Consequential New York Employment Legislation on Agenda for Spring 2023

By: Robert S. Whitman, Daniel I. Small, Michelle Shamouilian, and Nicolas A. Lussier

Seyfarth Synopsis: Legislators in New York City and State are considering several bills that could impact employers’ daily operations in the Empire State. The bills would broaden discrimination protections, require mandatory onboarding meetings for employees returning from parental leave, require trainings on employee rights, regulate separation agreements, and impose new requirements related to the use of automated employment decision tools, including artificial intelligence.

Several bills currently introduced in the New York State Legislature and New York City Council could broaden worker rights and fundamentally alter the employer-employee relationship.  What follows is a summary of a few of those measures.

Height, Weight, Poverty, and Tattoo Discrimination: A few states and localities, including Michigan and San Francisco, permit discrimination claims based on height and weight. Under a bill currently pending in the New York City Council, the city would join those jurisdictions and prohibit employers from considering a person’s actual or perceived height or weight in making employment decisions. The bill provides an exemption where height and weight are bona fide occupational qualifications reasonably necessary to the normal operation of the business. As stated at a hearing last month, proponents of the bill believe it “could serve to protect against a roadblock to employment that is both a nuanced and complex form of discrimination.”  This bill is similar to other proposed enactments that would ban discrimination based on poverty and having a tattoo (Int 0929-2023 and Int 0640-2022, respectively).

Mandatory Reintegration Meetings: Another New York City bill would require employers to hold an onboarding meeting to discuss an employee’s reintegration back into the workplace after parental leave. Under the proposed framework, an employer would be required to discuss the conditions and expectations of employment within two weeks of an employee’s return. The substantive agenda of any meeting would need to be in strict compliance with guidelines issued by the Commission on Human Rights.

Employee Rights Training: Another New York City bill would require the Department of Consumer and Worker Protection (DCWP) to provide fast food workers protected by the Fair Work Week Law with training on city employment laws. Trainings would be conducted by DCWP, another agency, or a community organization selected by the DCWP. According to the bill’s text, DCWP would determine whether to require a fast food employer to make their fast food employees available to attend the training by considering: (i) the number and severity of violations of the Fair Work Week Law, and (ii) any other factors it deems relevant.

Ban “No Re-hire” Clauses: At the state level, Senate Bill 14 would make a release unenforceable if, as a condition of the agreement, an employee or independent contractor is prohibited from applying for, accepting, or engaging in future employment or services with the employer, or any entity or entities related to such employer. The bill would apply to all private and public employees. The bill passed the Senate on March 27, 2023 and awaits a vote by the Assembly.

Restricting Nondisclosure Agreements in Certain Cases: Another New York State bill seeks to prohibit settlement agreements relating to any claim involving sexual harassment, or any other form of discrimination prohibited by law, from containing a condition that requires the complainant to pay the defendant liquidated damages in the event that the plaintiff violates any nondisclosure agreement included in such settlement agreement. This bill passed the Senate on March 22, 2023 in a 58-3 vote and awaits a vote by the Assembly.

Automated Employment Decision Tools: New York City already passed a law governing Automated Employment Decision Tools (“AEDTs”) and the New York State legislature is considering a bill of its own. The bill would require an annual disparate impact analysis to evaluate the impact of any AEDT and make the results available on the company’s website. It was introduced in the Senate on March 10, 2023 and referred to the Committee on Labor.

At Will Employment: Like a recently introduced bill in the New York City Council, a new bill in the State Senate would eliminate employment at-will employment and establish a just-cause requirement for employee terminations. The Seyfarth team will discuss these bills in a separate client alert.

Seyfarth will continue to monitor and report on the status of these various bills.  In the meantime, please reach out to the authors of this alert or another Seyfarth contact if you wish to discuss any of these recent developments.