While in session, New York state legislators introduce all kinds of bills, most of which do not become laws, or at least not right away. But even unsuccessful bills can clue us in on what lawmakers are thinking, what policies might be trending, and what changes future laws might bring. New York businesses can stay ahead of the game—and avoid ugly surprises—by identifying those employment-related bills that could signal important changes to come. Here are a few proposed laws introduced by the New York Assembly since the beginning of 2024. While none of these have passed, and they may not pass this year, prudent businesses will keep themselves apprised of what legislators are focused on in this ever-changing landscape.
Public Reporting of Employee Diversity
Assembly Bill A08555 would apply to all companies who are otherwise required to file an Employer Information report (Form EEO-1) with the federal Equal Employment Opportunity Commission. Form EEO-1 is required by any company with one hundred or more employees, as well as federal contractors with fifty or more employees. The form requires a qualifying company to identify the race/ethnicity and gender of all its employees by job category (such as executive, administrative, or service worker). The proposed new legislation would require companies to send a copy of any EEO-1 to the New York Secretary of State, who would publish the data contained therein on the Secretary of State website.
The purported purpose of the bill is to increase the information available to prospective new employees, consumers, and investors to whom knowledge of a company’s diversity would influence their decision-making. Speculatively, such information could be used to buttress claims of discrimination, particularly based on theories of disparate impact. Companies with relatively low levels of employees within a specific protected class, or low levels of protected employees in high-level positions, could become targets for disparate-impact discrimination claims. Those employers who already file EEO-1 forms should be aware of efforts to make their workforce demographic information more publicly available and should be investing in robust diversity, equity and inclusion (DEI) programs, if they are not already.
Complying with Unemployment Insurance Requirements
Assembly Bill A09355 is designed to address unpaid Unemployment Insurance (UI) taxes, particularly with regard to the misclassification of employees as “independent contractors” and the failure by some companies to report paid wages to the New York Department of Labor (DOL). The proposed bill seeks to ensure that all employers who are required to pay into the system do so.
The bill seeks to accomplish this by making a number of amendments to Labor Law Section 570. First, it expands the definition of those employers subject to UI payments and wage reporting to incorporate those who are “presumed liable.” So, for example, if a company retained ten individuals performing the same duties and classified them as independent contractors, but the DOL determined that one of them was actually an “employee” when adjudicating a UI claim, that would trigger UI payment and reporting obligations for the company with regard to the other nine persons. The presumptive obligation would be applied to both retroactive and prospective DOL determinations, should the law pass.
The bill would also empower the Labor Commissioner to seek a court order requiring compliance with the reporting requirements and allow individuals to pursue compliance by their employers in state court. Importantly, an individual would not be allowed to recover monetary damages, but they could recover attorneys’ fees and costs if they prevail. Aggressive plaintiff-side employment attorneys would certainly use this provision to their advantage. Companies that rely heavily on persons they characterize as “independent contractors” should consult with counsel to ensure that such classifications are accurate.
Additional Sick Leave for Domestic Violence Victims
Finally, Assembly Bill A03243 would increase the minimum amount of sick leave available for victims of domestic violence, a family offense, sexual offense, stalking, or human trafficking. New York Labor Law Section 196-b(4)(iii) already allows employees to use accrued sick leave for things like meeting with attorneys or law enforcement, relocating from a person’s home or school, or taking other actions necessary to ensure the safety of an employee or their family members in such situation. In addition to permitting an employee to use accrued sick leave for these purposes, the new proposed law would require an employer to provide an additional ten days of unpaid leave upon request on top of any otherwise accrued sick time.
Whether any of these proposed bills ever become law, employment regulations are always major topics for state legislators. Husch Blackwell will continue to help New York companies stay up to date on changes to the law and future changes that may be coming.
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