The new year has brought with it new legislation in New Jersey that warrants close scrutiny by hotel owners and operators alike. Introduced as Bill A-6246, which was signed by Governor Phil Murphy on January 18, 2022, upon a “change in control, controlling interest or identity of a hotel,” a successor hotel employer must provide service disruption notices and certain job protections to the existing eligible hotel service employees, including offering employment to such employees with no reduction to wages or benefits for a retention period of not less than 90 working days.

When is this law triggered?

As noted above, the law is triggered when there is either a: (1) “change in control” of a hotel or (2) “change in controlling interest or identity” of a hotel. A “change in control” is broadly defined to include “any sale, assignment, transfer, contribution or other disposition of all or substantially all of the assets used in the operation of a hotel or a discrete portion of a hotel.” A “change in controlling interest or identity” also covers a broad scope of transactions to include “any sale, assignment, transfer, contribution or other disposition of a controlling interest, including by consolidation, merger or reorganization, of a hotel employer or any person who controls a hotel employer; or any other event or sequence of events, including a purchase, sale or lease termination of a management contract or lease, that causes the identity of the hotel employer at a hotel to change.”

Anything to do prior to the triggering event?

A full list of the identities, wage rates and classifications of the hotel’s service employees must be provided by the former hotel employer to the new hotel employer not less than 30 days prior to a change in control, controlling interest or identity of a hotel, while also providing notice to the employees of their rights provided under this law.

What job protections must be provided?

The successor hotel employer must offer employment to each eligible hotel service employee for no less than 90 working days from the date of the triggering event. The new hotel employer must offer these eligible hotel service employees the same (or more generous) wage and benefit rates provided by the former hotel employer. The offers must be made in writing and remain open for at least 10 business days from the date of the offer.

Employees cannot be discharged during this 90-day period, except in the following limited circumstances: (1) a termination for “cause” (which is not defined by the law) or (2) in connection with a reduction in force (“RIF”), which must be based on seniority and experience (i.e., the employees with the least seniority and experience must be laid off first). The law further requires that should any of the positions subject to the RIF be restored, the formerly laid off employees must be rehired in seniority order.

At the end of the 90-day period, the successor hotel employer must conduct written performance evaluations of all retained employees and offer continued employment if the employee’s performance is “satisfactory” (which is also not defined by the law).

The job protections in this law do not apply if there is a collective bargaining agreement in place on or before the triggering event that includes terms and conditions governing employee discharge or layoffs.

New recordkeeping obligations to accompany the job protections

Successor hotel employers must retain written verification of each job offer made during the 90-day period for no less than 3 years from the date the offer is made. The verification must contain the name, address, date of hire, phone number, wage rate and employment classification of each eligible hotel service employee.

Rules for service disruptions

Further, the law requires a hotel operator to provide notice to third-party vendors and guests of any ”service disruption” within 24 hours of becoming aware of a disruption, and for a substantial disruption, provide guests the right to cancel any agreement for occupancy without penalty. A “service disruption” is defined broadly to include various conditions that “substantially affects or is likely to substantially affect” any guest’s use of a room or hotel service. For example, “service disruptions” include: construction work that creates “excessive noise,” insect or rodent infestation, the unavailability of any advertised hotel amenity or room appliance/technology for at least 24 hours and the unavailability of any public utility for at least 24 hours.

Hotel operators are prohibited from charging any fee or retaining any deposit if a guest, prior to checking in, cancels a reservation with the hotel operator if the guest’s stay or room is, or could be, substantially affected by a service disruption during the guest’s stay or use of a hotel service.

Hotel owners and operators should also keep in mind the requirements of the federal Worker Adjustment Retraining Notification Act and the New Jersey Millville Dallas Airmotive Plant Job Loss Notification Act in connection with effectuating a “change in control” or a “change in controlling interest or identity” of a hotel.

On December 11, 2021, New York City enacted Local Law Int. 1894-A.  The law, which takes effect on January 1, 2023, limits an employer’s ability to use “automated employment decision tools” in hiring and promotion decisions within New York City. In this regard, the law provides that it will be “unlawful for an employer or an employment agency to use an automated employment decision tool to screen a candidate or employee for an employment decision” unless the tool has undergone a “bias audit.”

