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NYC Height & Weight Discrimination

NYC Prohibits Height & Weight Discrimination

As of November 22, 2023, the New York City Human Rights Law (NYCHRL) now includes height and weight as protected characteristics. This legislation is poised to influence similar height and weight discrimination initiatives elsewhere. Accordingly, employers throughout New York State and beyond should take notice.

Height & Weight Protected

On May 26, 2023, Mayor Eric Adams signed NYCHRL amendments that prohibit discrimination based on height and weight in employment, housing, and public accommodations.

Thus, height and weight discrimination are now prohibited in NYC, similar to the existing protections based on race, sex, and marital status (among others). Accordingly, workplace harassment based on height and weight is also unlawful.

Exemptions & Defenses

While the primary aim is to protect individuals from unfair treatment, the law acknowledges situations where height and weight requirements may be necessary.

Height or weight standards may be applied where:

  1. required by federal, state, or local law; or
  2. permitted by regulations of the Commission on Human Rights identifying specific jobs for which
    • the person’s height or weight could prevent performing essential requisites of the job requirements, with no viable alternative action that would allow the person to perform the job; or
    • consideration of height or weight criteria is reasonably necessary for the normal operations of the business.

If not expressly excepted by law or regulation, employers may also assert an affirmative defense based on either of the bulleted circumstances above. But then it is their burden to prove those elements.

Furthermore, the law clarifies that it does not prohibit employers from offering employee incentives through voluntary wellness programs that support weight management.

Implications for Employers

Employers in New York City should take proactive steps to ensure compliance with this new law, including:

  1. Reviewing Hiring Practices: Remove any references to height and weight in job descriptions unless they are demonstrably justified by business necessity.
  2. Updating Policies: Handbooks, training materials, and other policies should now include height and weight as protected categories.
  3. Sector-Specific Considerations: In industries like hospitality and retail, where customer-facing roles are common, it’s crucial to align policies with these new protections against height and weight discrimination. Notably, customer preferences are not a valid defense against height and weight discrimination claims.

Businesses in other parts of New York should also take note of this development. It has become increasingly common for the State Legislature to follow NYC’s lead in enhancing workplace protections. Indeed, a proposed bill on height and weight discrimination is pending in Albany. It would not be surprising if that became law as early as 2024.

 

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New York Pay Disclosure Law

New York City Pay Disclosure Law Finalized

With recent amendments, the anticipated New York City pay disclosure law will take effect on November 1, 2022. Covered employers advertising for positions that could be performed in New York City must identify the minimum and maximum salary or wage for each job.

Covered Employers

The New York City pay disclosure law will apply to employers with at least 4 employees as long as one of them works in NYC. Anyone employing one or more domestic workers in the city is also covered.

Covered Job Postings

The law applies to all jobs, including promotions and transfers, that could be performed “at least in part” in New York City. Covered positions may be working either in a facility operated by the employer or remotely, such as in the employee’s home. Even positions with a combination of work locations would be subject to the New York pay disclosure law if part of the job could be performed in New York City.

Covered job advertisements include “any written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicants.”

However, the law does not require employers to advertise or post for available positions. It only requires that if an employer chooses to post an opening, they must include the compensation range.

Required Pay Disclosure

Covered job advertisements must state both a minimum and maximum annual salary or hourly wage for the available position(s). By law, “the range may extend from the lowest to the highest annual salary or hourly wage the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.”

Though there is little guidance so far on what will qualify as a “good faith” pay range, the New York Commission on Human Rights emphasizes that the range cannot be open-ended. For example, only stating a minimum hourly rate or a maximum salary would be insufficient.

Though unsaid, presumably the New York City pay disclosure range refers to the starting compensation level.

This law does not require employers to advertise any additional information about compensation or benefits such as overtime rates, insurance benefits, or bonus eligibility.

Penalties

A violation of the New York City pay disclosure law will constitute employment discrimination under the New York City Human Rights Law.

Any applicant or employee who feels aggrieved by an alleged violation of the New York pay disclosure law will be able to file a complaint with the New York City Commission on Human Rights. Potential remedies include awarding lost wages and emotional distress damages, among other available relief.

The law contains partial limits on liability, but it is not clear that they will do much to protect employers.

Only current employers may commence a civil lawsuit for a violation of the New York City pay disclosure law. But, again, a much broader scope of individuals have the attractive option of going through an administrative proceeding with the NYC Commission on Human Rights.

The law also provides for no monetary civil penalty for a first violation if the employer cures it within 30 days. However, this does not preclude an aggrieved individual from pursuing and potentially receiving damages in an administrative proceeding. And the NYC Commission on Human Rights may impose penalties of up to $250,000 for uncured or subsequent violations.

