Legal Requirements As To The Form Of Agreement
New York is an employment “at will” state, which means that the employment is for no specific term and is subject to termination at the will of either party at any time for any or no reason, with or without notice. This can be modified by express agreement only. With the exception of high-level executives and other key personnel, there are usually no employment agreements providing for a fixed term of employment or modifying the employment “at will” status of employees. Collective bargaining agreements provide another exception, and usually contain “just cause” disciplinary provisions subject to arbitration. Notably, New York Consolidated Laws Section 7515 prohibits arbitration of any discrimination or harassment claim, although federal courts have held that this law is pre-empted by the Federal Arbitration Act, which permits arbitration.
Although there is no obligation to have an employment agreement, employers must notify new employees of their rates of pay, including overtime pay rates, and their regular pay date at the time of hire. However, employees who are paid on a commission basis must have the terms of the commission arrangement reduced to writing in accordance with prescribed statutory requirements.
Mandatory Requirements
-
Trial Period
Trial periods are not a mandatory requirement for employees in New York.
-
Hours Of Work
There are no statutory prescribed hours of work. However, employers in New York must provide most employees with a day of rest once per calendar week. Moreover, all employees must receive notice in writing of their hours of work, and employment beyond certain benchmarks is discouraged by requiring premium or overtime payments, usually at least one and one-half times an employee’s regular rate of pay. Exempt employees, i.e. those who fit the statutory description of executive, administrative or professional employees, are not subject to overtime requirements and can be paid on a salary basis.
-
Special Rules For Part-time Work
NYC’s Fair Workweek Law requires retail and fast-food employers in NYC to give workers predictable work schedules and requires fast food employers to give existing workers the opportunity to work open shifts before hiring new workers. Main sections of the law include:
Advance Scheduling and Schedule Change Premiums: This section requires fast food employers to provide a written Good Faith Estimate of the days, times, locations, and total number of hours that a fast-food worker can expect to work each week; 14 days’ (2 weeks’) notice of work schedules to fast food workers; and schedule change premiums when schedules are changed with less than 14 days’ notice.
Minimum Time between Shifts: This section requires that a fast-food worker consent in writing before being scheduled to work or working two (2) shifts over two (2) calendar days when the first shift ends a day and there are less than 11 hours between shifts. These shifts, known as “clopenings,” usually involve both closing and opening the establishment. The fast-food employer must pay the fast-food worker a $100 premium for working a clopening shift.
Access to Hours: This section requires fast food employers to offer any new shifts to existing workers at the location where shifts are available, followed by existing workers from other worksites before advertising new shifts externally or hiring a new employee. If existing workers do not accept open shifts, employers may then advertise for new workers.
On-Call Scheduling: This section bans retail employers from scheduling on-call shifts and requires retail businesses to provide 72 hours’ (3 days’) advance notice of work schedules to retail workers.
-
Earnings
Federal and state law prescribe minimum wage requirements, which include additional remuneration for overtime (1.5 times the regular hourly rate), except for those employees properly characterized as exempt in one of the categories noted above. Hours worked beyond 40 hours per week constitute as overtime. The current federal minimum hourly wage is $7.25. New York’s hourly minimum wage is $12.50. In New York City, Long Island, and Westchester, the minimum hourly wage is $15.00. There are special provisions for waiters and waitresses who receive tips and also for outside salespersons paid on commission.
The weekly pay for exemption from overtime for executive and administrative employees is $1,125.00
-
Holidays/Rest Periods
Employees are not entitled to holiday leave. For certain levels of employees, meal and rest periods are specified as mandatory. Meal periods should last at least 30 minutes. Employees must be provided with 24 hours of consecutive time off in each week. New York City requires New York City employers to grant employees five paid sick leave days per year with certain specified exceptions.
In addition, employers in the service industry are covered by the Spread of Hours Law, which provides that hourly, non-exempt employees who work split shifts or whose shifts have a “spread of hours” that begin and end more than 10 hours apart are owed an extra hour of pay.
-
Minimum/Maximum Age
The permissible minimum age of an employee depends on the industry and the nature of the job. An employer in New York cannot discriminate against any employee over the age of 18 on the basis of age no matter how old the employee is. There is no maximum age provided for.
