Category: Employment Law

Domestic Violence Victims

New York Employers Must Give Domestic Violence Victims Time Off

On August 20, 2019, Governor Andrew Cuomo approved enhanced protections for domestic violence victims at work.  The New York Human Rights Law amendments will create additional obligations for employers to accommodate employees who have been victims of domestic violence.  The amendments take effect on November 18, 2019.

Who is a “Victim of Domestic Violence”?

These amendments modify the definition of a “victim of domestic violence” under the New York Human Rights Law.

Employees will qualify as a domestic violence victim if they or their child has been a victim of a criminal act that resulted in actual physical or emotional injury or has created a substantial risk of physical or emotional harm to such employee or their child. The criminal acts must also have been committed by a family or household member.

Family or household members include people related by blood, married to each other, living together, and others.

The law does not apply to employees younger than 16 unless they are married or have a child.

Legal Protections for Domestic Violence Victims at Work

New York employers may not discriminate against an individual because of their status as a victim of domestic violence.  This includes refusing to employ someone because they are a domestic violence victim; terminating an individual’s employment or negatively changing their compensation or other work conditions based on that status; and advertising any limitation related to employment based on such status. Harassment of an employee who has been a victim of domestic violence is also prohibited.

Plus, the Human Rights Law adds a new affirmative requirement to provide reasonable accommodations to employees who have experienced domestic violence.

What Is the Employer’s Duty to Reasonably Accommodate?

Employers in New York will be required to reasonably accommodate victims of domestic violence who need a reasonable amount of time away from work for any of the following reasons that pertain to an incident or incidents of domestic violence:

  • Seeking medical attention for injuries;
  • Obtaining services from a domestic violence shelter, program or rape crisis center;
  • Getting psychological counseling, including for a child who is a victim of domestic violence;
  • Participating in safety planning and taking other actions to increase safety from future incidents of domestic violence, which may include temporary or permanent relocation; or
  • Obtaining legal services, assisting in the prosecution of an offense, or appearing in court.

In these situations, employers must provide reasonable accommodations unless they would pose an undue hardship. The degree of hardship depends on several factors. These include the overall size of the employer’s business, the nature of the business, and the structure of its workforce.

Employee Obligations for Receiving Accommodation

An employee seeking time off as an accommodation will need to provide the employer with reasonable advance notice whenever possible.

Employers may require a certification in cases where the employee does not provide advance notice. Acceptable documentation includes:

  • A police report indicating that the employee or his or her child was a victim of domestic violence;
  • A court order protecting or separating the employee or his or her child from the perpetrator of an act of domestic violence;
  • Other evidence from the court or prosecuting attorney that the employee appeared in court; or
  • Documentation from a medical professional, domestic violence advocate, health care provider, or counselor that the employee or his or her child was undergoing counseling or treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence.

If an employer has a policy that includes paid time off, such as vacation, it may require the employee to use earned paid time off for a protected absence. However, if the employee has no available paid time off, the employer does not have to pay the employee.

An employee who must be absent from work as a domestic violence victim accommodation has the right during the absence to continue any health insurance coverage provided by the employer.

Confidentiality

Under these amendments, employers must keep information about an employee’s status as a victim of domestic violence confidential.

The law does not expand on this obligation. Presumably, employers must be able to discuss the situation to the extent necessary to provide necessary accommodations. However, disclosure of the reason for an employee’s absence to co-workers could violate this new requirement.

What Should Employers Do Now?

You must ensure that managers recognize these new responsibilities. This especially includes both the requirement to maintain confidentiality and the obligation to allow time off from work to domestic violence victims. And be sure to take such requests seriously. Although employers might be able to deny time off in some cases, the law is intended to protect employees even if it inconveniences business operations.

