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What's New in NY Human Resources
NYS Issues Additional Guidance Following Recent Expansion of Workplace AntiDiscrimination Protections
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.
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
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
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.
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.
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
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.
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
Anti-Black racism is an invidious and persistent form of discrimination across the nation and in New York City. Anti-Black racism can be explicit and implicit, individual and structural, and it can manifest through entrenched stereotypes and biases, conscious and unconscious. Anti-Black bias also includes discrimination based on characteristics and cultural practices associated with being Black, including prohibitions on natural hair or hairstyles most closely associated with Black people.1 Bans or restrictions on natural hair or hairstyles associated with Black people are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional. Such policies exacerbate anti-Black bias in employment, at school, while playing sports, and in other areas of daily living. The New York City Human Rights Law (“NYCHRL”) protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.2 For Black people, this includes the right to maintain natural hair,3 treated or untreated hairstyles 4 such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.
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!
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
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!
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.
Before you judge someone please wash this 3 minute video.