On September 29, 2022, I presented a complimentary webinar entitled “Remote Employees in New York”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.
In the webinar, I discuss:
Insurance Issues
Mandatory Policies
Employment Discrimination
Hiring Pitfalls
and much more!
There have always been some people who worked from home. But the COVID-19 pandemic forced many employers into remote work arrangements on a large scale.
Beyond the practical issues, a new spotlight has emerged on legal compliance regarding remote employees. Especially when employees are working remotely in cities or states where the employer doesn’t have a physical presence, the arrangement may expose a company to new legal parameters.
Why You Should Watch “Remote Employees in New York”
If your organization isn’t physically present in New York, but has employees working there remotely, then you may not be familiar with many of the state-specific employment law requirements that probably apply. Similarly, if you have employees working remotely in New York City, there are additional protections to be aware of within the city boundaries.
Whether you’re based in New York or elsewhere, this webinar addresses many aspects of New York employment law relative to remote employees. If you’re new to having employees in the State or NYC, then we’ll get you up to speed on the major compliance requirements. If you’re already familiar with New York human resources practices, hear more specifically about what to consider with employees working off-site.
With recent amendments, the anticipated New York City pay disclosure law will take effect on November 1, 2022. Covered employers advertising for positions that could be performed in New York City must identify the minimum and maximum salary or wage for each job.
Covered Employers
The New York City pay disclosure law will apply to employers with at least 4 employees as long as one of them works in NYC. Anyone employing one or more domestic workers in the city is also covered.
Covered Job Postings
The law applies to all jobs, including promotions and transfers, that could be performed “at least in part” in New York City. Covered positions may be working either in a facility operated by the employer or remotely, such as in the employee’s home. Even positions with a combination of work locations would be subject to the New York pay disclosure law if part of the job could be performed in New York City.
Covered job advertisements include “any written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicants.”
However, the law does not require employers to advertise or post for available positions. It only requires that if an employer chooses to post an opening, they must include the compensation range.
Required Pay Disclosure
Covered job advertisements must state both a minimum and maximum annual salary or hourly wage for the available position(s). By law, “the range may extend from the lowest to the highest annual salary or hourly wage the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.”
Though there is little guidance so far on what will qualify as a “good faith” pay range, the New York Commission on Human Rights emphasizes that the range cannot be open-ended. For example, only stating a minimum hourly rate or a maximum salary would be insufficient.
Though unsaid, presumably the New York City pay disclosure range refers to the starting compensation level.
This law does not require employers to advertise any additional information about compensation or benefits such as overtime rates, insurance benefits, or bonus eligibility.
Penalties
A violation of the New York City pay disclosure law will constitute employment discrimination under the New York City Human Rights Law.
Any applicant or employee who feels aggrieved by an alleged violation of the New York pay disclosure law will be able to file a complaint with the New York City Commission on Human Rights. Potential remedies include awarding lost wages and emotional distress damages, among other available relief.
The law contains partial limits on liability, but it is not clear that they will do much to protect employers.
Only current employers may commence a civil lawsuit for a violation of the New York City pay disclosure law. But, again, a much broader scope of individuals have the attractive option of going through an administrative proceeding with the NYC Commission on Human Rights.
The law also provides for no monetary civil penalty for a first violation if the employer cures it within 30 days. However, this does not preclude an aggrieved individual from pursuing and potentially receiving damages in an administrative proceeding. And the NYC Commission on Human Rights may impose penalties of up to $250,000 for uncured or subsequent violations.
Next Steps for NYC Employers
If you have an employee working in New York City, you may need to include a wage or salary range in job postings beginning November 1, 2022. Do you have 4 total employees? Or at least one domestic worker in New York? Could the job you’re hiring for be performed in NYC–even if that’s not the most likely or preferred location?
NYC employers may have the option of not advertising for positions for which they don’t want to disclose a pay range. But if you do post, you will need to decide what a “good faith” wage or salary range is for each position advertised.
The number of employment discrimination claims filed with the U.S. Equal Employment Opportunity Commission continued a steep decline in 2021. At the lowest level in at least several decades, data from the past two years suggests that COVID-19 contributed to the reduction. But a review of 2021 EEOC charges reveals some interesting trends that may be unrelated to the pandemic.
