NY is the New CA: 11 Employment Laws You Missed if You Blinked in the First Half of 2019

Cozen O'Connor
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As 2019 wears on, New York has continued to churn out new employment laws and regulations that appear to be pro-employee. From the latest state legislative push to the workings of the New York City Council, here are the nuts and bolts of 11 employment laws that have passed or gone into effect this year in New York.

NEW YORK STATE ASSEMBLY BILL A08421: THE DEMISE OF “SEVERE AND PERSUASIVE” AND THE FARAGHER-ELLERTH DEFENSE, AND SIGNIFICANT OTHER CHANGES.

Where: New York State

When: Effective dates ranging from immediately to one year after enactment depending on the section.

What: This sweeping law does the following:

  • Removes the requirement that workplace harassment be “severe or pervasive,” the previous legal test applied in cases under the New York State Human Rights Law (NYSHRL), in order to constitute a hostile work environment in discriminatory or retaliatory harassment cases. Employers can still defend themselves by showing that alleged harassment comprises only “petty slights or trivial inconveniences” — the standard courts have used under the New York City Human Rights Law (NYCHRL).
  • Eliminates the Faragher-Ellerth defense developed through federal jurisprudence that shielded employers who could show they maintained procedures for handling employee complaints and that the employee did not make a complaint. While employers can still argue that an employee did not make a complaint in arguing they should avoid liability, the law now specifies that an employee’s failure to make a complaint about any harassment to the employer “shall not be determinative” of whether the employer is liable.
  • Removes the four-employee threshold for the NYSHRL to apply, so that the law is now applicable to all employers regardless of size.
  • Applies the protections of the NYSHRL to domestic workers and non-employees, not just in cases of sexual harassment.
  • Allows employees to recover punitive damages against private employers in certain cases arising under the NYSHRL.
  • Requires (rather than permits) courts to award attorney’s fees to a prevailing party under the NYSHRL where the employer has committed an unlawful discriminatory practice. A prevailing employer defendant may recover reasonable attorney’s fees where the employer makes a motion requesting the fees and where the employer can show the employee’s action was frivolous.
  • Expands the non-disclosure and mandatory arbitration restrictions that took effect in 2018 related to sexual harassment claims to all discrimination claims.
  • Expands the statute of limitations for sexual harassment claims brought administratively to the New York State Division of Human Rights from one year to three years.

Administrative Requirements: In addition to the requirements above, the law also provides that employers must provide a notice with the employer’s sexual harassment prevention policy and information presented at the employer’s sexual harassment training program both at the time of hire and at the employer’s training, in the employee’s primary language and in English. Templates of non-English sexual harassment policies will be available from New York state, but where there is no template for the employee’s language, the employer must provide the English version.

EXPANDING SALARY HISTORY REQUIREMENTS ACROSS THE STATE

Where: New York State Senate Bill S6549

When: Signed July 10, 2019, effective January 6, 2020.

What: This legislation mirrors New York City legislation passed on April 5, 2017, by prohibiting employers from orally or in writing requesting or relying on salary history of applicants or employees in order to determine an employee’s salary or employment. It also prohibits employers from refusing to interview, hire, promote, otherwise employ, or otherwise retaliating against an applicant or current employee based upon prior wage or salary history, or because the applicant or employee fails to provide the information. Employers can confirm salary information where the applicant offers it voluntarily in response to an offer. Notably, unlike the New York City law, New York’s law contains no exception for current employees applying for internal transfer.

CLARIFYING RACE DISCRIMINATION BASED ON HAIR OR HAIRSTYLE AT BOTH THE STATE AND CITY LEVEL

Where: New York State and New York City

When: New York City guidance issued February 2019; New York State Senate Bill S6209 to take effect immediately upon signing by the governor.

What: Under the NYSHRL, discrimination based on “race” will now include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” Protective hairstyles include, but are not limited to “braids, locks and twists.” This law follows guidance issued on the same topic by the New York City Commission on Human Rights (CCHR) released earlier this year and available here. The city guidance clarified that problematic policies would include:

  • A grooming policy:
    • prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades;
    • requiring employees to alter the state of their hair to conform to the company’s appearance standards; or
    • banning hair that extends a certain number of inches from the scalp.
  • Requiring black employees to change their hairstyle to obtain a certain role or maintain their jobs but not imposing the same requirement across the board.
  • Mandating that black employees hide their hair with a hat or visor.

EQUAL PAY PROTECTIONS

Where: New York State

When:Signed July 10, 2019; effective October 8, 2019.

What: This law expands current protections on gender-based pay inequity by (i) requiring equal pay for “substantially similar work” (as opposed to simply “equal work”), and (ii) prohibiting pay inequity based on a person’s membership in other protected classes, such as age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status. Pay differentials will only be permitted based on “a seniority system, a methodology measuring earnings by quantity or quality, or a bona fide reason other than the individual’s membership in a protected class” that must be job-related and due to business necessity (defined as a factor that bears a manifest relationship to the employment).

PAID VOTING LEAVE

Where: New York State

When: Effective April 2019

What: Election Law Section 3-110 — Under this law, a registered voter may, without loss of pay for up to three hours, take off so much working time as will enable the employee to vote. Employer can still designate time off either before or after shift unless otherwise agreed.

