New York Offers Paid Prenatal Leave and Considers Pet-Related Leave

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There are two timely employment law updates for the last quarter of 2024 which are worth noting but do not necessarily warrant separate, independent posts.  Here is a summary of these two changes taking place in New York.

Taking effect January 1, 2025, New York labor law section 196-b will formally require employers to provide employees with twenty (20) hours of paid prenatal leave during any fifty-two (52) week period.  This means that employees will be able to take paid prenatal leave in hourly increments at their regular rate of pay or the applicable minimum wage, whichever is greater.  This paid prenatal leave is in addition to any other state or federal leave entitlements, including under the Family and Medical Leave Act, paid family leave, sick leave or safe leave. 

The amendment permits an employee to use paid prenatal leave for health care services during the employee’s pregnancy, including physical examinations, medical procedures, monitoring, testing and even pregnancy-related discussions with a health care provider.  The leave may also apply to infertility-related discussions and visits with a health care provider.

Further guidance from the State of New York Department of Labor is anticipated prior to the new year.  This additional guidance may also clarify whether expectant fathers can receive paid prenatal leave under this amendment. 

In October of 2024, New York City introduced first of its kind legislation that amends the New York City Earned Safe and Sick Time Act to allow employees to use leave to care for their pets and service animals.  This new legislation expands the current ESSTA by permitting employees to take leave for the “care of a covered animal that needs medical diagnosis, care or treatment of a physical illness, injury or health condition or that needs preventative medical care.”  A “covered animal” has been defined as an animal that is kept primarily for companionship or a service animal.  Stay tuned as we monitor to see if this legislation makes more headway.  Clearly, New York City recognizes the importance of pets to all New Yorkers. 

If you are an employer impacted by the above new law, be sure to consult with your legal counsel and take steps to make sure your company begins to work on revisions to their policies to ensure compliance.

Applying the “Equivalent Worker” provision of the NJTWBR

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The State of New Jersey published its final regulations on the Temporary Workers Bill of Rights.  The comments and responses accompanying the regulations shed significant light on how the State wants temporary help service firms and their clients to meet their obligations under the law.  This is particularly true for the law’s temporary worker equivalency requirement.

The Temporary Workers Bill of Rights requires a temporary worker to be paid “no less than the average rate of pay and average cost of benefits, or the cash equivalent thereof, of employees of the third party client performing the same of substantially similar work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions” for the client at the time the temporary worker is assigned to work at the client site.  N.J.S.A. 34:8D-7.

During the comment period, many comments and questions were raised about how to interpret and implement this language.  Here is what we now know.

How do we know if a third party client has direct employees “equivalent” to a temporary worker?  The State provided a “list of principles that should be applied when determining whether a temporary laborer and an employee of the third-party client are performing substantially similar work.” 56 N.J.R. 1859, Comment 34.  Application of this list of principles is subjective and many third party clients will likely find its implementation difficult.    

When a temporary help service firm contracts with a third party client, the client must provide a list of equivalent workers and each worker’s rate of pay and the annual cost of benefits paid by the client for that worker.  This list of equivalent workers does not have a geographical limit and is not limited to the specific worksite.  As the State writes, there is nothing in the law that suggests that “the identification of comparator employees of the third-party client should be limited to a geographical scope, or that it should be limited to a department or facility of the third-party client, or to facilities of the third-party client within the State where the temporary laborer is being assigned.”  56 N.J.R. 1861, Comment 36.

In effect, the law has the potential to place a significant burden on a third-party client when the client must generate this “equivalent worker” list.

Once the third-party client provides its equivalent worker list, the temporary help service firm must follow the step-by-step instructions provided in the regulations for how to calculate the “equivalent” hourly rate of pay for the temporary worker.

The published final regulations clarify that this calculation must be done for each temporary worker each time a worker is assigned to a new client.  For this reason, the “equivalent” hourly rate of pay may be differ between workers even when they are doing the same work at the same client.