 

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Classifying People in Your Workplace Webinar

Classifying the People in Your Workforce (Webinar Recap)

On September 24, 2019, Julie Bastian and I presented a complimentary webinar called “Classifying the People in Your Workforce”. For those who couldn’t attend the live webinar, We’re happy to make it available for you to watch at your convenience.

In the webinar, we discuss:

  • Employees vs. Independent Contractors
  • Interns and Volunteers
  • Legal Standards
  • Challenges of Getting it Right
  • Ramifications of Getting it Wrong
  • Documenting the IC Relationship

By default, most workers are employees. Sometimes the circumstances warrant a different arrangement. But there are potentially costly pitfalls of making an improper independent contractor classification.

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

Why You Should Watch “Classifying the People in Your Workforce”

Many organizations rely on work by non-employees. Or, at least, people that they don’t classify as employees. These other workers can include independent contractors, unpaid interns, and volunteers. And they often include people who legally speaking actually do qualify as employees!

Improper independent contractor classifications can put an employer in violation of numerous legal obligations. These include tax reporting, insurance premiums, overtime requirements, and many more.

State and federal government agencies have obvious financial incentive to police improper worker classifications. Even a single complaint or dispute can bring your entire organization under scrutiny. This webinar will better inform you of factors to consider before considering someone to be an independent contractor. We also discuss how to document a valid IC arrangement.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs!

Religious Attire

New York Extends Worker Protections for Religious Attire

On August 9, 2019, Governor Cuomo approved a change to the New York State Human Rights Law enhancing worker religious discrimination protections. The law will now specifically address applicant and employee accommodations based on religious attire and facial hair.  The amendment will take effect on October 8, 2019.

Religious Attire Protections

The amendment expands or at least clarifies the existing protections from religious discrimination under New York law.

The law already prohibits employers from requiring an applicant or employee to “violate or forego a sincerely held practice of his or her religion.” Before, this specifically included “the observance of any particular day or days or any portion thereof as a sabbath or other holy day.” Now the law adds a specific reference to “the wearing of any attire, clothing, or facial hair in accordance with the requirements of [the person’s] religion.”

“Undue Hardship” Exception

Employers will not always have to allow employees to wear religious attire or facial hair in every situation. There is an exception if, after engaging in a bona fide effort, the employer can “demonstrate that it is unable to reasonably accommodate the employee’s or prospective employees sincerely held religious observance or practice without undue hardship on the conduct of the employer’s business.”

Employers Must “Reasonably Accommodate” Religious Beliefs

New York State and federal law both require employers to make a reasonable religious accommodation for an employee’s sincerely held religious beliefs, unless doing so creates an “undue hardship” on the employer. Protected religious beliefs may include those of a traditional, organized religion. But also include beliefs not part of a formal religion or sect, even if practiced by relatively few people.

Employers should consider various factors in assessing whether a religious accommodation request imposes an undue burden or hardship. Here are some factors highlighted by the New York Attorney General:

  • the type of workplace;
  • the nature of the duties required for the position;
  • any cost associated with the implementation of the request relative to the size and budget of the employer;
  • the effect that the religious accommodation may have on the business;
  • any collective bargaining rights or seniority rights that may exist;
  • the number of individuals that may require the accommodation;
  • any impact on workplace safety and productivity;
  • whether the requested accommodation would conflict with another law that pertains to the circumstances; and
  • whether any alternative accommodations would also meet the needs of the religious needs of the applicant or employee.

It is often difficult for an employer to truly understand what religious beliefs would be considered “protected” under state and federal law and therefore must be accommodated. If you have an applicant or an employee that has requested a reasonable accommodation based on a protected religious belief, it is strongly recommended that you seek guidance from an employment attorney before making a decision that could potentially subject the company to liability.

Review and Prepare

New York employers should review existing dress code and grooming policies in light of the revised law. You should ensure that all personnel responsible for receiving and responding to applicant and employee accommodation requests in New York familiarize themselves with the new religious attire provision. They must also understand their obligations regarding religious accommodation requests generally.

 

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