Next Steps for NYC Employers

If you have an employee working in New York City, you may need to include a wage or salary range in job postings beginning November 1, 2022. Do you have 4 total employees? Or at least one domestic worker in New York? Could the job you’re hiring for be performed in NYC–even if that’s not the most likely or preferred location?

NYC employers may have the option of not advertising for positions for which they don’t want to disclose a pay range. But if you do post, you will need to decide what a “good faith” wage or salary range is for each position advertised.

 

Could pay disclosure requirements be coming throughout New York State? Follow Horton Law on LinkedIn for our latest updates.

 

NYC Criminal Conviction During Employment

NYC Adds Protections for Employees with Criminal Arrests or Convictions During Employment

New York City joined the ranks of municipalities with a “ban-the-box” law in 2015. The original law prohibited employers with 4 or more employees from asking about an applicant’s pending arrest or criminal conviction record until after making a conditional job offer. Recent amendments to the New York City Fair Chance Act will add new protections for employees with arrests or convictions during employment.

The New York City Council passed the local law on December 10, 2020. Mayor Bill DeBlasio did not sign or veto the law in the time allowed. As a result, the amendments became law on January 10, 2021. The changes will take effect on July 28, 2021.

NYC’s Ban-the-Box Law

In addition to New York laws favoring the re-employment of individuals with criminal records, covered New York City employers must follow the city’s Fair Chance Act when hiring new workers.

Like other ban-the-box ordinances, the 2015 NYC law forced employers to remove questions about criminal histories from job applications. It further precluded employers from inquiring about an applicant’s criminal conviction record until after a conditional offer of employment.

The law separately prohibited employers from searching public databases for information about an applicant’s criminal record (e.g., “background check”) before a conditional offer of employment.

For more on similar laws in other New York cities, read my earlier post Checking in on New York Ban-the-Box Laws.

Criminal Convictions During Employment

The NYC Fair Chance Act will no longer only affect hiring decisions. It will also protect employees convicted during employment.

As with pre-employment convictions, an employer must evaluate the various legally-established factors and determine whether one of the following applies before taking adverse action:

  • there is a direct relationship between the criminal conviction and the employment held by the person; or
  • the continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Pending Arrests and Criminal Accusations

The amendments also add new protections for employees with pending arrests or accusations of criminal wrongdoing. Employers similarly must consider the “fair chance factors” to decide whether adverse action may be taken either because there is a direct relationship between the alleged wrongdoing and the job or employment would involve an unreasonable risk to property or people’s safety.

Fair Chance Factors for Convictions and Arrests During Employment

When considering discipline for existing employees based on convictions or arrests during employment, employers must consider all of these factors:

  • the policy of New York City to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment;
  • the specific duties and responsibilities necessarily related to the employment held by the person;
  • the bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant or employee’s fitness or ability to perform one or more such duties or responsibilities;
  • whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations;
  • the seriousness of such offense or offenses;
  • the legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public; and
  • any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.

These factors are similar, but not identical, to the factors that apply in making hiring decisions based on a criminal conviction record.

Decisionmaking Process

Before taking any adverse employment action against a current employee based on a criminal conviction or pending arrest, an employer must:

  1. Request information from the employee regarding the fair chance factors.
  2. Consider the impact of the factors on the direct relationship and unreasonable risk analysis.
  3. Give the employee a written copy of such analysis with supporting documents and the employer’s reasons for taking the employment action.
  4. Allow the employee a reasonable time to respond before taking adverse action.

Specific Employer Rights

Temporary Suspensions

Employers may place employees on unpaid leave “for a reasonable time” while completing the process the law requires before taking adverse employment actions.

Intentional Misrepresentations

The law also permits employers to discipline applicants and employees from making intentional misrepresentations about their arrest or conviction history. This carveout doesn’t apply if the misinformation was provided in response to an inquiry prohibited by the law. And, in the case of apparent misrepresentation, the employer must give the individual a copy of the documents demonstrating an intentional misrepresentation and allow them reasonable time to respond.

Exceptions

The New York Fair Chance Act will now apply to all employers regarding employees in NYC with only some exceptions for police, law enforcement agencies, and public employees subject to certain other disciplinary procedures.

The law also does not require employment when another law prohibits it based on the nature of the conviction and/or job.

Preparing to Comply

Employers have until July 28, 2021, to become familiar with these new employee protections and plan accordingly. Employees who engage in crimes before then will remain subject to discipline without these protections. However, once the law takes effect, employers will need to follow the mandatory evaluation process before acting based on employee criminal activity. Though many criminal acts may still warrant dismissal or other discipline, employers will need to request information from employees and document their reasons for taking any resulting action. This process will be a significant change in many employers’ disciplinary practices.

 

New York City provides more information about the Fair Chance Act here.

For more updates on escalating restrictions on New York employers, follow Horton Law on LinkedIn.