Category: New York

July 22, 2023

Volunteer Restrictions for New York Non-Profits

As an employer, can your organization also have people providing services for no compensation? The short answer is yes, but only if certain circumstances apply. And the rules for interns and volunteers depend on what type of organization you are. This article addresses the volunteer restrictions that apply to non-profit entities in New York. We will separately address related concerns (i.e., unpaid interns) in for-profit businesses.

Non-Profit Volunteers

Generally speaking, anyone who agrees to perform services without getting paid can be referred to as a volunteer. Legally, there are more specific criteria that may apply, and some further distinctions to be made.

New York not-for-profit organizations often have both paid employees and unpaid volunteers who collectively perform an array of roles to pursue the organization’s mission and objectives. For the most part, this is acceptable. But there are legal lines that need to be drawn.

Note that we are talking about duly established non-profit entities that operate for charitable, educational, or religious purposes. Other types of entities usually may not use unpaid volunteers.

Volunteer Restrictions

Under state and federal minimum wage and overtime laws, volunteers could be deemed employees (and entitled to compensation) if certain conditions aren’t satisfied.

In particular, as described by the New York Department of Labor, unpaid volunteers may not:

Replace or augment paid staff to do the work of paid staff
Do anything but tasks traditionally reserved for volunteers
Be required to work certain hours
Be required to perform duties involuntarily
Be under any contract to hire, express or implied, by any other person or business
Be paid for their services (except reimbursement for expenses)

Employees Who Volunteer

As a partial limitation on the above criteria, it is possible for employees of a non-profit also to volunteer some of their time for the organization. However, they cannot agree to forego compensation for their regular job. Instead, they can only volunteer (without pay) to do something completely different from what they do as employees. For example, if an organization employs an events coordinator, they presumably couldn’t allow that employee to oversee a fundraising event on a volunteer basis. But a non-profit organization’s receptionist, accountant, or delivery driver may be free to volunteer to run such an event without pay.

Review Your Volunteer Arrangements

Missteps in managing volunteer roles can lead to legal complications under state and federal minimum wage and overtime laws. Therefore, non-profits must establish clear volunteer policies and guidelines to maintain a beneficial and legal relationship between the organization and its dedicated volunteers.

For more employment law updates, sign up for the Horton Management Law email newsletter and follow us on LinkedIn.

June 29, 2023

New York’s Updated Model Sexual Harassment Policy

On April 11, 2023, New York State implemented an updated model sexual harassment policy. The new policy includes several meaningful substantive additions. But a key employer concern remains unanswered. Are they required to change their policies to conform to the new model?

Sexual Harassment Policy Requirement

Since October 9, 2018, New York has required all employers in the state to maintain a written sexual harassment policy. They must also provide annual sexual harassment training to all employees.

Section 201-g of the New York Labor Law directed the Department of Labor (DOL) to consult with the Division of Human Rights (DHR) to develop a model sexual harassment prevention policy. However, the law does not specifically require employers to adopt the model policy. As an alternative, they may “establish a sexual harassment prevention policy to prevent sexual harassment that equals or exceeds the minimum standards provided by such model sexual harassment prevention policy.”

Based on the law and pre-existing guidance from the DOL, an employer’s policy must at least:

Prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights.
Provide examples of prohibited conduct that would constitute unlawful sexual harassment.
Include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws.
Include a complaint form.
Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties.
Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially.
Clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue.
Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

NYS Sexual Harassment Law Has Changed

The New York Human Rights Law was amended in 2019 to change the legal standard of workplace harassment. Among the changes, employees no longer need to prove that unwelcome conduct was “severe or pervasive.” That standard remains operative under the federal employment discrimination laws. But now, under the NYS law, to avoid liability employers must show that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”

Updated Model Policy

The law requires the DOL and DHR to review their model policy every four years. The first review took place in 2022, resulting in the updated model sexual harassment policy released in early 2023.

Not surprisingly, the new policy aims to advise employees on a broadened scope of what the DOL and DHR view as unlawful sexual harassment. However, new additions to the model policy are not limited to those arising from intervening statutory changes.

And the DOL hasn’t clarified the extent to which employers must update their existing policies, if at all. The specific minimum guidelines listed above haven’t changed. But there’s room for interpretation regarding the requirement to “Prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights.”

Header text on the State’s updated model sexual harassment states, “Employers are encouraged to tailor this policy to their individual needs, though as a minimum standard, no section in this policy should be omitted.”

The updated model policy is available for download from NYS here.