What is an automated employment decision tool?

An “automated employment decision tool” is defined broadly as “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.”  Therefore, the law applies to any data-driven tools used to conduct skills testing or behavioral analysis, review resumes, rank applicants, or assess employee performance. Notably, the law states that “automated employment decision tools” do not include firewalls, calculators, spreadsheets, databases, or other compilation of data.

Can employers still use those tools?

The law does not act as a per se ban on automated employment decision tools. Indeed, employers are still permitted to use these tools, subject to an annual “bias audit” conducted by an “independent auditor” which assesses “the tool’s disparate impact” on race, ethnicity, and gender. Further, the results of the bias audit must be made “publicly available on the website of the employer or employment agency prior to the use of such tool.”

Notice is required…

If an employer uses an automated employment decision tool, the employer is required notify each resident of New York City “who has applied” for a position: (1) that their application will be subject to an automated employment decision tool and (2) which job qualifications and characteristics the tool will use in the assessment of the candidate or employee.

Based on the statutory language of the law, it appears that this notice requirement does not apply to non-residents of New York City, so it is unclear how this law will affect non-residents of New York City who are applying for a position within New York City.

When is noticed required?

Such notice must be provided to the employee or candidate at least ten business days prior to the use of the tool and the employer “must allow a candidate to request an alternative selection process or accommodation.”

More notification requirements…

Employers and employment agencies must either post the following information on their website or provide such information within thirty days after receiving a written request from applicants or employees:

  • Information about the type of data collected for the automated employment decision tool;
  • The source of the data; and
  • The employer’s or employment agency’s data retention policy.

The disclosure of this information is not required when prohibited by law or if the disclosure would interfere with a law enforcement investigation.

So what happens if an employer does not comply?

Any employer found in violation of the law will be “liable for a civil penalty of not more than $500 for a first violation and each additional violation occurring on the same day as the first violation, and not less than $500 nor more than $1,500 for each subsequent violation.” The explicitly states that a violation is measured on a per-day basis (i.e., each day on which an automated employment decision tool is used without complying with the law is a separate violation).

The law authorizes New York City’s corporation counsel to bring court proceedings against employers that violate this law to seek both the above civil penalties and/or injunctive relief. Additionally, applicants and employees can bring private lawsuits in any court of competent jurisdiction.

What to do now?

The New York Division of Human Rights is expected to issue regulations and guidance regarding this new law, which should hopefully be released prior to the January 1, 2023 effective date. Employers should monitor for any new updates to ensure compliance with all applicable obligations.

In the meantime, employers that use automated employment decision tools should audit such tools, including having necessary discussions with vendors and legal counsel, to assess whether to continue the use of such tools, especially in light of the potential liability associated with the new law.

On November 8, 2021, Governor Hochul signed a bill into law that requires private New York employers to provide written notice to employees before monitoring their telephone, email, and internet access or usage.  This law goes into effect on May 7, 2022.

Who does the law apply to?

The new legislation requires all private employers, regardless of size, with a place of business in New York State that engage in electronic monitoring of employee phone, email, and internet access or usage to “give prior written notice upon hiring to all employees who are subject to electronic monitoring.”

Does the notice have to be issued in a specific form?

Employers must provide the notice in writing, in an electronic record, or in another electronic form and, importantly, employers must make sure employees acknowledge the notice in writing or electronically.  Unless further guidance is issued, it is unclear whether this notice can be included in an employee handbook or must be delivered as a stand-alone document.

In addition, the law requires employers to post the electronic monitoring notice in a “conspicuous place which is readily available for viewing” by employees subject to the monitoring.

So, what does the notice need to say?

In terms of the contents of the notice, it should advise the employee “that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.”

Non-compliance has its costs…

If employers violate the law, they could face up to $500 for the first offense, $1,000 for the second offense, and $3,000 for the third, and each subsequent, offense.

Are there any exceptions?

