Welcome to New York, New Rules, New Risks

In a race against California to become the most employee-friendly state in the union, New York’s constituents will see significant changes in hiring protections throughout the next year. Following the likes of Oklahoma (surprising, I know) and California (not surprising, I know), New York employers may soon need to say goodbye to non-compete agreements entirely as a bill imposing a total ban on new non-compete agreements awaits Governor Kathy Hochul’s signature. Also on its way to Governor Hochul is a bill restricting New York employers’ ability to consider certain criminal convictions during the hiring process. Meanwhile, in New York City, Mayor Eric Adams just signed into law an ordinance adding height and weight characteristics as protected classes under the New York City’s Human Rights Law.
 

So Long, Non-Competes

While Governor Hochul has long been critical of non-compete agreements, the bill awaiting her signature is far more drastic than anything she has ever proposed. Indeed, if signed into law, “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind” will soon be void, though rest assured that it is not retroactive.  Contracts entered into prior to the effective date will be unaffected. Consequences for noncompliance are significant—the bill provides aggrieved individuals a private right of action with a lengthy two-year statute of limitations, and available relief includes liquidated damages, lost compensation, attorneys’ fees, and costs. Governor Hochul is expected to sign the bill within the next week, with the law taking effect 30 days later.
 

The Clean Slate Act

In its most recent legislative session, the New York Assembly also passed the Clean Slate Act, a bill designed to increase employment opportunities for those with prior—though not recent—criminal convictions. Specifically, the Act provides for automatic sealing of certain misdemeanor and felony convictions after set periods of time. Generally, qualifying misdemeanors could be sealed after three years, while qualifying felonies could be sealed after eight years. However, racking up a new conviction during that statutory waiting period will render an individual disqualified for automatic sealing. If signed, employers would be prohibited from asking applicants about sealed records or discriminating against applicants based upon those records. Notably, the law would not take effect until one year after the date of signing, which is ample time for employers to revisit and revise all applicable policies.
 

Does Size Really Matter?

Beginning November 22, 2023, employers in New York City will see an expansion to the protections of the city’s Human Rights Law. Similar to the state of Michigan; Madison, Wisconsin; and Urbana, Illinois; New York City will soon prohibit height and weight discrimination in the context of employment, housing, and public accommodations. Though the law seeks to prevent needless discrimination on the basis of someone’s height or weight, it does acknowledge that some situations simply require applicants to be under or over a certain weight or height, among other things. The inquiry is similar to what we see in a disability analysis—will a person’s height or weight prevent them from performing the essential functions of their position? If so, is there an available accommodation that would allow the person to fulfill those essential functions? Simply put, unless there is a justified business need to do so, employers cannot consider the height and weight of an applicant during the hiring process.

In her 2014 ode to New York, Taylor Swift proclaimed it was ever-changing, which is certainly accurate, but perhaps employers identify more so with the next line: “Like any true love, it drives you crazy.” But have no fear, Ice Miller’s Workplace Solutions team is here to help you manage all that is ever-changing and all that drives you crazy (in the workplace anyway).

If you have questions about this topic, please contact Abigail Barr, or any member of our Ice Miller Workplace Solutions Group. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.