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HR News & Updates
NYC Amends ESSTA to Align with NYS Paid Sick Leave
September 30, 2020
Employers with 4 or fewer employees and a net income of less than $1 million in the prior tax year are required to provide employees with up to 40 hours of unpaid sick and safe leave;
Employers with between 5 and 99 employees and employers with 4 or fewer employees and a net income of greater than $1 million in the prior tax year are required to provide each employee with up to 40 hours of paid sick and safe leave per year; and
Employers with 100 or more employees are required to provide up to 56 hours of paid sick and safe leave per year.
Employers must provide notice of the changes imposed by the ESSTA Amendments to current employees no later than October 30, 2020.
The ESSTA Amendments also eliminate the 120-day waiting period for new hires to utilize accrued leave, meaning that employees can access accrued leave immediately upon commencement of employment.
If documentation is requested after using three or more consecutive days of safe and sick leave, the employer will reimburse the employee for all fees charged by a health care provider or other provider for providing the documentation.
The reasons for time off have changed slightly. Please see the attached policy for a full list of reasons one can request time off.
Employers must respond to a request to use ESSTA within three business days of the date of the request.
NYC employers are now required to note on employees’ pay statements (or another written communication each pay period):
· The amount of PSL leave accrued and used during the pay period, and
· The employees’ total balance of accrued PSL leave.
Employers will have up to November 30, 2020 to ensure compliance without a penalty and maintain records regarding the amount of sick leave provided to employees for six years.
Employees may request in writing or verbally that an employer provide a summary of the amount of sick leave accrued and used by the employee, which the employer must provide within 3 business days of the request.
The ESSTA Amendments directly prohibit taking any “adverse action” designed to penalize for or deter an employee from exercising such rights.
NLRB Expands Employer Options for Social Media and Non-Disparagement Rules
August 2020
With the COVID-19 emergency impacting employers’ operations and the way employees work, more and more employees may start taking to social media to vent their opinions about work and current events (sometimes intertwining the two). Employee social media expression can damage an organization’s brand and violate its social media and non-disparagement rules. Discipline for social media expression can run afoul of the National Labor Relations Act (NLRA), which provides certain protections for employee speech, including social media speech, so that employees often believe that anything goes in this forum. Fortunately for employers, the National Labor Relations Board (NLRB) recently clarified the types of employee social media activity employers may regulate, giving employers more latitude to discipline employees for social media conduct that violates employer rules and threatens the employer’s reputation.
As a general matter, the NLRB evaluates facially neutral rules impacting employee social media activity on a case-by-case basis under Boeing Category 2. The NLRB’s recent social media decisions demonstrate that it considers an employer’s interest in protecting its reputation with the public at large or customers to justify limitations on employee social media expression.
For example, in Bemis Company, 370 NLRB No. 7 (Aug. 7, 2020), the NLRB found lawful an employer’s social media policy requiring employees to be “respectful and professional when using social media tools … so as to effectively safeguard the reputation and interests” of the employer. Specifically, the social media rule prohibited employees from disclosing proprietary employer information and required employees to respect the rights of co-workers while not harassing, disrupting or interfering with another’s work performance and not creating an “intimidating, offensive, or hostile work environment.” Again, the Board found that when reading the policy as a whole, employees would reasonably understand that the rule was made to safeguard the employer’s reputation and promote a healthy work environment, not chill employee expression.
Similarly, in Motor City Pawn Brokers Inc., 369 NLRB No. 132 (July 24, 2020) the NLRB found lawful an employer’s rule that prohibited employees from communicating to any customer or third party any disparaging claim, “the effect of or intention of which is to cause embarrassment, disparagement, damage or injury to the reputation, business, or standing” of the company. The NLRB observed that employers have a legitimate expectation of loyalty from their employees, and thus found that the employer’s justifications in this case were “self-evident” and the rule was “reasonably drafted to warn employees that similar disparaging statements about it or its customers to customers and the public would not be tolerated.”
While these decisions provide employers with substantial leeway to craft rules designed to protect the company’s reputation, an employer’s ability to limit employee social media activity or employee statements about the company is not unlimited. In Union Tank Car Company, 369 NLRB No. 120 (July 17, 2020), the NLRB found that the employer unlawfully maintained a non-disparagement rule that prohibited statements that “are intended to injure the reputation of the Company or its management personnel with customers or employees.” Focusing on the rule’s prohibition against statements to other employees, the NLRB determined that while employers are justified in preventing employees from making statements made to injure the company’s reputation, no justification for the rule outweighed the significant impairment to employee rights to make statements about the company to other employees. Thus, the NLRB has made clear that such rules which impact discussions between employees (as opposed to discussions with customers or the public at large) are not lawful because no justification outweighs employees’ rights to discuss working conditions with co-workers.
In short, employers still need to carefully review social media policies to make sure they protect the company’s reputation with customers and/or the general public without impermissibly limiting employees’ rights to discuss working conditions among themselves.
