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Lawful Absences

New York Expressly Forbids Retaliation for Lawful Absences from Work

On November 21, 2022, Governor Hochul signed an amendment to the New York Labor Law to enhance employee protections against retaliation. The amendment adds an express prohibition of retaliation for any lawful absences from work. The amendment takes effect on February 19, 2023.

New York Labor Law Section 215

Section 215 of the New York Labor Law generally prohibits private (non-governmental) employers from discriminating against employees for engaging in a wide array of protected activities. Before this amendment, these protected activities included:

  • Making a complaint that the employee’s employer has engaged in conduct that the employee reasonably and in good faith believes violates any provision of the Labor Law or order of the Commissioner of Labor;
  • Being perceived by the employer as having made such a complaint;
  • Instituting a proceeding under or related to the Labor Law;
  • Providing information to the Department of Labor or the Attorney General;
  • Testifying in an investigation or proceeding under the Labor Law;
  • Exercising other rights protected by the Labor Law;
  • Being the subject of an adverse determination from the Commissioner of Labor against one’s employer.

Employees may file retaliation claims in court or with the Commissioner of Labor. Penalties can include repayment of lost wages; liquidated damages; and civil penalties of $1,000 to $10,000 for the first offense and up to $20,000 for the second offense. Violation of Section 215 also constitutes a class B misdemeanor.

Amendment Addressing Lawful Absences

The amendment expands the definition of protected activity to prohibit retaliation because an “employee has used any legally protected absence pursuant to federal local, or state law.”

Unfortunately, this new language is vague. If read broadly, as the Legislature likely intended, it will encompass numerous paid and unpaid leave laws, including:

  • New York Paid Sick Leave
  • New York Paid Family Leave
  • New York Paid COVID-19 Leave
  • New York Paid Vaccine Leave
  • Family and Medical Leave
  • Other specific New York Leaves, such as:
    • Blood Donation Leave
    • Bone Marrow Donation Leave
    • Military Spouse Leave
    • Witness and Victims of Crime Leave
    • Volunteer Emergency Response Leave
    • Jury Leave
    • Voting Leave

Employees are also often allowed time off while receiving workers’ compensation or disability benefits or as an accommodation under the Americans with Disabilities Act and New York Human Rights Law. None of these legal authorities specifically grants employees time off from work. However, it is plausible that Labor Law Section 215 will be interpreted to include leaves under these circumstances.

No-Fault Attendance Policies

Many employers apply attendance policies that allocate points on an employee’s record for each absence. Commonly, these policies apply regardless of the purpose or reason for the absence. Such policies are known as “no-fault” attendance policies. Whether the reason for the absence matters or not, point-based policies result in pre-specified employment consequences when employees reach certain levels.

The amendment to Labor Law Section 215 adds a specific prohibition against “assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.”

Practical Impact

It is arguable whether this amendment really expands worker protections. Generally speaking, various laws would likely already prohibit adverse employment action against employees for taking lawful absences from work. Section 215 itself probably already would have applied in many such situations.

But the Legislature at least intends to shed light on the subject and potentially increase available penalties. Accordingly, New York employers should review existing policies and practices regarding their handling of lawful absences by employees. Moreover, managers must understand the types of absences that may be protected under applicable laws.

 

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NY Employment Discrimination Update Webinar Cover Slide

New York Employment Discrimination Update (Webinar Recap)

On March 29, 2022, I presented a complimentary webinar entitled “New York Employment Discrimination Update”. 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:

  • Legislative Developments
  • Agency Procedures
  • Trends & Statistics
  • Requirements & Precautions

and much more!

New York Governor Kathy Hochus recently signed new state laws designed to increase employee protections against employment discrimination. This webinar discusses these amendments, plus additional pending legislation. How will the new laws affect employers?

The webinar also addresses recently released data on federal employment discrimination charges filed with the EEOC. Learn about a decline in claims and what it may mean.

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

Why You Should Watch “New York Employment Discrimination Update”

There are specific new provisions that New York employers should become aware of, including a new form of retaliation based on release of employee personnel files. The New York Division of Human Rights must also create a new sexual harassment complaint hotline to assist employees in filing claims. Proposed legislation that may be coming next would require even more dramatic changes to employer practices.

The presentation includes analysis of data from the EEOC for fiscal year 2021. We discuss the operational and filing trends and what they may suggest about the prevalence of employment discrimination and employee motivations to assert claims.

This subject is not going away, and the likelihood of liability for New York employers may be increasing. Thus, we also consider the difference between required preventative measures and options to better protect your organization from employment discrimination.

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! And follow us on LinkedIn for even more frequent updates on important employment law issues.

Generations in the Workplace

Lawfully Managing Multiple Generations

In today’s workplace, there can be up to four generations working together on a project. While this collaboration is an excellent opportunity for generating new perspectives, conflicts can arise as different personalities clash. Members of the same generation grew up with similar values and experiences and thus tend to perform best under particular management styles. Worker cohorts also tend to share preferences for compensation and work environments, raising implications for employers in structuring their organizations.