Description of Sexual Harassment

Consistent with the new statutory standard for proving harassment, the updated model sexual harassment policy includes the following;

Harassment does not need to be severe or pervasive to be illegal. It can be any harassing behavior that rises above petty slights or trivial inconveniences. Every instance of harassment is unique to those experiencing it, and there is no single boundary between petty slights and harassing behavior. However, the Human Rights Law specifies that whether harassing conduct is considered petty or trivial is to be viewed from the standpoint of a reasonable victim of discrimination with the same protected characteristics.

This additional wording is obviously based on the 2019 statutory amendment. Nonetheless, it is worth noting that the original New York model sexual harassment policy didn’t mention the “severe or pervasive” standard even when that was the prevailing law.

Gender Issues

The 2019 Gender Expression Non-Discrimination Act (GENDA) added “gender identity or expression” as statutorily-protected characteristics under the New York Human Rights Law. Before GENDA, the DHR had already interpreted the statutory category “sex” to include gender-related characteristics. Accordingly, the original model sexual harassment policy identified sexual harassment as including harassment based on “self-identified or perceived sex, gender expression, gender identity and the status of being transgender.”

The new model policy significantly expands its focus in this area, including the following passage:

Understanding gender diversity is essential to recognizing sexual harassment because discrimination based on sex stereotypes, gender expression and perceived identity are all forms of sexual harassment. The gender spectrum is nuanced, but the three most common ways people identify are cisgender, transgender, and non-binary. A cisgender person is someone whose gender aligns with the sex they were assigned at birth. Generally, this gender will align with the binary of male or female. A transgender person is someone whose gender is different than the sex they were assigned at birth. A non-binary person does not identify exclusively as a man or a woman. They might identify as both, somewhere in between, or completely outside the gender binary. Some may identify as transgender, but not all do. Respecting an individual’s gender identity is a necessary first step in establishing a safe workplace.

Bystander Intervention

The updated model sexual harassment policy includes a new section entitled “Bystander Intervention.” In addition to restating the pre-existing requirement that supervisors and managers must report sexual harassment, the policy now encourages “any employee witnessing harassment as a bystander” to report it.

The policy lists “five standard methods of bystander intervention”:

A bystander can interrupt the harassment by engaging with the individual being harassed and distracting them from the harassing behavior.
A bystander who feels unsafe interrupting on their own can ask a third party to help intervene in the harassment.
A bystander can record or take notes on the harassment incident to benefit a future investigation.
A bystander might check in with the person who has been harassed after the incident, see how they are feeling and let them know the behavior was not ok.
If a bystander feels safe, they can confront the harassers and name the behavior as inappropriate. When confronting harassment, physically assaulting an individual is never an appropriate response.

Remote Employees

The new policy also specifically adresses the proliferation of remote work stemming from the COVID-19 pandemic:

Sexual harassment can occur when employees are working remotely from home as well. Any behaviors outlined above that leave an employee feeling uncomfortable, humiliated, or unable to meet their job requirements constitute harassment even if the employee or covered individual is at home when the harassment occurs. Harassment can happen on virtual meeting platforms, in messaging apps, and after working hours between personal cell phones.

Legal Protections

New York sexual harassment policies must include information about reporting alleged sexual harassment to government agencies, including the DHR and the U.S. Equal Employment Opportunity Commission. The new model policy includes several updates to these sections. For example, it now references a hotline introduced in 2022 that employees can call to speak with a volunteer attorney experienced in sexual harassment matters for “limited free assistance and counsel over the phone.”

Sexual Harassment Prevention Training

In addition to the new model policy, the State has also updated its model sexual harassment prevention training materials.

Like the model policy, the State’s training materials are not mandatory. But employers must provide annual training that meets certain minimum standards, which have not changed.

What Should New York Employers Do Now?

At a minimum, you should ensure that your organization has reviewed the new model sexual harassment policy (and training materials). There are some items that employers generally should update, such as the statute of limitations for filing sexual harassment claims with the DHR (which has increased from one to three years since the original model policy was issued). Other topics, including the elaboration of legal standards and gender identity principles, raise more complicated compliance questions. It is not clear whether you must adopt the new wording in these areas, since employers have some discretion in drafting their sexual harassment prevention policies. Thus, your company’s approach should be evaluated on a case-by-case basis, with consideration of whether you have previously adopted the model policy in its entirety or prepared your own alternative designed to satisfy at least the minimum standards.

For more employment law updates, sign up for the Horton Management Law email newsletter and follow us on LinkedIn.

