A recent amendment to the New York City Human Rights Law aimed at promoting wage equity for women and minority groups historically receiving less compensation than other groups will have a large impact on recruiting practices for City employers. By doing so, New York City joins a national trend of legislative initiatives promoting transparency and equity in compensation practices.

Beginning on May 15, 2022, employers with four or more employees (which includes independent contractors and employed family members) must include a minimum and maximum salary range in all job listings. This includes advertised jobs, promotions, and transfer opportunities. The range of the minimum and maximum salary may extend from the lowest to the highest salary the employer “in good faith believes at the time of the posting” it would pay for the advertised position.

While the term “salary” is not defined in the law, employers should comply with the minimum and maximum rage requirements regardless of whether the position is paid on a salary or hourly basis. It is not clear whether these requirements only apply to jobs that will be located in New York City, or if it extends to any job postings in New York City regardless of where the job will be physically located. The New York City Commission on Civil Rights is expected to issue regulations clarifying these issues.

Shortly after OSHA issued its Emergency Temporary Standard (ETS) mandating vaccination or weekly testing for employers of 100 or more, legal challenges in the federal district courts stalled the implementation of the deadlines for compliance. On December 17, 2021, the Sixth Circuit Court of Appeals – the court designated to hear the consolidated challenges filed in multiple districts – lifted the stay, clearing the way for the implementation of the ETS mandates.

The New ETS Deadlines: Initially, employers were expected to comply with the ETS’s vaccination verification and masking requirements by December 6, 2021, and implement periodic testing for unvaccinated workers by January 4, 2022. In response to the Sixth Circuit ruling lifting the stay, OSHA has announced that it will not enforce any of the ETS standards until January 10, 2022, and will not issue citations for non-compliance with the ETS testing requirements until February 9, 2022, so long as employers are exercising “reasonable, good faith efforts to come into compliance with the standard.”

What Now? An emergency appeal of the Sixth Circuit ruling has already been filed with the United States Supreme Court, which will ultimately decide if the ETS will stand. Nevertheless, employers must prepare now for compliance with the ETS mandate because if sanctioned by the Supreme Court, employers will face a very narrow timeframe to come into compliance with the ETS requirements. Many employers have opted to adopt the ETS mandates despite the ongoing legal challenges because OSHA standards only establish minimum workplace standards and employers are free to implement more stringent requirements.

Yet again, New Jersey’s appellate court has demonstrated its reluctance to enforce agreements to arbitrate signed as part of a new employee’s orientation. In a previous post we discussed a ruling from the Appellate Division demonstrating the risk of having employees execute arbitration agreements during an orientation process. The court in that case refused to enforce the agreement because the employee maintained that pressure was exerted upon her to immediately execute the document, thus depriving her of the opportunity to bring the document home and seek out legal advice.

Another opinion issued by the Appellate Division on November 10, 2021, provides the latest insight on the missteps an employer can make when seeking to enter into a binding arbitration agreement with an employees.

The Facts:  In Cordero v. Fitness International LLC, a former employee of LA Fitness filed a complaint in the New Jersey Superior Court alleging sexually harassment by her former manager. LA Fitness moved to compel arbitration pursuant to an agreement executed by the employee during onboarding her first day on the job. According to the employee, a general manager with LA Fitness placed her at a desk and told her to “sign a few things electronically” before she could start work. He then sat next to her and instructed her to sign an electronic signature pad as he clicked through various documents. The employee claimed she never actually saw the documents that she electronically signed. When the employee later filed her sexual harassment complaint, LA fitness moved to compel arbitration based on the following language contained in a document she signed during onboarding:

New York has long lagged behind New Jersey in according protection to employees who blow the whistle on unlawful or unsafe conditions in the workplace. Unlike its sister state, New York employees had a higher bar for achieving protected whistleblower status under section 740 of the New York Labor Law (NYLL), and employers had viable defenses that could undermine an employee’s claim.

