Upcoming Changes to New York's Employment Laws

​New York State Gov. Kathy Hochul continues to sign legislation emanating from a busy legislative session, including legislation prohibiting employers from accessing employee social media account log-in information, requiring written notice of unemployment insurance benefits, and modifying the New York Labor Law's definition of "clerical and other worker."

Social Media Accounts

Hochul recently signed a bill that prohibits employers from requesting or requiring an employee's personal username, login information, passwords, or social media accounts as a condition of hiring, a condition of employment, or for use in a disciplinary action. This legislation mirrors enactments in many other jurisdictions.

The new law prohibits employers from requesting, requiring, or coercing employees and job applicants to:

• Disclose their username, password, or other log-in information used to access their personal account through an electronic communications device.
• Access their personal account in the employer's presence.
• Reproduce photos, videos, or other information contained in their personal account through means prohibited under the law.
  

A carve-out exists for employers to request or require employees to disclose log-in information for accounts that were provided by the employer and that are used for business purposes, so long as the employee was provided notice of the employer's right to request such information. There is an exemption for employers that request or require an employee to disclose log-in information for an account known to the employer to be used for business purposes.

The new law permits employers to access an electronic communications device paid for, in whole or in part, by the employer and when payment for the device was conditioned on the employer retaining the right to access the device, and the employee was given prior notice to such conditions. However, this exception does not permit an employer to access an employee's personal accounts on that device.

This law will take effect on March 12, 2024.

Notice of Eligibility for Unemployment

Hochul signed a bill mandating that employers provide separated employees, among others, written notice of eligibility for unemployment benefits. The law, which amends Section 590 of the Labor Law and formalizes existing state Department of Labor guidance, requires employers to provide written notice of the right to file for unemployment benefits to any employee whose employment has been terminated or whose scheduled working hours have been reduced.

The notice must be provided no more than five working days after the termination date or reduction of their working hours. In the same five-working-day period, Section 195(6) of the Labor Law still requires an employer to "notify any employee terminated from employment, in writing, of the exact date of such termination, as well as the exact date of cancellation of employee benefits connected with such termination."

This law will take effect on Nov. 13, 2023.

Modification to the Definition of Clerical Worker

Hochul signed a bill amending the Labor Law's definition of "clerical and other worker." This legislation modifies the minimum weekly earnings that a bona fide executive, administrative, or professional employee must receive to be excluded from the category of "clerical and other worker," increasing that amount from $900 to $1,300 per week. Only employees who meet the revised exclusion can be subject to mandatory direct deposit.

Additionally, those who meet the revised threshold are excluded from the provisions of the Labor Law providing the right to seek recovery of "benefits or wage supplements" (which include reimbursement for expenses; health, welfare, and retirement benefits; and vacation, separation, or holiday pay). The state Department of Labor's current wage claim form excludes employees who meet this definition from seeking recovery for any wage claims through the state.

This law will take effect on March 13, 2024.

Richard Greenberg, Daniel Jacobs, Henry Shapiro, Noel Tripp, Christopher Valentino and Kevin Murray are attorneys with Jackson Lewis. © 2023. All rights reserved. Reprinted with permission.