Regulatory UpdatesJune 25, 2018
In a flurry of legislative activity in New Jersey and New York this year, several new laws have been recently adopted in each state. As a recap, here is a list:
New Jersey’s new Equal Pay Act, effective July 1, 2018, amends the New Jersey Law Against Discrimination (“LAD”). This new law provides significant new money damages and extends the statute of limitations for aggrieved employees of any protected characteristic (not just gender) who claim a pay disparity. The new law also places the burden on the employer to justify any pay disparity that exists. Also, expect several more employment laws to be signed into law in calendar year 2018 in New Jersey.
New York State amended its Human Rights Law to impose liability against employers who fail to prevent harassment against non-employees (contractors, vendors, consultants, etc.) in the workplace.
New York State now bars the use of mandatory arbitration clauses to resolve sexual harassment claims. This new law is effective July 11, 2018 although, in light of the U.S. Supreme Court’s recent decision affirming the use of employee arbitration agreements, this law may be the subject of litigation in the future.
New York State, effective July 11, 2018, will prohibit, with an exception in some cases, the use of confidentiality and non-disclosure agreements relating to sexual harassment claims. This new law is effective July 11, 2018.
New York State will require employers to have a written anti-harassment policy as well as annual training. Although these two best practices have historically been recommended to employers, they will now be required by law in New York State, effective October 9, 2018. The New York State Department of Labor will be publishing model policies and training programs and your company should customize those policies to fit the workplace.
Similarly, New York City amended the New York City Human Rights Law to require anti-harassment training to most employers, expand the coverage of the law against sexual harassment claims, and lengthen the statute of limitations for those claims. The mandatory training component of the law will take effect April 1, 2019.
New York City also amended its own Earned Sick Time Act to provide additional job-protected leave for absences relating to family offenses, sexual abuse, stalking, and human trafficking – known as “safe” time. This law contains another amendment, effective July 18, 2018, to require employers to grant schedule changes (temporarily) two times per calendar year for leave reasons covered by the Earned Safe and Sick Time Act.
New York City expanded the definition of sexual orientation and gender under the New York City Human Rights Law
Finally, effective October 15, 2018, the New York City Human Rights Law will require that employers engage in a cooperative dialogue in response to employee requests for reasonable accommodations relating to religious, disability, pregnancy, childbirth or related conditions, or victims of domestic violence needs. The employer’s decision must be put in writing setting forth the accommodations granted or denied.
2018 Qualified Plan LimitsNovember 2017
Qualified retirement plans, such as Internal Revenue Code sections 401(k) and 403(b) plans, pension and profit sharing plans, individual retirement accounts (IRAs), and health flexible spending accounts (Health FSAs) are subject to various dollar limits on the amount of contributions that can be made or benefits that may accrue under such arrangements. Most of these dollar limits are adjusted annually by the IRS for changes in the “cost of living.”
For 2018, some of the key dollar limits affecting the above plans, IRAs and Health FSAs are as follows:
2018 Dollar Limit
|1. Elective Deferral Contributions (for 401(k) and 403(b) Plans)||$18,500 ($500 increase from 2017)|
|2. Annual Contribution Limit (for defined contribution plans)||$55,000 ($1,000 increase from 2017)|
|3. Annual Benefit Limit (for defined benefit plans)||$220,000 ($5,000 increase from 2017)|
|4. Annual Compensation Limit (for all qualified retirement plans)||$275,000 ($5,000 increase from 2017)|
|5. Catch-Up Deferral Contributions (for plan participants age 50 or older under 401(k) and 403(b) plans)||$6,000 (no change from 2017)|
|6. Highly Compensated Employee definition-compensation threshold (for nondiscrimination testing under all qualified plans, especially 401(k) and 403(b) plans)||$120,000 (no change from 2017)|
|7. Traditional IRA Contribution Limit (IRA contribution deduction amount subject to income based phase-out)||$5,500 (no change from 2017)|
|8. Catch-Up Traditional IRA Contribution (for individuals age 50 or older)||$1,000 (no change from 2017)|
|9. Health FSA Contributions (via employee salary deferrals)||$2,650 ($50 increase from 2017)|
While the above benefit and contribution limits should be, as applicable, reflected in the plan documents for such plans and accounts, and in the operation of such arrangements, it is important to remember that the elective deferral and, as applicable, related catch-up contribution limits apply on an individual basis. Thus, if you change jobs during calendar year 2018 and participate in two or more employer-provided 401(k) and/or 403(b) plans, you are entitled to a maximum aggregate elective deferral and catch-up contribution limit under all such plans for 2018 of $18,500 in elective deferrals and $6,000 in catch-up contributions (i.e., one set of elective deferral and catch-up contribution limits apply per individual per calendar year).
New York City Passes Ban On Salary History InquiriesJune 2017
Mayor Bill de Blasio has signed an amendment to the New York City Human Rights Law (“NYCHRL”) which makes it unlawful for employers to ask job applicants about their salary history or to rely on salary history during the hiring process. Not only does the law prohibit asking an applicant or the applicant’s current/former employer about the applicant’s salary, it also prohibits the search or review of public records to obtain such information. Employers may still tell applicants about the salary range for the position for which they applied, and nothing prohibits the employer from considering the applicant’s salary history if the applicant first volunteers such information. New York City employers should insure that their hiring processes, practices and forms are modified to comply with this new law. The law goes into effect on October 31, 2017.
New York State and City – New Regulations on Unlawful Harassment and DiscriminationJanuary 2016
On January 20, 2016, new regulations under the New York State Human Rights Law relating to unlawful discrimination and harassment on the basis of gender identity, transgender status, and gender dysphoria became effective. The new regulations make clear that discrimination or harassment based upon these protected classes is unlawful, in addition to requiring employers to make reasonable accommodations for persons who fall into the gender dysphoria class. To read the regulations or the Division on Human Rights’ comments, click here.
So too the New York City Human Rights Commission recently issued guidance to employers on the broad scope of the meaning of “gender” under the New York City Human Rights Law. To read the new guidance click here.
NYC Ban the Box Law PassedJune 2015
In the fall of 2015, New York City employers will need to comply with New York City’s new Fair Chance Act, commonly known as “ban the box.” This law amends the New York City Human Rights Law, which is one of the more employee-friendly anti-discrimination laws in the country. The amendment bars most employers in the five boroughs of New York City from stating in a job advertisement that a conviction or arrest will disqualify an applicant from employment. The amendment also prohibits an employer from inquiring about an arrest or conviction prior to making a conditional job offer. Once the employer learns of an arrest or conviction, it cannot revoke the conditional job offer without first providing the applicant with a written copy of the record on a form to be drafted by the NYC Commission on Human Rights, perform an analysis of whether the arrest or conviction is directly related to the job or poses an unreasonable risk to public safety or welfare, and, finally, provide the applicant with a reasonable time to respond (no less than three days) during which the position must be held open.