Looking at the Year Ahead: Employment Law in 2024
With 2024 so quickly upon us, time has come again to look at forthcoming New York employment law developments and to prepare for the year ahead. While there are some important changes coming up in the next 12 months, non-compete agreements are still alive and kicking in New York State.
In a Christmas gift to the bill’s detractors, on December 22, 2023, Governor Kathy Hochul vetoed legislation that would have banned most non-compete agreements in the state. While it is unlikely that the NYS Legislature is done with its efforts to curtail the use of non-competes, these types of agreements live to see another day for now. Employers should be well-advised to consider alternatives to these agreements in order to avoid complications in the future.
But now, let’s look at some important changes . . .
Freelance Isn’t Free Act
The amendments to NY Labor Law dubbed the “Freelance Isn’t Free Act” (the “Act”) are slated to take effect on May 20, 2024. The Act (which is modeled after NYC’s version of the law) is set to provide a number of key protections to freelance workers statewide. In essence, the Act requires that any contract between a business and a freelance worker (as defined in the Act) must be reduced to a writing (i.e., a contract) that contains statutorily mandated language, including rate of pay, services to be performed and payment provisions that specify payment dates and invoice submission provisions. The Act applies to any exchange of services (with certain exceptions) that either exceeds $800 on its own or in the aggregate over the preceding 120 days.
The Act can be enforced through a private right of action; a freelance worker plaintiff may be entitled to recover certain statutory damages, double damages, injunctive relief and attorney fees among other remedies. The Act requires the NYS Department of Labor to publish model contracts for use by the general public prior to the effective date.
Extended Statutes of Limitations under the NYSHRL
Section 297 of the NY Executive Law was amended to extend certain statutes of limitations. As a result, for all claims arising on or after February 15, 2024, the statute of limitations to file a charge containing claims of unlawful discriminatory practice or retaliation with the New York State Division of Human Rights (NYSDHR) will be three years.
Prior to these amendments, the statute of limitations for such claims was one year; only claims of sexual harassment carried a three-year statute of limitations.
Criminal Penalties for Wage Theft
As of September 2023, New York State has authorized prosecutors to pursue criminal charges against NY employers for wage theft. The law amends the definition of larceny to include such theft and “a person obtains property by wage theft when he agrees to hire a person to perform services and the person performs such services and the defendant withholds such wages from said person.”
Electronic Communications and Personal Accounts
By March 12, 2024, NY employers should ensure that their communications and electronic devices policies comply with the recently passed amendments to NY Labor Law, which prohibits requesting or requiring username and login information for employees’ and potential applicants’ personal accounts. Employers are still allowed to request and/or require disclosure of login information for personal accounts that are to be used for business purposes as well as for employer-provided accounts provided by the employer. Similarly, employers are permitted to access non-personal accounts on employer-provided electronic devices. Employers must provide notice to employees of the employers’ rights to access information as permitted under the law.
Importantly, the new amendments do not prohibit an employer from “accessing or utilizing information about an employee or applicant that can be obtained without any required access information, that is available in the public domain, or for the purposes of obtaining reports of misconduct or investigating misconduct . . . that is voluntarily shared by an employee[.]”
Clerical Workers, Redefined
Taking effect on March 13, 2024, NY Labor Law increases the salary threshold for employees in the “clerical and other workers” category from $900 per week to $1,300 per week. Currently, “clerical and other workers” include “all employees not included in [other subdivisions], except any person employed in a bona fide executive, administrative or professional capacity whose earnings are in excess of nine hundred dollars a week.”
With the increased minimum salary threshold amount, more employees would now fit into this category and will need to be compensated on a semi-monthly basis and be provided written consent before being paid wages via direct deposit in advance as well as afforded certain other statutory protections.
