New york state human rights law amendments signed into law

Previously, we posted about the changes that were being made to the New York State Human Rights Law (“NYSHRL”), more of which can be found here.  On August 12, 2019, Governor Cuomo officially signed the bill into law.   This is the latest of the laws signed by Governor Cuomo, since previously signing laws governing pay equity, salary history disclosure and hair discrimination.  Now that the bill has been signed into law, the below sets forth the various effective dates of the law for employers and employees in New York should be aware of:

Description of Amendment Effective Date
Bans discrimination based on natural hair or hair styles July 12, 2019
Requires courts to interpret the NYSHRL liberally regardless of the federal rollback of rights August 12, 2019
Requires employers to provide their employees with notice about the employer’s sexual harassment prevention policy in English as well as the employee’s primary language August 12, 2019
Allows for attorneys’ fees and punitive damages to be awarded to employees October 11, 2019
Eliminates Faragher-Ellerth affirmative defense for corrective action October 11, 2019
Eliminates Protects employees’ rights to pursue complaints by mandating that all non-disclosure agreements in employment contracts include language stating that employees may still file a complaint of harassment or discrimination with a state or local agency and testify or participate in a government investigation October 11, 2019
Extends protections against all forms of discrimination in the workplace to all contractors, subcontractors, vendors, consultants, or others providing services; and against all forms of discriminatory harassment to domestic workers October 11, 2019
Prohibits mandatory arbitration to resolve cases of discrimination and harassment in the workplace October 11, 2019
Creates statutory claim for discriminatory harassment October 11, 2019
Expands the coverage of the NYSHRL to all employers in the state (used to only cover employers with four or more employees) February 8, 2020
Extends the statute of limitations for employment sexual harassment claims filed with the Division of Human Rights from one year to three years August 12, 2020

Many employers in New York City are already bound by the amendments to the NYSHRL, but they should still review their policies to conform to the amendments. Indeed, the NYSHRL now contains a different standard than the New York City Human Rights Law (“NYCHRL”) by having an employee show that she was subjected to “inferior terms, conditions or privileges of employment” because of the employee’s membership in a protected class, which varies from the “treated less well” standard under the NYCHRL. Indeed, an employee does now not need to identify others within the employer’s workforce as a comparator to the plaintiff.

Employers outside of New York City must now revamp their policies and procedures to comply with the NYSHRL and understand that all employers can now be liable for significant damages, regardless of the employer’s size.  For further information, please contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340 or ypollack@yalepollacklaw.com.

Sweeping Changes to the New York State Human Rights Law – Advantage : Employees

The New York State Legislature made sweeping changes to New York State’s anti-discrimination and anti-harassment laws, generally lowering the burdens for employees to file claims against their employers. Below are some of the highlights of the changes, which will go into effect on various dates after Governor Cuomo signs the bill:

1. All New York State Employers Are Covered
Previously, the New York State York State Human Rights Law (“NYSHRL”) only generally covered employers with four or more employees. This limitation is being eliminated so that all employers are now covered, regardless of how many employees they have.

2. Attorneys’ Fees Are Available in All Discrimination Cases
Immediately upon enactment, attorneys’ fees are going to be awarded to a prevailing party in any discrimination case covered by the NYSHRL. Previously, attorneys’ fee awards were discretionary and only applied to gender-based discrimination claims (along with housing discrimination).

3. Punitive Damages Are Available
Going in line with the City’s law, the NYSHRL will now allow punitive damages as a remedy in discrimination, harassment and retaliation lawsuits. This will apply to cases filed 60 days after the bill is signed into law.

4. No More “Severe or Pervasive” Standard
Previously, for employees to prevail on a sexual harassment claim, they were required to prove that the conduct to which they were subjected was severe or pervasive. Now, harassment of any kind can be demonstrated without proving it was severe or pervasive, although “petty slights and trivial inconveniences” will still not be actionable.

5. Faragher/Ellerth Defense is Eliminated
This defense allowed businesses to possibly dismiss claims for discrimination or harassment if they failed to follow internal complaint procedures in places by the company. Now, “[t]he fact that such individual did not make a complaint about the harassment to such employer [] shall not be determinative of whether such employer [] shall be liable.”

6. Similar-Situated Comparators No Longer Required
As another lowered threshold for employees, those claiming discrimination will no longer be required to show that they were treated less favorably than a comparator (being someone outside the employee’s protected class).

7. Protections for Non-Employees and Domestic Workers Expanded
Last year, the NYSHRL (and City law) was expanded to allow non-employees to file sexual harassment claims against employers. Now, the law is being expanded further to protect non-employees form any form of discrimination, harassment or retaliation, stating: “[a]n employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.”

