We are excited to report the Firm’s recent successes in a broad range of workplace matters, including the favorable settlement of a wage and hour claim asserted against a small business owner for a fraction of the initial demand. We also have been handling workplace investigations involving charges of sexual harassment, hostile work environment based on race, and failure to accommodate an employee with an emotional disability. Another perennially active area of our practice involves counseling our clients in diverse industries on the enforceability of restrictive covenants such as non-competition and non-solicitation contract provisions (and, when appropriate, litigating claims under these post-employment restrictions).
Since the start of 2018 there have been several major developments in 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.
This New York Employment Law Bulletin is not intended as legal advice but is provided to inform clients and other interested parties about legal matters of current interest. In some jurisdictions this New York Employment Law Bulletin may be considered attorney advertising. If you have any questions regarding these issues, please contact the Law Office of Peter G. Goodman, PLLC, 212-386-7619, [email protected].