reasonable accommodations (modifications or adjustments to the way things are regularly done at work) because of an applicant's or employee's religious beliefs or disability.
Retaliation. New York employers can’t retaliate against (or punish) an applicant, employee, or a former employee for reporting discrimination, participating in a discrimination investigation or lawsuit, or opposing discrimination. For instance, a New York employer can’t take action against an individual who threatens to file a charge or complaint of discrimination. The New York Department of Labor defines “retaliation” as “an action taken against an employee to punish that employee for complaining about labor law violations, providing information to the Department of Labor, or participating in proceedings at the Department of Labor.”
Family Medical Leave Act (FMLA). The federal laws states that employers with 50 or more employees must provide up to 12 weeks of unpaid family leave per year.
Paid Family Leave (PFL). Here in New York, all full and part-time employees who’ve been in their jobs for at least six months are eligible for paid leave. This benefit in 2021 is 67% of an employee’s weekly wage, capped at 67% of the New York Statewide Average Weekly Wage which in 2021 is $1,450.17 (meaning the maximum benefit is $971.61/week). Employees out on paid family leave are also entitled to continued health insurance benefits the same as if they were working.
Paid Sick Leave. Effective January 2021, New York’s paid sick leave law requires employments with between five and ninety-nine employees, or net income of more than $1 million, to provide 40 hours of paid sick leave to employees. Employers with fewer employees and a net income less than $1 million must provide 40 hours of unpaid sick leave to employees. Employees accrue leave at the rate of one hour for every 30 hours worked.
Termination. New York is what is known as an “at-will” employment state. This means that any employment not pursuant to a contract restricting termination, New York employers generally have the right to discharge an employee at any time for any reason—or no reason at all—as long as it’s not a form of illegal retaliation or discrimination. An employee also has the right to leave their job at any time without any reason. When a worker’s employment has ended, New York employers are required to pay the wages by the regular payday for the pay period worked. Employers must mail the final wages to the employee if requested.
Employees and Independent Contractors. The New York Department of Labor explains that no single factor or group of factors conclusively defines an employer-employee relationship. Instead, all factors are reviewed to determine the degree of supervision, direction, and control exercised over the worker’s services. How an individual is compensated is indicator of the worker’s status. Employees typically are paid a salary, an hourly rate of pay, or a draw against future commissions without being required to repay any unearned commissions. Employees may also receive fringe benefits. By contrast, independent contractors are free from supervision, direction, and control in the performance of their duties. They’re in business for themselves and offer their services to the general public.
If You Are In The Process Of Hiring Get The Right Help Today.
Make sure that your small business is compliance with New York and federal employment laws. There’s a lot to know and understand and an experienced New York small business employment attorney can help you.
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Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to serving entrepreneurs, startups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.