The law, however, does create an exception for certain activity that is (a) designed to manage the type or volume of email, telephone, or internet use; (b) not targeted to monitor or intercept the email, telephone, or internet usage of a particular employee; and (c) performed solely for purposes of systems administration and/or protection. Therefore, notice is not required for such activity.

What to do next?

Employers should review their policies and speak to counsel about what actions must be taken to comply with this new law on or before the May 7, 2022 effective date. Employers should draft notice language that complies with the law’s requirements and decide upon a process that ensures all new hires receive the notice and provide the requisite acknowledgment.

On December 15, 2021, the New York City Council passed a bill (Int. 1208-B) that requires New York City employers with four or more employees (including independent contractors) to disclose minimum and maximum salary information in job postings.  Due to Mayor Eric Adam’s decision not to veto the bill, the bill was signed into law on January 15, 2022.  The salary posting requirements become effective for covered employers on May 15, 2022.

The new law makes it an unlawful discriminatory practice for a covered employer to share a job posting or promotion or transfer opportunity without disclosing the minimum and maximum salary information. Specifically, the New York City Human Rights Law (the “NYCHRL”) is now amended to read as follows:

“It shall be an unlawful discriminatory practice for an employment agency, employer, employee or agent thereof to advertise a job, promotion or transfer opportunity without stating the minimum and maximum salary for such position in such advertisement. In stating the minimum and maximum salary for a position, the range 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 job, promotion or transfer opportunity.”

Notably, the law also applies to a covered employer’s internal hiring process for an internal promotion or transfer opportunity.  The law, however, does not apply to job postings for temporary employment at a temporary help firm.

The New York City Commission on Human Rights (the “Commission”) is authorized to impose civil penalties of up to $125,000 for an unlawful discriminatory practice.  Without further guidance from the Commission (see our note on that below), it is unclear whether this penalty could be assessed on a per job advertisement basis.  Additionally, individuals can sue and recover monetary damages, including punitive damages, for violations of the NYCHRL.

Covered employers should begin to prepare to comply with the above salary posting obligations as of May 15, 2022.  The law authorizes the Commission to develop regulations and guidance to implement the new law.  Given the various ambiguities within the law, it is expected that the Commission will issue such guidance and regulations regarding the salary posting obligations before the May 15, 2022 effective date.  For example, the term “salary” is not defined, so it remains unclear whether the advertisement must include a range for base salary or total compensation.  Also, while the law will certainly apply to positions to be performed within New York City, it is unclear whether the law will apply to positions offered by a covered New York City employer that are not geographically located within New York City.

On December 22, 2021, the New York State Department of Labor (“NYDOL”) issued long-awaited proposed rules regarding the establishment and administration of workplace safety committees under the New York State Health and Essential Rights Act (“HERO Act”).

Sidenote and a helpful timeline:

The HERO Act contains various employer obligations that were enacted to protect private sector employees in response to the COVID-19 pandemic.

May 5, 2021 – HERO Act was initially signed into law.

September 6, 2021 – the New York Commissioner of Health designated COVID-19 as a covered “highly contagious communicable disease” under the HERO Act. This triggered requirements for employers with worksites in New York to take certain actions, including, but not limited to, implementing worksite prevention exposure plans. You can find our previously reported update here.

September 23, 2021 – New York State issued an initial round of guidance regarding the HERO Act. However, the State did not provide much clarity around employer obligations related to workplace safety committees. While we have been waiting for more information, the designation of COVID-19 as a covered “highly contagious communicable disease” has been extended several times, and will be in effect until at least February 15, 2022.

November 1, 2021 – Section 2 of the HERO Act took effect, requiring employers with at least ten employees to permit personnel to “establish and administer a joint labor-management workplace safety committee.”

Ok, so what does the updated guidance mean for you? We have summarized the proposed rules below, including those regarding the establishment, composition, and administration of workplace safety committees.

Employee Threshold

The proposed rules clarify that the above ten employee threshold is based on the number of employees located in New York State. In addition to counting regular full-time employees, employers must also count part-time, newly hired, temporary, and seasonal employees, as well as any employees on leave (paid or unpaid), disciplinary suspension, or other types of temporary leave in which the employer reasonably expects the employee to return to active employment.

