Takeaways:
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Citizenship and immigration status are now covered by the New York Human Rights Law.
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Penalties have been increased for violations of mandatory overtime for nurses.
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A tight deadline has been created for recognizing workplace safety committee.
Citizenship and Immigration Status
On December 23, 2022, Gov. Hochul signed Bill A6328A/S6586. The bill amends New York Executive Law, Article 15 (i.e. the New York Human Rights Law), to prohibit discrimination based on an individual’s citizenship or immigration status. As often is the case, this law is similar to an already existing law in New York City.
The term “citizenship or immigration status” is defined to mean the citizenship of any person or the immigration status of any person who is not a citizen of the United States. The law clarifies that it does not preclude verification of citizenship or immigration status where required by law. Additionally, the law does not prohibit an adverse action based on verification of citizenship or immigration status where the adverse action is required by law. By way of example, employers are not permitted by law to hire individuals that do not have work authorization for employment in the United States. Accordingly, refusing to hire an individual under those circumstances would not run afoul the new law.
Employers must also still comply with the Immigration Reform and Control Act (IRCA) of 1986, and complete a Form I-9 upon hiring a new employee to work in the United States.
The enactment of this law builds on other legislation, including the expansion of New York Labor Law Section 215 passed in 2019 which clarified that employers may not retaliate against employees concerning immigration status
Employers are advised to work with employment counsel to update their equal employment opportunity statements, job advertisements, discrimination/harassment policies, and employee training, to reflect this update in the law.
Mandatory Overtime For Nurses
On December 30, 2022, Gov. Hochul signed Bill A286A/S1997 increasing the penalties for violations of New York State Labor Law Section 167. New York State Labor Law Section 167 makes it unlawful for certain health-care employers (i.e., hospitals, nursing homes, medical facilities) to require nurses, who provide patient care, to work beyond their regularly scheduled work hours, except under certain circumstances, including the following:
- A health-care disaster;
- A federal, state, or county government declaration of emergency;
- Where the employer determines there is an emergency that requires the nurse to work overtime to ensure safe patient care, provided it was an unanticipated staffing emergency for which could not be prudently planned;
- During an ongoing medical or surgical procedure, where the nurse’s presence is required to ensure safe patient care.
The bill provides that after an investigation where the Department of Labor determines that an employer has violated the law, the department shall issue to the employer an order directing compliance, a copy of which will be provided to whomever filed the complaint. The department shall also assess the employer a civil penalty in an amount not to exceed $1,000 for a first violation, $2,000 for a second violation, or $3,000 for a third or subsequent violation. The employee will receive an additional 15 percent of the overtime payment from the employer for each violation as damages. The law becomes effective on February 28, 2023.
Covered health-care employers should work with experienced counsel to ensure compliance.
Workplace Safety Committees
On December 28, 2022, Gov. Hochul signed Bill A10492/S9450, which amends New York Labor Law Section 27-d.
In 2021, the New York HERO Act was enacted, creating among other pieces of legislation, New York Labor Law Section 27-d, which requires private sector employers with 10 or more employees to permit the creation of joint employer-employee workplace health and safety committees.
The bill adds a new section to the law requiring employers to recognize within five (5) business days the establishment of a workplace safety committee. Violations will result in a civil penalty of at least $50 per day until the violation is remedied, and the Department of Labor is empowered to order other relief, including enjoining the conduct of any person or employer, in addition to any other remedies permitted by this section. This amendment went into effect immediately upon signature from the governor.
Employers should ensure leadership and managers are aware of this law and that they promptly respond to the formation of workplace safety committees created pursuant to the New York HERO Act.
