NY DOL Proposes Updates to Model Sexual Harassment Prevention Policy

The New York State Department of Labor (“DOL”) has published an updated model Sexual Harassment Prevention Policy. The proposed policy is subject to public comment until February 11, 2023, after which the DOL will adopt a final version of the policy.

By way of background, effective October 9, 2018, covered New York employers were required to adopt sexual harassment prevention policies that meet or exceed the minimum standards set forth in §201-g of the New York Labor Law, or adopt and disseminate the model policy published by the DOL. The Labor Law requires the DOL to review and revise its model policy every four years to account for changes in the law and workplace.

The following are the key proposed changes in the 2023 model policy:

  • Defines different gender identities (cisgender, transgender, and non-binary).
  • Clarifies that harassment may be committed remotely.
  • Reaffirms that gender-based harassment and discrimination are not limited to sexual contact or suggestive conduct, and includes gender stereotyping and treating employees differently because of their gender identity.
  • Provides many additional examples of sexual harassment, discrimination, and retaliation across a broader spectrum of industries.
  • Includes bystander intervention methods to encourage employees to intervene if they witness harassment in the workplace.
  • Explains that harassment does not need to be severe or pervasive (the federal standard) to be unlawful.
  • Clarifies that intent is not a defense to harassment and discrimination.
  • Clarifies that whether conduct or behavior is unlawful is based on an objective standard – viewed from the standpoint of a reasonable victim.
  • Clarifies that harassment exists where the conduct or behavior rises above “petty slights and trivial inconveniences.”
  • Adds information regarding the New York State Division of Human Rights’ (NYSDHR) sexual harassment hotline.
  • Clarifies that retaliation may include the public disclosure of personnel files in retribution for engaging in protected activities.
  • Revises the “Investigation” section to provide that employers (and/or their investigators) must exercise “sensitivity” in handling complaints, and replaces a 30-day investigation timeframe with an obligation to complete the investigation “as soon as possible.”
  • Updates the time to report a claim to the NYSDHR from one to three years.
  • Clarifies that discrimination based on any of the protected classes is prohibited.
  • Explains that complaints to the NYSDHR can be completed online.
  • Re-emphasizes supervisors’ and managers’ obligation to report harassment and discrimination.
  • Provides an expanded explanation that the policy applies to both employees and non-employees (independent contractors, vendors, gig workers, consultants and other service providers).

Our firm is monitoring this development and will advise employers and clients of the new policy requirements once adopted by the DOL. As was the case with the first model sexual harassment policy, employers will have the option of either adopting the model policy or drafting an individual policy that meets or exceeds the minimum standards contained in the DOL’s final version model policy.

For any questions regarding this topic, please contact Poricanin Law.

NY Now Requires Electronic Distribution of Mandatory Workplace Posters

Effective December 16, 2022, Labor Law Section 201 was amended to require New York employers to provide employee rights notices electronically.  Traditionally, employers satisfied their workplace notice posting requirements by physically posting government-issued posters in the workplace, often on bulletin boards or pre-printed posters. However, with this amendment of the Labor Law, employers are now required to provide these notices either by email or through the employer’s website, in addition to continuing to post the notices in any physical work location.  Employers are also required to notify employees that the employee workplace notices are available electronically.

This change to Section 201 of the Labor Law was sloppy, creating a number of practical challenges for already over-regulated New York employers.  For example, for employers who do not maintain a website or who do not communicate with employees through email, does the law require them to now create an electronic communication system with those employees?  The law specifically states that digital copies of the notices must be provided on a website or email, seemingly prohibiting the distribution of these notices via text messages.   

Separately, the law amended a New York Labor Law section discussing notices required by the New York Commissioner of Labor, thereby suggesting that only those notices required by the State’s Commissioner of Labor would have to be electronically distributed.  However, the new language in the law states that “all other documents required to be physically posted at a worksite pursuant to a state or federal law or regulation” must also be made electronically available.  This seems to suggest that non-employment type posters and/or those issued by the federal government would also be subject to this new electronic-distribution requirement. 

Lastly, while the law is effective immediately, it is not clear whether employers are required to implement this law for their current staff, or only apply the new requirements to new hires.  If it is the former, the new law creates a time-sensitive urgency for employers to act.