June 23, 2023

Mandatory Nursing Mothers Policy for New York Employers

As of June 7, 2023, New York Labor Law amendments require employers to make additional accommodations for nursing mothers. All New York employers must now adopt the “Policy on the Rights of Employees to Express Breast Milk in the Workplace” that was drafted by the New York State Department of Labor. Unlike other “model” policies created by the DOL, employers must adopt the State’s nursing mothers policy in its entirety.

Original NYS Nursing Mothers Law

In 2007, the New York State Legislature enacted Section 206-c of the Labor Law to require that:

An employer shall provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following child birth. The employer shall make reasonable efforts to provide a room or other location, in close proximity, to the work area, where an employee can express milk in privacy. No employer shall discriminate in any way against an employee who chooses to express breast milk in the work place.

2023 Amendments

The recent amendments significantly expand employers’ obligations under Labor Law Section 206-c in several respects.

Time

Instead of granting “reasonable” time “each day,” the law now permits an employee to take time off “each time [she] has reasonable need to express breast milk.” Employers still have discretion in whether this is paid or unpaid time.

The DOL policy clarifies that “Employers must provide unpaid break time at least every three hours if requested by the employee.” Yet, it also indicates “the number of unpaid breaks an employee will need to express breast milk is unique to each employee and employers must provide reasonable break times based on the individual.”

Similarly, the policy suggests employers must allow breaks of at least 20 minutes each, but also says the employees may take more or less time at their option if needed.

In addition, the State’s policy requires employers to allow employees to work before or after their regular shift to make up any time used as an unpaid break time to express breast milk, if such time exists within the employer’s normal operating hours. However, employees cannot be required to make up unpaid break time.

Place

The law previously required employers to “make reasonable efforts” to provide a private area for employees to express breast milk. The amendments now require most employers to provide a room that satisfies specific conditions.

Such “room or other location” must be

in close proximity to the work area;
well lit;
shielded from view; and
free from intrusion from other persons in the workplace or the public.

This location must also feature

a chair;
a working surface;
nearby access to clean running water; and
an electrical outlet.

The law now specifies that a restroom or toilet stall will not satisfy these requirements.

If the employer uses the designated room or location for other purposes, it must be made available to the nursing mother when needed and cannot be used for any other purpose while being used for expressing breast milk.

Refrigeration

If there is a refrigerator in the workplace, nursing mothers must be allowed to store breast milk expressed at work.

Exceptions

While the amendments acknowledge that some employers may not be able to satisfy all of the above conditions, the permissible exceptions from full compliance are limited.

If meeting all the requirements would impose an undue hardship, the employer is still expected to “make reasonable efforts to provide a room or other location, other than a restroom or toilet stall, that is in close proximity to the work area where an employee can express breast milk in privacy.”

Undue hardship will only exist if compliance is determined to cause “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

The DOL policy addresses accommodations for nursing mothers in shared work areas and workplaces with no separate rooms. For example, there are specific criteria for using cubicles to meet these requirements as a last resort.

In any event, employers may not deny employees the right to express breast milk at work due to “difficulty in finding a location.”

Nursing Mothers Policy

All employers with at least one employee working in New York must provide the written nursing mothers policy prepared by the DOL to every employee both upon hire and annually.

You must also give the policy to an employee who returns to work after giving birth.

In much more detail, the policy is designed to:

inform employees of their rights under the law;
specify the means by which a request may be submitted to the employer for a room or other location for use by employees to express breast milk; and
require the employer to respond to such request within a reasonable timeframe not to exceed five business days.

With amendments to the law taking effect June 19, 2024, the new required policy is available for download here.

Employee Requests

The DOL acknowledges that employers do not have to maintain an appropriate lactation room at all times. Instead, employees must give employers reasonable advance, written notice of the need to express breast milk at work. Usually, this should occur before the employee returns to work following childbirth.

The policy states, “Employers must notify all employees in writing through email or printed memo when a room or other location has been designated for breast milk expression.”

New York Employers Must Act Now

As the new policy confirms, this law “applies to all public and private employers in New York State, regardless of size or the nature of their business.” If you have not already implemented it, you should do so now. The Department of Labor suggests that their policy “is the minimum required standard, but employers are encouraged to include additional accommodations tailored to their workplace.” That should not be interpreted to permit employers to adopt an alternative policy, but you could supplement the State’s policy with additional information.

If you are struggling to find a suitable location for nursing mothers to express breast milk in your workplace, please consult with an experienced employment attorney before concluding that you are entitled to an exemption.

For more employment law updates, sign up for the Horton Management Law email newsletter and follow us on LinkedIn.