New York State Human Rights Law

Monday, New York’s budget bill for FY 2019 was presented to the Governor for signature.  Buried among the usual budget line items are several provisions that will drastically affect employers.

In what seems to be a direct response to the #metoo movement, the bill sets training requirements, prohibits mandatory arbitration of discrimination claims, and outlaws confidentiality provisions in settlement agreements unless specifically requested by the complainant.

The employment related provisions are set forth in S7507-C.  Here are the highlights (or low lights depending on your point of view):

  • Mandatory Harassment Policies:  All employers must have a policy against harassment that complies with or exceeds the model harassment policy that will be developed by the Division on Human Rights.  At a minimum, the policy must:
    • prohibit sexual harassment consistent with guidance issued by the department in consultation with the division of human rights and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
    • include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
    • include a standard complaint form;
    • include a procedure for the timely and confidential investigation of complaints and ensure 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; and
    • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
  •  Mandatory Training:  All employers must also provide “interactive” training to their employees.  The Division will also be developing a model training program that must include:
    • an explanation of sexual harassment consistent with guidance issued by the department in consultation with the division of human rights;
    • examples of conduct that would constitute unlawful sexual harassment;
    • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
    • information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
    • address conduct by supervisors and any additional responsibilities for such supervisors.
  • Statements by Public Contractors:  Public contractors submitting a bid for work with the State must include a statement that they have a policy against sexual harassment and that they provide training to employees on that policy.  Public Contractors must generally comply with the policy and mandatory employment training that applies to all employers under new Labor Law §201-g which sets for the policy and training requirements.
  • Prohibition on Mandatory Arbitration Agreements:  No employer may require that a claim of unlawful discrimination or sexual harassment be submitted to mandatory arbitration.  Voluntary arbitration provisions are still okay.  Collective bargaining agreements trump this provision, so if the CBA requires arbitration of discrimination or sexual harassment, then that would not run afoul of the law.  The law only bans this on a prospective basis and the law will not apply to any agreements entered into prior to the effective date of the law.
  • Bar on Most Confidentiality Agreements:  Settlement agreements may not contain confidentiality provisions requiring the complainant to keep the facts of the harassment or discrimination confidential unless the complainant voluntarily agrees to it.  Employers may still put a draft provision in agreements requiring confidentiality for the complainant to review.  The complainant must be given 21 days to review the provision. If the complainant accepts the provision, there must be a separate writing stating that.  Complainants must also have 7 days to revoke their acceptance of the agreement.
  • Provides Protection (and a Cause of Action) for Non-Employees:  the bill makes clear that an employer may be held liable if one of its employees sexually harasses a contractor, subcontractor, vendor, consultant or other non-employee providing services to the employer.

These provisions will go into effect 180 days after the law is enacted.  We assume that the forthcoming regulations may clarify certain aspects of the law such as how frequently harassment training must occur.  We will keep you updated when the regulations are issued.

In the meantime, employers should begin assessing their harassment policies and training programs.  Employers should also review settlement agreements and employment agreements for compliance with the law.

Catherine Savio writes:

Courthouse pillars
Copyright: bbourdages / 123RF Stock Photo

On May 31, 2017, the Second Circuit seemingly broadened the scope of liability under a New York state anti-discrimination law by holding that non-employer third parties can be held liable for violating rules regarding the use of a job applicant’s criminal history records in hiring processes.

The plaintiffs in Griffin v. Sirva Inc., No. 15-307 (2d. Cir. 2017), were employed by Astro Moving and Storage Company, a New York-based moving company. Astro is a contractor for the nationwide moving company Allied Vans Incorporated.  Allied prohibited the companies with which it contracted from employing individuals if they had ever been convicted of a sexual offense.

In 2011, Astro terminated the plaintiffs’ employment following a background check that revealed plaintiffs’ prior convictions for sexual offenses. In Griffin, the plaintiffs brought claims against Allied, a third-party contractor by whom they were not directly employed, under the New York State Human Rights Laws (“NYSHRL”) for violations of NYSHRL’s limitations on the use of criminal background checks in hiring decisions.