We will be reaching out to the Department of Labor to clarify these requirements.  In the meantime, employers should start considering how to comply with the new law, which is in effect.  For some employers, the law’s requirement of distributing workplace notices electronically will be simple to administer.  However, for other employers, such as those in the home care industry, the requirement may prove difficult to effectuate.  Failure to satisfy the electronic notice posting requirement could result in monetary fines.  In addition, non-compliance could be used as evidence against an employer in connection with allegations of other workplace violations.

NY DOL will Soon Issue New Requirements for Employers’ Mandatory Sexual Harassment Policies

The New York Department of Labor announced that it will release an updated Sexual Harassment Prevention Model Policy following a comprehensive effort to gather and review recommendations from stakeholders, including businesses around the State.  Also according to the State, key updates to the new policy include:

  • More plain language, less legal jargon to make it easier to understand
  • Updates to address sexual harassment of remote workers
  • Updates to define different gender identities and emphasizing that gender discrimination is sexual harassment
  • Additional examples of sexual harassment to account for a broader array of work experiences (i.e., service industries, remote work)

Following the release of the policy, the DOL will begin a comment period. 

New York employers will be required to adopt the new model policy once it is issued, and substitute it for the current policy they are utilizing OR update their currently policy to incorporate the newly required language. 

We will monitor this issue and, once the new policy language is issued, work with clients to update their harassment policies and training program to correspond to the new policy requirements.   

Denial of Remote Work Tops COVID-19 Litigation Activity

The impact of COVID-19 on the workplace was expected by many to generate a great deal of employment litigation. Those expectations unfortunately have been met as numerous cases have accrued across the nation based on various claims of discrimination and harassment in the context of a new COVID world.

The primary employment claim filed by plaintiffs alleges that the employer violated the Americans with Disabilities Act by failing to provide remote work as an accommodation to an employee’s alleged disability. The claims are based, in part, on the argument that the employees and remote work have proven effective during the pandemic and, thus, an employer would not suffer a hardship by making accommodations for employees who need to work from home due to medical issues or disabilities. These arguments may be sufficient to take the case past summary judgment, depending on the circumstances in the case. In overly simplified terms, an employer making a case for in-office work will need to establish how or why the allegedly disabled employee needs to be in the office to perform their job, and why a remote work arrangement is detrimental to the business. However, if the employee can perform the essential requirements of their job (and not every single task that the employee performs is considered essential), an employer will have a hard time prevailing.  

In sum, COVID created the case for remote work for many employees who had, for years, sought to have a hybrid or remote work arrangement and many employees will utilize the pretense of a disability to secure such a work arrangement. Employers have to engage in the interactive process with any employee seeking an accommodation due to a disability, not just a remote work arrangement. This means that remote work requests cannot be outright dismissed because the Company refuses to make exceptions. Indeed, the essence of the Americans with Disabilities Act is an exception to ordinary policies and procedures in the interest of allowing a qualified disabled individual to work. It is only after the full and complete interactive process that employers can make a decision on employee’ remote work requests. 

If you have questions about your obligations as an employer under the ADA, please reach out to Poricanin Law.

NYC Launches Mediation Center for Domestic Workers

New York City recently launched a new program addressing wage and other employment issues specifically for the City’s domestic workers. The initiative, termed the “Domestic Worker Mediation Program,” will be overseen by the Center for Creative Conflict Resolution, which is part of the Office of Administrative Trials and Hearings.

According to a report by the New York City Department of Consumer and Worker Protection, there are as many as 18,000 domestic workers employed in New York City (e.g. housecleaners, nannies, or other care providers), and more than half have reported experiencing wage theft, leave violations, harassment, discrimination, and fear of retaliation from their employers.

The Mayor and other city officials believe the program will provide an option to resolve disputes in a manner that is less costly and complex than traditional litigation. The program’s services are free, confidential, and offered regardless of immigration status. If both the worker and employer agree to mediation, a neutral mediator will meet with the two parties to identify a resolution acceptable to both parties.

