These and other considerations are discussed in my article Avoiding Legal Pitfalls When Re-Opening Your Workplace: What Nonprofits and Businesses Need to Know.

The post Avoiding Legal Pitfalls When Re-Opening Your Workplace first appeared on Perlman Sandbox.

Imagine an employee tells you she is undergoing chemotherapy for pancreatic cancer and will need time off for treatment, and to heal and rest, intermittently, over the next 6 months.  What are your legal obligations as a New York City employer with respect to her request for an accommodation for her disability and what steps must you take to address that request?

Background

By way of background, under federal law (Americans with Disabilities Act Amendments Act), New York State law (New York State Human Rights Law), and New York City Human Rights law, covered employers must engage in a good faith, interactive process to determine a reasonable accommodation for a job applicant’s or employee’s disability.

New York City’s Human Rights Law (NYCHRL) goes further than disability with respect to the matters that covered employers must reasonably accommodate for job applicants and employees.   NYCHRL requires New York City employers with four or more employees to reasonably accommodate job applicants and employees because of pregnancy, childbirth and related medical conditions, religious observance, status as a victim of domestic violence, sexual violence or stalking, and, of course, disability, so that the employees can perform the essential functions of the job unless doing so would create an undue hardship for the employer.

NYCHRL also prohibits associational disparate treatment—meaning, an employer may not discriminate against an employee because of that employee’s relationship to or association with a person with an actual or perceived disability (i.e., firing an employee who volunteers helping people with AIDS out of fear that the employee will contract the disease, is unlawful).

What the Cooperative Dialogue Entails/What Has Changed[1]

Effective October 16, 2018, the New York City Human Rights Law will now require covered employers to engage in or seek to engage in a “cooperative dialogue” with individuals who may be entitled to such accommodation, and an individualized assessment, within a reasonable time, in order to identify what reasonable accommodations are available to assist that person.  In other words, there will now be a separate legal cause of action against an employer for “refusing or otherwise failing to engage in a cooperative dialogue” within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation.”  Thus, the cooperative dialogue requirement will now be the first step in providing a reasonable accommodation.

According to recently issued guidance by the New York City Commission on Human Rights (NYCCHR), the new cooperative dialogue law requires that once a covered entity (employers, public accommodations, and housing providers) learns, either directly or indirectly, of an individual’s need for an accommodation due to his or her disability, the entity must:

1) initiate a dialogue with the individual that addresses the individual’s needs and considers possible accommodations without creating undue hardship on the entity (in other words, it need not be the employee who initially makes a request);

2) notify the individual in writing of the determination to grant or deny the request for a reasonable accommodation (in the case of employers and housing providers).

The cooperative dialogue amendment expands upon the reasonable accommodation requirement to “engage in a good faith interactive process” by explicitly requiring an employer to engage in a dialogue with the employee (regardless of whether the employee initiates it) regarding the employee’s accommodation needs, potential accommodations (including any alternative accommodations), and any difficulties the accommodations may pose for the employer.   At the conclusion of the dialogue, the employer must provide the employee with a written final determination identifying any accommodation that was granted or denied.

Note that employees are not required to disclose their disability in a cooperative dialogue, or even before an offer of employment.  According to the NYCCHR guidance, it is unlawful for an employer to terminate an employee for failing to disclose his or her disability status or need for a reasonable accommodation.

Initiating cooperative dialogue

The employer must engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation, or who the entity has notice (i.e. should have known) may require an accommodation related to a disability.   For example, if employer has knowledge that an employee’s performance at work is diminished or that his or her behavior at work could lead to an adverse employment action and has reasonable basis to believe that the issue is related to a disability, the employer must initiate a cooperative dialogue with the employee. The employer should not ask the employee if the employee has a disability, but may ask if there is anything going on that the employer can help with, inform the employee that various types of support are available, and remind them of the workplace policies and procedures for requesting a reasonable accommodation.

Engaging in cooperative dialogue

The dialogue may be in person, in writing, by phone, or via electronic means. It should address potential accommodations that suit the individual’s needs, including alternatives to a requested accommodation, and the difficulties that such potential accommodations may pose for the covered entity. This process involves the employer communicating in good faith with the individual requesting an accommodation in a transparent and timely manner, and the individual responding in good faith (e.g., individual cannot simply reject an offered accommodation that would be sufficient to meet his or her needs because it is not the preferred accommodation).   If the employer offers accommodation and the individual reasonably determines that it is not sufficient to meet his or her needs, then the employer has not met its obligation to engage in a cooperative dialogue and must continue to engage in a conversation with the individual to determine if there are other alternatives to meet the individual’s needs.

Upon reaching a final decision through the cooperative dialogue, the entity must provide the person requesting the accommodation with a written final determination identifying any accommodation granted or denied. This concludes the cooperative dialogue.

If an employer determines that no reasonable accommodation would enable the employee to meet the essential functions of a job or enjoy the right(s) in question, that determination may be made only after engaging in and completing the cooperative dialogue process.

Continuing Obligation

Each time an individual makes a new request for accommodation, the employer must engage in a cooperative dialogue with the individual.  This may be cumbersome for the employer where, for instance, an employee has requested a leave of absence, and the leave continues to get extended from the original period of time requested.