-
Illness/Disability
Federal, state, and New York City laws prohibit discrimination on the basis of disability, provided the individual can perform the essential functions of the job. It is also improper to discriminate based upon a perception of disability.
-
Location Of Work/Mobility
There are no mandatory requirements or restrictions relating to an employee’s place of work. Where the employee is to work and whether or not they may be required to travel for work, are matters to be decided between the employee and his or her employer
-
Pension Plans
There is no requirement for an employee to have a pension plan, but federal law (principally Employee Retirement Income Security Act and Internal Revenue Code, but there are others) regulates such plans when they exist.
-
Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)
Pregnancy and childbirth are treated in line with disability legislation and are therefore subject to the laws of discrimination concerning disability. Employees who have been employed for at least one year may be entitled to up to 12 weeks unpaid leave in connection with the birth of a child under the Family Medical Leave Act. To the extent that an employer provides benefits beyond what is medically necessary, such policies must apply evenly to men and women. In addition, New York offers up to 12 weeks of paid family leave for eligible employees to use for the following purposes: (1) bonding for birth, adoption, and foster care; (2) to care for a family member with a serious health condition; and (3) to assist when a family member is deployed abroad as a member of the military.
-
Compulsory Terms
There are no compulsory terms provided for under federal and state law.
-
Non-Compulsory Terms
The parties are free to agree to other non- compulsory provisions. (New York Consolidated Laws Section 7515 prohibits arbitration of any discrimination or harassment claim, although federal courts have held that this law is pre-empted by the Federal Arbitration Act, which permits arbitration.)
Types Of Agreement
As previously noted, employment is “at will” in the absence of any agreement to the contrary. Agreements restricting employment rights might take the form of an individual employment agreement, a collective bargaining agreement, or an independent contractor agreement (this latter type of agreement is actually intended to avoid an employment relationship and must be carefully drafted, but it could nonetheless set specific terms, for example, for the engagement of a consultant).
Upon hiring an individual in New York, the employer must issue to the individual Form 195 from the Department of Labor, which provides notice of rate and frequency of pay.
Secrecy/Confidentiality
There are strong and enforceable common law fiduciary obligations that an employee owes to his employer. Such obligations include a prohibition against employees engaging in any activity detrimental to the interests of his employer, e.g., revealing trade secrets, working for a competitor. Sometimes these obligations are set out in an employment agreement or in what might be referred to as a Confidentiality Agreement that deals solely with this subject. Because New York has strong common law protections in this area, it is important not to inadvertently compromise those protections with an imperfect confidentiality agreement.
Ownership of Inventions/Other Intellectual Property (IP) Rights
Generally, employers own or, at the very least, have a “shop right” to any invention or intellectual property developed by an employee during the course of his or her employment, especially if the employee is hired for the purpose of developing such things. In addition, if the invention or other intellectual property is developed during working time or with the employer’s information, equipment, or materials it is more likely that the employer will be deemed to own such an invention or intellectual property.
Hiring Non-Nationals
Employers are entitled to hire non-nationals provided that hiring is done in accordance with the detailed federal requirements involving immigration laws and work visas. It is the obligation of the employer, subject to penalties, to assure that anyone hired is lawfully permitted to work in the United States. Such hiring requirements may be more complex where the employment will involve the United States Government, whether directly or indirectly. Those lawfully entitled to work cannot be discriminated against because of their national origin.
Equal Employment Opportunity and Anti-Discrimination
Federal, state, and local laws prohibit discrimination against various protected categories of individuals. Generally speaking, employment opportunities are to be available to all qualified persons on equal terms.
Federal law protects the following classes: race, color, national origin, religion, sex (which has been held by the U.S. Supreme Court to include sexual orientation and gender identity), age (over 40), disability, pregnancy, veteran/military status, and genetic information. New York State protects age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, marital status, and disability. New York City protects race, color, religion/creed, age, national origin, immigration or citizenship status, gender, gender identity, sexual orientation, disability, pregnancy, military service, marital status, partnership status, unemployment status, arrest or conviction record, credit history, caregiver status, and status as a victim of domestic violence, stalking, and sex offenses. In addition, New York City law protects the rights of New York City employees to maintain natural hair or hairstyles that are associated with their racial, ethnic, or cultural identities, including natural hair or locs, cornrows, twists, braids, Bantu knots, fades, Afros, etc. for Black employees.
