The New NY Anti-Sexual Harassment Law: What Employers Should Know

Additional New York State anti-sexual harassment law protections came into existence in August 2019.

Under the new law, sexual harassment only has to rise above the level of “petty slights or trivial inconveniences,” which is a much lesser burden of proof. This change will make it much easier for victims to come forward and file a lawsuit against employers. By comparison, under the previous law, the plaintiff would have to prove that sexual harassment was “severe or pervasive.”

When Does the New Law Go into Effect?

The law will roll out in three stages during the next 60 days.

Who Does the New Law Affect and How?

The new law amends existing Human Rights Law and includes all public and private employers in New York. Also, the law increases the statute of limitations (time limit to file a lawsuit) from one year to three years.

How Do the Changes Affect Employment Agreements?

Employment agreements can no longer prohibit employees from filing a complaint with a state or local agency, nor can it prevent them from testifying in government investigations. In addition, the law prohibits employers from requiring mandatory arbitration in settlement agreements.

Arguments against the law and that are in favor of employers are that this is unfair because it weakens employers’ affirmative defense. They would incur significant liability for behavior that occurs outside of work hours that they have no way of knowing about.

How Are All Individuals in the Workplace Protected?

The new law extends protection beyond private company or government employees and offers protection to the following people in the workplace:

• Contractors
• Subcontractors
• Vendors
• Consultants
• Other individuals providing services pursuant to contract
• An employee of such a contractor (contractor, subcontractor, vendor, consultant or other person providing services)

How Does the New Law Affect an Employer’s Liability and Responsibilities?

All employers will need to investigate complaints and take corrective action or face liability for the failure to do so.

The extent of the employer’s control over the harasser in cases involving non-employees is also a consideration when reviewing the case.

In addition, all state contractors when submitting bids for work most also submit certification that written policy addressing sexual harassment prevention in the workplace has been implemented. Contractors must also show that all employees receive annual sexual harassment training.

(References: New York State Bar Association article, New York Post)

Stephen Hans & Associates assists employers in complying with employment laws and represents them in employment disputes.

Have You and Your Employees Done the NY Current Anti-Sexual Harassment Training?

NY State law requires that employers do Anti-Sexual Harassment training, based on a law signed into effect in 2018. Failing to do so can result in civil penalties of up to $250,000. Furthermore, if you have not done the training, your business may be subject to greater liability, should an employee file a sexual harassment lawsuit.

How Does the Anti-Sexual Harassment Training Work?

If your business is located in NYC, the New York City Commission on Human rights provides an online training program that is compliant with the city and state’s requirements.

The training is not time-consuming or complicated. In fact, you can do the training online and it takes about 45 minutes to do.

Facts About the Training

At the end of the course, you will receive a certificate that you must save to your computer or laptop. If using a mobile device, you can take a screenshot, save or email the certificate.

This training is also accessible to users with disabilities. It includes audio descriptions for the videos along with closed captioning for videos and slides. There is also voiceover audio and alt-text for images and icons.

Compliance Factors for Employers

As an employer there are steps you must take to be in compliance:

• You must create records of all your employees’ training and keep the records for three years.
• You must post an anti-sexual harassment poster in an obvious place.
• Anti-sexual harassment posters must be in English and Spanish.
• Every new employee must receive an anti-sexual harassment fact sheet at the time of hire.
• Your workers must do the anti-sexual harassment training every year.
• You must have an anti-sexual harassment policy for your workplace.

To avoid disputes and additional expense, it is wise comply with NY Human Rights Law. At Stephen Hans & Associates, our attorneys work with employers, helping them make legal changes in employment agreements and other policies. We also represent business owners in employment litigation.

Important Reasons for Employers to Avoid Retaliation

Retaliation in the workplace is unlawful. Therefore, as a business owner it is important to understand what it is and to avoid it. Employers violate the law if they retaliate against an employee who has engaged in “protected activity” under the New York City Human Rights Law or forbidden activities under the Law.

What Does Retaliation Mean?

“Retaliation” in a legal sense refers to “punishment of an employee by an employer for engaging in legally protected activity such as making a complaint of harassment or participating in workplace investigations. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction or job or shift assignment.”

Examples of protected activity include:

• Filing a formal written complaint about discrimination (within the company through its management or Human Resources or with any anti-discrimination agency)
• Testifying or assisting in a Human Rights Law proceeding regarding discrimination
• Making a verbal or informal discrimination complaint to management
• Making a complaint that another employee has been subjected to discrimination
• Encouraging another employee to report an occurrence of discrimination

Even when the employee has left the company, if the employer provides an unreasonable negative reference about the former employee, such behavior can fall under retaliation. However, the employee would have to show that the negative reference was based on retaliation.