Consequences of non-compliance

Failing to engage in a cooperative dialogue with an individual requesting a reasonable accommodation—which includes failing to provide written documentation of the final determination– is now an independent violation of the NYCHRL.

Those aggrieved may bring a lawsuit in court and recover all remedies available under New York City Human Rights Law.  If they bring a proceeding before the New York City Commission on Human Rights, employers found to have violated the cooperative dialogue requirement may be subject to damages for back pay, emotional distress damages, attorneys’ fees, and/or civil penalties up to $125,000 per violation, and up to $250,000 for a violation that is willful, wanton, or malicious, as well as directed to conduct employee training and update employee policies with particular language directed by the agency.

Recommendations

In view of this new law, covered New York City employers should consider:

• Updating employee handbook policies and procedures to reflect the new reasonable accommodation and cooperative dialogue requirements, including the process to request a reasonable accommodation and document whether an employer has granted or denied a reasonable accommodation request.
• Training supervisors on lawful hiring–particularly with respect to job candidates who may need reasonable accommodations for disabilities, religious practices/beliefs, pregnancy, childbirth and related medical conditions, victims of domestic violence– and on recognizing and properly and lawfully responding to requests for reasonable accommodations.
• Providing information to employees explaining their rights to reasonable accommodations for: (1) disabilities; (2) religious needs; (3) pregnancy, childbirth, and related medical conditions (written notice or posting required); and (4) victims of domestic violence, sex offenses, or stalking, and the cooperative dialogue process.

• Creating and providing a reasonable accommodation request form for employees, and document employer determinations on granting or denying reasonable accommodation requests.   Ensure that any medical information is kept separate from personnel files, and in a locked cabinet, with limited access to those with a “need-to-know.”
• Reviewing NYC Commission on Human Rights guidance for employers and places of public accommodation on reasonable accommodation of disabilities.

Our employment law department conducts training on lawful hiring and handling reasonable accommodations and updates employee policies.  Please contact Lisa Brauner, Head of Perlman & Perlman LLP’s Employment Law Practice, at: lisa@perlmanandperlman.com or 212-889-0575 to schedule a training (and update the employee handbook) for your organization. 

[1] Places of public accommodation (such as hospitals, medical or dental offices, hotels, theaters, and schools) are required to engage with customers in a cooperative dialogue to ensure they are providing reasonable accommodations.   Although the type of public accommodation and the nature of its interaction with a customer (e.g. shorter vs. longer-term relationship) may influence what is considered a “reasonable” accommodation, all places of public accommodations must consider certain types of accommodations regardless of an individual customer’s need.   For example, all places of public accommodations should evaluate whether it will be an undue hardship to install a ramp at the entrance of their facility.

The post Remember October 16, 2018 Deadline!: NYC Employers Must Engage in “Cooperative Dialogue” with Employees  first appeared on Perlman Sandbox.

What’s New

Starting October 31, 2017,  all New York City private and public employers (regardless of size) are prohibited from:
a) inquiring about the salary history of a job applicant or
b) relying on the salary history of a job applicant in determining the salary, benefits or other compensation during the hiring process, under an amendment to New York City’s Human Rights Law.

This prohibition includes inquiries in advertisements/postings, interviews, and/or applications, and searching public records to find out about an applicant’s current or prior salary or benefits history.  The law applies to most applicants for positions for full-time or part-time employment, internships, and to independent contractors without their own employees.

Headhunters who qualify as employers, employment agencies, or agents of an employer, or who aid and abet a violation of the NYC Human Rights Law, may also be liable under the law.

Reason for the Law

Proponents of the law argued that employers’ reliance on salary history has perpetuated the gender pay gap where women continue to be paid less than their male counterparts for doing the same job.  The law was enacted to “disrupt the cycle of wage inequality for women and people of color” and “encourage employers to set compensation based on qualifications,” rather than salary history.

Who is Not Protected

The law does not apply to applicants for internal transfer or promotion with their current employer or applicants for public sector jobs where salary is governed by a collective bargaining agreement.

What Inquiries May an Employer Make

According to NYC Commission on Human Rights’ (NYCCHR) FAQ regarding the Salary History Ban, employers may:

• inquire about an applicant’s “expectations” for salary, benefits, bonus or commission structure, without inquiring about salary history;
• state the anticipated salary, salary range, bonus, and benefits for a position;
• ask about objective indicators of an applicant’s work productivity in her/his current or past jobs, such as revenue, sales, production reports, profits generated, or books of business;
• inquire of an applicant’s current or former employers or search online to verify non-salary information, such as work history, responsibilities, or achievements. However, if this results in the accidental discovery of current or prior earnings or benefits, the employer cannot rely on this information in making salary or benefits decisions;
• make inquiries about salary history that are authorized or required by federal, state, or local law;
• verify and consider current or prior earnings or benefits only if offered voluntarily and without prompting by the applicant during the interview process.

