New Federal Law Protecting Breast-Feeding Employees

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In December of 2022, President Biden signed into law the “Providing Urgent Maternal Protections for Nursing Mothers Act,” or “PUMP Act,” for short.  This bill expanded the protections for nursing mothers initially established in the 2010 “Break Time for Nursing Mother’s Act.”  The 2010 legislation gave breast-feeding employees designated breaktime to express milk for their infants.  The PUMP Act expands the population of employees entitled to designated break time under federal law and, for the first time, federal law requires employers to provide a private space for employees to pump.

Under the law, break time is available to eligible employees for a minimum of one year after giving birth.  The private area employers are required to provide to express break milk must be out of the view of other coworkers and the public at large.  A public bathroom will not satisfy the requirements under this law.  There must be an actual designated area or room for an employee to use during business hours.  An employer is permitted to use a temporary space in order to comply with the requirements of the law. 

Some employers may find this requirement more difficult to meet than others and human resource professionals may need to develop creative solutions.  An employer who can designate a temporary office as a private area for a breast-feeding employee’s use is ideally situated.  Other employers who do not have the space to do this may want to consider alternative options such as portable pumping stations, privacy screens, or partnering up with other offices or businesses in the same area to designate a dedicated private space.   

The PUMP Act applies to all employees, not just non-exempt employees.  However, if your business has less than fifty (50) employees, you may be able to rely on a small employer exemption if you can demonstrate that compliance with the PUMP Act would cause significant expense you.  

Be aware that, starting in April 2023, the PUMP Act gives employees almost immediate legal recourse for violations.  If an employer violates the break time requirement or declines to provide a private place to pump, the employer has 10 days to cure the violation or the employee can immediately file a lawsuit. 

Employers may want to discuss the PUMP Act’s requirements with counsel to ensure compliance and determine whether this federal law or existing state laws apply to their businesses and employees.  New York and New Jersey employers may find that they are already in compliance due to pre-existing state laws.

What to Know About Wage Transparency Laws in New York and New Jersey

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Legislation requiring employers to include salary information in employment advertisements is increasingly popular and common in the tri-state area. 

In January of 2022, New York City passed a wage transparency law requiring all employers with four or more employees, or one or more domestic workers, to include both a minimum and a maximum salary or hourly wage in employment advertisements.  Employers must follow this law when advertising for positions that can or will be performed, in whole or in part, in New York City.  The advertisement does not have to include details on other job benefits.  While employment agencies are subject to this law, temporary help firms are not.  This law took effect in November of 2022.

Jersey City enacted a similar law last year requiring employers with five or more employees with their principal place of business within Jersey City to post minimum and maximum salary and/or hourly wages as well as benefits in employment advertisements.  The Jersey City law also prohibits employers from screening job applicants based on their salary history or require applicants’ salary history satisfy any minimum or maximum criteria.  Jersey City did not carve out any exemption for temporary help firms.

On December 21, 2022, New York State’s Governor Kathy Hochul signed a state-wide wage transparency law.  Under this law, any employer with four or more employees must include salary ranges, job descriptions (if such job description exists) and general descriptions of other benefits in any employment advertisements where the job opportunity can or will be performed, at least in part, in the State of New York.  Temporary help firms are specifically excluded from the requirements of this law.  This law takes effect in September 2023.

The State of New Jersey does not yet have a state-wide wage transparency law although legislation has been proposed.  The text of the proposed bill applies to all employers with ten or more employees and does not carve out an exception for temporary staffing firms.

If you are a qualifying employer operating in New York City, New York State or Jersey City, New Jersey, review your job advertisement to ensure compliance with the applicable wage transparency law.  Violations can subject employers to civil penalties and fines. 

New Jersey Senate Bill to Affect Temporary Staffing Industry

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Today, Governor Murphy signed legislation that will dramatically impact the temporary staffing industry and its workers in the State of New Jersey.

As expressed in the law’s text, the motivation behind the legislation is to bring regulation to an industry that has been largely unregulated and address abuses directed toward temporary workers.  Unions and worker’s rights advocates are celebrating the law’s passage.  Temporary staffing agencies and their clients oppose the bill and continue to express their strong concerns because several of the law’s provisions are likely to create significant financial hardship and confusion upon implementation.    

The law contains more than ten separate sections creating new mandates related to employee disclosure, recordkeeping, registration, transportation, and other categories.  These disclosure and notification requirements and related penalties can apply to temporary staffing agencies as well as their clients.

