During the end of 2019 and in the past few weeks, New York State and New York City passed legislation and administrative guidance further regulating workplace protections.  New York State and New York City employers should update their policies/practices accordingly and remain vigilant in this ever-changing legal landscape.

New York State Releases Additional Guidance on Anti-Discrimination and Anti-Harassment Protections

As we previously blogged, on August 12, 2019, Governor Andrew Cuomo signed into law significant workplace anti-discrimination and anti-harassment measures, adding to the sexual harassment reforms previously passed in 2018.  New York State has now updated its FAQs reflected on the New York State-run Combatting Sexual Harassment in the Workplace website, providing further guidance on these newly expanded requirements.

Pursuant to the recently enacted law, all New York employers must provide employees with a notice, both at the time of hire and at every annual sexual harassment training, that contains the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program.”  This notice must be provided in English and in the language identified as the employee’s primary language.

In enacting the new guidance, New York State published a template Sexual Harassment Prevention Notice for employers to use to satisfy this requirement.  The model notice requires employers to attach or insert links to the following information: (1) the employer’s sexual harassment prevention policy; (2) the employer’s sexual harassment complaint form; and (3) the materials the employer uses in its anti-harassment training program.  The FAQs note that the training materials should include “any printed materials, scripts, Q+As, outlines, handouts, PowerPoint slides, etc.”

The FAQs also state that the notice can be delivered to employees via email or in print and that the notice (and all corresponding materials) should be provided to new employees prior to or at the beginning of their first day of work.

New York State Law to Protect Employees’ Reproductive Health Decisions

Effective immediately, Governor Cuomo also enacted a new law prohibiting employment discrimination based on an employee’s or a dependent’s “reproductive health decision making.”  Earlier in 2019, the New York City Council already passed a law to include “sexual and other reproductive health decisions” as a protected category under the New York City Human Rights Law (“NYCHRL”), so this statewide measure now creates consistency on the issue throughout New York State.

The law adds a new Section 203-e to the New York State Labor Law, which defines “reproductive health decision making” as “including, but not limited to, the decision to use or access a particular drug, device or medical service.”  The law prohibits an employer from:

• Accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making, without the employee’s prior informed affirmative written consent;
• Requiring an employee to sign a waiver or other document, which attempts to deny an employee the right to make their own reproductive health care decisions; and
• Discriminating or taking any retaliatory personnel action against an employee regarding compensation, terms, conditions, or privileges of employment because of the employee’s or employee’s dependent’s reproductive health decision making.

Employees are permitted to bring a civil action in court against any employer who violates Section 203-e and the remedies available to employees include, but are not limited to, back pay, benefits, injunctive relief, reinstatement, and reasonable attorneys’ fees and costs.  A court may also award liquidated damages “equal to one-hundred percent of the award for damages . . . unless the employer proves a good faith basis to believe that its actions . . . were in compliance with the law.”

Additionally, the law provides for separate civil penalties against an employer that retaliates against an employee for lodging a complaint under the law.  For purposes of the law, retaliation is defined as penalizing an employee for:

• Making or threatening to make, a complaint to an employer, co-worker, or to a public body, that his or her rights under the law were violated;
• Filing any proceeding under or related to this section; or
• Providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into any such violation of a law, rule, or regulation by such employer.

Finally, the law requires an employer that maintains an employee handbook to include a notice of employees’ rights and remedies under Section 203-e in the handbook.  Therefore, New York State employers must revise their handbooks accordingly.

New York City Extends Workplace Protections and Training Requirements to Freelancers and Independent Contractors

Effective January 11, 2020, the NYCHRL now extends certain protections to freelancers and independent contractors regarding anti-discrimination measures, annual sexual harassment prevention training, and reasonable accommodations.  The new law also clarifies the definition of a covered “employer” under the NYCHRL.

The NYCHRL applies to employers with four (4) or more employees, except for the provisions prohibiting gender-based harassment which apply to employers of all sizes.  As noted above, the new law amends the definition of a covered “employer” by instituting a twelve (12) month look-back period for counting purposes.  Specifically, a covered “employer” does not include any employer “that has fewer than four persons in the employ of such employer at all times during the period beginning twelve months before the start of an unlawful discriminatory practice and continuing through the end of such unlawful discriminatory practice.”  Further, the law amends the four (4) employee threshold measurement to now include: (1) independent contractors who work “in furtherance of an employer’s business enterprise” and (2) the employer’s parent, spouse, domestic partner, or child, if employed by the employer.

The new law also amends the NYCHRL to provide freelancers and independent contractors with the same protections against discrimination, harassment, and retaliation under the NYCHRL that employees have enjoyed.  Indeed, as we reported, New York State has already enacted similar expanded measures for all discrimination claims that accrue and are filed on or after October 11, 2019 under the NYSHRL.

Further, the New York City Commission on Human Rights (the “NYC Commission”) issued guidance regarding the above expanded protections for freelancers and independent contractors.  Within the guidance, the NYC Commission states that freelancers and independent contractors now “have the right to receive reasonable accommodations for needs related to disabilities, pregnancy, lactation, religious observances, and status as victims of domestic violence, sexual offenses, or stalking.”

The guidance also notes that freelancers and independent contractors who work “for an employer of 15 or more people” (including employees, interns, and freelancers/independent contractors) must now complete annual sexual harassment prevention training, so long as the freelancer/independent contractor: (1) works more than eighty hours in a calendar year for the employer and (2) works at least ninety days for the employer in a calendar year, which does not need to be consecutive.  In an apparent acknowledgment that freelancers and independent contractors often work for many employers throughout the year, the guidance states that freelancers and independent contractors need not be trained by each employer where they work over the course of a year.  Indeed, freelancers and independent contractors need only provide proof of completion of one anti-harassment training to multiple workplaces for the applicable year.

New York State Department of Labor Issues Guidance on Salary History Inquiry Ban

As we reported, the New York State salary history inquiry ban went into effect on January 6, 2020.  The New York State Department of Labor (the “NYSDOL”) recently published guidance on the newly effective law.  The key provisions of the guidance include:

• Under the law, applicants and employees may voluntarily disclose their pay history. According to the guidance, a prospective employer may use such voluntarily disclosed information from an applicant in determining the salary for that position.  That being said, an employer may not rely upon prior salary information to “justify a pay difference between employees of different or various protected classes who are performing substantially similar work[.]”
• According to the NYSDOL, an employer may not include an “optional” question on a job application seeking a voluntary disclosure of salary history information.
• The guidance states that the New York State salary history inquiry ban “applies to any position that will be based primarily in New York State, even if the interview process takes place virtually, via telephone or in another state.”
• The guidance clearly states that the New York State salary history inquiry ban applies to current employees (unlike the New York City salary history inquiry ban, which does not apply to current employees). However, an employer “may consider information already in [its] possession for existing employees (i.e., a current employee’s current salary or benefits being paid by that employer).”
• Finally, the NYSDOL clarified that freelancers and independent contractors are not covered by the New York State salary history inquiry ban, unless they work through an employment agency.

In conclusion, New York State and New York City employers should continue to monitor any new developments in the law and update their policies and employment documents accordingly.  Employers should contact counsel with any questions to ensure compliance with the above requirements.