And remember that the NLRB’s decisions, rules and regulations apply to all employers. An employee who is not represented by a union can still file a charge with the NLRB, and unions often use potentially unlawful employer work rules as an opening to build support for an organizing campaign.
NLRB Modifies Standard for Addressing Offensive Outbursts in the Course of Protected Activity
July 21, 2020
In a decision issued today in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), the National Labor Relations Board modified the standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements—including profane, racist, and sexually unacceptable remarks—in the course of activity otherwise protected under the National Labor Relations Act (Act).
With today’s decision, cases involving offensive or abusive conduct in the course of otherwise-protected activity will now be decided under the familiar Wright Line standard, which has long been used by the Board with court approval in mixed-motive cases. Under Wright Line, the General Counsel must first prove that the employee’s protected activity was a motivating factor in the discipline. If that burden is met, the employer must then prove it would have taken the same action even in the absence of the protected activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct.
The standard announced today replaces a variety of setting-specific standards—one for encounters with management (Atlantic Steel), another for exchanges between employees and postings on social media (a “totality of the circumstances” test), and a third for offensive statements and conduct on the picket line (Clear Pine Mouldings). While these tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the Act, they often resulted in reinstatement of employees discharged for deeply offensive conduct. These decisions were out of step with most workplace norms and were difficult to reconcile with anti-discrimination law.
“This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” said Chairman John F. Ring. “For too long,” he added, “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”
NLRB Greenlights Company Policy Allowing Searches of Workers’ Personal Property
June 24, 2020
In a June 24, 2020 decision – Verizon Wireless, 369 NLRB No. 108 (2020) – the NLRB reversed an Administrative Law Judge’s (“ALJ”) ruling that Verizon Wireless and its related entities’ (collectively, “Verizon”) policy permitting company searches of workers’ personal property violated Section 8(a)(1) of the Act by infringing upon employees’ rights to engage in concerted activity for mutual aid or protection under Section 7 of the Act.
The Board also upheld the ALJ’s ruling that another portion of Verizon’s policy permitting company monitoring of company computers and devices did not violate the Act. The Board reversed the ALJ’s holding that Verizon’s rule stating it may search or monitor workers’ personal property (including vehicles) on company premises violated the Act under the Lutheran Heritage standard. Under the first step of the Boeing test, the Board determined that a reasonable employee who “does not view every employer policy through the prism of the NLRA” would not refrain from engaging in protected conduct under the Act merely because evidence of such activity could be discovered through an employer search of the employee’s personal property. Verizon Wireless, 369 NLRB No. 108, slip op. at 5 (quoting LA Specialty Produce, 368 NLRB No. 93, slip op. at 2 (2019)). Rather, the Board determined that a reasonable employee would interpret the policy consistent with its stated purpose: protecting company assets, providing excellent service, ensuring a safe workplace, and investigating improper use or access. The Board also concluded that the charging parties’ fears about company searches were too speculative to support a violation of the Act.
Even if a reasonable employee would interpret the policy to interfere with Section 7 rights, the Board concluded that the policy would still be permissible under Boeing because the employer’s legitimate interest in conducting searches – to prevent theft or other losses and to ensure a safe workplace – would “far outweigh[]” any minimal impact on employees’ rights under the Act. Verizon Wireless, 369 NLRB No. 108, slip op. at 5.
PAYCHECK PROTECTION PROGRAM – WHERE ARE WE NOW? An up-to-date guide to the Paycheck Protection Program Last updated as of June 5, 2020
June 5, 2020
NYS Enact Paid Sick Leave Law
April 2020
The Paid Sick Leave Law in NYS will take effect – and covered employees will be entitled to begin accruing leave time – on September 30, 2020. However, employees may be restricted from utilizing accrued sick leave until January 1, 2021.
Highlights of Differences with NYC ESSTA are:
Amount of Sick Leave Available
Under the new sick leave provisions:
employers with 4 or fewer employees and a net income of less than $1 million in the prior tax year must provide employees with up to 40 hours of unpaid sick leave.
employers with between 5 and 99 employees and employers with 4 or fewer employees and a net income of greater than $1 million in the prior tax year must provide each employee with up to 40 hours of paid sick leave per year.
employers with 100 or more employees will provide up to 56 hours of paid sick leave per year.
The New York State has not yet issued a revised notice.
NYS Updates Time for Voting Law
April 2020
What’s old is new again in New York. In non-COVID-19-related news, earlier this month, New York state passed its fiscal year 2020–2021 budget. As part of the budget, New York’s voting leave law, which was amended last year, will revert back to the pre-2019 version of the statute.
Effective immediately, therefore, New York’s voting leave law:
Permits employees without sufficient time to vote outside of their scheduled working hours to take up to two hours of paid time off to vote at the beginning or end of their shift;
Bars use of the paid voting leave by employees with four consecutive nonworking hours (1) between the opening of the polls and the beginning of their shift or (2) between the end of their shift and the closing of the polls;
Requires employees to provide at least two – but no more than 10 – working days’ notice, prior to the day of the election for which they intend to use the leave; and
Preserves the requirement that employers conspicuously post a notice of the voting leave law no less than 10 working days before the election. The notice must remain posted until the polls close on election day.
