Important Legislative Updates in New York

By Colleen M. Meenan Esq.

This fall Governor Kathy Hochul signed several significant employment bills into law which impact employee rights and protections within New York.

On September 15, 2023, a law took effect providing employees with stronger intellectual property protections.  This legislation generally makes unenforceable any provision in an employment agreement that requires an employee to assign to the employer an invention that the employee develops on their own time.  The invention must have also been developed without the use of the employer’s equipment, supplies, facilities, or trade secret information to qualify. This statute, also, provides for two exemptions from the unenforceability where the invention may be assigned: (1) if, at the time of conception or reduction to practice, the invention relates to the employer’s business, actual research or development, or anticipated research or development, or (2) if the invention results from the work the employee performs for the employer.
           
Also, in September of 2023, Governor Hochul signed legislation, commonly referred to in other states as the “captive audience” law, banning employers from taking adverse action against employees who fail to attend meetings or listen to communications about the employer’s views on religious and political matters; and, requires employers to post a notice to employees of their rights under the law.  This law was effective immediately when signed by the Governor. What effect this law may have on unionization efforts remains to be seen.
           
On November 13, 2023, Governor Hochul signed legislation which now requires employers to notify employees of their right to file an application for unemployment benefits when the employee is: (1) permanently or indefinitely separated from work; (2) subject to a reduction in work hours; (3) subject to a temporary separation of employment; or (4) “any other interruption of continued employment that results in total or partial unemployment.”

More recently, on November 17, 2023, Governor Hochul signed legislation amending Section 5-336 of New York’s General Obligations Law initially enacted to restrict confidentiality agreements in matters involving sexual harassment unless confidentiality was the employee’s preference, and the employee is given 21 days to consider the agreement and 7 days to revoke it.  The original legislation created more confusion than benefit to employees as the “preference agreement process” inordinately delayed the effectuation of agreements and did not, as some proponents of the legislation expected, deter employers from demanding confidentiality and extensive releases, in exchange for payments for damages.  

The new law, likewise, provides no deterrence against non-disclosure terms, as the statute does not make such a term unenforceable. Rather, the statute expands those claims which now may be included in the “preference agreement process.” In addition, the 21- day review period is now waivable because the statute provides the complainant “shall have up to twenty-one days” with 7 days to revoke.  
           
The new law also provides that no release shall be enforceable if the agreement includes; (1) a liquidated damage provision for the employee’s violation of a non-disclosure or non-disparagement clause; (2) a forfeiture provision for all or part of the consideration paid by employer form violation of nondisclosure or non-disparagement clause or (3) an affirmative statement that the employee was not subject to unlawful discrimination, harassment or retaliation.

It remains unclear whether these new provisions apply only to a separation agreement reached prior to litigation or to agreements reached between the parties after the commencement of litigation, or to both.  This potential for confusion is because Section 5003-B of the CPLR was not amended and continues to require employees to wait the full 21 days before signing an agreement containing a nondisclosure provision that would prevent the disclosure of the underlying facts and circumstances in any discrimination claim.  Thus, it remains an open question as to whether the 21-day consideration period for nondisclosure provisions is waivable pre-litigation, as provided by Section 5-336, but remains non-waivable if the discrimination claim has been filed in court, where the CPLR applies.
           
Beginning March 12, 2024, employees will gain new privacy protections for their personal social media accounts when a new law takes effect prohibiting New York employers from requesting, requiring, or coercing an applicant or employee to: (1) disclose login information for personal social media accounts, or (2) access personal social media accounts in the employer’s presence. The law also prohibits retaliation against an applicant or employee who refuses an employer’s request to provide the information.  Also, the employer cannot copy or use social media information unlawfully obtained from an applicant or employee’s personal social media account.  Notably, there are several exceptions, including where an employee’s social media account is used for business purposes.

Also, beginning March 13, 2024, the minimum salary that white-collar employees must earn to be exempt from NYS DOL Article 6’s requirements will rise from $900 to $1300 per week.  This law also outlines the specific pay practices that employers in the state must comply with, including the timing of wage payments and direct deposits.