The United State District Court for the Eastern District of New York dismissed the claims brought against Allied, holding that the NYSHRL criminal conviction ban only applies to employers. On appeal, the Second Circuit overturned the lower-court’s decision,  holding that NYSHRL covers entities other than those who directly employ the workers, including third-party contractors. The court cited a four-part test from a 1985 fourth department decision, State Div. of Human Rights v. GTE Corp., 109 A.D.2d 1082 (4th Dep’t 1985), noting that the power to control a worker’s performance is the most important factor in determining whether or not an entity is acting as a workers “employer” for NYSHRL purposes. The Court remanded the case to the United States District Court for the Eastern District of New York to determine whether or not Allied qualified as an employer for NYSHRL liability purposes.


Catherine Savio is an associate in the firm’s Litigation Department, resident in its New York office.

Copyright: <a href="http://www.123rf.com/profile_damedeeso">damedeeso / 123RF Stock Photo</a>

End of year vacations and holidays are fast approaching. Everyone is eager to see family and enjoy some much needed time away. It is easy to forget, however, that the ball drop in Times Square will not only ring in the New Year, it will also ring in various new and modified employment laws in several jurisdictions.  December and January are often a hotbed of effective dates for new legal and regulatory changes, and this year is no exception. Now is a good time to review your handbook and other policies to ensure compliance with these various regulatory changes, before they go into effect this January.

For example, in New York, hospitality employers (including restaurants and bars) will see most of the tip credit typically applied to the minimum wages of tipped front-of-house employees evaporate. The tip credit minimum wage for food service employees in the hospitality industry is set to increase from $5.00 per hour up to $7.50 per hour come January 1, 2016. Moreover, beyond the hospitality industry, the regular minimum wage in New York will also increase to $9.00 an hour, in addition to higher minimum wages applicable to fast food employees ($10.50 in New York City, $9.75 in the rest of New York State). These minimum wage increases are not limited to New York alone, with several states and municipalities also implementing minimum wage increases as we approach 2016. Moreover, New York as well as many other states and municipalities also require any affected employees to receive new rate of pay notices and/or tip credit notices reflecting these minimum wage increases in accordance with federal, state, and local law.

In addition, numerous state and local discrimination laws, leave laws, and other employment-related laws will also go into effect January 1st. For example: California is expanding its child-related activities leave law to broaden what is considered covered child care and to include stepparents, foster parents, or those who are “in loco parentis” to a child.  In Oregon, ban-the-box legislation goes into effect prohibiting questions on an employment application regarding an applicant’s criminal background. In New York, the “Women’s Equality Act” goes into effect a few weeks after the New Year, which includes several new laws that increase equal pay protections, the applicability of sex discrimination laws, and recovery of fees in sex discrimination lawsuits, in addition to additional protections against familial status discrimination and requiring accommodations of some pregnancy-related conditions.

These changes are just a small sampling of the numerous legal and regulatory changes across the country awaiting us in the New Year. Getting ahead of these policy shifts is necessary to avoid unneeded headaches or, god forbid, liability later on. Before you head off for your holiday vacation, make sure to review any legal changes coming soon to the jurisdictions in which you operate.  It will provide you peace of mind once all the champagne has worn off on New Year’s Day.

Sounding like our old friends at the EEOC,  the New York Attorney General just announced a settlement with  five New York City employment agencies relating to, among other things, allegations that the agencies “targeted Spanish-speaking job seekers, unlawfully steered them away from certain jobs and unlawfully referred them to jobs paying as little as $3.75 per hour.”

 Schneiderman

Said AG Eric Schneiderman (above), “Employment discrimination against vulnerable populations is an increasing and disturbing trend, and we need to do everything we can to protect job applicants across our state. These agreements will send a strong message: Employment discrimination and exploitation of job seekers — including among our hard-working immigrant communities — are unacceptable.”