Employers should be sure to update the voting leave section of their employee handbooks, manuals, and policies to reflect these changes.
The New York State Board of Elections has not yet issued a revised notice. It is expected that a revised notice will be issued prior to New York’s Primary Election on June 23, 2020.
Side by Side Comparison of NYS and Federal Benefits
March 18, 2020
Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020 from the Centers for Disease Control and Prevention
February 28, 2020
Actively encourage sick employees to stay home
Separate sick employees
Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees
Perform routine environmental cleaning:
Advise employees before traveling to take certain steps and a visit the CDC’s Traveler’s Health Notices
Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19:
Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
Read more from the CDC on these topics by clicking here. Click here for the information from OSHA & here for guidance from the EEOC.
This is a great read on how to stay safe and masks are NOT your answer. The Centers for Disease Control agrees.
February 5, 2020
Forget face masks and rubber gloves. The best way to avoid the coronavirus is frequent hand washing, according to a medical adviser to the world’s airlines. Click here to read more.
New I-9 Form – Employment Eligibility Verification Form
January 31, 2020
On January 31, 2020 the United States Citizenship & Immigration Services (USCIS) released a new version of Form I-9, Employment Eligibility Verification.
Employers may continue using the prior versions of the form until April 30, 2020. On May 1, 2020 employers may only use the updated form. We recommend that employers begin using this updated version immediately.
Here is he link to the new forms.
New York City Extends Human Rights Law Protections and Training Requirements to Freelancers and Independent Contractors
January 11, 2020
Effective January 11, 2020, the New York City Human Rights Law (“NYCHRL”) has been amended to expand protections under the law to freelancers and independent contractors. Significantly, this includes the requirement that certain contractors now complete annual sexual harassment prevention training in the same manner as covered employees. Contractors also are now eligible for reasonable accommodations under the law. The amendments also clarify how the four-employee threshold for coverage under the NYCHRL is calculated.
Expanded Protections and Training Requirements
The new law amends Section 8-107(23) of the NYCHRL to state that “the protections of this chapter relating to employees apply to interns, freelancers and independent contractors.” (The law previously expanded provisions of the NYCHRL to interns by amendment in 2014.) Thus, freelancers and independent contractors now have the same protections against discrimination, harassment and retaliation under the NYCHRL as employees, including, presumptively, the same right to seek recourse by filing claims with NYC Commission on Human Rights (the “Commission”) or bringing suit in court.
The Commission has issued guidance interpreting this expansion of protections to include the requirement that independent contractors and freelancers who work for an employer with 15 or more workers (including employees, interns, and contractors) and who work: (a) more than 80 hours in a calendar year, and (b) for at least 90 days (which do not need to be consecutive) must complete the annual sexual harassment prevention training already required of employees and interns under the NYCHRL. Contractors who do not meet this 80 hour/90 day threshold do not need to be trained. Previously, the Commission recommended such training for independent contractors, but did not require it.
The guidance states that “individuals who must be trained do not need to take the training at each workplace where they work over the course of a year,” and “independent contractors and freelancers may provide proof of completion of one sexual harassment prevention training to multiple workplaces and need not repeat the training at multiple workplaces.”
The guidance further states that contractors and freelancers now have the right to request and receive reasonable accommodations for needs related to disability, pregnancy, lactation, religious observances, and status as victims of domestic violence, sexual offenses, or stalking in the same manner as such accommodations are available to employees.
New Form W-4 - Employee's Withholding Certificate
December 2019
The IRS has finally completed a revision of Form W-4, Employee’s Withholding Certificate. The 2020 version is very different from previous versions. This is due to the federal tax law changes that took place in 2018.
The Internal Revenue Service (IRS) is not requiring all employees to complete the revised form and has designed the withholding tables so that they will work with both the new and prior year forms. However, certain employees will be required to use the new form: those hired in 2020 and anyone who makes withholding changes during 2020.
Even though the IRS does not require all employees to complete the revised form and even if your tax situation has not changed, we recommend you perform a “paycheck checkup” to see if you need to make adjustments to your current withholding. To conduct the checkup, you can use the IRS’s Tax Withholding Estimator.
To effectively use the estimator, it is helpful to have a copy of your most recent pay stub and tax return. It is likely that the estimator will be updated to account for the 2020 tax tables in early January. Please note: if you do not submit a new form, withholding will continue based on your previously submitted form.
Before completing the 2020 Form W-4, please read the instructions that are included with the form.
You must complete Steps 1 and 5. Steps 2, 3, and 4 are optional, but completing them will help ensure that your federal income tax withholding will more accurately match your tax liability.
