New York Employment Legislation Update: A Preview of 2024

Employers should prepare themselves for the multitude of employment laws slated to become effective in 2024. We summarize some of the key changes and offer practical advice below.

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

Proposed Changes to Salary Basis Test

As of January 1, 2024, the salary basis test for employees classified as exempt under the administrative and executive exemptions is anticipated to increase pursuant to proposed regulations issued by the New York Department of Labor ("NYDOL") on October 4, 2023. Consequently, employers must be cognizant of the salaries paid to employees classified as exempt under these exemptions to ensure that those employees are paid enough salary to remain exempt in 2024.

If the proposed regulations are adopted (which is likely), this chart reflects the salary thresholds, effective January 1, 2024:

Increase to Minimum Wage and Proposed Changes to Rates and Credits

Governor Kathy Hochul signed Senate Bill S4006C into law on May 3, 2023, increasing New York's minimum wage in annual increments beginning January 1, 2024.

Moreover, the NYDOL issued proposed regulations on October 4, 2023, that would alter other wage rates and credits, including, but not limited to, tip credit and cash wages for tipped employees, meal credits, and uniform maintenance allowances.

Minimum Wage Increases

Effective January 1, 2024, New York's minimum wage will increase for all employees (excluding home care aides and certain other industry employees) as follows:

Proposed Changes to the Tip Credit for Tipped Employees

As of January 1, 2024, the allowable "tip credit" for food service workers and service employees and the minimum cash wage are anticipated to increase.

• Tipped Food Service Workers

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.

If the proposed regulations are adopted (which is likely), this chart reflects cash wages and tip credits for food service workers, effective January 1, 2024:

• Tipped Service Employees

A service employee is defined as an employee, other than a food service worker or fast food employee, who customarily receives tips.

If the proposed regulations are adopted (which is likely), this chart reflects cash wage and tip credit for service employees, effective January 1, 2024:

New York City, Westchester, and Long Island

Proposed Changes to the Meal Credit

As of January 1, 2024, the allowable "meal credit" for food service workers, service employees, and non-service employees is anticipated to increase. It is important to note that employees covered by the Minimum Wage Order for Farm Workers will not experience a change in the meal credit.

• Food Service Workers

If the proposed regulations are adopted (which is likely), this chart reflects the meal credit for food service workers, effective January 1, 2024:

• Service Employees

If the proposed regulations are adopted (which is likely), this chart reflects the meal credit for service employees, effective January 1, 2024: 

• Non-Service Employees

A non-service employee is defined as any employee other than service employee or a food service worker.

If the proposed regulations are adopted (which is likely), this chart reflects the meal credit for non-service employees, effective January 1, 2024:

Proposed Changes to the Uniform Allowance

As of January 1, 2024, the required "uniform allowance" for employers who require employees to wear a uniform, but do not launder and maintain the uniform itself, is anticipated to increase. A "required uniform" is defined as clothing required to be worn while working at the request of an employer, or to comply with any federal, state, city, or local law, rule, or regulation, except clothing that may be worn as part of an employee's ordinary wardrobe. It is important to note that employees covered by the Minimum Wage Order for Farm Workers and employees of certain non-profit organizations are not required to pay a uniform maintenance allowance.

If the proposed regulations are adopted (which is likely), this chart reflects the required uniform maintenance allowance, effective January 1, 2024:

New York's Paid Vaccination Leave

As of January 1, 2024, New York employers are no longer required to provide up to four hours of paid leave for employees to receive a COVID-19 vaccine. As described in our previous advisory, this requirement had been extended to remain in effect through December 31, 2023.

Benefit and Contribution Updates to New York's Paid Family Leave Law

Effective January 1, 2024, the maximum weekly benefit for employees taking Paid Family Leave will be $1,151.16. Employees taking Paid Family Leave receive 67% of their average weekly wage, up to a cap of 67% of the current New York State Average Weekly Wage (NYSAWW). For 2024, the NYSAWW is $1,718.15, which means the maximum weekly benefit is $1,151.16. This is $20.08 more than the maximum weekly benefit for 2023.

Additionally, as described in our prior advisory, the definition of "family member" was expanded in 2023 to include siblings, meaning biological siblings, adopted siblings, step-siblings, and half-siblings. Even though benefits expanded to cover more family members this year, the contribution rate has gone down. For 2024, employees will contribute 0.373% of their gross wages per pay period. The maximum annual contribution for 2024 is $333.25. This is $66.18 less than 2023.

Social Media Disclosures

Effective March 12, 2024, New York employers will no longer be permitted to request, require, or coerce any employee or applicant to:

• Disclose any username, password, or other authentication information for accessing a personal account;
• Access the individual's personal account in the presence of the employer; or
• Reproduce in any manner photographs, video, or other information contained within a personal account.

Among other carve outs discussed in our prior advisory, employers are expressly permitted to require an employee to disclose access information to an account provided by the employer where such account is used for business purposes and the employee was provided prior notice of the employer's right to request or require such access information. Employers are also permitted to require an employee to disclose access information to an account known to be used for business purposes.

In anticipation of the law, employers should: (i) review their electronic communications policies; (ii) review and/or prepare Bring Your Own Device policies; (iii) ensure that applications, job postings, interviewing and onboarding materials do not request information prohibited by this law; and (iv) train management and human resources professionals on the permissible scope of inquiries during a disciplinary investigation.

Increases to Salary Threshold for Certain Labor Law Exemptions

Effective March 13, 2024, the salary threshold for certain exemptions under Article 6 of the New York Labor Law will increase from $900 to $1,300 per week, pursuant to Senate Bill S5572, which Governor Hochul signed into law on September 15, 2023. Article 6 generally regulates the method and frequency of wage payments to employees. Employers will be exempt from the following Labor Law requirements with respect to individuals employed in a bona fide executive, administrative, or professional capacity if their earnings exceed $1,300 per week rather than $900 per week:

• Paying "clerical or other workers" not less frequently than semi-monthly (Section 191(d));
• Obtaining the advance, written consent of employees before paying wages via direct deposit (Section 192); and
• Being guilty of a misdemeanor if they fail to provide "benefits or wage supplements" within 30 days after they are due (Section 198-c).

As discussed in our prior advisory, recent amendments to the New York Penal Law made "wage theft" a form of criminal larceny. Therefore, employers who violate any of these requirements may be found guilty of "wage theft."

It is important to note that these increased salary thresholds, which pertain to the method and frequency of wage payments, differ from those pertaining to minimum wage and overtime exemptions, outlined above, which will be $1,200.00 per week in New York City, Westchester, and Long Island, and $1,124.20 per week for the remainder of New York state, beginning January 1, 2024. As a result, depending on their salary level, employees may be deemed exempt for purposes of minimum wage and overtime obligations, but not for other requirements pertaining to the method and frequency of wage payments.

In anticipation of the law, employers should: (i) review their pay policies and practices generally; (ii) ensure employees (and independent contractors) are properly classified under the Fair Labor Standards Act and New York Labor Law; and (iii) audit payroll processes generally.

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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.

Disclaimer

This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.