Although members of the same generation might generally share values and experiences, employers must be careful not to discriminate or stereotype individuals based on their age. Here we’ll take a look at generational preferences as well as the laws employers must be aware of to avoid potential legal liability.

Working Generations

Sociologists don’t always agree on the birth years establishing the separate generations. However, they and popular culture tend to recognize generations spanning approximately 15-20 years.

Here’s a chart showing the relative portion of the U.S. workforce falling into each of the recognized working generations:

2017 Workplace Generations

Baby Boomers

The members of the Baby Boomer generation are loosely defined as being born anywhere from the mid-1940s to the early 1960s. They are referred to as “baby boomers” due to the increase in birth rate during these years. Baby Boomers share the experiences of the economic boom in the aftermath of WWII, the development of color television, the Cold War, the first walk on the moon, and the Vietnam War. They also lived through several civil rights movements.

In the workplace, Baby Boomers are seen to value company loyalty, strong work ethics, a steady career path, and compensation. Baby boomers are currently retiring at a rate of 100,000 employees per day. However, due to the timing of the last recession, many cannot afford to retire and are instead seeking part-time jobs for an ongoing income stream. With advances in healthcare, the overall U.S. population is growing older, with projections for the population of older Americans to double by 2060. According to the Bureau of Labor Statistics, “As the baby-boom generation ages, the share of workers age 55 and older—a cohort with a low labor force participation rate—is projected to grow to 24.8 percent in 2026. This share is up from 22.4 percent in 2016 and 16.8 percent in 2006.”

Generation X

Generation X (Gen X) follows the Baby Boomer generation and precedes the Millennials. They were born between the mid-1960s and the early 1980s. Generation X members are also sometimes referred to as “baby busters” because of the drop in the fertility rate during these years. Commonly shared experiences include living through the 9/11 terrorist attacks and the widespread adoption of the Internet and cellular phones.

These individuals grew up during a time when women, especially mothers, were increasingly participating in the workforce. This generation (on the whole) values work-life balance more than previous generations. Members of this generation also value stability, personal advancement, and job satisfaction. In the workplace, Generation X members are often considered to be independent, resourceful, and adaptable.

Millennials

Millennials (or Generation Y)/Gen Y) are currently the largest generation active in the American workforce. Members of this group were born between the early 1980s and mid-late 1990s. Millennials often engaged in more precarious work in the aftermath of the Great Recession. This generation doesn’t remember offices without computers and has been characterized as having increased familiarity with technology, communications, and media.

In the workplace, Millennials generally prefer a flat corporate culture, an emphasis on work-life balance, and a socially conscious workplace. Millennials search for environments with meaningful work and opportunities to express creativity. This group benefits the most from immediate feedback. Millennials value free flow of communication and close relationships with supervisors. They are more likely to switch careers than previous generations.

Millennials are the most diverse generation. Due to immigration, this population is increasingly likely to be born outside the United States with a first language other than English. By 2020, Millennials should make up half of the global workforce.

Generation Z

The members of Generation Z (Gen Z) were born from the mid-1990s into the 2010s. They are deeply familiar with technology and social media, having never known a world without mobile phones and digital music and videos. Many came of age during the Great Recession, which has resulted in them being independent and entrepreneurial. Members of this generation typically have a more global perspective and comfort with technology-based interactions. However, they still value person-to-person contact in the workplace. Although Generation Z has not yet gained much work experience, they do tend to have large networks as a result of omnipresent social media. They highly value personal fulfillment in their careers.

What Unites These Generations in the Workplace?

There are several values that employees universally appreciate. In the workplace, individuals of all ages value respect, communication, mentorship opportunities, positive feedback, exchanging ideas, and being able to see the big picture. Employers should keep these values in mind when managing a multigenerational workplace, but might need to adapt their approaches based on individual or subgroup differences

Beware: Age Discrimination

Passed in 1967, the Age Discrimination in Employment Act (ADEA) is a federal law that prohibits age-based discrimination in employment. This law covers employees and job applicants age 40 and older and does not protect younger individuals from preferential treatment toward older workers. The ADEA covers employers with 20 or more employees, employment agencies, government employers, and unions.

Many states also have laws prohibiting discrimination based on age. Some, unlike the ADEA, protect employees even younger than 40 years old. The New York State Human Rights Law is one such law. It protects employees and applicants from discrimination based on numerous protected categories, including age beginning at age 18.

Age discrimination claims can arise out of hiring, firing, promotion, compensation, or any other aspect of employment. This includes harassment.

Examples of age discrimination could include:

  • Assuming only younger employees can handle technology;
  • Pressuring older employees to retire;
  • Not allowing an older employee to pursue new training; or
  • Refusing to hire or promote an otherwise qualified employee based on age.

Although the above examples seem relatively straightforward, sometimes subtle actions can lead to discrimination claims. If employers have any questions, they should consult with an experienced employment lawyer.

 

Special thanks to Erin Killian for her substantial contributions in drafting this article. As of this writing, Erin is a 2L student at the University at Buffalo School of Law and law clerk at Horton Law.