Administrative Requirements: If the employee requires working time off to vote the employee must notify his or her employer not less than two working days before the day of the election. Employers must post a notice with the law’s provisions at least 10 working days before every election until the close of the polls on election day.

GENDA: GENDER EXPRESSION NON-DISCRIMINATION ACT

Where: New York State

When: Effective February 2019

What: This law makes it unlawful under the NYSHRL to refuse to hire, fire, or discriminate on the basis of an employee’s gender identity or expression. Gender identity or expression is defined as a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.

NYC’S MARIJUANA TESTING BAN

Where: New York City

When: Enacted May 10, 2019, takes effect on May 10, 2020

What: This law makes it an unlawful discriminatory practice under the NYCHRL to require a prospective employee to submit to testing for the presence of any THC or marijuana in such prospective employee’s system as a condition of employment. Some exceptions to the law include certain law enforcement positions, certain positions requiring supervision of children and medical patients, positions requiring a CDL, positions requiring federal drug testing, and federal/state contractor positions. Employers can still prohibit marijuana use at work and can still prohibit employees from working while impaired.

THE SUFFOLK COUNTY “RESTRICT INFORMATION REGARDING SALARY AND EARNINGS ACT (RISE)

Where: Suffolk County, N.Y.

When: Effective June 30, 2019

What: This law prohibits employers from inquiring about or relying on a job applicant’s wage or salary history, including but not limited to compensation and benefits. “Inquiring” encompasses oral and written requests to an applicant or former employer and conducting publicly available records searches. Notably, this law does contain an exception for collective bargaining agreements, but does not contain an exception for candidates for internal promotion.

ADDING “SEXUAL AND REPRODUCTIVE HEALTH DECISIONS” TO NYCHRL’S PROTECTED CHARACTERISTICS

Where: New York City

When: Enacted Jan 2019, effective May 20, 2019

What: Local Law 20 adds “sexual and reproductive health decisions” to the list of NYCHRL’s protected characteristics. Sexual and reproductive health decisions are any decisions to receive services, which are arranged for, offered to, or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions. Some examples include fertility-related medical procedures, sexually transmitted disease prevention, testing and treatment, and family planning services and counseling.

WESTCHESTER COUNTY’S EARNED SICK LEAVE LAW

Where: Westchester County, N.Y.

When: Effective April 10, 2019 but employees must begin to earn leave as of July 10, 2019.

What: On the later of July 10, 2019 or the date of their first employment, employees who work on a full or part-time basis more than 80 hours in a calendar year will begin earning one hour of sick leave for every 30 hours worked, not to exceed 40 hours in a calendar year. Employers with five or more employees must provide paid leave and smaller employers must provide unpaid leave. Employees can use sick leave to access medical or mental health diagnosis, treatment, or preventative care for themselves or a family member, as well as when an employee’s child’s day care or elementary or secondary school is closed due to a public health emergency. Employees may be able to carryover leave from one year to the next provided that the maximum accrual is not required to be above 40 hours. An employer who permits an employee to use at least 40 hours personal time and sick time for reasons covered under the law will be in compliance with this law as long as there are no notice requirements or more restrictions placed on the leave beyond what is allowed by it.

Administrative Requirements: Employers must provide a notice of rights to their employees in English and the employee’s primary language, if available, on the later of the employee’s first day of employment or July 10, 2019. Employers can require a doctor’s note from an employee who has been on leave more than three consecutive days, but cannot require that the note specify the medical reason for the leave. Employers can also require employees provide advance notice for leave that is foreseeable, but the procedure for using leave must be provided in writing.

EXPANDED LACTATION LAWS

Where: New York City

When: Effective March 2019

What: The New York City lactation law has two components: First, employers must provide a lactation room and a refrigerator for breast milk storage in reasonable proximity to an employee’s work area. A lactation room is a sanitary place other than a restroom, shielded from view and free from intrusion that includes, at a minimum, an electrical outlet, chair, surface on which to place a breast pump and nearby access to running water. Employers also must engage in cooperative dialogue where providing a lactation room poses undue hardship.

Second, employers need to maintain written policy containing a statement that employees have a right to request a lactation room and provide the process on how to request one. The process of requesting a room must (1) specify how to submit a request for a lactation room; (2) require the employer to respond to a request for a lactation room within five business days; (3) provide a procedure to follow when two or more people need to use the lactation room at the same time, including contact information for any follow up required; (4) state that the employer will provide reasonable break time for an employee to express breast milk pursuant to section 206-c of the labor law; and (5) state that if the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue.

Administrative Requirements: In addition to the policy requirements discussed above, the law also requires the employer’s lactation policy to be provided at time of hire. New York City has provided a template room request form, frequently asked questions, and several template policies for employers to adopt depending on their circumstances available here.

TAKEAWAYS

Employers who have had a policy of reviewing employment policies once a year would be well advised to begin reviewing their policies and practices more frequently, as well as training managers and supervisors (and others involved with implementing these policies and practices) on the application of these new laws. Also, employers with multi-state operations should understand that New York often sets the bar for other progressive states and there is a good chance that if an employer changes its policies for New York alone, it may later need to do so in other states as well.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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