Commenters asked what types of benefits need to be included in this calculation.  That State has not provided a limit.  In fact, the State’s interpretation of “benefits” under this provision is broad.

Commenters also asked whether a temporary help service firm may rely on the “equivalent worker” information provided by a client.  The State responded that while the client is responsible for providing accurate information, “both the temporary help service firm and third-party client are jointly and severally liable” if a worker is not paid the appropriate hourly rate. 56 N.J.R. 1862.

While these regulations, comments and responses provide clarity, they confirm that this legislation is creating the heavy administrative burden that temporary help service firms and their clients feared.  Temporary help service firms and their clients are encouraged to study the State’s regulations and take steps to implement procedures and safeguards to ensure compliance and avoid violations.

New York Freelance Worker Protections

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On August 28, 2024, the Freelance Isn’t Free Act (or “FIFA”) goes into effect in New York.  Passed into law earlier this year, and initially scheduled to take effect on May 20, 2024, the law creates protections for freelance workers in New York State.

FIFA’s protections can be divided into four general categories: (1) written contract requirements; (2) timely payment of compensation; (3) recording keeping; and (4) anti-discrimination.  FIFA defines “freelance worker” broadly, applying the term to any individual or entity hired as an independent contractor to provide services in exchange for $800 or more.  The $800 can be earned from a single project or the aggregate of multiple projects within a 120 day period.

While the definition of “freelance worker” is broad, four types of workers – sales representatives, legal professionals, medical professionals and construction contractors – are specifically excluded from the definition.

Under FIFA, the individual or entity hiring the freelance worker – referred to as the “hiring party” – is required to enter into a written contract with the freelance worker.  There are no exceptions to the definition of a “hiring party” except the federal government, state government, and municipalities.

At a minimum, the contract must (i) include the parties’ names and mailing addresses; (ii) itemize the freelance worker’s services; (iii) identify the value of the services, the rate and method of compensation, and the date on which the freelance worker must submit a list of services rendered to the hiring party so that it can make timely payment; and (iv) identify the timeframe in which the freelance worker must receive payment.

FIFA specifically requires payment to a freelance worker to be made on or before the date it is due or, if the date is unspecified, no later than 30 days after completion of the freelance worker’s services.

The Commissioner of the New York State Department of Labor is empowered to enforce the provisions of FIFA, including not only the contract and payment provisions described above, but also the recording keeping and anti-discrimination provisions.

Regarding FIFA’s recording keeping requirements, hiring parties must keep a record of all freelance worker contracts for a minimum of six years.  If a hiring party fails to keep a record of a contract, the Commissioner will presume that the contract contained the terms as described by the freelance worker.

Hiring parties are also prohibited from discriminating against or retaliating against a freelance worker in an effort to deter the worker from seeking FIFA protections.

FIFA empowers freelance workers to bring complaints before the Commissioner for any FIFA violation.  Additionally, freelance workers may also file lawsuits alleging FIFA violations.  Depending upon the basis for the complaint or lawsuit, a freelance worker prevailing in such action may receive damages equal to the value of the underlying contract, double damages, attorneys fees and even injunctive relief.  FIFA also empowers the Commissioner to issue monetary fines to a hiring party demonstrating a pattern of FIFA violations.

For the text of the Freelance Isn’t Free Act, go to https://www.nysenate.gov/legislation/bills/2023/S5026.

Broader Accommodations Required for Employee Pregnancy

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Employers should be aware of new legal requirements on the horizon related to employee pregnancy.

In late 2022, the Pregnant Workers Fairness Act (“PWFA”) became law with the purpose of providing reasonable workplace accommodations to employees impacted by pregnancy, childbirth, or related medical conditions.

On April 15, 2024, the Equal Employment Opportunity Commission issued its final regulations for the law and the final regulations took effect on June 18, 2024.  These final regulations establish a broad interpretation of the protections created for qualifying employees under the law.

