Category: Employment Law

workplace discrimination

Governor Approves NY Workplace Discrimination Expansion

In June, the New York State Legislature passed a series of bills that would make it easier for employees to sue their employers for discrimination. On August 12, 2019, Governor Cuomo signed the remainder of this legislation into law. Among other things, the amendments New York’s workplace discrimination laws will cover more employers and workers, lower the threshold for unlawful harassment, and add new penalties.

For more details on the new laws, read our initial discussion in New York Employment Discrimination Law Now Covers Everyone.

Or watch a recording of our webinar discussing the amendments.

Below is a quick summary of the changes, including when they will take effect.

All Employers Covered

As of February 8, 2020, the New York Human Rights Law will prohibit all employers from engaging in employment discrimination. Before, most aspects of the law only applied to employers with at least 4 employees.

More Workers Covered

As of October 11, 2019, workplace discrimination protections will extend to more non-employees. This will include contractors, vendors, and consultants working in an employer’s workplace.

Lower Harassment Threshold

Beginning October 11, 2019, harassment will not have to be “severe or pervasive” to be unlawful. The lower standard will make it much easier for employees to prevail on harassment claims.

In addition, the amendment dictates that employees don’t have to show a similarly situated employee who was treated better or that the employee previously complained about harassment without effective action taken by the employer.

Additional Penalties for Employment Discrimination

Also beginning October 11, 2019, successful plaintiffs can recover their attorneys’ fees and punitive damages from employers. Thus, workplace discrimination will become even more costly for employers.

Limitations on Confidentiality Provisions

As of October 11, 2019, employers will no longer be able to request non-disclosure language in settlement agreements that cover employment discrimination claims under New York law. This will be a significant change from current practice.

Confidentiality provisions will only be possible under strict parameters where the employee prefers the protection.

The amendments also prohibit mandatory arbitration of employment discrimination claims. But it’s questionable whether this amendment is legal in light of contradictory federal law.

Sexual Harassment Training

All employers already must provide annual sexual harassment training. The first training must occur by October 9, 2019. But these amendments add additional requirements.

These amendments took effect immediately on August 12, 2019. All employers must now provide employees with a copy of their sexual harassment policy and the information presented during the training. Employees whose primary language is not English must receive these documents in their primary language if model documents are available from the state. This presently includes Bengali, Chinese, Haitian Creole, Italian, Korean, Polish, Russian, and Spanish.

For more on New York’s sexual harassment training requirements, check out our timely update webinar.

More Time to File Sexual Harassment Claims

Beginning August 12, 2020, workers will have three years to file sexual harassment claims with the New York State Division of Human Rights. Until then, they only have one year to file with the administrative agency.

New York Employers Must Act Now to Prevent Workplace Discrimination

Though some of these provisions don’t take effect immediately, all will soon enough. Employers must review the new standards and requirements to ensure future compliance. You can’t prevent all employment discrimination or harassment. But you can take additional measures to try to prevent it and avoid liability.

With some new requirements already in place for sexual harassment training, employers should take such training extremely seriously. You should also seriously consider anti-harassment training regarding all protected categories.

 

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Immigration Retaliation

Immigration Retaliation Prohibited in New York

A recent amendment to New York’s Labor Law prohibits employers from retaliating against employees by threatening to or reporting them to immigration authorities. The new immigration retaliation prohibition relates to any efforts by an employee to exercise rights under the state’s extensive Labor Law protections. The amendment will take effect beginning October 25, 2019.

Who Will Be Protected?

The retaliation protections take effect once an employee has done any of the following:

  • Made a complaint that the employer has violated the NY Labor Law;
  • Is believed by their employer to have made such a complaint;
  • Pursued a NY Labor Law proceeding;
  • Testified or prepared to testify in a NY Labor Law investigation or proceeding; or
  • Been the subject of an adverse finding against their employer.

Employees do not have to reference the Labor Law or any of its specific provisions to qualify for protection from retaliation. But they must make reasonable, good faith allegations.

Existing Retaliation Prohibition

Before the amendment, Section 215 of the NY Labor Law protected employees from retaliation in the above situations. The protections are vague, but widespread. They prohibit employers from doing any of the following to an employee based on protected activity:

  • Discharging;
  • Threatening;
  • Penalizing; or
  • “In any other manner” discriminating or retaliating against a protected employee.

New Immigration Retaliation Protection

The immigration retaliation amendment adds unique specific clarification of the general prohibitions above.