Potential Penalties for Retaliation

Under New York Law, the New York State Department of Labor can assess potential penalties for retaliation, including:

• Penalties ranging from $1,000 to $20,000
• An order to pay lost compensation to the employee
• An order to pay liquidated damages

If a New York court finds an employer guilty of retaliation it can impose the following:

Reinstatement of the employer to the former position

• Restoration of seniority
• Payment of lost compensation
• Damages of up to $20,000 per employee
• Payment of reasonable attorney’s fees

At Stephen Hans & Associates, we help employers comply with employment laws, avoid retaliation, offer legal advice and represent them in employment issues.

The Underlying Causes of FRD Lawsuits

Statistics show that Family Responsibilities Discrimination (FRD) lawsuits are on the rise.  This means that courts are seeing an increase in lawsuits brought against employers by caregivers. Caregivers include single parents, pregnant women, breastfeeding women, parents of young children, and employees who are taking care of sick children, spouses, relatives or other disabled dependents.

FRD Statistics

According to an article on FRD published in Working Mother, FRD cases increased 269 percent between the years of 2006 and 2015. This fact is based on a report done by the Center of Worklife Law, a research and advocacy organization at the University of California, Hastings College of Law.

During the past three years, FRD decisions averaged more than 400 decisions, which was an increase over the previous years. Furthermore, this statistic only included cases where courts issued a decision. It did not include all court complaints or charges filed by the EEOC (Equal Employment Opportunity Commission).

Here are some other statistics that employers should also note:

• Women file an estimated 88 percent of FRD cases
• Of these women, about 50 percent received a settlement, judgment or favorable court ruling

Cases that went to trial saw success rates at 67 percent

Why is this significant? Typically, employees lose discrimination cases and their winning cases range between 16 and 33 percent. But, as you see, that is not the recent trend.

Contributing Factors to the Rise in Families Responsibilities Discrimination Cases

Contributing factors to the increase in lawsuits are the following:

• Childcare becoming increasingly expensive
• Families taking on more caregiving themselves
• Stagnating wages
• Cultural shift from #MeToo movement on inequality for women in the workforce
• Employers still basing decisions on 1950’s era models of one household adult (woman) at home

When companies can hang onto employees so they do not have the costs involved with turnover and hiring/training new employees, it is more financially feasible. Keep in mind, employers who can make it known that they support workers who are caregivers may see lower turnover rates.

If you are unsure about whether your company policies are free of FRD, seek legal advice. Our attorneys at Stephen Hans & Associates are glad to advise you.

What is FRD or Caregiver Discrimination?

Families Responsibilities Discrimination (FRD), also called “caregiver discrimination,” refers to discrimination against:

• Pregnant women
• Breastfeeding women
• Parents of young children
• Employees caring for aging parents
• Employees caring for ill spouses or sick children or other dependents

That employers have been subject to discrimination claims and lawsuits is nothing new. However, FRD or caregiver discrimination is a relatively new protected class compared with other protected classes. Therefore, NY employers should be aware of what it entails.

New York City Human Rights Law and Family Responsibilities Discrimination (FRD)

Effective as of May 4, 2016, it became a violation in New York City to treat employees or job applicants with caregiving responsibilities differently than other employees. The New York City Commission on Human Rights protects caregivers. If your company has four or more employers, you must comply with the New York City Human Rights Law.

Specifically, employers cannot discriminate against employees or job applicants who:

• Are parents with a child under 18 (includes adopted or foster care children) when they provide direct and ongoing care for the child
• Provide direct and ongoing care to a parent, sibling, spouse, child, grandparent or grandchild with a disability or care to a disabled person who lives with them and relies on them for medical care and daily living needs.

Examples of FRD Discrimination

You could be sued for caregiver discrimination, if you as an employer decide not to hire an applicant or promote an employee for any of the following reasons. If the person:

• Is a single parent
• Has children at home
• Has a sick spouse
• Has adopted children or children in foster care

Furthermore, making statements like the following could be used against you in a discrimination claim:

• Caregivers of children or relatives with disabilities are unreliable employees
• Mothers should stay home with their children

Whenever employers provide benefits to employees, such as flexible scheduling, they must also provide them to employees who are caregivers. However, they do not have to offer special accommodations to employees who have care giving responsibilities.

Is Your Employment Contract Up-to-date with Current Laws?

Making work accommodations for a pregnant woman is something not all employers are aware of doing.