Under the PWFA, “pregnancy, childbirth, and related medical conditions” include a current pregnancy, past pregnancy, potential or intended pregnancy, labor and childbirth.  “Potential or intended pregnancy” can include infertility, fertility treatment, and the use of contraception.  Examples of “related medical conditions” can include termination of pregnancy through miscarriage, stillbirth, or abortion, ectopic pregnancy, gestational diabetes, preeclampsia, high blood pressure, anxiety and depression.  This is far from an all-inclusive list of the potential conditions that would qualify for accommodations under the EEOC’s final rule.

The EEOC intends the PWFA to cover conditions that do not rise to the level of disability.

An employee may qualify for accommodations under the PWFA even if the employee cannot perform the essential functions of their position, as long as the employee’s inability to perform job functions is temporary, the function can be performed in the near future, and the inability to perform the essential function can be reasonably accommodated.

The EEOC provides examples of reasonable accommodations under the PWFA. These can include part-time or modified work schedules, breaks for use of the restroom, drinking, eating and/or resting, modifying equipment uniforms or devices, telework, remote work or change of work site, and even temporarily suspending one or more essential functions.  For lactation specifically, an employer should be prepared to permit the employee to nurse during work hours where the child is in “close proximity” to the employee.

Employers in New York should be aware that Governor Hochul signed additional protections into law related to the PWFA.  Effective today, June 19, 2024, New York employers must provide a 30 minute paid break each time an employee has “a reasonable need to express breast milk.”  Should the employee need more than 30 minutes for the session, the employee may use existing paid break time or meal time.  This New York expansion entitles employees to multiple paid lactation breaks each day.  This augments the Nursing Mothers in the Workplace Act that became law in New York in 2007.  Employers are already required to provide either reasonable unpaid break time or allow employees to use paid rest periods or meal breaks to express milk for up to three years following the birth of a child.

Effective January 1, 2025, New York employers will also be required to provide employees with 20 hours of paid prenatal leave during any 52 week calendar period.

Employers should work with their legal counsel to review the PWFA, the resulting EEOC rules, and New York law changes and start taking steps immediately to prepare for accommodating qualifying employees seeking accommodations.

SCOTUS Update: Major Title VII Changes Following Muldrow v. City of St. Louis that Every Employer Should Know

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On April 17, 2024, the Supreme Court of the United States rendered the most highly anticipated employment opinion of the year. In Muldrow v. City of St. Louis, the Supreme Court lowered the bar for plaintiffs bringing employment discrimination actions against their employers by only requiring an employee to prove that “some harm” occurred as a result of an employment decision.


Prior to this decision, a plaintiff bringing a discrimination claim needed to meet a higher standard of “significant,” “material,” or “substantial” harm.


In Muldrow, a female police officer claimed that her employer, the St. Louis Police Department, discriminated against her based on her sex by transferring her to another department where she had different job responsibilities but the same rate of pay. The City of St. Louis argued that because the transfer was not a “significant” or “material” change, the female officer was unable to establish her claim.

Both the district court and the circuit court agreed with the City of St. Louis and granted summary judgment in favor of the city, effectively ending the female officer’s lawsuit.


The officer, Sergeant Muldrow, petitioned the Supreme Court of the United States and the highest court considered whether a plaintiff can establish a discrimination claim based on an employment transfer without proving the transfer decision caused significant harm. The Supreme Court unanimously held that a plaintiff need only demonstrate “some” harm occurred with regard to a term or condition of employment and specifically rejected that the harm must be “significant.”


This decision will have a sweeping impact on employment discrimination cases across the country.

It clearly lowers the bar for plaintiffs to establish actionable discrimination claims under Title VII which leaves employers vulnerable to a larger range of employment discrimination lawsuits. Historically, federal courts required that an employee’s damage from an “adverse employment action” must be measurable through wages, compensation, terms, conditions or other privileges. This requirement is now gone and employers must consider whether their decisions could simply result in “some” harmful impact upon an employee.


There will soon be new interpretations and analysis through litigation in the courts regarding the Muldrow decision but employers are advised to review their current employment policies and practices that may appear to have any impact an employee’s work conditions. It is advisable to consult with your employment attorney for further clarification and information.

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