Step 1 is for your personal information; Step 2 is for households with multiple jobs;
Step 3 is used to claim tax credits for dependents;
Step 4 is for other adjustments (additional income such as interest and dividends, itemized deductions that exceed the standard deduction, and extra tax you want withheld);
Step 5 is where you sign the form.
The IRS takes your privacy seriously and suggests that, if you are worried about reporting income from multiple jobs in Step 2 or other income in Step 4(a), you check the box in Step 2(c) or enter an additional withholding amount in Step 4(c). To determine the additional withholding amount, you can use the withholding estimator.
The IRS has also published Frequently Asked Questions that you may find helpful as you complete the form.
A great read on how to stay safe and masks are NOT your answer. The Centers for Disease Control agrees.
February 5, 2020
This is your News article. It’s a great place to highlight press coverage, newsworthy stories, industry updates or useful resources for visitors. Add a short summary, include links to relevant content and choose a great photo or video for extra engagement!
Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020 from the Centers for Disease Control and Prevention
February 27, 2020
Actively encourage sick employees to stay home:
Separate sick employees
Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees
Perform routine environmental cleaning:
Advise employees before traveling to take certain steps and a visit the CDC’s Traveler’s Health Notices
Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19:
Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
Read more on these topics by clicking here.
NYS Issues Additional Guidance Following Recent Expansion of Workplace Anti-Discrimination Protections
November 2019
The more notable developments:
• The State has now published a template “Sexual Harassment Prevention Notice”, which must be provided to employees in addition to the anti-harassment policy and training materials.
• The “Sexual Harassment Prevention Notice” may be distributed digitally or in print. Employers must either attach their complete policy (including the required complaint form) and training materials or provide a link to such materials.
• Employers must also provide appropriate contact information of the designated person or office to whom individuals can go to with questions or to file a complaint.
• Training materials must be distributed to all employees at the time of training and at subsequent annual trainings, including materials, scripts, Q+As, outlines, handouts, PowerPoint slides, etc.
• If an employer uses the State’s model materials, or other training materials that are delivered through software or video, then a link to such materials would be sufficient.
• The guidance also states that employers must provide these materials in both English and in an employee’s primary language if it is Spanish, Chinese, Korean, Polish, Russian, Haitian-Creole, Bengali or Italian.
• As a reminder, the new law also now bars nondisclosure provisions in any settlement, agreement or other resolution of any claim, the factual foundation of which involves discrimination on the basis of any protected class, unless the condition of confidentiality is the preference of the complainant. In order to be deemed the “preference of the complainant,” any term or condition regarding nondisclosure must be provided in writing to all parties “in plain English” and, if applicable, the primary language of the complainant.
• If a settlement agreement contains a nondisclosure clause, the complainant will have 21 days (a period that cannot be shortened) to accept the offer and an additional 7 days after to revoke the agreement.
The State has now updated its FAQs to provide additional guidance on these new requirements.
New York State Bans Discrimination Based on Reproductive Health Decisions
November 9, 2019
As of Nov. 8, New York State prohibits employment discrimination based on an employee's or a dependent's "reproductive health decision-making."
The New York State Legislature passed the bill in January, and Gov. Andrew Cuomo signed it into law this month.
This move comes less than one year after the New York City Council added "sexual and other reproductive health decisions" to the list of protected categories under the New York City Human Rights Law.
This statewide measure is likely a response to the federal government's efforts to increasingly regulate this area.
Employers are required to include in an employee handbook a notice of employee rights and remedies under the law.
NYS Changes to Minimum Wage and DOL Raises Exempt Threshold
October 10, 2019
New York State Minimum Wage
A reminder that the New York State minimum wage will increase on December 31, 2019, as follows:
New York City for all employees: $15.00/hour
Nassau, Suffolk, and Westchester counties: $13.00/hour
Other parts of New York: $11.80/hour
New York State Overtime Eligibility Update
As you may recall, in 2016 New York State published new regulations regarding when an employee is exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). These regulations went into effect December 31, 2016. As part of the 2016 changes, New York State provided for annual increases in the weekly salary basis test for FLSA-exempt employees. The League’s December 28, 2016 memorandum summarized these changes, and we want to remind New York State employers of the rates effective for December 31, 2019.
FLSA Overtime Exemption
In order for employees to be exempt from the overtime requirements of the FLSA employees must satisfy both the:
Salary Basis Test – that their weekly salary is above the proscribed threshold; and
Job Duties Test – that their primary responsibilities meet criteria established in the exemptions for executive, administrative, professional, computer or outside sales employees.
NYS Increases Effective December 31, 2019
New York State has adopted annual increases to the New York State salary threshold for employees who are exempt for overtime because they have Administrative or Executive job duties. The salary threshold for administrative or executive employees in New York will increase on December 31, 2019 as follows:
All New York City employers $1,125.00 per week ($58,500 annually);
Nassau, Suffolk, and Westchester counties: $975.00 per week ($50,700 annually);
Other parts of New York: $885.00 per week ($46,020 annually).
