New York State has enacted several new laws with significant implications for employers. These include (1) restricting employers’ ability to request the social media credentials of applicants and employees, (2) requiring employers to provide notice of unemployment insurance eligibility upon an employee’s separation from employment, (3) limiting an employer’s ability to require employees to assign invention rights, (4) criminalizing wage theft as a form of larceny and (5) limitations on so-called employer captive audience speeches. Each of these laws is summarized below.
Prohibition on Requiring Disclosure of Social Media Login Information
A new law prohibits employers from requesting, requiring or coercing any employee or applicant for employment to: disclose any user name, login information, or passwords of personal social media accounts as a condition of hiring or employment, or for use in a disciplinary action; requiring an applicant or employee to access their personal account in the presence of the employer, and from reproducing any photographs, videos, or information obtained by a prohibited means. The law does not prohibit an employee or applicant from voluntarily providing access by adding their employer or potential employer to their list of contacts associated with their account (e.g., by adding it as a “friend” or “follower”), nor does it prevent an employer from accessing information that is obtainable without any required access information. Employers are not prohibited from requiring an employee to disclose access information in the following scenarios:
- The employer provided the employee with the account, the account is used for business purposes, and the employee was provided prior notice of the employer’s right to request or require such access information;
- The account is known by the employer to be used for business purposes;
- The employer requests access to an electronic communications device for which it pays in whole or in part, and the provision of or payment for such device was explicitly conditioned on the employer’s right to access such device (however, such access does not extend to personal accounts on the device); or
- The employer is complying with a court order to obtain or provide information from, or access to, an employee’s accounts.
The law will take effect on March 12, 2024.
Notice of Unemployment Insurance Eligibility Required
Employers will now be required under the New York Labor Law to provide eligible employees notice of their right to file for unemployment insurance upon permanent or indefinite separation from employment, a reduction in hours, temporary separation, or other qualifying interruption of employment that results in total or partial unemployment. Such notice must be given in writing and include the employer’s name, registration number, and address to which a request for employment and remuneration information is to be directed. The law contemplates that the New York Department of Labor will issue or approve a form to be distributed for this purpose. The law becomes effective on November 13, 2023.
Limitation on Assignment of Employee Inventions
Under a recent amendment to the New York Labor Law, any agreement that requires an employee to assign, or offer to assign, rights in an invention to the employer does not apply to inventions developed during the employee’s personal time without using the employer’s equipment, supplies, or trade secret information. To the extent an agreement does require such assignment, the provision will be deemed against public policy and unenforceable. The law provides exceptions where an invention (1) relates to the employer’s business or actual or demonstrably anticipated research or development of the employer or (2) results from any work performed by the employee for the employer. This law takes effect immediately.
Wage Theft Constitutes Criminal Larceny
Governor Hochul signed into law an amendment to New York State’s Penal Law, which defines “property” to include “compensation for labor or services,” and specifically includes wage theft as a form of criminal larceny. Under the new law, which takes effect immediately, a “person obtains property by wage theft when he or she hires a person to perform services and the person performs such services and the person does not pay wages, at the minimum wage rate and overtime, or promised wage, if greater than the minimum wage rate and overtime, to said person for work performed.” Notably, even prior to this amendment to the Penal Law, Section 198-a of the New York Labor Law provided that wage theft would be prosecuted as a misdemeanor for the first offense and a felony for the second or subsequent offense within six years of a conviction for a prior offense.
Limitation on Captive Audience Speeches
New York State has enacted An Act to Amend the Labor Law, in Relation to Protecting Employee Freedom of Speech and Conscience. This statute, effective September 6, 2023, limits the ability of employers in New York State to conduct what are commonly referred to as captive audience speeches. The statute aims to meet its objective “by prohibiting employers from coercing employees into attending or participating in meetings sponsored by the employer concerning the employer’s views on political or religious matters.” Specifically, it is unlawful for employers in New York State to discriminate against individuals on the basis of their refusal to “attend an employer-sponsored meeting with the employer or its agent, representative or designee,” or to “listen to speech or view communications,” where “the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.” Employers must post a sign in every workplace, where employee notices are normally posted, informing employees of these rights.
The phrase “political matters” is defined to mean “matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization.” The broad scope of this definition may render the statute subject to a preemption challenge based on its impact on employer free speech rights under Section 8(c) of the National Labor Relations Act. The phrase “religious matters” is defined to mean “matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.” This provision is not applicable to certain operations of religious entities.
Employers should take note of these new laws and make any necessary changes to their policies, practices, and documents to ensure compliance with the new requirements.
For further information, please contact:
Ira M. Saxe, Partner, Crowell & Moring
isaxe@crowell.com
