Category: Employment Law

March 29, 2022

New York Employment Discrimination Update (Webinar Recap)

On March 29, 2022, I presented a complimentary webinar entitled “New York Employment Discrimination Update”. 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:

Legislative Developments
Agency Procedures
Trends & Statistics
Requirements & Precautions

and much more!

New York Governor Kathy Hochus recently signed new state laws designed to increase employee protections against employment discrimination. This webinar discusses these amendments, plus additional pending legislation. How will the new laws affect employers?

The webinar also addresses recently released data on federal employment discrimination charges filed with the EEOC. Learn about a decline in claims and what it may mean.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “New York Employment Discrimination Update”

There are specific new provisions that New York employers should become aware of, including a new form of retaliation based on release of employee personnel files. The New York Division of Human Rights must also create a new sexual harassment complaint hotline to assist employees in filing claims. Proposed legislation that may be coming next would require even more dramatic changes to employer practices.

The presentation includes analysis of data from the EEOC for fiscal year 2021. We discuss the operational and filing trends and what they may suggest about the prevalence of employment discrimination and employee motivations to assert claims.

This subject is not going away, and the likelihood of liability for New York employers may be increasing. Thus, we also consider the difference between required preventative measures and options to better protect your organization from employment discrimination.

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March 18, 2022

Continued Expansion of New York Worker Discrimination Laws

On March 16, 2022, New York Governor Kathy Hochul signed legislation aimed at protecting employees from sexual harassment and other forms of employment discrimination. The amendments modify the New York Human Rights Law, which serves as the primary source of New York worker discrimination laws. Some provisions took effect immediately (if not sooner!). A requirement for a new hotline will take effect later this year.

Covered Entities & Workers

One amendment “clarifies” the definition of “employer” under the Human Rights Law. The pre-existing definition was simply and broadly defined to include “all employers within the state.”

In some cases, courts have concluded that this wording did not sufficiently extend the Human Rights Law’s protections to the staff of elected officials or attorneys working for state judges. Accordingly, the law now expressly states that “the state of New York shall be considered an employer of any employee or official, including any elected official, of the New York state executive, legislature, or judiciary, including persons serving in any judicial capacity, and persons serving on the staff of any elected official in New York state.”

The amendment similarly addresses local government entities. It provides that “a city, county, town, village or other political subdivision of the state of New York shall be considered an employer of any employee or official, including any elected official, of such locality’s executive, legislature or judiciary, including persons serving in any local judicial capacity, and persons serving on the staff of any local elected official.”

Rather than merely take effect immediately, this amendment provides that it took effect upon enactment of a previous revision to the Human Rights Law’s definition of employer in 2019. It’s not clear whether courts will actually apply the new definitions retroactively,

Personnel Records Retaliation

In addition to discrimination based on certain personal characteristics, the Human Rights Law prohibits retaliation against individuals who raise discrimination claims or otherwise participate in efforts to redress discrimination. Retaliation is a broad concept under the law. But there is now an express provision ensuring that one form of employer conduct will qualify.

Effective immediately, an employer may not retaliate against a protected employee by disclosing the employee’s personnel files. There is an exception for disclosure in a legal proceeding. But, otherwise, any release of employee information arguably violates the law. This amendment may limit an employer’s ability to publicly dispute even demonstrably false claims by former employees who have alleged discrimination.

Prosecutorial Authority

The New York Attorney General now has the authority to sue an employer for workplace retaliation. This amendment doesn’t prevent an employee from doing so directly in the courts or through a government agency. But it creates a new avenue for prosecuting employers whose employees choose not to make a retaliation claim. This new provision may even permit the Attorney General to pursue a claim where the employee involved has already settled their dispute with the employer.

Sexual Harassment Complaint Assistance Hotline

By July 14, 2022, the New York State Division of Human Rights must establish a confidential hotline “to provide individuals with complaints of workplace sexual harassment counsel and assistance.” The hotline will be available at least during regular business hours from 9:00 a.m. to 5:00 p.m.

The amendment specifies that the hotline will provide a means for workers to connect with “attorneys experienced in providing counsel related to sexual harassment matters who can provide pro bono assistance and counsel.” The attorneys who participate may not solicit the workers they speak with to retain them for representation in the discussed sexual harassment complaint.

While well-intended, there are some questions regarding the logic of this requirement.

First, how willing are such “experienced” attorneys going to be to provide free advice without the possibility for remuneration? Most likely, participating attorneys will typically be pointing employees to file a complaint with the Division of Human Rights. That is effectively the same result as the current scenario where an employee contacts the Division regarding sexual harassment allegations.