There will be further increases to some of these rates annually on December 31, 2020. A full schedule of the rate changes is attached as an appendix to this memorandum.
For employees who satisfy the Administrative or Executive job duties test and for whom you will now be adjusting the salary to comply with the salary basis test, the salary must be in place on December 31, 2019.
The US Department of Labor summarizes the Administrative and Executive job duties as:
Administrative: the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and the employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
Executive: the employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; the employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and the employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
Note: This change only applies to Administrative and Executive employees and does not apply to Creative Professionals (i.e. actors, musicians, writers, composers) or the other federal job duties exemptions. The new federal threshold is $684/week and continues to apply to these individuals as of January 1, 2020.
Effective January 1, 2020 the U.S. Department of Labor is raising the "standard salary level" from the currently enforced level of $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);
Please note that changes to an employee’s wages requires employers to provide a new wage notice. Such notices must be provided seven days in advance of the effective change.
New York Revises Employment Protections for Domestic Violence Victims, Adds Accommodation Obligations
08/20/2019
Governor Andrew Cuomo on August 20, 2019, the new law amends the New York State Human Rights Law with respect to victims of domestic violence. It also requires employers to provide reasonable accommodations. The new law will become effective on November 18, 2019.
Victim of Domestic Violence
A “victim of domestic violence” is defined as any person who is older than 16, married, or a parent accompanied by the parent’s minor child in a situation where the person or their minor child is the victim of an act committed by a family or household member that would violate the penal law. The act must have resulted in actual physical or emotional injury or created a substantial risk of physical or emotional harm to the person or their child.
Unlawful Discriminatory Practices
It will be an unlawful discriminatory practice for employers to:
Refuse to hire or employ someone because they are a victim of domestic violence;
Terminate someone because they are a victim of domestic violence;
Discriminate against a victim of domestic violence with respect to compensation or the terms, conditions, or privileges of their employment;
Print or circulate a statement, advertisement, or publication that expresses any limitation, specification, or discrimination about someone’s status as a victim of domestic violence; or
Use an employment application or make an employment inquiry that expresses any limitation, specification, or discrimination about someone’s status as a victim of domestic viole
Reasonable Accommodations
Employers will be required to provide reasonable accommodations to employees who are known to be victims of domestic violence who must be absent from work for a reasonable time, unless such accommodation would pose an “undue hardship” on the employer’s business.
Covered employees may take reasonable time off:
To seek medical attention for injuries caused by domestic violence, including for a child who is the victim of domestic violence;
To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence;
To obtain psychological counseling related to an incident or incidents of domestic violence, including for a child who is the victim of domestic violence;
To participate in safety planning or other action taken to increase safety from future incidents of domestic violence (e.g., temporary or permanent relocation); or
To obtain legal services, assist in the prosecution of an offense, or appear in court related to an incident of domestic violence.
The time off may be charged against any paid time off to which the employee may be entitled. If the employee has no available paid time off (such as vacation), the time off may be treated as unpaid time.
Notice
The new law requires employees to provide their employers with reasonable advance notice, if possible.
Employees who must be absent from work without advance notice must provide a certification of the need for an accommodation when requested by the employer.
Other Provisions
The law also addresses existing collective bargaining agreements, employee handbooks or policies, and continuation of health insurance coverage.ing collective bargaining agreements, employee handbooks or policies, and continuation of health insurance coverage.
New York Bans Employment Discrimination Based On Religious Attire And Facial Hair
August 9, 2019
Governor Andrew M. Cuomo signed legislation which prohibits employment discrimination based on religious attire, clothing or facial hair. The new law amends the New York State Human Rights Law to make clear that employers cannot refuse to hire, attain, promote, or take other discriminatory action against an individual for wearing attire or facial hair in accordance with tenets of their religion. The laws goes into effect on October 9, 2019.
Jake Honig Compassionate Use Medical Cannabis Act
July 2, 2019
New Jersey amended its law, now called the Jake Honig Compassionate Use Medical Cannabis Act, to remove the language that resulted in the Wild litigation and include new applicant/employee-side protections. Specifically:
Employers are prohibited from taking any “adverse employment action” against a “registered qualifying patient” based solely on the person’s status as a registered patient. An “adverse employment action” is defined to mean “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.”
Employers must provide applicants or employees who test positive for cannabis written notice of their right to explain and their right to provide a “legitimate medical explanation” for the positive test result. The employee has three working days to provide such information, which can include evidence that a health care practitioner has authorized the use of medical cannabis, proof that the applicant or employee is a registered patient, or both. Or, within that same three-day timeframe, the applicant or employee can request a confirmatory retest of the original sample at their own expense.
The silver lining for employers is the amended law includes two employer-side protections. First, the law does not restrict an employer in its ability to take action against an employee who uses or possesses “intoxicating substances” during work hours or on the premises of the workplace outside of work hours. In addition, the amendment states that nothing in the law should be viewed as requiring an employer to commit any act that would cause the employer to be in violation of federal law, that would result in the loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.