“We will continue to fight for a level playing field for New York workers and our law-abiding businesses.”

Takeaway:  We all spend so much time focussing on EEOC claims and lawsuits that we sometimes forget that there are state and local anti-discrimination laws, and state and local officials and agencies which scrutinize our actions.  Beware these other authorities!

The Civil Rights Bureau of the New York Attorney General’s office has just announced the settlement and discontinuance of an investigation into an upstate nursing home where the AG sought to determine “whether the [nursing home] accommodated and acceded to the racially discriminatory preferences of patients by making reassignments of nurses on the basis of race and took other employment-related action that created a hostile work environment for African-American employees.”

The investigation uncovered a posted “Care Plan” which “indicated that ‘No Colored Nurses’ were allowed on the floor” where a white patient was housed.  The AG’s investigation “also revealed that the [nursing home] does not train or guide supervisors on prohibited conduct … [and] does not educate its employees as to their rights” under Title VII and the New York State Human Rights Law.

As part of the settlement, the nursing home executed an “Assurance of Discontinuance” which provided that it must comply with a number of anti-discriminatory measures which include adopting a written EEOC policy, the appointment of an EEO officer, and the hiring of an outside diversity consultant to conduct anti-discrimination training.

Takeaway:  The preference of patients, clients or customers does not trump the anti-discrimination laws.

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Two weeks ago we wrote about the (in)famous decision of a federal judge in NYC who recently ruled that an unpaid female intern who alleged sexually harassment by a company higher-up was not an “employee,” and therefore had no claim for hostile work environment under the New York City Human Rights Law (N.Y. City Admin. Code § 8-101 et seq.) (“NYCHRL”).

The Court held that “The plain terms of [the city law] § 8-107(1)(a) make clear that the provision’s coverage only extends to employees, for an ‘employer’ logically cannot discriminate against a person in the “conditions or privileges of employment” if no employment relationship exists.

Indiana University Law professor Deborah Widiss said that “It reveals a very important gap [in the harassment laws] that I think needs to be addressed.”   We noted that this “loophole” was cited by city and state politicians who promised remedial legislation.

9553419_sNow it has been reported that state legislators introduced a bill which would “fill the gap” by prohibiting employment discrimination against unpaid interns on the basis of gender, race, age, sexual orientation, disability, marital status, and military status, and explicitly prohibit any “conduct of a sexual nature” toward an intern.  The lead sponsor of the legislation called interns an “extremely vulnerable class of workers” and stated that “there needs to be universal agreement and swift action when the Legislature returns to Albany in January.”

 

 

 

A judge in New York City has just held that an employee who alleged that she was fired for being short did not state a claim under New York state law which protects against genetic discrimination in employment and therefore prohibits employment discrimination on the basis of a

“predisposing genetic characteristic.”

The Plaintiff was employed by the city Parks Department with duties which included cleaning the bathrooms and taking out the garbage. She claims that she was the shortest of five employees in her unit, and that a supervisor told her “that she could not do the job, that she was too short and that there was something medically wrong with her, and that he required her to visit a physician, verbally abused and harassed her” and ultimately fired her.

She sued under both the New York State Human Rights Law (Executive Law §290 et seq.), and the New York City Human Rights Law (New York City Administrative Code §8-101 et seq.), claiming that the predisposing genetic characteristic which allegedly constituted the illegal discrimination under these laws was her height. (Note: The city law contains no prohibition relating to “predisposing genetic characteristic.”)

The judge did not state how tall she was (and noted that neither did her complaint), although he noted that her lawyer put before him an article on dwarfism, which the judge deemed as not being established as authoritative, beside being irrelevant.

 

However, the judge dismissed her complaint.  He held that “the definitions section of the [state] Human Rights Law specifically defines ‘predisposing genetic characteristic’ as a genetic, or inherited, proclivity to developing, or risk of developing, a disease or disability. It has nothing to do with a person’s physical height. … Therefore, not only is mere height precluded as a ‘predisposing genetic characteristic’ under a plain reading of the phrase, but the Legislature has defined the phrase as meaning only a genetic predisposition to developing a disease or disability.” 
 

