Category: New York

New York GENDA

New York GENDA Amends Human Rights Law

On January 25, 2019, New York Governor Andrew Cuomo signed an amendment to State law banning employment discrimination based on gender identity or expression. This action codifies employee protections that were arguably already in place through New York Division of Human Rights regulations. The New York State Assembly had passed the Gender Expression Non-Discrimination Act (GENDA) 10 times before, but this was the first time the legislation gained Senate approval.

What Is GENDA?

GENDA amends the New York State Human Rights Law to include protections for gender identity and expression. These protections are not limited to employment, but also apply in the areas of licensing, labor organizations, training programs, public accommodations, credit, housing, and commercial real estate transactions.

The legislation also amends other State statutes, including in the areas of education and criminal law.

GENDA defines “gender identity or expression” to mean “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.”

For most purposes, GENDA takes effect on February 24, 2019. The amendments to the penal law will apply beginning November 1, 2019.

What Does GENDA Mean for Employers?

The amendment to the Human Rights Law won’t necessarily change anything for employers. In 2016, the Division of Human Rights, at Governor Cuomo’s direction, had already issued regulations interpreting the protected category “sex” to include discrimination on the basis of gender identity. The recent amendment essentially codifies those regulatory interpretations into the statute.

The regulations defined “sex” to include “gender identity and the status of being transgender.”

They defined “gender identity” as “having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.”

Thus, there are slight differences between the 2016 regulatory definitions and the new statutory ones. However, it’s not clear that the intended scope of the protections differs materially.

Whether under the regulations or the new statutory terms, covered employers with employees in New York cannot discriminate based on gender identity. Employers should assume broad interpretation of that term. Prohibited discrimination includes failure to hire, discipline, discharge, and other adverse employment actions based on gender identity or expression. The law also prohibits workplace harassment on this basis.

Could GENDA Reduce Workers’ Rights?

By codifying gender identity as a characteristic different than sex, GENDA raises the interesting question of whether harassment based on gender identity constitutes “sexual harassment.” That question is potentially relevant in determining the scope of protection under the New York Human Rights Law.

In most respects, the New York Human Rights Law applies to employers with at least 4 employees. But the law prohibits all New York employers with as few as 1 employee from engaging in sexual harassment.  Now that the terms “sex” and “gender identity” are codified separately, it might be that the law technically does not ban employers with fewer than 4 employees from gender identity harassment.

Similarly, 2018 amendments extended protection from sexual harassment to non-employees in the workplace. Did/does this expansion apply to gender identity?

Caution: These nuanced legal distinctions are not ones that employers should deliberately rely on as justification for harassment! If nothing else, it is unclear how the courts would rule on these nuances.

Impact on Sexual Harassment Prevention Requirements

Beyond pure technicalities, GENDA creates reasonable confusion regarding New York’s sexual harassment policy and training requirements. The Department of Labor’s guidance on these new obligations for all New York employers relies on Division of Human Rights guidance pre-dating GENDA. That earlier guidance makes express reference to “sexual harassment that occurs because the victim is transgender.”

Moreover, the State’s model sexual harassment policy provides that “Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.”

As mentioned above, there might now be a new statutory basis for an argument that “sexual harassment” does not include harassment based on most of those characteristics. Then again, “sexual orientation” has long been separately identified in the Human Rights Law as a basis of protection from discrimination, suggesting that “sexual harassment” can include harassment based on statutory categories other than “sex.”

Overall, given the clear legislative intent to expand employee protections, employers should probably continue to assume an expansive reading of “sexual harassment” and broadly cover all of these areas that could be deemed to touch on “sex” or gender in some way.

Update Your Policies

Even if GENDA has not substantively changed employers’ obligations and employees’ rights, employers should at least update their non-discrimination and anti-harassment policies to include the new statutory terms. The 2016 regulations caused some employers to make similar changes, but others left the word “sex,” subject to whatever it meant under the law. Both approaches warrant revision at this time. The list of protected categories in New York should now specifically include “gender identity and expression.”

 

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WARN Webinar Recap

Don’t Forget To WARN (Webinar Recap)

On January 23, 2019, I presented a complimentary webinar called “Don’t Forget to WARN.” 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:

  • New York and Federal WARN Acts
  • Plant Closings vs. Mass Layoffs
  • Notice Timing, Contents, and Recipients
  • Nuances, Exceptions, and Penalties

Employers preparing to layoff or terminate sufficiently large numbers of employers usually must issue written notices in advance. The New York WARN Act is even more burdensome and restrictive than the federal law. In some cases, New York employers must comply with both. Many other states also have their own similar laws.

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

Why You Should Watch “Don’t Forget To WARN”

The New York State WARN Act applies to private companies with at least 50 employees in New York. Covered employers might have to issue notices at least 90 days before laying off or terminating 25 or more employees, depending on the circumstances. Some exceptions apply.

These laws are very complex, with many nuances and gray areas. Here are some questions we’ll answer:

  • When do we have to give notice?
  • What information must the notices contain?
  • Do part-time employees count?
  • How much does it cost if we don’t comply?
  • What if I’m selling or buying a business?

Although you’ll ultimately want to work with an experienced employment lawyer to determine your WARN compliance obligations, this webinar will get you oriented to know when you might have a notice obligation.

Don’t Miss My Future Webinars!