New Jersey is not alone in providing employment protections to applicants and employees using medical cannabis. In recent years, more and more states are passing laws, or their courts are interpreting existing laws, to protect medical cannabis users, including in Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Oklahoma, and Rhode Island. It is likely that list will grow. Employers in all jurisdictions should exercise caution when dealing with applicants and employees using medical cannabis. Before taking any action against medical cannabis users, employers should review the laws of the states in which they operate and work with employment counsel to help navigate this complex and rapidly evolving area of the law.
Do You Know Who Your NYC Councilperson is?
June 21, 2019
Click HERE to find yours and share your thoughts and concerns.
Sexual Harassment Legislation
Passes NY Assembly and Senate
June 20, 2019
On Wednesday, June 19 the New York State Assembly and Senate passed sweeping legislation to combat sexual harassment and discrimination in the workplace (A. 8421/S6577, sponsored by Assembly Member Aravella Simotas and State Senator Alessandra Biaggi.
This legislation raises the State standard to the NYC standard.
It strengthens protections for workers in New York and removes the requirement that harassment be “severe or pervasive” to trigger legal action. It has passed both the NYS Assembly and Senate and the Governor has said he will sign it.
For too long, oppressive and demeaning attitudes and behavior have caused pain and stifled the professional growth of countless workers.
In addition to eliminating the “severe or pervasive” standard, the bill defines harassment as an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment due to age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence status or because an individual filed a complaint.
SUMMARY OF PROVISIONS:
Currently, New Yorkers are protected from sexual harassment under the federal Civil Rights Act and the state Human Rights Law, but that harassment must meet the high standard of being “severe or pervasive” to entitle its target to compensation.
Today’s legislation would lower that burdensome standard for any harassment that needs only to rise above the threshold of petty slights or trivial inconveniences to be considered unlawful.
Under the bill, New York’s Human Rights Law would be expanded to cover all employers in the state.
Current law excludes employers with fewer than four employees, leaving small business workers without the protections they need.
The measure would make it an unlawful discriminatory practice for an employer, licensing agency, employment agency or labor organization to subject any individual to harassment because of their membership in one or more protected classes, or because they have opposed any practices prohibited under the Human Rights Law.
The bill would also eliminate part of the Faragher/Ellerth defense, which allows employers to avoid liability for harassment because an employee failed to file a formal complaint or follow a particular reporting procedure. This change will protect workers who are unable to make complaints without facing the risk of retaliation.
The legislation would provide a wide range of other protections and preventative measures.
The bill would:
Extend protections for non-employees in the workplace to all protected classes;
Allow courts to award attorney’s fees on all claims of employment discrimination, and allow for punitive damages in employment discrimination cases against private employers;
Provide that the Human Rights Law is to be construed liberally for remedial purposes, regardless of how federal laws have been construed;
Prohibit mandatory arbitration clauses for discrimination claims;
Prohibit non-disclosure agreements in any settlement for a claim of discrimination, unless it’s the complainant’s preference;
Provide that any term or condition in a non-disclosure agreement is void if it prohibits the complainant from initiating or participating in an agency investigation or disclosing facts necessary to receive public benefits;
Require that employees be notified that non-disclosure agreements in employment contracts cannot prevent them from talking to the police, the Equal Employment Opportunity Commission (EEOC), the State Division of Human Rights or a similar local entity, or a lawyer;
Extend the authority of the Attorney General to prosecute certain civil and criminal cases of discrimination against all protected classes;
Require the Department of Labor and the Division of Human Rights to evaluate the impact of the model sexual harassment prevention policy every four years and update the policy as needed;
Require any term or condition in a non-disclosure agreement be provided in writing to all parties, in plain English and the primary language of the complainant;
Require the commissioner of the Labor Department to prepare templates of the model policy in languages other than English;
Require every employer to provide employees with their sexual harassment policy in English or their primary language when they are hired and during training; and
Extend the statute of limitations to file a sexual harassment complaint with the Division of Human Rights from one year to three years.
FREE Training that Meets both NYC & NYS Requirements
June 2019
Click HERE NYC Human Rights page. Please read the page and go to the end to take the training in English or Spanish.
Click HERE to go to the NY.Gov state page.
The videos, which may be watched via YouTube or downloaded, meet all state minimum training requirements except one: the videos alone are NOT considered interactive.
If you are using this video to meet the training requirements, you must also use the case studies: ask questions of employees as part of the program; accommodate questions asked by employees, with answers provided in a timely manner; or require feedback from employees about the training and the materials presented.
During this interactive portion, employers should be prepared to address questions raised by employees including those specific to their industry, questions about the organization’s reporting process and questions about how hypothetical cases would be handled.
Are you Compliant with NYC's Lactation Accommodations Law?
June 3, 2019
Local Law 185 and Local Law 186 (both passed in 2018) require that employers provide employees with lactation accommodations, including a lactation room where employees can pump/express breast milk, and reasonable time to pump/express breast milk.