Outsourcing And/Or Sub-Contracting
In New York City, the Freelance Isn’t Free Act provides that freelance workers have the right to a written contract, timely and full payment, and protection from retaliation. In addition, in a union setting, a collective bargaining agreement might impose restrictions on freelance work, outsourcing, and/or subcontracting.
Pre-Employment Considerations
Criminal History Inquiries
The NYS Human Rights law and NYS Corrections Law and the NYS Mini Fair Credit Reporting Act regulate background checks into applicants and employees, requiring analysis fo the criminal history and consents, disclosures and notices in written form prior to and during the background check.
The Fair Chance Act amended the New York City Human Rights Law by adding restrictions and review and notice requirements when an employer considers an individual’s criminal conviction history in deciding whether to employ or retain the applicant. The FCA added to the pre-existing requirements of the New York State Human Rights Law and the New York Corrections Law, Article 23-A, that an individualized assessment of the impact of an applicant’s conviction history on their fitness for employment be conducted before an adverse decision is made. Under state law, employers are required to apply eight specific factors to decide whether the applicant’s conviction history either 1) directly relates to the job applied for or 2) employment of the applicant creates an undue risk to property, persons or the public. The FCA incorporated these requirements and added a strict prohibition on inquiries of any type regarding an applicant’s criminal history unless the applicant first receives a conditional offer of employment.
The FCA also imposed a detailed, specific process employers must follow before a conditional offer of employment may be withdrawn based on an applicant’s criminal history. The FCA process requires an employer, before adverse action is taken based on an applicant’s criminal history, to provide the applicant with a notice and written analysis, applying the required state law factors, of the impact of their criminal history on the job applied for, and to allow the applicant at least three business days to respond and provide relevant documents or information for the employer to consider before withdrawing a conditional offer.
Many municipalities have similar laws so, generally NYS employers should not ask or inquire about convictions pre offer.
Salary History Ban
Labor Law Section 194-a prohibits an employer from, either orally or in writing, personally or directly or indirectly asking any information concerning an applicant’s salary history information. This includes compensation and benefits. The law also prohibits an employer from relying on an applicant’s salary history information as a factor in determining whether to interview or offer employment at all or in determining what salary to offer.
Hiring Non-Nationals
Employers are entitled to hire non-nationals provided that hiring is done in accordance with the detailed federal requirements involving immigration laws and work visas. It is the obligation of the employer, subject to penalties, to assure that anyone hired is lawfully permitted to work in the United States. Such hiring requirements may be more complex where the employment will involve the United States Government, whether directly or indirectly. Those lawfully entitled to work cannot be discriminated against because of their national origin.
Equal Employment Opportunity and Anti-Discrimination
Federal, state, and local laws prohibit discrimination against various protected categories of individuals. Generally speaking, employment opportunities are to be available to all qualified persons on equal terms.
Federal law protects the following classes: race, color, national origin, religion, sex (which has been held by the U.S. Supreme Court to include sexual orientation and gender identity), age (over 40), disability, pregnancy, veteran/military status, and genetic information. New York State protects age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, marital status, and disability. New York City protects race, color, religion/creed, age, national origin, immigration or citizenship status, gender, gender identity, sexual orientation, disability, pregnancy, military service, marital status, partnership status, unemployment status, arrest or conviction record, credit history, caregiver status, and status as a victim of domestic violence, stalking, and sex offenses. In addition, New York City law protects the rights of New York City employees to maintain natural hair or hairstyles that are associated with their racial, ethnic, or cultural identities, including natural hair or locs, cornrows, twists, braids, Bantu knots, fades, Afros, etc. for Black employees.
Outsourcing And/Or Sub-Contracting/
In New York City, the Freelance Isn’t Free Act provides that freelance workers have the right to a written contract, timely and full payment, and protection from retaliation. In addition, in a union setting, a collective bargaining agreement might impose restrictions on freelance work, outsourcing, and/or subcontracting.