New York Employment Legislation Update: A Preview of 2023

Over the course of the last year, New York employers saw significant state and local employment law developments. This trend will continue into the new year with a plethora of employment laws slated to become effective.

We summarize some of the key changes to New York employment laws for 2023, and offer some practical advice, below.

Wage-Hour (New York State and New York City)

Minimum Wage

As of December 31, 2022, the minimum wage for most employees in New York state shall be:

Tipped Employees

As of December 31, 2022, the allowable "tip credit" for food service workers and service employees and the minimum cash wage will increase for employees working outside New York City, Westchester, or Long Island.

Tipped Food Service Worker
A food service worker is defined as any employee who is primarily engaged in the serving of food or beverages to guests, patrons, or customers in the hospitality industry, including, but not limited to, wait staff, bartenders, captains, and bussing personnel; and who regularly receives tips from such guests, patrons, or customers. The term food service worker does not include delivery workers.

Tipped Service Employee
A service employee is an employee, other than a food service worker or fast food employee, who customarily receives tips.

Salary Basis Test

As of December 31, 2022, the salary threshold for employees working outside of New York City, Westchester, or Long Island is increasing. The salary threshold is the minimum salary employers can pay workers classified as exempt pursuant to the administrative and executive exemptions under New York state law. Consequently, employers must pay particular attention as the year-end approaches to ensure that those positions they intend to keep exempt remain exempt.

This chart reflects the salary thresholds, effective December 31, 2022:

Amendment to New York's Paid Family Leave Law

On January 1, 2023, an amendment to New York's Paid Family Leave law goes into effect, expanding the definition of "family member" to include siblings, meaning biological siblings, adopted siblings, step-siblings, and half-siblings. Under the current law, employees can take up to 12 weeks of job-protected, paid leave to care for spouses, domestic partners, children and step-children, parents, parents-in-law, grandparents, and grandchildren with a serious health condition. Beginning January 1, 2023, employees can also take up to 12 weeks of job-protected, paid leave to care for siblings with a serious health condition. We highlighted this amendment in our prior advisory (available here).

New York's Paid Vaccination Leave

In March 2021, New York passed an amendment to the New York Labor Law requiring New York employers to provide up to four hours of paid leave for employees to receive a COVID-19 vaccine. As described in our previous advisory (available here), this requirement has been extended to remain in effect through December 31, 2023.

New York City's Automated Employment Decision Tools ("AEDT") Law

In December 2021, New York City passed the Automated Employment Decision Tools Law, requiring employers to conduct independent bias audits of automated employment decision tools (AEDT) used to evaluate job candidates or employees. The law is scheduled to become effective on January 1, 2023, and it has garnered significant attention due to its sweeping implications for New York City employers that utilize AEDTs. We highlighted this legislation and subsequent guidance from the City in our previous advisories (available here, here, and here).

New York City employers covered by the new law are required to:

• Complete an independent bias audit of the AEDT;
• Maintain a publicly available summary of bias audit findings, and keep "information about the type of data collected for the automated employment decision tool, the source of such data and the employer or employment agency's data retention policy," which the employer would also have to provide to a candidate or employee upon written request;
• Provide notice to candidates and employees who resides in New York City in advance about the use of such a tool, including "the job qualifications and characteristics that such automated employment decision tool will use in the assessment"; and
• Allow candidates and employees to request an accommodation from being subjected to the AEDT, among other things.

New York State's Wage Transparency Bill

New York City's and Westchester County's wage transparency laws went into effect on November 1 and November 6, 2022, respectively. A comparison of the two local laws is summarized in our prior advisory (available here). In addition, the New York state legislature passed its own statewide wage transparency legislation back in June 2022. A comparison of the New York City wage transparency law and the proposed New York state law is summarized in our prior advisory (available here). The legislation has been awaiting Governor Hochul's signature and would become effective 270 days later.

In sum, New York employers should plan ahead, determining whether and how they will be impacted by the new laws, and prepare to update their employment policies and procedures accordingly. DWT will continue to monitor these issues and provide updates on these new laws as needed. In the meantime, if you have any questions about your company's compliance, please contact a member of the DWT Employment Services Group.