2022 has been an eventful year for New York employers, as the State and City have instituted a variety of new employment laws.  Top of mind are New York City’s Salary Transparency Act and New York City’s sweeping regulation of automated employment decision tools; but we have also seen other laws emerge that may have missed employers’ radars.  As 2022 comes to a close, we highlight below some of these important new developments.

On December 21, 2022, Governor Hochul signed into law S.9427-A/A.10477, which requires all private sector New York employers to list salary ranges for all advertised jobs and postings.  This law takes effect on September 17, 2023. 

Effective January 1, 2023, New York City employers will be prohibited from using artificial intelligence in employment decision-making processes unless they take a number of specific and affirmative steps prior to doing so, including a bias audit of the tool.  These requirements have emerged following the passage of New York City Local Law 144 in December 2021, which creates a specific regime employers must adhere to in order to utilize automated employment decision tools, which the City has referred to as “AEDTs”. Many questions emerged following the passage of Local Law 144  and in response to some of these inquiries, the City’s Department of Consumer and Worker Protection (“DCWP”) has proposed rules that provide some answers, expand upon Local Law 144, and regulate the use of AEDTs.  Mintz attorneys Corbin Carter, Michelle Capezza and Evan Piercey analyze and discuss these proposed rules.

In a span of a week the NLRB signed Memoranda of Understanding (“MOU”) with both the Federal Trade Commission and the U.S. Department of Justice’s Antitrust Division.  These agreements come just over a year after President Biden issued an “Executive Order on Promoting Competition in the American Economy,” which called on several federal agencies to address competition issues, and included a mandate for agencies to “coordinate, promote, and advance Federal Government efforts to address overconcentration, monopolization, and unfair competition in or directly affecting the American economy.”  While the NLRB was not explicitly identified in the Executive Order (and the DOJ and FTC were), these recent partnerships unmistakably indicate that labor issues and anti-competition issues are inextricably linked, and the NLRB’s willingness to collaborate with other federal agencies to carry out its mandate under the National Labor Relations Act.  Moreover, these recent efforts also represent a clear step by President Biden to follow through on his campaign promise to strengthen unions, worker organizing efforts, and collective bargaining.  Mintz attorneys Evan Piercey, Tinny Song and Richard Block discuss these MOUs in greater detail below and provide some takeaways for employers and business leaders. 

This alert covers the key components, concerns, and considerations of the United States Equal Employment Opportunity Commission’s (“EEOC”) recently issued technical guidance, addressing how an employer’s use of software, algorithmic decision-making tools and AI to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment could violate the Americans with Disabilities Act (“ADA”). 

The New York City Commission on Human Rights has released a Fact Sheet entitled Salary Transparency in Job Advertisements, which provides much-welcomed guidance to employers on the NYC Salary Range Transparency Act.  Some questions, however, remain unanswered.

On March 17, 2022, the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to the public health under the HERO Act ended.  The New York State Department of Labor (“NYSDOL”) declined to extend this designation.  The most immediate effect of this designation ending is that the activation of workplace exposure prevention plans mandated under the HERO Act is over.