The amendment provides that retaliation includes “threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member.”

These actions arguably already violated the existing anti-retaliation provisions of the NY Labor Law. But this amendment provides clear guidance to employers not to pursue this path in response to protected activity.

What Does This Mean for New York Employers?

From a retaliation law perspective, this amendment is not groundbreaking. Threatening to report an employee to immigration authorities to deter complaints about labor law violations was already a risky proposition. But that might not have been obvious to everyone. So this should be a clear lesson of how not to try to avoid liability for not paying minimum wages, overtime, or otherwise following the state labor laws.

However, this legislation does not mean that employers can never report employees to immigration authorities. You just can’t do it in response to protected activity. Employers already have an obligation through the federal I-9 form to ensure that their employees have the right to work in the U.S. Reporting individuals that falsify that status, for example, may be permissible. But you should consult with an employment and/or immigration lawyer before doing so.

 

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Equal Pay

New York Equal Pay Act Expands Dramatically

On July 10, 2019, Governor Andrew Cuomo signed legislation extending New York’s Equal Pay Act. Before, the law only prohibited pay disparity between men and women. Now it will apply to a broad array of personal characteristics, including age, race, sexual orientation, and others. In addition, the standard for proving pay discrimination will be lower. Overall, this will result in more successful pay disparity claims if employers do not review and adjust their compensation practices.

The amendments will take effect on October 8, 2019. The New York Equal Pay Act does not apply to government entities.

This legislation accompanied a new law prohibiting employers from inquiring about applicants’ current or past compensation. Those restrictions cover all New York employers, including the government.

Find out more: New York Imposes Salary History Ban

Current New York Equal Pay Act

Since 1966, New York has expressly prohibited pay discrimination between men and women. The protection applied only for “equal work” requiring “equal skill, effort and responsibility” under “similar working conditions.”

Exceptions could apply for pay differences because of a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a “bona fide factor other than sex.” Such bona fide factors include education, training, or experience.

Until now, the New York Equal Pay Act closely followed a similar federal law.

Inclusion of Additional Protected Characteristics

The first significant expansion of the New York equal pay law is the addition of many more protected characteristics beyond sex.

The law now applies to all of these categories:

  • age
  • race
  • creed
  • color
  • national origin
  • sexual orientation
  • gender identity or expression
  • military status
  • sex
  • disability
  • predisposing genetic characteristics
  • familial status
  • marital status
  • domestic violence victim status

The New York Human Rights Law already separately prohibits employers from discriminating based on these characteristics. Those provisions would likely cover claims of pay discrimination. However, the Equal Pay Act affords employees additional penalties and procedural protections.

Lower Bar for Equal Pay Violations

Employees will no longer need to prove that they were performing equal work as the comparison employee receiving higher compensation.

The equal pay law will now apply even in cases of “substantially similar work.” This will depend on “a composite of skill, effort, and responsibility.”

The “substantially similar” standard will make it easier for employees to prove a violation. Thus, it requires employers to review their pay practices to ensure ongoing compliance. This may prove to be a challenge since there is no specific guidance on what types of work are “substantially similar.”

Exceptions still apply for seniority, merit, and production compensation systems, as well as bona fide business distinctions. However, such systems may not yield a disparate negative impact on any protected category of employees if an alternative system without the same disparity exists.

Severe Penalties

In 2016, New York amended the equal pay law to allow employees to recover up to 4 times the pay differential. Claims can go back up to 6 years. Class action lawsuits are possible. Successful plaintiffs also recover their attorneys’ fees.

All of this could mean considerable liability for employers who lose cases under the New York Equal Pay Act.

What Should Employers Do?

These amendments to the New York Equal Pay Act give employers a lot to think about. You should seriously consider a review of your company’s compensation systems before the law takes effect in October.

Even employers who feel confident that they are not discriminating are at risk. The considerable expansion of protected characteristics and the lower “substantially similar” threshold allow many more employees to attempt an equal pay claim. These cases will require complex analyses of many factors, such as education level, work experience, and job duties. This will be costly for employers in itself. Plus the financial impact of losing the case could be devastating.

Employers might go a long way in preventing or creating a strong defense to such claims just by conducting a compensation review with the new equal pay requirements in mind. Plus you might discover some discrepancies that warrant pay adjustments.

 

For more information on these and related legal developments, watch our recorded webinar on recent New York Employment Discrimination Amendments.