On October 29, 2021 Gov. Hochul signed into law amendments to NYLL Section 740 that significantly expand the rights of employees in ways that bring it line with the expansive protections accorded New Jersey employees. These amendments go into effect January 26, 2022.

Expanded definition of “employee”:  The definition of “employee” was amended to include not only current employees, but former employees as well as independent contractors providing services to an employer.

No sooner did OSHA issue its Emergency Temporary Standard (ETS) on November 4, 2021, to implement mandatory vaccination or testing programs for large employers, it was challenged in 11 of the 12 United States Courts of Appeals as an unconstitutional overreach by the agency. Last Friday the 5th Circuit Court of Appeals (covering most of Louisiana, Mississippi and Texas) confirmed its November 6th temporary stay of the ETS, stating that the rule “grossly exceeds OSHA’s” statutory authority.” The Court also held that the COVID-19 virus was not a proper subject of emergency administrative action by OSHA. Under the court’s ruling, the stay will remain in place until a further order that will come from the appeals court assigned by the U S. Judicial Panel on Multidistrict Litigation to hear the consolidated Circuit Court petitions.

In the face of these legal challenges, OSHA suspended the implementation and enforcement of the ETS pending the ongoing litigation. However, OSHA stated that it remains confident that the ETS will ultimately be withheld.

What should large employers covered by the ETS do? In light of the 5th Circuit ruling, employers of 100 or more no longer need meet the looming December 6th and January 4th deadlines imposed by OSHA to implement vaccination verification, weekly testing, and other requirements of the ETS.

As part of President Biden’s plan for battling the COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) has issued the anxiously awaited emergency temporary standard (ETS) “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.” Consistent with the President’s plan, the ETS requires large employers to adopt policies mandating COVID-19 vaccination or alternatively, policies requiring employees to choose between vaccination or undergoing regular COVID-19 testing.

The ETS is expected to apply to two-thirds of private sector workers. While the ETS does not apply to state and local governments in states without OSHA-approved occupational safety and health programs (“State Plans”), jurisdictions with State Plans (such as New Jersey) must comply with the ETS. Although the ETS does not currently apply to small employers, OSHA cautions that it needs time to assess the capacity of small employers to meet the administrative burdens of the ETS and is seeking comment to help the agency make that determination.

We have distilled the 490-page ETS to provide an overview of the requirements that will be imposed upon large employers under the ETS.

On September 9, 2021, President Biden announced that large employers of 100 or more must mandate that their employees show proof of being fully vaccinated for COVID-19 or wear a mask and undergo weekly COVID-19 testing. These mandates were not slated to go into effect until the Occupational Safety and Health Administration (OSHA) developed an Emergency Temporary Standard (ETS) addressing the requirements employers must follow when implementing the vaccination and testing mandate.

On November 4, 2021, OSHA issued the highly anticipated ETS. The Lindabury team is currently wading through the 490-page ETS and will provide a more detailed analysis of the requirements in the near future. In the interim, here are only some of the ETS details employers have been anxiously waiting for:

• The ETS is effective November 5, 2021, and will be in effect for 6 months

In June of 2021 the New York Legislature passed the HERO Act requiring employers to adopt an airborne infectious disease exposure presentation plan by no later than August 5, 2021.   Employers were free to use the State’s model plan entitled Airborne Infectious Disease Exposure Prevention Standards and Model Plans for Various Industries, found at https://dol.ny.gov/ny-hero-act, or develop their own plans that were compliant with HERO Act’s requirements. However, employers were not obligated to implement the infectious disease plan until such time that the Commissioner of Health officially designated an outbreak as a “highly contagious infectious disease.”

On September 6, 2021, the Commissioner of Health formally designated COVID-19 as a highly infectious disease, thus triggering the obligations of New York employers to implement the protocols of their respective infectious disease prevention plans, including:

• Review and update the plan to incorporate any updated requirements