8. No More Non-Disclosure Provisions in Discrimination Settlements
Employers are now prohibited from including non-disclosure provisions in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination, [] that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant’s preference.”If the complainant is the one requesting the non-disclosure provision, it must be in plain English in the complainant’s primary language. The complainant will then have 21 days to consider the non-disclosure provision before signing and 7 days to revoke his/her signature.

9. Carve-Outs Required in Employment Agreements with Non-Disclosure Provisions
Commencing on January 1, 2020, if there is a non-disclosure provision in an employment agreement, such an agreement must have an express carve out stating that the employee is not prohibited from “speaking with law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.”

10. No More Mandatory Arbitration Clauses
Just as with the passage of barring mandatory arbitration of sexual harassment claims last year, the amendments now expand the prohibition to all discrimination or retaliation claims.

11. Sexual Harassment Requirements Expanded
Employers with employees in New York will now be required to provide notice to such employees, both at the time of hire and during annual sexual harassment prevention training, that contains both the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program.” Employers must provide this information both “in English and in the language identified by each employee as the primary language of such employee.”

12. Statute of Limitations Expanded to Three Years for Sexual Harassment Claims
While there is generally a one-year limitations period to file a gender discrimination claim with an administrative agency, the statute of limitations is now expanded to three years for filing a sexual harassment whether in court or with an administrative agency.

13. Liberal Construction of the NYSHRL
As with the City law, the NYSHRL is now going to be construed liberally and exceptions to the law construed narrowly in order to “maximize deterrence of discriminatory conduct.”

Employers throughout New York should be prepared for these changes and should revise their policies accordingly. For further information, please contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340 or ypollack@yalepollacklaw.com.

Salary History Ban Going Into Effect In Suffolk County, New York

Last year, the Suffolk County Legislature unanimously passedthe Restrict Information Regarding Salary and Earnings Act (“RISE”), becoming one of the latest jurisdictions to ban employers from inquiring on an applicant’s salary history or using such information in assessing an applicant’s or employee’s compensation.  The purpose of RISE is to “break the cycle of wage discrimination and close the wage gap” that has historically impacted women and racial and ethnic minorities.

Commencing on June 30, 2019, employers and employment agencies in Suffolk County with four or more employees will be prohibited from:

  • Inquiring (meaning orally or in writing, or otherwise searching for such information), whether in any form of application or otherwise, about a job applicant’s wage or salary history, including but not limited to, compensation and benefits; and
  • Relying on salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process, including at offer or contract.

RISE, however, allows employers to disclose and verify an applicant’s salary history when such disclosure or verification is required under federal, state or local law.  As well, RISE does not apply to the exercise of any right of an employer or employee pursuant to a collective bargaining agreement.

If there is a violation of RISE, an applicant may file an administrative complaint with the Suffolk County Commission on Human Rights, which could imposecivil penalties of up to $50,000, or up to $100,000 if the violation is “willful, wanton or malicious” against a covered employer or agency.  The applicant can also file a civil action, under which she could possibly recover compensatory damages, back pay, attorneys’ fees and costs if she prevails against the employer in the action.

Accordingly, employers in Suffolk County, New York should review their current applications and other hiring policies to confirm that they are not violating RISE that can subject them to civil penalties and litigation.  Furthermore, interviewers should be properly trained on the restrictions of asking about prior salary when interviewing an applicant.  For further information, please contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340or ypollack@yalepollacklaw.com.

TOMORROW is the Deadline for NYS Employers to Distribute a Compliant Sexual Harassment Policy

As a reminder to ALL employers in New York State, tomorrow is the deadline to distribute a policy compliant with the NYS sexual harassment law. If you follow this link, you will be able to locate the Model Sexual Harassment Policy and Complaint Form published by the State. If you need a WORD version, they are accessible on the State’s website.

The requirement to distribute compliant policies applies to ALL employers in New York State, regardless of size (yes, one (1) employee is sufficient to be governed by this law).
For the document itself, we suggest naming your company in the “Employer Name” section and then defining your company as (the “Company”) after providing the name. From there, you can simply insert “the Company” wherever is asks for “Employer Name.” As well, please ensure that you follow the other prompts for information, including the individual/department to where complaints should be made, along with contact information and instructions for filing a complaint in the Company.

Please note that this policy covers sexual harassment only. However, employers should know that sexual harassment (which is a form of gender discrimination) is not the only type of harassment covered by the law. Federal, state and local laws also prohibit unlawful discrimination and harassment for other protected classes.

The Law Offices of Yale Pollack, P.C. has prepared Equal Employment Opportunity policies that cover all forms of discrimination and harassment in the workplace, along with appropriate complaint forms. Although not required, it is suggested that employers adopt policies demonstrating their compliance with the law by adopting policies that prohibit all forms of discrimination in the workplace.

In addition to the policy, New York has also enacted laws that require training to all employees on sexual harassment. Such training must be completed no later than October 9, 2019. Again, the firm can assist with training employees against discrimination and harassment.

