Revamped and Renewed New York Legislation by Tyler Palminteri

While many of those who are employed are focused on the current climate of COVID-19, there has also been a sudden surge of changes within New York’s legal structure. The list of updates includes wage deduction claims, the impact of cannabis legalization in the workplace, expanded protection for whistleblowers, and new notice requirement for monitoring employees’ emails, phones, and internet usage.

On August 19, 2021, the No Wage Theft Loophole Act (the “Act”) became effective. The Act amended §§193 and 198 of the New York Labor Law. The Act allows employees to assert statutory claims against their employers for any unpaid wages. The Act was amended to postulate that “there is no exception to liability. . . for the unauthorized failure to pay wages, benefits, or wage supplements.” In short, this Act is to clarify that employees must be paid what they are owed. Furthermore, for employers to avoid disputes, they should ensure that any and all agreements are clearly documented and that changes are signed by both the employee and employer.

Cannabis use and the idea of full legalization in New York has been quite taboo. Despite this, on March 13, 2021, New York joined a handful of other States by legalizing cannabis. Now as a progressive state following in the footsteps of many other States such as California and Oregon, New York has followed in prohibiting discrimination against employees for use of cannabis outside of work. Under §201-D of New York Labor Law, an employer may not discriminate against any employee or applicant for the use of cannabis outside of the work hours and off the employer’s premises. Though, an employer may take action against an employee if the employee is “impaired by the use of cannabis” while working. Furthermore, employers should avoid unlawful bias on the basis of the other characteristics, including race, when implementing antagonistic job actions based on cannabis use.

On October 28th, 2021, Governor Kathy Hochul signed legislation which substantially expanded whistleblower protections under §740 of the New York Labor Law. This law expands the definitions of “employee” and how those employees are protected. The main point of this new law is that there is no requirement for employees to notify employers of their violative activity, policy or practice and nor is there a requirement to provide their employers with a reasonable opportunity to cure the problem before disclosing any potential violation of the law to a public body. In order to avoid any penalties, employers should revisit their policies and procedures to comply with the law.

On November 8, 2021, Governor Hochul also signed legislation requiring all private employers to notify employees in writing if the employer intends to monitor the employee’s company phones, email or internet usage. This law becomes effective on May 7, 2022. The law provides that the notice must inform employees that any and all telephone conversations, electronic mail, or internet usage on an electronic device may be subject to monitoring at any and all times. Employers may be subject to civil penalty of up to $500 for a first offense, $1,000 for a second offense, and $3,000 for each successive offense.

Though New York is still currently fighting through this pandemic known as COVID-19, it is great to see that legislation is still putting forth new decrees for the betterment of society.


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