FY 2021 EEOC Charges
The latest annual data refer to the 12-month fiscal year ending September 30, 2021. The EEOC received 61,331 charges of employment discrimination during this period. The charges span several federal laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Equal Pay Act, and the Genetic Information Non-Discrimination Act (GINA).
More than half (56%) of the charges included a retaliation claim, often in addition to claims based on other protected characteristics.
Here is the percentage of total charges that asserted discrimination based on those other characteristics:
Disability – 37.2%
Race – 34.1%
Sex – 30.6%
Age – 21.1%
National Origin – 10.1%
Color – 5.7%
Religion – 3.4%
Equal Pay – 1.4%
Genetic Information – 0.4%
Totals exceed 100%, as charges can allege more than one category.
Harassment charges, which can be based on any protected characteristic, also continued to fall in FY 2021, even as a percentage of all claims. Of the total EEOC charges filed last year, 21,270 (34.7%) included a harassment claim. In 2020, 35.9% of charges included a harassment allegation.
Downward Trend
Since Democratic administrations are seen to be more employee-friendly than Republican ones, it is interesting to review these data in line with the party in control of the White House (and, correspondingly, the EEOC). Annual EEOC charges began to decline following the transition from the presidency of Barack Obama into the Trump Administration. After consistently measuring near or above 90,000 cases per year under President Obama, total EEOC charges have declined each year since Donald Trump was elected. Of course, this now includes the beginning of Democrat Joe Biden’s presidency.
Sexual Harassment Charges in 2021
Claims of sex-based harassment fell to 10,035, down 13.1% from the FY 2018 peak sparked by the #MeToo movement. That number includes all charges alleging harassment related to one’s sex (treating people of one sex less favorably than others). The EEOC separately tracks harassment of a sexual nature.
Charges alleging harassment of a sexual nature also fell to the lowest level in the 25 years of data reported by the EEOC. The agency received 5,581 such charges in FY 2021, down 26.6% from 2018, and 29.7% from 2010.
What’s Going On?
While there are many possible explanations for the decline in charges, it is hard to ignore the potential impact of the COVID-19 pandemic over the past two years. With less workers on-site, there may simply be fewer opportunities for employees to feel harassed. A relative labor shortage could also be a factor. If employees who think they have been terminated from their jobs for a discriminatory reason quickly find new employment, they may be less likely to file a claim against their former employer. Enhanced unemployment benefits may have also generated a similar effect.
Of course, it would be great if the decline in charges corresponds to a reduction in actual instances of harassment or other discrimination. However, the data do not readily enable an analysis of whether that may be the case.
Digging Into the 2021 EEOC Charge Statistics
What may we be able to find out from the data on 2021 EEOC charges?
The EEOC reports 20,908 charges alleging race discrimination in FY 2021. That’s easily the fewest such claims in the history of the EEOC dataset going back to 1992, representing a 41.7% drop since the peak a decade earlier in FY 2010.
However, charges based on color discrimination have been increasing. In FY 2020, 5.7% of charges (3,516) included a claim of color discrimination–the highest level ever for such claims on a percentage basis. The reasonable assumption is that more employees are raising color discrimination claims instead of race discrimination. Yet, employees can claim discrimination based on both race and color. So, the increase in color discrimination claims doesn’t necessarily explain the reduction in race discrimination claims.
LGBTQ+ Discrimination
EEOC charges based on sexual orientation or transgender status have also increased in the past five years. This trend may not be surprising in light of a shift in judicial acceptance that these characteristics are protected under federal employment discrimination laws. The U.S. Supreme Court only held that Title VII prohibits discrimination based on sexual orientation and transgender status in June 2020.
Other Categories
Charges alleging discrimination based on sex, religion, age, and disability all declined in FY 2021 (as in 2017-2020). But the declines were roughly proportionate to the overall case volume.
Looking Ahead
The (hopeful) end of COVID-19 restrictions could affect EEOC filings next year. Likewise, Democrats will take complete policy-making control over the EEOC after the term of the next Republican on the commission expires in July 2022. This shift could lead to more aggressive enforcement of the federal employment discrimination statutes.
However, there is some room for optimism that whether due to COVID-19’s permanent impact on the workplace or other causes, harassment and discrimination are becoming less prevalent. Nonetheless, an overall trend is no solace if your company suffers the consequences of employment discrimination claims. As ever, employers should be proactive in preventing discrimination. Anti-harassment training is one viable approach. Effective hiring practices, training, and supervision are also critical.
You must be logged in to post a comment.