Second, why limit the hotline to sexual harassment, which is just one form of employment discrimination prohibited under the New York worker discrimination laws? And most lawyers experienced in sexual harassment claims also handle other forms of discrimination. And, interestingly, the wording of the law doesn’t specifically prohibit the pro bono attorneys from representing (for compensation) the employees who call in claims outside of sexual harassment. Could that create a peculiar incentive for the attorneys to discourage sexual harassment claims in favor of others they may have?

Once in place, information about the hotline will be a component of required employee rights notices and postings.

Complying with Worker Discrimination Laws

These are just the latest developments among a recent trend of stricter worker discrimination laws in New York. Employers must continually focus on preventing harassment and discrimination before it occurs and remedying it as soon as possible if it does. While introducing comparatively few affirmative obligations, these amendments will at least incrementally increase the risk of claims. Strong anti-discrimination policies and training are among the best available measures to avoid improper workplace conduct. But sound overall human resources practices are critical in that mission.

January 31, 2022

New York Employment Law Proposals 2022

We published a similar article in February 2020. The next month, COVID-19 introduced a new world, including for workplace legal issues. Recognizing now more than ever that the unpredictable is the new normal, let’s look back at New York employment law proposals from early 2020 and look ahead at what new laws may be coming in 2022.

Note that none of the bills addressed here have become law at the time of writing. We will continue to track these and other New York employment law proposals for updates.

Update from Pre-COVID Employment Law Proposals

Paid Sick Leave

In February 2020, we highlighted legislation to impose paid sick leave statewide. With COVID-19 as an impetus, paid sick leave passed the legislature in 2020 and took effect on January 1, 2021.

Whistleblower Protections

One of the bills pending in early 2020 sought to increase whistleblower protections for New York workers dramatically. This legislation may have initially taken a backseat to the pandemic, but was ultimately signed into law by Governor Hochul in October 2021.

Proposed Bills – Returning Nominees

We identified proposals similar to the ones below back in 2020. They haven’t become law yet, but remain candidates for having a material impact on New York employment law.

A3632 / S575 – Abusive Work Environment

This bill, repeatedly proposed over the past decade, is an attempt at anti-bullying legislation. It provides that “no employee shall be subjected to an abusive work environment.” Employers would be liable when they or their employees create such conditions in the workplace.

With a broad definition of “abusive work environment,” this bill aims to create protections on top of workplace harassment laws. Essentially, this law would eliminate the requirement that the negative treatment be based on a legally protected personal characteristic. The following could qualify as abusive conduct regardless of the underlying basis:

repeated verbal abuse, such as the use of derogatory remarks, insults, and epithets;
verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature; or
sabotage or undermining of an employee’s work performance.

While none of these behaviors is pleasant or generally desirable, imposing employer liability on these bases would open floodgates of employment litigation. But, it’s at least plausible that New York could pave the way for such legislation.

A02448 / S8108 – “Schedules That Work Act”

New York City already has a local “Fair Workweek Act” that regulates the scheduling of fast food and retail employees. New York State started down the path of imposing similarly-intended regulations a few years ago. But that effort stalled out of fear that it would have exceeded the Department of Labor’s regulatory authority. However, the State indicated that it might continue the effort through legislation.

This legislation would impose new restrictions on covered employers’ ability to schedule employees. It includes specific parameters regarding call-in pay, split shifts, and advance notice of work schedules.

Some aspects of the proposed “Schedules That Work Act” would only apply to the retail, food service, and cleaning industries.

The bill more generally permits employees in any industry working for an employer with at least 50 employees to request changes to their work schedules and related employment details. Upon application, employers would then be required to “engage in a timely, good faith interactive process with the employee that includes a discussion of potential schedule changes that would meet the employee’s needs.”

If enacted as proposed, this bill would constitute a monumental shift in the scheduling dynamic for many New York workplaces.

A8008 / S6502 – Personnel Files

Currently, New York law does not require employers to provide employees access to review their personnel files. This bill would change that.

As proposed, this legislation would require employers to give current and former employees, upon request, a free copy of their personnel file up to 2 times each year.

Several other states already have similar statutory provisions.

Proposed Bills – New Contenders

While some of the bills below may have been introduced in previous legislative sessions, they didn’t jump to the top of our list of likely new laws back in early 2020. But now, they seem viable or otherwise remarkable enough to highlight.

S734 – Non-Competes

Governor Hochul has announced non-compete reform as one of her legislative priorities. Frankly, this bill probably doesn’t go as far as the Governor intends. But it’s still worthy of note as a starting point for potential limitations on the use of non-competes in New York.

