Key Takeaways:

• New York State Penal Law amendments strengthen penalties for employers guilty of wage theft.

• New York State prohibits employer mandatory meetings on political and religious matters.

• New York State Human Rights Law now protects interns from discrimination based on gender identity and expression.

New York State Enhances Criminal Penalties against Employers Guilty of Wage Theft

On September 6, 2023, Gov. Hochul signed Bill S2832-A/A154-A into law. The purpose of this law is to allow prosecutors to seek stronger penalties against employers who steal wages from workers. Specifically, the law amended Section 155.00 of the Penal Law to add “compensation for labor or services” to the definition of “property” and adds a subsection 10 for “workforce” which means “a group of one or more persons who work in exchange for wages.”

The law also amends Section 155.05 of the Penal Law to add a subsection (f) to define larceny by wage theft to mean the following:

A person obtains property by wage theft when he or she hires a person to perform services and the person performs such services and the person does not pay wages, at the minimum wage rate and overtime, or promised wage, if greater than the minimum wage rate and overtime, to said person for work performed. In a prosecution for wage theft, for the purposes of venue, it is permissible to aggregate all nonpayments or underpayments to one person from one person, into one larceny count, even if the nonpayments or underpayments occurred in multiple counties. It is also permissible to aggregate nonpayments or underpayments from a workforce into one larceny count even if such nonpayments or underpayments occurred in multiple counties.

Employers are advised to work with employment counsel to ensure compliance with federal, state, and local wage and hour laws to avoid civil and criminal penalties.

New York State Prohibits Employer Mandatory Meetings on Political and Religious Matters

On September 6, 2023, Gov. Hochul signed bill S4982/A6604 into law, amending New York Law § 201-d, prohibiting employers from disciplining employees who opt not to participate in meetings on political and religious matters. New York Law § 201-d is the state statute that protects employees from adverse employment actions when they engage in lawful off-duty conduct. Specifically it provides protections relating to political activities, use of consumable products, recreational activities, and members in unions. It was last amended in 2021 when New York legalized recreational use of marijuana.

The new law includes the following two new definitions:

“Political matters” shall mean matters relating to elections for political office, political parties,  legislation, regulation and the decision to join or support any political party or political,  civic, community, fraternal or labor organization; “Religious matters” shall mean matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.

It also protects employees who refuse to: (i) attend an employer-sponsored meeting with the employer or its agent, representative or designee, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters; or (ii) listen to speech or view communications, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.

The law clarifies that it does not prohibit the following:

1. an employer or its agent, representative or designee from communicating to  its  employees any information that the employer is required by law to communicate, but only to the  extent of such legal requirement;
2. an employer or its agent, representative or designee from communicating to its employees any  information that  is necessary for such employees to perform their job duties;
3. an institution of higher education, or any agent, representative or designee of such institution, from meeting with or participating in any communications with its employees that are part  of coursework, any symposia or an academic program at such institution;
4. casual conversations between employees or between an employee and an agent, representative or designee of an employer, provided participation in such conversations is not  required;  or
5. a requirement limited to the employer’s managerial and supervisory employees.

Under the law, employers now have an affirmative duty to post notices of the protections under New York Law § 201-d where notices are normally posted. Covered employers should also note the requirement to post the notice electronically too. The law went into effect immediately.

These new provisions do not apply to religious corporations, entities, associations, educational institutions and societies that are already exempt from Title VII of the Civil Rights Act of 1964 pursuant to 42 USC 2000e-1(a) with respect to speech on religious matters to employees who perform work connected with the activities undertaken by such religious corporation, entity,  association, educational institution or society.

At the outset, there is a certain level of irony in this amendment given that New York Law § 201-d was originally enacted to protect the off-duty conduct of employees, while this change prohibits the conduct of employers during the workday. The “justification” section of the bill notes the decline in union membership over the last 40 years and alleges that employers have increased partisan messaging to employees. Notably, these new protections are directly at odds with the longstanding position of the National Labor Relations Board, which has permitted employers to hold mandatory meetings during work hours to explain their view on unions. These meetings are frequently held at businesses during union organizing campaigns. As a result, it is expected that this law will be challenged under an argument that it is preempted by the National Labor Relations Act.

In addition to adhering to the new notice poster requirement, employers should consider these amendments if they intend to mandate that an employee attend a meeting or listen to employee speech that is covered by this law.

New York State Amends Human Rights Law Protections for Interns

In 2014, New York Executive Law § 296-c was enacted to extend the protections of the New York State Human Rights law to interns. On August 23, 2023, Gov. Hochul signed Bill A7355/S7382 amending Executive Law § 296-c to state specifically that interns are protected from discrimination based on gender identity and gender expression. The law went into effect immediately.

Employers that hire interns are advised to ensure employment handbooks, policies, and managerial training include coverage for these protections for interns.

For more information or immediate guidance, contact:

• • • Christopher P. Maugans
    • Scott R. Green
    • Caroline J. Berdzik
    • Or another member of the Employment and Labor practice