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

New York Bereavement Leave

Cuomo Vetoes New York Bereavement Leave Law

In June 2018, the New York State Legislature overwhelmingly approved legislation that would have granted paid bereavement leave rights to most employees. The measure would have changed the New York Paid Family Leave Benefits law to include bereavement leave along with the existing qualifying circumstances.

In light of extensive resistance from the business community, the Legislature did not formally deliver the bill to the Governor’s office until December. Upon receipt, Governor Cuomo vetoed the legislation ostensibly out of concern for the impact on workers.

Proposed Bereavement Leave Amendment

New York bereavement leave legislation passed the Senate by a vote of 61-1 and the Assembly 111-32.

Republican Senator Rich Funke and Democratic Assemblyman Joe Morelle sponsored the amendment. Both have lost children who were in their early thirties. Their memorandums in support of the bill stated:

“The inability to take time to process grief not only has an impact on a person’s health and their family, it has a profound impact on their ability to carry out their normal day to day tasks. However, on average, four days are allotted for the death of a spouse or child, according to the Society for Human Resource Management 2016 Paid Leave in the Workplace Survey.”

The legislation relied on additional wording in the Paid Family Leave Benefits law that took effect at the beginning of 2018. It modified the definition of “family leave” to include “leave taken for the purposes of bereavement due to the death of a family member.” The legislation also indicated that a death certificate would provide the necessary certification of eligibility for leave.

Potential Impact of Proposal

These minimal revisions to the Paid Family Leave legislation could have had extreme consequences.

Bereavement leave apparently would have been available for up to 10 weeks (increasing to 12 weeks in 2021) each year without any limitation on the timing relative to the death. Moreover, it would have been available equally regarding a broad array of family members, including grandchildren, children, spouses, parents, and grandparents. Although the New York Workers’ Compensation Board likely would have been able to issue regulations related to the new bereavement leave component of Paid Family Leave, it might have lacked authority to place further limitations on those parameters.

As the Paid Family Leave Program operates as a (primarily) employee-funded insurance benefit, employees would have had to contribute more out of their paychecks to fund the insurance premiums. As with the original Paid Family Leave categories, this long-term bereavement leave would have been difficult for the State to price effectively, potentially leading to over- (or more likely) under-funding in the first years.

Business Community Opposition

The Business Council of New York led the efforts of more than 20 prominent business groups, including many chambers of commerce, seeking Governor Cuomo’s veto of this legislation.

This consortium’s August 2, 2018 letter to the Governor’s office noted that the Legislature had rebuffed efforts to include more reasonable limits on paid bereavement leave:

“The Business Council’s recommendations for reasonable parameters on any expansion of PFL to bereavement were rejected by both the Senate and Assembly sponsor. These included limiting bereavement leave to several weeks, to be used within 180 days of a family member’s death.”

This letter also expressed concern “that the Legislature is proposing a dramatic expansion of the Paid Family Leave Act that has only been in effect for just over six months [now one year], and before any usable data is available regarding utilization or costs. Employers, the state, insurers and employees are still working to understand and implement the current law.”

Finally, these business groups noted that fully-paid bereavement leave is already a standard employee benefit, though often only for a few days; and that “Employers understand that to attract and retain the best talent available they need to be there for their employee[s] in their time of need and will continue to do so without another burdensome government mandate.”

Governor Cuomo’s Veto

Although business groups more vocally object to this legislation, Governor Cuomo publicly relied almost exclusively on supposed worker concerns in his veto message:

“Workers’ organizations such as A Better Balance have expressed significant concerns to me about this bill, and, as difficult as it is, I must heed their concerns.”

A Better Balance prides itself on having been active in supporting New York’s original Paid Family Leave law. But the organization posted a call to action on its website encouraging the Governor to veto the bereavement leave amendment. It emphasized the anticipated high costs to workers:

“Costs – entirely borne by workers – will be extremely high. Because paid family leave is 100% worker funded, this bill would impose potentially very high, uncalculated costs on New York workers—costs that will fall especially heavily on low-income workers.”

Governor Cuomo repeated that concern, while otherwise sharing some raised more specifically by the Business Council. For example, the veto memorandum notes: “Second, there is no stated limit on when leave can be taken. Unlike bonding leave, which is limited to 12 months from the qualifying event, no such limit would exist here. This drafting failure could lead to claims being made well beyond a year from death.”

The Future of New York Bereavement Leave

Employers should not expect this issue to disappear in 2019. Governor Cuomo concluded his veto message by commenting: “I am committed to working with the Legislature in the coming legislative session to resolve these issues for the benefit of hardworking New Yorkers.”

What might an alternative New York bereavement leave law look like?

New York Legislators will have to decide whether to continue to pursue bereavement leave through the Paid Family Leave Program or another path.

PFL offers the benefit of being an existing, employee-funded system. But any addition of bereavement leave must be much more narrowly drafted than it was in the 2018 legislation. The lawmakers should separately address issues such as length of leave available per death, total leave available per year, timing of leave, etc. And 10 or 12 weeks projects as an unaffordable and overly burdensome duration. The Legislature should also consider whether the same leave parameters should apply equally to small and larger employers.

The Legislature could alternatively seek to impose a mandatory paid or unpaid bereavement leave requirement outside of the Paid Family Leave Program. However, it would then be more difficult to effect an employee-paid system. Requiring employers to offer more than a couple of days of paid bereavement leave would raise significant opposition. And any requirement that small employers pay employees not to work could be financially crippling.

 

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