In addition to new disclosure and recordkeeping requirements that will increase agencies’ and clients’ operating costs, the law prohibits both the temporary staffing agency and the client from charging the temporary employees for transportation to and from worksites.  Similarly, agencies cannot charge workers for meals or equipment if those charges cause wages to fall below minimum wage.   Temporary staffing agencies are also required to employ personnel, or work with personnel, who can effectively communicate with temporary workers in their native language. 

The law limits the amount a temporary staffing agency can charge when a worker transitions to a client’s payroll.  Further, the law requires temporary workers to receive the same rate of pay and benefits as a client’s direct employees working the same position.

Although temporary staffing companies are already required to register with the State, this law appears to increase the costs associated with that registration process.  It is not clear yet how the current registration process and new registration process may differ beyond the higher fees and insurance requirements.  The State will maintain a list of properly registered temporary staffing companies and clients who work with unregistered or suspended temporary staffing companies will face penalties.

The law permits employees to dictate their pay schedule.  In other words, the temporary workers have the ability to tell the staffing agency whether they want to be paid weekly, bi-weekly, or otherwise.  Staffing agencies will need to determine whether their payroll systems can provide for this type of flexibility.

Each of these provisions will result in additional costs to both staffing agencies and their clients.

Temporary staffing agencies, their clients, and those third parties working with them should prepare to devote resources, time and attention to making sure they are ready to implement the many reforms within this law. 

New York State Enacts Carlos’ Law

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On December 23, 2022, Governor Kathy Hochul signed legislation establishing Carlos’ law.  Named after Carlos Moncayo, a 22 year old construction worker who was killed while working at a construction site in New York City, Carlos’ law seeks to provide greater protections to employees by holding employers accountable for maintaining a safe work environment.

With this new legislation, a corporation is guilty of criminal corporate liability for the death or injury of an employee when the employer negligently, recklessly, intentionally or knowingly causes the death of one of its employees on the job. 

Carlos’ law was initially written in 2016.  The law passed the New York Assembly in 2017 and was supported by a majority of Senate Democrats.  Nevertheless, it took until 2022 for it to become law.

Carlos Moncayo was an Ecuadorean immigrant working at a construction site in New York City’s meatpacking district.  He died on the job site in the collapse of an unreinforced 13 foot deep trench  which had been cited by safety inspectors.  The company responsible for safety at the site had ignored safety warnings for months.

Following the accident that took Moncayo’s life, the Occupational Safety and Health Administration fined the employer approximately $10,000 for its negligence.  This was the maximum possible fine.  Eventually, the employer was convicted of manslaughter in the second degree, criminally negligent homicide, and reckless endangerment.   This level of punishment against a contractor was unusual in the industry.  Despite these criminal convictions, the Moncayo family did not receive any compensation.

With the passage of Carlos’ law at the end of last year, the New York State Penal Law now allows a fine of up to $500,000, a very significant increase from the $10,000 maximum fine applicable at the time of Carlos Moncayo’s death.

To read the press release issued by Governor Hochul’s office, visit https://www.governor.ny.gov/news/governor-hochul-signs-legislation-establishing-carlos-law#:~:text=Governor%20Kathy%20Hochul%20today%20signed,fine%20of%20up%20to%20%24500%2C000.

Warehouse Worker Protection Act Signed into Law

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In the second newsletter issue of 2022, we reported that employees in an Amazon warehouse in Staten Island, New York voted to unionize. This week, the National Labor Relations Board rejected Amazon’s claims that union organizers improperly influenced the union vote. Amazon is expected to appeal the decision but it is likely Amazon will have to recognize its first unionized warehouse in the United States.

This unionization effort is in large part a response to significant concerns about working conditions in warehouses operated by Amazon and other companies.  Now, the State of New York has responded to these same concerns with new legislation.

On December 30, 2022, Governor Kathy Hochul signed the Warehouse Worker Protection Act (“WWPA”) into law.  The WWPA is modeled after a pre-existing California Law and it requires employers such as Amazon to provide newly hired and current warehouse employees written notice of any production quotas an employee must meet.  Also, the WWPA prohibits employers from requiring quotas that prevent employees from taking breaks, resting, or using the bathroom. 

Amazon is accused of using algorithms to track employee productivity rates.  If an employee takes too long to accomplish a task or to return from a break, the highly intelligent system recognizes the loss of time and generates a warning to the employee.  These warnings can eventually lead to dismissal.  According to warehouse workers, the threat of these warnings and eventual dismissal have unreasonably heightened their stress levels.  Further, warehouse workers claim the extended, fast pace of work in the warehouses have resulted in a higher number of workplace injuries.

The New York law takes aim at restricting and regulating the quota system in place in warehouses across the state.  This law is unquestionably a victory for warehouse employees.

For the text of the WWPA, visit https://www.nysenate.gov/legislation/bills/2021/A10020.

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