In fact, a recent article entitled “More Parents than Ever Are Suing Their Employers for Discrimination–and Winning” gave an example of a municipality that was the subject of an EEOC (Equal Employment Opportunity Commission) claim for this reason.

In 2017, a pregnant policewoman working for the Cromwell, Connecticut police force went to her police chief asking for accommodations due to her pregnancy. She was five months pregnant and provided information including a doctor’s note and a list of work she could do at a desk job. Her union representative accompanied her when she made the request. The chief’s response was that there would be no accommodation because it was not in the contract.

The policewoman missed four months of work, filed a complaint through the EEOC and Connecticut Commission on Human Rights and Opportunities. A settlement was reached that reimbursed her wages and paid-time-off benefits lost during pregnancy. As part of the settlement, the police force also agreed to incorporate policies that would protect future pregnant employees.

Be Aware of NY State Guidelines and Work Accommodations for Pregnant Women

New York Human Rights Law specifically requires that employers must reasonably accommodate the medical needs of employees with disabilities, including temporary disabilities. Pregnancy related disabilities fall under the category of temporary disabilities.

In addition, any restrictions that a medical doctor advises for a pregnant woman triggers the employer’s obligation to accommodate the woman based on the NY Human Rights Law. Accommodations would include:

• Worksite accessibility
• Acquisition or modification of equipment
• Job restructuring
• Sitting to do a job that normally required standing
• Similar work environment adjustments

Do You Reasonably Accommodate Pregnant Employees?

Failing to adhere to NY Human Rights Law could be costly for your business. At Stephen Hans & Associates, our attorneys work with employers to help them make legal changes in employment contracts and other policies. We also represent business owners in employment litigation.

The NY State Legislature Passed an Election Law

Time off to vote for employees was part of the legislation that the NY State Legislature passed in April of 2019.

The name of the law is the New York State Election Law and it went into effect immediately.

What Does the Time Off to Vote Mean for Employers?

Based on the new law, employers must allow their employees who are registered voters up to three hours of time off to vote. The employee will lose no pay for the three hours and this applies to voting at any election.

Guidelines for the Time Off

The employer must allow the time off only at the beginning or end of the employee’s work shift. The employer either designates the time or the employee and employer can mutually agree on the time.

The employee must notify the employer about taking time off to vote two working days before the Election Day.

Posting a Notice of the NY State Election Law

Employers must post in the workplace a notice that states the provisions of the NY State Election law. They must post it conspicuously no less than 10 working days before every election. In addition, they must keep the notice posted until the election polls close that day.

What Might Have Prompted the New Law?

According to an article in The New York Times, the mid term elections in 2018 in New York favored incumbents. New York was the only state in the country that held separate state and federal primary elections. Two separate voting days made it more difficult for voters to turn out to vote. In addition, New York does not have the options of early voting, voting by mail, nor same-day voter registration.

By comparison, some of New York’s voting laws were much more restrictive than laws in other states.

The New York State Election Law is one response taken by a more liberal legislature to effect change. More changes may be on the way.

At Stephen Hans & Associates, our attorneys work to stay up-to-date with legal changes. We like to let employers know about them so they can avoid employment law issues. We also represent business owners in employment litigation.

What Does This New Protected Class Mean for NYC Employers?

New York City passed legislation that bans discrimination for sexual and reproductive health decisions.

While New York City has some of the United States’ most expansive human rights laws, this law gave specific rights, creating new protected class regarding “sexual and reproductive health decisions.” The law went into effect in New York City on May 20, 2019.

This new protected class joined the already existing anti-discrimination protected classes of New York City Human Rights Law. Protected classes include age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, gender identity or expression, sexual orientation and alienage or citizenship status.

What Does the New Protected Category Mean in Everyday Language?

It means that employers are subject to discrimination litigation if they make decisions in hiring, promoting or firing employees based on this new class. Examples would be deciding to fire an employee because she got an abortion, or deciding not to hire an employee based on the employee’s decision whether to use or not use birth control.

According to an article in The National Law Review, the following are examples of services related to sexual and reproductive health decisions:

• Fertility-related medical procedures
• Sexually transmitted disease prevention, testing and treatment
• Family planning services and counseling
• Use of birth control drugs and supplies
• Emergency contraception
• Sterilization procedures
• Pregnancy testing
• Abortion

What Actions Should Employers Take?

As an employer, you should revise your handbooks and employment policies by adding the protected category of “sexual and reproductive health decisions.” You should also train your managers, employees and any HR personnel on this new legal change.