Employers are also required to have a written lactation policy that meets certain requirements under the law and must provide it to all new employees. The NYC Commission on Human Rights has developed several model lactation accommodation policies and a request form.
De Blasio Hosts Campaign-style Rally to Tout Paid Vacation Bill
June 3, 2019
Mayor Bill de Blasio staged a campaign-style rally at City Hall Tuesday morning to embrace legislation requiring paid vacation time for private employers — a policy he routinely highlights as he runs for president.
Click here for full article on POLITICO and here for NY TIMES
New York Bans Pre-employment Testing Marijuana
May 15, 2019
In April, the New York City Council passed a bill that would prohibit employers from requiring candidates to undergo testing for marijuana as a condition of employment, becoming one of the first jurisdictions to grant employment-specific protections to marijuana users. Mayor Bill de Blasio, who expressed support for the bill, did not sign or veto it within 30 days of its passage, so it became law on May 10 and will come into effect a year from that date, according to Seyfarth Shaw’s marijuana law blog.
Read more by clicking here:
New, NYS Time to Vote Law
April 19, 2019
1. Time allowed employees to vote. 1. A registered voter may, without loss of pay for up to three hours, take off so much working time as will enable him or her to vote at any election.
2. The employee shall be allowed time off for voting only at the beginning or end of his or her working shift, as the employer may designate, unless otherwise mutually agreed.
3. If the employee requires working time off to vote the employee shall notify his or her employer not less than two working days before the day of the election that he or she requires time off to vote in accordance with the provisions of this section.
4. Not less than ten working days before every election, every employer shall post conspicuously in the place of work where it can be seen as employees come or go to their place of work, a notice setting forth the provisions of this section. Such notice shall be kept posted until the close of the polls on election day.
NYC Commission on Human Rights February 2019 Legal Enforcement Guidance on Race Discrimination on the Basis of Hair
February 2019
6 Things you Should Know About NYS Anti Harassment Law
November 29, 2018
Beginning Oct. 9, every New York state employer must provide sexual harassment prevention training to all employees on an annual basis.
Beginning April 1, 2019, all New York City employers with 15 or more employees must provide interactive (but not necessarily live) sexual harassment prevention training to all full- and part-time employees and interns annually, and to new employees within 90 days of hire.
Every employer in New York State is required to provide employees with sexual harassment prevention training. Each employee must receive training on an annual basis, starting October 9, 2018.
By Sept. 6, New York City employers must display a poster in English and Spanish, (designed by the NYC Commission on Human Rights), about anti-sexual harassment rights and responsibilities.
Also by Sept. 6, New York City employers must distribute a fact sheet about sexual harassment (created by the commission) to their existing employees and to all new employees upon hire, or they may include the fact sheet in their employee handbooks instead.
By Oct. 9, every employer in New York state must have a written sexual harassment prevention policy in place and distribute it to its employees.
NY State Issues Guidance for Mandatory Sexual Harassment Policies!
October 2018
Governor Cuomo announced the launch of draft guidance for employers on new mandatory sexual harassment prevention policies required by legislation passed earlier this year. The state’s new, dedicated website contains a model sexual harassment prevention policy, model complaint form, and model sexual harassment prevention training materials for employers.
Businesses can submit comments on the draft policies between now and September 12, 2018 by clicking here
July 2018-There have been several major developments in 2018 to New York employment law. These changes will impose additional compliance requirements on employers and continue to change the New York legal landscape to give greater rights and protections for employees. Here are the highlights:
“Cooperative Dialogue” Mandated for Requests for Workplace Accommodations.
Effective October 15, 2018, it shall be an unlawful discriminatory practice for employers in New York City to refuse or fail to engage in a “cooperative dialogue” with an employee who requests an accommodation for religious needs, a disability, pregnancy, childbirth or related medical condition, or with respect to the employee’s needs as a victim of domestic violence, sex offenses or stalking. A “cooperative dialogue” means a good faith written or oral dialogue concerning the employee’s needs, potential accommodations, including alternatives, and the difficulties the potential accommodations may pose for the employer. After an employer reaches a final decision, it must provide the employee with a final written determination identifying any accommodation granted or denied.
Employers should therefore review written employment policies, including employee handbooks, to ensure compliance with these requirements. Equally important, human resources personnel should be trained to provide the required written determination of whether an accommodation is granted or denied.
Expansion of New York City Earned Sick Time Act.
Amendments expanding the NYC Sick Time Act went into effect on May 5, 2018. The law is now called the New York City Earned Safe and Sick Time Act. The amended law now permits employees to use accrued sick/safe time for reasons including obtaining services for shelter or relief with respect to domestic violence or rape, meeting with an attorney for advice respecting certain criminal or civil matters, filing a complaint with law enforcement, and enrolling children in a new school. The amended law also expanded significantly the definition of “family member.” Last, employers were required to provide a revised Notice of Rights to new employees and existing employees by June 4, 2018. A link to the Notice of Rights (in English) follows: https://www1.nyc.gov/assets/dca/downloads/pdf/about/PaidSickLeave-MandatoryNotice-English.pdf
Sexual Harassment.