This proposal would ostensibly codify non-compete standards currently used by New York courts. As such, it would only permit a non-compete agreement that:

is no greater than required for the protection of the legitimate interest of the employer;
does not impose an undue hardship on the employee;
is not injurious to the public; and
is reasonable in time period and geographic scope.

The law also attempts to render a non-compete unenforceable where an employee loses the job due to a declared state of emergency (e.g., the COVID-19 pandemic).

A6639 / S7434 – Salary Information

This bill would mandate significant changes to the way many employers currently determine salaries and wages. New York law already prohibits employers from asking about their salary history. This legislation would go further and prevent them from even asking employees about their salary expectations.

In addition, employers would have to include the applicable wage scale or salary range in each job posting.

A2142 – Use of Paid Sick Leave

This bill proposes that employees’ paid sick leave “shall not result in a reduction of paid time off for purposes other than sick leave.”

It seems this would prevent employers from combining paid sick leave into a general paid leave bucket, such as “Paid Time Off” or “PTO.”

If this bill were to pass as drafted, it would raise many questions not easily answered by the legislative text. If the concept were to gain traction, the bill would probably be amended or replaced by an alternative proposal. But, any new law with this intent would undoubtedly affect a large number of workplaces, likely requiring most employers to revise their paid leave policies.

A6090 / S6032 – Remote Electronic Monitoring

Obviously influenced by the COVID pandemic, this bill would restrict employers from engaging in electronic monitoring of their employees working at home. Employers could not require employees to install software on personal devices, including smartphones, in an attempt to help confirm whether the employee is actually working.

Under this bill, employers could not even monitor employees on company-provided computers and devices in real-time. However, they could review employee website browser histories.

(Click here for more on a new law already in place that affects electronic monitoring of employees generally.)

A2534 / S6032 – Bereavement Leave

The New York Legislature has been trying to enact some form of bereavement leave over the past couple of sessions. In fact, they nearly succeeded in 2018, but then-Governor Cuomo vetoed the bill.

As with the vetoed legislation, this pending proposal would revise the state’s Paid Family Leave law. It would permit eligible employees to use PFL for bereavement leave. That could mean up to 12 weeks of partially paid leave to grieve the death of a family member.

With a new governor, will this measure finally become law in 2022?

A5047 / S385 – Parenting Leave

This proposal would require employers with 50 or more employees to provide employees up to 16 hours off during any school year to attend school conferences or classroom activities related to the employee’s child that cannot be scheduled during non-work hours. Under the bill, employers are not required to pay employees for this time.

A761 / S640 – Essential Workers Bill of Rights

The COVID pandemic introduced us to “essential workers.” Under this legislation, that group includes, but is not limited to employees of any:

essential health care operations including research and laboratory services; essential infrastructure including utilities, telecommunication, airports and transportation infrastructure; essential manufacturing, including food processing and pharmaceuticals; essential retail including grocery stores and pharmacies; essential services including trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public.

During a State disaster emergency, employers of essential workers would have to implement the “bill of rights” outlined in the law. Among the most notable requirements are mandatory hazard pay and “payment of the costs of any child care or health care needed by such essential workers for the duration of the state disaster emergency.”

Especially given the payment provisions, it’s unlikely the bill would take effect in the currently proposed form. But, the general concepts in play presumably have widespread support (as well as intense opposition).

A8823 – Minimum Wage

This bill proposes to increase the minimum wage for employers with annual income of $500 million or more to $20.00 per hour. (As a caveat, the bill further clarifies that any franchise of a company whose income is $500 million or more is also subject to this enhanced minimum wage.)

Currently, New York’s minimum wage varies only by geographic location and (in New York City) workforce size.

A6829 / S5640 – Public Employers

Various aspects of the New York Labor Law currently exclude public employers and their employees from coverage. Several of the bills discussed above would expressly apply to both public and private employers. This bill would go back and subject public workplaces to the existing requirements of the wage payment provisions of the Labor Law. This development would introduce many new obligations and parameters on public entities, including municipalities and school districts, throughout the state.

Employer Concerns with New York Employment Law Proposals

Employers have valid reasons to resist many of these New York employment law proposals. It is unlikely that all of these bills will become law in their current form. However, any of these topics could produce new legal obligations as soon as this year.

You should consider whether any of these measures would unduly burden your business. If so, it’s not too soon to start tracking these New York employment law proposals and seeking to prevent or modify them.

Whether through one of these bills or other measures, employers should expect New York to continue to impose new employee protections this year. It is critical to be aware of any new laws and prepare for compliance as soon as possible.

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