 

He went on to state that: “The height of plaintiff is undisputably outside the scope of the plain meaning of the phrase ‘predisposing genetic characteristics’ as a prohibited basis for discrimination in the workplace. Clearly, a fully mature adult such as plaintiff who has attained her maximum growth cannot be ‘predisposed’, genetically or otherwise, to becoming that height. There is no issue in this case of predisposition to anything, whether medical or generally anthropomorphic.”

We must ask why Plaintiff chose one of the more obscure sections of the law to make her claim, and even then failed to plead what her height was, when she might have also made a claim for discrimination on the basis of “perceived disability.” We discussed in yesterday’s blog that under the federal ADA, as an EEOC attorney noted, “Employers must remember that they cannot deny work opportunities to people who are ready and able simply because of inaccurate perceptions about medical impairments and disabilities.”

 

It would appear that our Plaintiff might have been able to plead that since her supervisor told her that “she was too short and that there was something medically wrong with her, and that he required her to visit a physician,” she might have had a claim that he perceived her as disabled – although being “short” is not itself a disability.

 

Since the Supreme Court’s Gross decision, a federal ADEA plaintiff has a higher burden to prove discrimination – she must establish that “but-for” unlawful discrimination, the employer would not have taken the adverse action, such as firing her. The former “mixed motive” analysis used in ADEA discrimination claims became unavailable to ADEA plaintiffs under Gross.  On June 16, 2010, we wrote a long piece describing how Gross changed the existing law, and noted that lawmakers were trying to pass a law overturning Gross.  It never happened.

Under New York State law, although it has not been determined whether the more-liberal “mixed motive” analysis also applies to discrimination claims pursuant to the New York State Human Rights Law, it has been held that the “but-for” standard does not apply to claims of discrimination brought under the broad New York City Human Rights Law (“CHRL”). 

 

Under the CHRL, a plaintiff seeking to prove age discrimination “need only prove by a preponderance of the evidence that age was a ‘motivating factor’” in the employer’s decision. Weiss v. JPMorgan Chase & Co., 2010 WL 114248 (S.D.N.Y. Jan. 13, 2010).  Relying upon the New York City Local Civil Rights Restoration Act of 2005 (Local Law No. 85)  Weiss explicitly rejected the "but-for" causation standard of Gross, and affirmatively adopted the continued interpretation of the CHRL’s “because of” language as requiring a plaintiff to prove only that age was a motivating factor. 

 

Senators — from both parties — are once again introducing a bill to overturn Gross.  Senate Bill 2189, known as the “Protecting Older Workers Against Discrimination Act,” would re-establish the “mixed motive” analysis for ADEA claims.

 

We will, as we said two years ago, keep you posted.

 

One of the hot topics of employment law in the past few years has been the concept of independent contractors and the liability associated with improperly designating an employee as an independent contractor. However, I have not seen much written with respect to how independent contractors are handled under one of the more employee friendly statutes in the country—the New York City Human Rights Law (NYCHRL) (pdf). That is, how does this liberal statute deal with independent contractors and claims of employment discrimination?

 

Title VII and the New York State Human Rights Law (NYSHRL) (pdf) look to the common law of agency to determine whether an individual is an employee or an independent contractor. If the individual is an independent contractor then generally the employer is not liable for claims brought by that individual under Title VII and the NYSHRL.

 

However, under the NYCHRL, independent contractors may be counted as employees and can file employment discrimination claims against the contracting company, if they are “[n]atural persons employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers. . .” NYCHRL § 8-102 (5).

 

Thus, New York City employers that hire an individual who may be deemed an independent contractor under the common law of agency, may still be liable for that contractor’s claims of employment discrimination under the NYCHRL. Therefore, before you hire an “independent contractor” in New York City, consult your attorney and consider hiring contractors who are acting through a corporation.

 

Have a great weekend.