During April 2018 New York employers were given a double dose of anti-sexual harassment practices they are required to implement. As part of the budget enactment for 2019, the state legislature enacted a variety of changes to employment laws including:
Requiring employers to distribute to their employees annually a written sexual harassment prevention policy and to train employees annually on sexual harassment prevention. The law requires the New York State Department of Labor to prepare, in consultation with the New York State Division of Human Rights, a model sexual harassment prevention policy and a model sexual harassment prevention training program. All employers, regardless of the number of employees, must either use the model policies and training programs or implement their own consistent with the state standards. Employers are required to distribute the written policies and implement the annual training programs by October 9, 2018.
Effective immediately, an employer can be liable under the New York State Human Rights Law for sexual harassment of nonemployees such as independent contractors, vendors and consultants, if the employer knew or should have known that the nonemployee was subjected to sexual harassment in the workplace and failed to take immediate and corrective action.
Effective July 11, 2018, agreements to submit sexual harassment claims to mandatory binding arbitration are void (except if included as part of a collective bargaining agreement). The question whether this ban is preempted by the Federal Arbitration Act likely will be decided at a later date.
Effective July 11, 2018, confidentiality provisions (nondisclosure clauses) in settlement agreements of sexual harassment claims are barred unless the complainant prefers confidentiality, has been given twenty-one (21) days to consider the provision and seven (7) days to revoke the provision.
Days after the state laws were enacted, New York City enacted the “Stop Sexual Harassment in NYC Act” (“NYC Act”). The critical elements of the NYC Act are:
Expanded coverage of the New York City Human Rights Law with respect to sexual harassment claims to all employers that employ at least one individual in New York City.
Expansion of the statute of limitations period for sexual harassment claims.
Requiring the New York City Commission on Human Rights (“City Commission”) to create anti-sexual harassment posters in English and Spanish, and requiring employers to post both versions of the posters.
Requiring employers with fifteen (15) or more employees in New York City to conduct annual anti-sexual harassment interactive training (using either their own programs or the model programs to be created by the City Commission). The training requirements under the NYC Act are effective as of April 1, 2019 and differ from those required by the state law in certain respects, including that new hires must be trained within ninety (90) days of their hire date unless they received training from a prior employer within the same annual cycle.
New York employers should revise arbitration and settlement agreements for compliance with the new requirements, prepare to implement sexual harassment prevention policies and training programs to meet the new standards, and post the required posters.
Unemployment at an 18 year low!
September 2018
The U.S. economy continues to fire on all cylinders. Employers added 223,000 jobs in May, and the unemployment rate dropped to 3.8 percent, according to the latest jobs report from the Bureau of Labor Statistics (BLS). The unemployment rate has not been this low since April 2000.
May job growth
The gain of 223,000 jobs in May beat analysts’ expectations and brought the number of jobs created in 2018 to more than 1 million. In fact, May represented the 92nd consecutive month of job growth.
The following sectors added the most positions in May:
Education and health services — 39,000 jobs added
Retail trade — 31,100 jobs added
Professional and business services — 31,000 jobs added
Construction — 25,000 jobs added
Leisure and hospitality — 21,000 jobs added
What employers need to know
The unemployment rate for college-degreed workers who are 25 or older, the professionals most highly sought by employers, was just 2.0 percent in May. Meanwhile, unemployment rates for many in-demand occupations — like financial analysts, accountants and auditors, and computer systems analysts — are even lower, according to first-quarter figures from the BLS.
Given these dynamics, it’s no surprise that many companies are struggling to staff open jobs. A silver lining for employers is that college graduation season is here, and thousands of high-potential candidates are starting to enter the job market.
It’s wise not to overlook these newly minted professionals. Instead, consider what they can bring to your organization. They may lack experience, but they are ready to learn and eager to make their mark. Also, most new college grads have developed a solid base of in-demand technical and soft skills, such as data analysis, critical thinking and communication abilities.
If recruiting college graduates isn’t already a part of your staffing strategy, you may want to step up your efforts — or risk allowing your competitors to snap up the promising talent your business needs.
What job seekers need to know
Low unemployment and a record-high 6.6 million job openings are two big factors working in your favor. Despite employers’ need for skilled talent, however, most remain very selective in the hiring process, especially when evaluating new college grads.
If you just earned your degree, you need to perfect your application materials. Ensure that your resume and cover letter are easy to read, highlight your relevant achievements, and are tailored to the job and company you’re targeting.
Emphasize to hiring managers your curiosity; your strong work ethic; and, above all, your knowledge of the company, its industry, and its unique challenges and opportunities. You can often make up for a lack of real-world experience by showing a passion for developing your skills and a commitment to delivering quality work.