For further information, please call Yale Pollack at (516) 634-6340, or email ypollack@yalepollacklaw.com

Lawyers – Know Your Judge’s Individual Rules!

In the case of In re Michael Stapleton Assocs. v. Michael Stapleton Assocs., 2018 U.S. Dist. LEXIS 140310 (S.D.N.Y. Aug. 17, 2018), the Court dismissed a plaintiff’s case with prejudice because the plaintiffs failed to follow the Judge’s Individual Practices. The Judge assigned to this case has a specific rule addressing motions to dismiss, which is as follows:

“When a motion to dismiss is filed, the non-moving party must, within 10 days of receipt of the motion, notify the Court and its adversary in writing whether (i) it intends to file an amended pleading and when it will do so, or (ii) it will rely on the pleading being attacked. Non-moving parties are on notice that declining to amend their pleadings to timely respond to a fully briefed argument in the motion to dismiss may well constitute a waiver of their right to use the amendment process to cure any defects that have been made apparent by the briefing.” Individual Rules of the Honorable Alison J. Nathan, Rule 3(F).

Here, after more than one year of litigation, which included class and collective notices going out to employees who handled bomb-sniffing dogs, the defendants moved to dismiss alleging that the Complaint failed to properly alleged that the defendants in the action were “employers” under the FLSA. In their opposition to the motion, the plaintiffs requested leave to amend their Complaint. However, based on the plaintiffs’ failure to abide by the Individual Rules by advising within 10 days whether it was going to amend the Complaint, the Court held that the plaintiffs were barred from seeking an amendment and dismissed the Complaint with prejudice.

This shows the importance of reading and knowing the Judge’s individual rules assigned to any case you may be handling.

NYC Lactation Law UPDATE

Following on our prior post about the new laws that went into effect in New York City for lactation, found here, the City has now posted policies and forms to abide by the more stringent requirements. Those can now be found here. If you have any questions about these new laws, please feel free to contact the Law Offices of Yale Pollack, P.C., at ypollack@yalepollacklaw.com, or (516) 634-6340.

U.S. Department of Labor Reveals New Overtime Rule

On March 7, 2019, the United States Department of Labor (the “DOL”) unveiled its long-awaited proposed rule raising the minimum salary threshold required for workers to qualify for the Fair Labor Standards Act’s exemption, now being $35,306 per year. This has been anticipated for some time ever since the Obama administration proposed that the salary threshold increase to $47,000 to be eligible for an exemption. While not quite at the number hoped by the Obama administration, it is a big jump from the current threshold of $23,660. This is the first increase to the threshold since 2004, during the George W. Bush administration. The new rule also proposes regular increases to the threshold every four years.

Based on a forty (40) hour work week, the salary equates to about $17.00 per hour. It applies to executive, professional, and administrative workers, a/k/a “white collar” exemptions. The increased threshold will most certainly make more workers eligible for overtime pay, which the DOL estimates could affect over a million workers.

The DOL expects implementation to begin in January 2020. During this time, employers will be able to analyze whether they want to increase current exempt workers’ salaries upward to meet the new threshold, or possibly transfer them to hourly employees. There is an opportunity for public comment for sixty (60) days after the proposed rule is published in the Federal Registrar.

As a result of these changes, employers should start preparing for how to treat properly classified exempt employees who are now making more than $23,660, but less than $35,306 per year. This only affects the salary basis of the exemptions’ tests, and so employers must also be sure that exempt employees also perform duties that permit them to be exempt. Finally, this only impacts the federal law. To the extent state law governs the employer’s business, they must be mindful of the appropriate thresholds within their state. For example, in New York, the current threshold is anywhere between $43,264 (for New York employers not located in New York City, Long Island or Westchester) to $58,500 (for employers in New York City with eleven (11) or more employees.

With the upcoming changes, it is important to update policies and pay practices to stay in compliance. For questions as an employer or employee in New York, please contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340 or ypollack@yalepollacklaw.com

NYC Lactation Laws Going Into Effect On March 18, 2019

On March 18, 2019, new laws go into effect in New York City addressing more stringent requirements for employers who have employees who wish to express milk, i.e. lactate, while at work.

Lactation Room

The first law requires employers to designate a lactation room (that is not a restroom), which is a sanitary space where employees can express breast milk shielded from view and free from intrusion. The room must have nearby access to running water, include an electrical outlet and a chair, and provide sufficient surface space to place a breast pump and other personal items. Employers must provide the lactation room and a refrigerator suitable for storing breast milk within reasonable proximity to the employees’ work area. The lactation room may be used for other purposes when not in use for expressing breast milk, but employers are required to notify other employees that the room’s preferential use is as a lactation room. If providing a lactation room results in an undue hardship for an employer, the employer must (a) engage in a cooperative dialogue with the affected employee(s) to determine what other reasonable accommodations might be available, and (b) provide a written final determination to the affected employee(s) that identifies any accommodations granted or denied.