The repercussions of a lawsuit based on this protected class could result in having to hire or reinstate an employee, compensate for back pay, pay compensatory damages (and in extreme cases punitive damages), pay civil penalties and cover the employee’s attorney’s fees and costs.

Our attorneys at Stephen Hans & Associates represent employers in employment related issues and can help you protect your rights.

Working off the clock can be problematic for an employer. One reason is that time clocks or time sheets exist to document an employee’s work hours. When workers do not punch in, the book keeping of hours worked becomes nebulous. However, aside from that, employees can be subject to wage and hour lawsuits, penalties and other additional expenses when they fail to pay employees for time worked.

What Is “Working Off the Clock”?

Working off the clock refers to work an employee does that is not paid or does not count toward the total number of weekly hours worked.

According to the U.S. Department of Labor, work that is done off the clock includes “all the time an employee must be on duty, on the employer’s premises or at any other prescribed place of work.”

Why Is Working Off the Clock Illegal?

The Fair Labor Standards Act (FLSA) establishes the law for wages and hours that employees work. The FLSA addresses overtime, minimum wage and various protections for most workers. Exceptions exist for overtime pay regarding certain administrative and professional employees in some industries, and also for executives, managers and commission based sales employees.

Most employees, those who are not exempt and work over 40 hours in a week, must receive overtime pay for the hours exceeding the 40-hour workweek.

An employee receiving an hourly wage must receive payment for all the work done, even when working extra hours on tasks that are not requested, but which the employer allows.

Examples that Qualify as Working Off the Clock

If you call employees outside of work or send them work related emails that they must answer, you would be encouraging unpaid work or work done “off the clock.”

If you allow your employees to come in early or stay late to finish their work tasks, you can run into problems as an employer. Perhaps your restaurant worker is cleaning up or your laborer is simply dropping off equipment at another site outside of work hours. Off-the-clock work includes employees who work outside of the scheduled hours, for example to get a worksite ready for the production day. Workers who correct errors in paperwork past the time they should’ve gone home also qualify as working off the clock. Even having an employee wait to receive an assignment, despite the fact the employee is not doing anything but waiting, qualifies as work time.

If you are unsure about whether your employees are working off the clock, seek legal advice. Our attorneys at Stephen Hans & Associates are glad to advise you.

How Fissuring Is Changing the Work Environment

Fissuring in the workplace is a relatively new term. You may have heard about fissuring, a term coined by David Weil. He and Tanya Goldman in the article “Labor Standards, the Fissured Workplace and the On-Demand Economy” explain fissuring as follows:

It “means that in more and more workplaces, the employment relationship has been broken into pieces often shifted…to individuals who are treated as independent contractors.”

Other terms have become prevalent that also reflect this employment change. These are terms such as standard employment, non-standard employment, alternative work arrangements, independent contractors and contract employees.

The business models that typically accomplish fissuring use:

• Temporary agencies
• Labor brokers
• Franchising
• Licensing
• Third-party management

What Does Fissuring Mean for Employers and Employees?

As stated by an article in The American Prospect, the workplace is undergoing a change, and fissure is what is happening to the U.S. workforce.

Back in the day, an employee worked for a company, received benefits, stayed with the company long-term and received a pension for retirement. The average worker often spent a lifetime working for the same company.

In an effort to reduce labor costs and also lasting ties to workers, companies have implemented a variety of employment strategies. Strategies include hiring through apps, employing temp workers and freelancers along with contracting out and in some cases, misclassifying employees.

Today, many people have two or three part-time jobs because main jobs are not available. Multiple part time jobs are necessary for them to make financial ends meet.

Yet, various wage changes have also emerged as a result of the fissured workplace. New York, New Jersey, California, Illinois, Maryland, Massachusetts and Connecticut have all enacted $15 minimum wage laws.

The History Behind the Wage Increases

Governor Cuomo of New York created a wage board and held hearings throughout New York. At the hearings, many fast-food workers testified that they couldn’t survive on the $8.25 minimum wage. The New York legislature enacted legislation to raise wages to $15 per hour. Subsequently, the New York City’s Taxi and Limousine Commission engaged in a similar action and raised wages to a minimum of $17.22 per hour for app -based drivers.

The newest emerging trend is for cities to create boards that help workers raise their pay. In this effort, the boards appear to be taking on the previous function of labor unions, which were known in the past for working to equalize pay.

As Bob Dylan sang back in the 1960s, “The Times, They Are a Changin’.“

At Stephen Hans & Associates, we work with employers to help them comply with employment laws and to deal with employment issues.