Establishing a Committee

While there is no affirmative requirement under the HERO Act for employers to create workplace safety committees, covered employers must allow employees to create a committee upon request. The proposed rules provide that, “committees may be established for each worksite following a written request for recognition by at least two non-supervisory employees who work at the worksite.” A “non-supervisory” employee is defined as “any employee who does not perform supervisory responsibilities, which includes but is not limited to the authority to direct and/or control the work performance of other [e]mployees.”

Boiling it down…

As of now, no action is required unless and until at least two non-supervisory employees submit a written request for a workplace safety committee to be formed.

Don’t leave them hanging

Under the proposed rules, when an employer receives a “request for recognition,” the employer must respond to the request with “reasonable promptness.” Employers must also provide notice to all employees at the worksite of the recognition of a workplace safety committee “[w]ithin five days of recognition.”

Multiple locations? You will need a committee for each

While not explicitly clear, the proposed rules seem to suggest that employers with multiple worksites in New York must permit the establishment of one workplace safety committee per worksite.

Composition of the Workplace Safety Committee

The proposed rules provide that workplace safety committees must be comprised of at least two non-supervisory employees (as defined above) and at least one employer representative. Notably, a workplace safety committee cannot exceed twelve (12) members or one-third (1/3) of the total number of employees at the worksite, whichever is fewer.

Workplace safety committees for worksites that have less than ten employees need only have three members.  Regardless of the number of committee members, there must be at least two non-supervisory employees for every employer representative.

Wait…there’s more…

Employers may not select, or in any way influence the selection of, the non-supervisory workplace safety committee members. You will have to leave it to your employees to select their representatives.

At a worksite where there is a collective bargaining agreement in place, the non-supervisory employee representatives are selected by the collective bargaining representative. For all other worksites, the non-supervisory employee members “shall be selected by and amongst the employer’s non-supervisory employees as determined by the non-supervisory employees of the employer.”

Committee Rules and Meeting Requirements

The proposed rules permit workplace safety committees to establish operating rules and procedures, provided such are consistent with law. Rules and bylaws for workplace safety committees may include procedures for the selection of new members, terms of members, and the training of new members.  If no specific rules or procedures are adopted, the committee may take action by a majority vote.

Scheduling those committee meetings

  • Workplace safety committee meetings may be conducted “at least once per quarter for not longer than two work hours in total for all meetings per quarter.”
  • The time spent during working hours must be considered as hours worked.
  • Workplace safety committees are permitted to meet for more than two hours per quarter, but such meetings must be conducted outside of work hours and will not constitute as hours worked (unless otherwise permitted by the employer).
  • Workplace safety committees may also provide official training for committee members, but the training may not exceed four hours in any calendar year. Employers must pay the workplace committee members for this training time each year.

Employer Obligations

The proposed rules provide additional employer obligations, including:

  • Responding in writing to each safety and health concern, hazard, complaint, or other violations raised by the workplace safety committee or by one of its members “within a reasonable time period.”
  • Appointing an employer representative to the committee to act as a co-chair. This employer representative may be a non-supervisory employee, an officer, or other representative.
  • Responding to a request for policies or reports that relate to the duties of the workplace safety committee “within a reasonable time period.”
  • Providing notice, where practicable and not prohibited by law, to the workplace safety committee and its members ahead of any visit at the worksite by a governmental agency enforcing safety and health standards.
  • Not interfering with the performance of the duties of the workplace safety committee or its members.

And there’s still more…

Importantly, the proposed rules state that employers are not required to disclose information or documentation to the workplace safety committee or to any committee member when such a disclosure “is prohibited by law, contains the personal identifying information of an employee as defined by Section 203-d of the Labor Law, or is outside of the scope of the information or documentation set forth in Section 27-d(4) of the Labor Law.”

Make sure you stay tuned and keep your pencils ready for edits!

On February 9, 2022, a public hearing will be held on the proposed rules. Public comments will be accepted by the NYDOL until five days after the last scheduled public hearing.

All employers with worksites in New York should stay up-to-date with any developments from the New York Department of Health and NYDOL that may trigger further revision of their worksite exposure prevention plans or any other obligations under the HERO Act.