Every year there a number of new developments in rules, regulations and laws governing labor and employment. Whether this is in regard to personal social media accounts, pay transparency acts, freelance contractor agreements, and even drug tests and background checks, employers must be in the know. If inadvertently unaware, you could face fines, lawsuits and penalties.

Long Island Business News spoke with three labor and employment law attorneys who offered insight on a few of the most common, new regulations employers should be aware of.

Personal social media…is personal

A New York State law went into effect on March 12 prohibiting employers from requiring disclosure or access to social media accounts.

“It prohibits employers from requiring employees to disclose usernames, passwords or other authentication information for their personal social media accounts,” said Dan Palermo, an attorney in the labor and employment practice group of Harris Beach’s Rochester, N.Y., office. If information posted on employees’ social media accounts is publicly available, that’s fair game for employers to check, adds Palermo, whose firm also has a Long Island presence in Uniondale.

For industries that are more public-facing, Palermo said, “Employers might have a greater interest in seeing this information to try and judge the employee. So, this kind of limits the ability to do that.”

Non-compete legislation, that was passed by the New York State legislature but vetoed at the end of the year, is expected to be revised and reintroduced in 2024, probably with exceptions for high earning employees.

“Don’t think New York is done pushing legislation that is going to limit employers’ ability to use non-compete agreements,” Palermo said.

The most recent New York State budget includes a sunset clause for New York State COVID leave, which requires employers to pay leave for employees in isolation due to COVID; that will be phased out at the end of July.

“For now that is something that employers still need to be aware of and requires them to provide [employees] with leave and you can’t deduct it from leave that the employee is otherwise entitled to under the employer’s policies,” Palermo said.

As New York City goes, so goes the state

As is often the case, New York City is at the forefront of labor laws, which New York State follows, enacting similar laws one to three years afterward, notes Avrohom Gefen, a partner at Vishnick McGovern Milizio of Lake Success and New York City .

The New York State Pay Transparency Act, which went into effect in September 2023, requires that employers with four or more employees provide both a high and low salary range when advertising or seeking employees.

“If a job description exists, they have to post the job description along with the solicitation for employment,” said Gefen, adding that the law applies to both employees who work in New York and out-of-state employees who report to a New York office.

“The overall intent of the law is to avoid discrimination in pay,” Gefen explained. “This way it’s a level playing field, that we don’t know in advance who’s going to apply for the job, whether it’s going to be a male
or female, so at least there’s transparency going in.”

Going into effect in May 2024, the Freelance isn’t Free Act provides that if a freelancer is performing services at $800 or higher, there has to be a written contract with that freelancer, including certain requirements, such as the rate of pay and date payment is due.

“This is to even the playing field between what they call ‘gig workers,’ and regular employees to prevent freelancers from being taken advantage of,” said Gefen, adding that if they haven’t been paid, they can sue for wages and get double damages, plus attorney’s fees: similar protections that employees are entitled to.

Comparable to NYC’s Fair Chance Act, the state’s Clean Slate Act aims to protect people who’ve been convicted of crimes from being discriminated against in employment. There are some exceptions, including for sex offenses, sexually violent offenses and murder.

“It provides for the automatic sealing of certain convictions after a certain period of time, so employers who are doing a background check will not see these convictions,” Gefen said.

It also has the added effect of making employers less liable, in the event that someone tries to sue them for negligent hiring or supervision, explained Gefen.

Minimum wage on Long Island has increased from $15 to $16 an hour and the weekly salary for employees to be considered exempt from overtime obligations was raised from $1,125 to $1,200.

“If you’re an exempt employee, you’re not entitled to overtime regardless of how many hours a week you work,” Gefen said.

Drug tests, background checks and independent contractors

Since marijuana was legalized in 2021, employers can no longer test for this substance.

“Even when there’s a reasonable suspicion of impairment, you still can’t test for marijuana,” said Gregory Lisi, partner and chair of the labor and employment law committee at Forchelli Deegan Terrana in Uniondale.

Adds Lisi: “Unless an employee is visibly impaired by marijuana, they really cannot be terminated for off-duty use of marijuana.”

With more stringent regulations in place, employees should really assess their needs for background checks.

“Under New York code, employers are prohibited from discriminating against people in their applications who have one or more criminal convictions, unless the conviction is directly tied to the role in which they are applying for,” Lisi said.

For example, DWIs would be relevant (and problematic) for someone applying for a bus driver position, but not an accountant.

Under the Fair Credit Reporting Act, anyone relying on a third-party provider to do a background check must provide the applicant with a written notice that they’re running one and provide a copy of the report, giving them the opportunity to respond and check for any errors.

To protect employees who are entitled to overtime, a new U.S. Department of Labor regulation—part of the Fair Labor Standards Act—effective March 11, made it much more difficult to classify people as independent contractors.

“Under the old guidance, there was a two-prong test, but now there is a six-prong test. And mischaracterization can cost employers huge amounts of money,” said Lisi, noting this brings hefty penalties, including up to six years of back pay.