The Federal “Speak Out Act” Prohibits Certain NDA Clauses Associated with Sexual Assault and Harassment

On December 7, 2022, President Biden signed the Speak Out Act into law. The law takes effect immediately and it limits the enforceability of pre-dispute nondisclosure and non-disparagement provisions relating to disputes involving sexual assault and sexual harassment. Thus, agreements in which employees agree to keep confidential any future sexual assault or harassment claims arising within their employment are unenforceable under the Act, as are general nondisparagement covenants to the extent they would limit an employee’s ability to comment on a sexual harassment dispute or a sexual assault dispute.

Employers should keep in mind, however, that in many jurisdictions there are already certain limits to nondisclosure provisions relating to claims of sexual harassment. For instance, Section 5-336 of the New York General Obligations Law prohibits employers from requiring a nondisclosure provision in any settlement agreement resolving claims of discrimination unless the condition of confidentiality is the complainant’s preference. Further, most employers only utilize nondisparagement and nondisclosure provisions arising or relating to sexual harassment in the context of a settlement or separation agreement, after a dispute arises. Thus, it is unlikely that the federal law signed by Biden, which prohibits pre-dispute agreements, would be triggered often for sexual harassment or assault matters.

Employers who may have questions about whether any nondisparagement and nondisclosure agreements currently utilized by their businesses violate the Speak Out Act should consult counsel, to ensure that their standard template documents are still compliant in view of this new law.  

Upstate Minimum Wage for Home Care Workers is Going up by $1.00, not $0.70

In August, the Department of Health (“DOH”) held a presentation for MLTCs regarding the State’s rate setting for Medicaid services. On one of the PowerPoint slides, the DOH noted that the minimum wage (“MW”) rate for upstate home care workers would be increased by an additional $.70 (on top of the $2.00 that was going into effect on October 1), effective as of December 31, 2022. This was the first indication of an upstate minimum wage increase and many providers took note of the $.70 notation and have been negotiating their rates with plans around a $.70 increase. However, as the Department of Labor has made clear several weeks ago, the $1.00 MW rate increase for upstate employers (in all industries) would be $1.00, and the DOL expects this $1.00 increase to be added onto the home care workers’ then-rate of $15.20.  Thus, effective with hours worked on December 31, 2022 and until October 1, 2023, the MW for upstate home care workers will be $16.20.

The Home care worker minimum wage legislation that was passed earlier this year in April stated home care workers would receive $2.00 “in addition to the otherwise applicable minimum wage .” Effectively, this means that the $2.00 for home care workers is paid on top of whatever MW rate is then in effect for the New York region at issue.  As providers probably have seen, the Upstate MW is going up from $13.20 to $14.20 on December 31, 2022 for all industries.  Thus, on December 31, when the new upstate MW increases to $14.20, the $2.00 home care worker MW premium will be added onto that rate of $14.20, resulting in a new upstate MW rate of $16.20. 

The State has published several MW posters which suggest that the DOL considers the new, higher, home care worker wage rates to be the “minimum wage.” This question is relevant to issues such as travel time pay, in-service pay and spread of hours. Thus, in accordance with the current interpretation of New York DOL, the MW for all home care intents and purposes would appear to be the new rate (inclusive of the $2.00 increase) and not the Statewide MW rate.

Please reach out to Poricanin Law if you have any questions about these minimum wage changes

Payroll Software Data Breach Results in Multi-Million Dollar Liability for Companies whose Employees were Paid Incorrectly as a Result of that Breach 

A recent case reinforces the principle that employers may ultimately be held responsible for wage and hour errors, even when those errors are caused by a technology or payroll system error.

Earlier this month, United States District Judge Nelson Roman issued preliminary approval of a $12.75 million settlement stemming from the failure of PepsiCo and related companies to provide pay and overtime to 70,000 non-exempt employees. The failure was caused by a ransom ware attack sustained by payroll company Kronos, which is used by the plaintiffs. The attack, which took place between December 11, 2021 and February 12, 2022, caused massive data breaches, creating chaos in the plaintiffs’ payroll recording and reporting capabilities.

In response to the data losses, the plaintiff companies resorted to “imperfect” efforts to determine several subsequent payroll period obligations, e.g. calculating averages and other estimation techniques. According to documents filed with the court, the payroll system failure resulted in $23 million in underpayments and nearly $60 million in overpayments. The underpayments were corrected earlier this year by the employers, however it was too late to prevent the litigation from being filed by employees who were affected. As a result of the settlement, the defendant companies will pay $12.75 million to resolve the workers’ claims.