This new law expands on the current mandates under New York State Labor Law, which already required employers to provide reasonable break time to express breast milk for up to three years after childbirth, and to provide a room/location (other than a restroom) to express breast milk in private.

Lactation Accommodation Policy

The second law requires employers to distribute to all new hires a written policy detailing employees’ rights to use a lactation room and the process for requesting the use of the lactation room. The lactation accommodation policy must include the following:

  • Specify the means by which an employee may submit a request for a lactation room;
  • Specify the means by which an employee may submit a request for a lactation room;
  • Provide a procedure to follow when two or more individuals need to use the lactation room at the same time, including contact information for any follow-up required;
  • State that the employer shall provide reasonable break time for an employee to express breast milk (pursuant to Section 206-c of the New York Labor Law); and
  • State that if the request for a lactation room poses an undue hardship upon the employer, the employer shall engage in the cooperative dialogue.

The new law also requires employers to retain records of requests for a lactation room (including the date of the request, and a description of how the employer resolved the request) for at least three years.

As a result of these new laws, NYC employers should review and update their policies for compliance. Employers with any questions of their obligations under the law should contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340 or ypolllack@yalepollacklaw.com.

New York Passes Historic Transgender Bill

On Tuesday, the New York Legislature passed a historic bill Tuesday making gender identity a protected class in areas of housing, employment, and public accommodation, protecting transgender people from discrimination. The Gender Expression Non-Discrimination Act, or GENDA, passed over 16 years of attempts that were unsuccessful until Democrats won the election in 2018.

The bill codifies certain protections that have been in existence since 2016, when Governor Andrew Cuomo signed an executive order directing the New York State Division of Human Rights to adopt regulations protecting transgender individuals from discrimination. The bill also added protections on the basis of gender identity to the state’s hate crimes law.

Notably, the State Legislature also passed a law banning conversion therapy for LGBTQ youth on Tuesday.

With the changes, it is important to update policies and pay practices to stay in compliance. For questions, please contact the Law Offices of Yale Pollack, P.C., located in Syosset, New York and servicing the Metropolitan Area, including Long Island and New York City.

REMINDER: NEW YORK STATE WAGE INCREASES AS OF DECEMBER 31, 2018

As the end of the year is approaching, it is important to remind New York State employers and employees of the increased minimum wages that affect both hourly and salaried employees.

For hourly, non-exempt workers, please see the below chart for basic hourly minimum wage increases that go into effect as of December 31, 2018:

NYC – Large Employers

(11 or more employee)

NYC – Small Employers (10 or less employees) Employees in Nassau, Suffolk and Westchester Counties Workers in the Remainder of New York State (“Upstate”)
$15.00

(up from $13.00)

$13.50

(up from $12.00)

$12.00

(up from $11.00)

$11.10

(up from $10.40)

There are additional increases scheduled for all but NYC – Large Employers in the upcoming years. To the extent you or your workforce are paying basic minimum wage, it is important to make sure that the increased wages are reflected as of December 31, 2018.

For employers and employees in the Hospitality Industry, such as restaurants, the “tip credit” rate is also being increased as of December 31, 2018, as follows:

NYC – Large Employers

(11 or more employee)

NYC – Small Employers (10 or less employees) Employees in Nassau, Suffolk and Westchester Counties Workers in the Remainder of New York State (“Upstate”)
$10.00

Tip Credit: $5.00

$9.00

Tip Credit: $4.50

$8.00

Tip Credit: $4.00

$7.50

Tip Credit: $3.60

The “tip credit” rules can be difficult to follow, so it is important to track this information to ensure that tipped employees are receiving at least basic minimum wage, inclusive of tips, when calculating wages.

As well, there is an increase in the “fast food” workers minimum wage, which is as follows:

New York City New York State Outside New York City
$15.00 $12.75

More information about the Hospitality Industry – including fast foot establishments, can be found here.

Finally, there are increases in the minimum salary threshold that must be met for exempt employees. As of December 31, 2018, the following minimum salaries must be paid for exempt administrative and executive employees:

NYC – Large Employers

(11 or more employee)

NYC – Small Employers (10 or less employees) Employees in Nassau, Suffolk and Westchester Counties Workers in the Remainder of New York State (“Upstate”)
$1,125.00 per week

($58,500 annually)

$1,012.50 per week

($56,250 annually)

$900.00 per week

($46,800 annually)

$832.00 per week

($43,264 annually)

With the upcoming changes, it is important to update policies and pay practices to stay in compliance. For questions as an employer or employee in New York, please contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340 or ypollack@yalepollacklaw.com

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