Employers are reminded of the prevalence of breaches, hacking schemes, and ransomware attacks and the importance of backing up data in the event that they need to pivot to an alternate method of processing payroll. For employers in home care, where payroll is largely done on a weekly basis (with some exceptions), and “late” payroll is considered a major wage and hour violation, it becomes even more important to have a back-up plan for payroll and wage compliance as part of the organization’s emergency preparedness program.

Reminder: Home Care Providers cannot test for Marijuana Use, in Almost all Cases 

Given the recent legalization of recreational marijuana use in New York State, and the regular application of drug tests in the home care industry, it is imperative for employers to understand the limitations of their ability to screen and test for marijuana use.

The Marijuana Regulation and Taxation Act (“MRTA”) amended Section 201-d of the New York Labor Law – which prohibits discrimination by an employer against an employee because of certain lawful outside work activities – to include protections for recreational cannabis use. As such, employers are now prohibited from discriminating against employees based on their use of cannabis outside of the workplace, outside of work hours, and where use does not involve the employer’s equipment or property. Under the MRTA, employers cannot take adverse action against employees for their use of legal cannabis outside of the workplace and outside of working hours work hours, except where: (a) an employer is required to take such action by state or federal law; (b) the employer would otherwise be in violation of federal law or would lose a federal contract or federal funding; or (c) the employee, while working, manifests specific articulable symptoms of impairment that either decrease or lessen the employee’s performance or interfere with the employer’s obligation to provide a health and safe workplace.

We highlight below several Q&As from the New York Department of Labor guidance for employer’s


  • Can an employer test for cannabis? No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.
  • Can an employer drug test an employee if federal law allows for drug testingNo, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law. (See e.g., USDOL TEIN 15-90 explaining that neither the Drug Free Workplace Act of 1988 nor the rules adopted thereunder authorizes drug testing of employees.) However, an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position. (See e.g., mandatory drug testing for drivers of commercial motor vehicles in accordance with 49 CFR Part 382; see also e.g., NY Vehicle and Traffic Law Section 507-a which requires mandatory drug testing for for-hire vehicle motor carriers in accordance with 49 CFR 382.)
  • Can employers require that employees promise or agree not to use cannabis as a condition of employment? No, employers are not permitted to require employees to waive their rights under Section 201-D of the Labor Law as a condition of hire or continued employment.

  • Are existing policies prohibiting use permitted? No, unless an exception applies. Employers are encouraged to update or amend such policies to reflect changes to New York State law
  • Can employers prohibit use of cannabis during meal or break periods? Yes, employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work.

If you have any questions about this article, or need assistance in preparing lawful marijuana use policies for your workforce, please contact us.

It’s not just the Minimum Wage that is Increasing. Effective December 31, Certain Exempt Employees will need to receive a Salary Increase in order to Maintain their Overtime Exempt Status.

As a reminder, effective Dec. 31, 2022, the minimum wage for all industries in upstate New York will increase from $13.20 to $14.20 per hour. The minimum wage for employees working in New York City, Nassau, Suffolk and Westchester counties remains unchanged at $15.00 per hour.  An increase to the salary threshold for employees who are classified as exempt under New York’s executive and administrative exemptions will also increase from $990 to $1064.25 per week (inclusive of board, lodging and other allowances and facilities) in upstate New York effective Dec. 31, 2022.  Historically, the exempt salary threshold has been 75 times the minimum wage rate. There is no proposed increase to the salary threshold for exempt executive and administrative employees working in New York City, Nassau, Suffolk and Westchester counties, whose threshold is currently at $1,125 per week. As a reminder, New York State does not establish a minimum salary threshold to qualify for the professional exemption. Thus, the federal threshold of $684.00 per week remains applicable for the professional exemption across New York State, and into 2023. 

Employers with exempt employees under the administrative or professional exemption, whose salaries will not satisfy these minimum salary thresholds after December 30th are reminded that, to preserve the overtime exemption for these employees, they will need to increase the salary as of December 31, 2023.

If you have any questions about these changes, please do not hesitate to reach out.