The NYCCHR FAQ on the salary history ban recommends, with respect to headhunters that: “To protect against liability, headhunters should obtain written confirmation from job candidates that they consent to the disclosure of their salary history.”  This recommendation seems problematic, however, as an “end run” around the prohibition against inquiring about salary history, and employers should be careful of such an approach that may be challenged in court as violative of the law’s intent.

Noteworthy

• Independent contractors without their own employees also are protected by this salary history ban.
• Intentionally “aiding and abetting” a violation of the law is also a separate violation so former employers offering salary information about a former employee to an inquiring prospective employer, “headhunters” and recruiting agencies also need to be wary.
• The NYCCHR FAQ asserts that, “if an unlawful discriminatory practice, including an inquiry about salary history, occurs during an in-person conversation in New York City, there will likely be jurisdiction because the impact of the unlawful discriminatory practice is felt in New York City. If an unlawful discriminatory practice occurs outside of New York City, there could be jurisdiction if the impact of the unlawful discriminatory practice is felt in New York City.”  The FAQ states that NYC residency alone is not enough to establish discriminatory impact.  What if the interview is conducted by Skype, telephone, or some manner other than in-person?  Must the employer, applicant or both be physically situated in NYC at the time of the “virtual” interview for there to be jurisdiction?  Is it possible that a court would find that an applicant residing in NYC but working outside NYC would be protected under this NYCHRL amendment if the unlawful salary inquiry were made in NYC?

NYC Joins the Salary History “Ban-dwagon”

The NYC salary history ban follows similar bans in other jurisdictions like Massachusetts, Philadelphia, Pennsylvania,[1] New Orleans, Louisiana, Puerto Rico, and mostly recently, California.

Penalties for Non-Compliance

• The New York City Commission on Human Rights is charged with enforcing the law, and can impose civil penalties ranging from $125,000 to $250,000, and  mandatory training and posting for violators.
• Complainants may sue in court alleging a violation of  New York City’s Human Rights Law, where they may get damages, attorneys’ fees, and costs.

What Employers Should Do Now

In light of these legal developments, organizations may want to:

• ensure that employment applications and other hiring materials do not ask for prior salary history;
• ensure third-party background checks will not yield prohibited information about salary history;
• inform and train hiring managers, human resources, recruiters, headhunters, and others involved in the hiring process on the new legal requirements;
• consider reviewing various resources and market-rate compensation surveys for the positions at issue together with an applicant’s qualifications, skill and value to the organization to determine appropriate compensation. (Nonprofits may already be considering such factors in determining executive compensation); and
• finally, remember to comply with recent NYC laws prohibiting credit history inquiries and pre-offer criminal background check inquiries, as applicable.

Employers can learn more about this new law at New York City’s Salary History Ban FAQs: http://www1.nyc.gov/site/cchr/media/salary-history-frequently-asked-questions.page.

For assistance with training hiring managers on the new law, employment law audits of your employment practices and policies, and legal review of your documentation and hiring practices, please contact Lisa Brauner, Head of Perlman & Perlman LLP’s Employment Law practice, at 212-889-0575, lisa@perlmanandperlman.com.

[1] The Philadelphia ban is currently being challenged in court.

The post NYC Salary History Ban Takes Effect October 31, 2017 first appeared on Perlman Sandbox.

On October 25, 2016, in the Matter of Yoga Vida NYC,  a decision sure to have rippling effects through many industries, the New York State Court of Appeals–the highest court in New York State — ruled sensibly and logically, that certain yoga instructors were independent contractors, not employees. Specifically, the Court found that substantial evidence supported a finding that non-staff yoga instructors were independent contractors where the non-staff instructors:

1) set their own schedules; 2) chose how they were paid (hourly or on a percentage basis); 3) were paid only if a certain number of students attended their classes; 4) were not restricted as to where they could teach (whereas staff instructors who were employees could not work for competitors within certain geographical areas); 5) could inform students of classes they taught at other locations; and 6) were not required to attend meetings or receive training.

The Court further opined that evidence of incidental control by the yoga studio, including an inquiry by the studio as to whether the instructors held proper licenses to teach yoga; the fact that the yoga studio published a master schedule on its website; and the fact that the studio provided space for the classes, did not support the conclusion that the instructors were employees.

Employers should understand that, depending on the facts, some yoga instructors or other kinds of instructors may be deemed to be employees while others will be deemed independent contractors.

NYC Now Protects Freelancers/Independent Contractors

On November 16, Mayor de Blasio signed into law a bill that protects New York City freelancers/independent contractors by requiring that whomever hires a freelancer provide a written contract for the freelancer’s work, pay him/her in full and on time, and that the hiring party does not retaliate against the freelancer for exercising his/her rights.

More specifically, the law requires any person or entity who engages a freelancer to have a written contract with that freelancer for any work over $800.  The contract must itemize all services to be provided, the value of those services, the rate, the method of payment, and the payment due date or the mechanism by which such date will be determined.

The client must pay the freelancer on a timely basis and may not require the freelancer to accept less than the full amount of the contract in exchange for timely payment. If the contract does not provide the payment date or the mechanism by which such date will be determined, payment must be made no later than 30 days after the completion of the freelance worker’s services under the contract.

The party engaging the freelancer/independent contractor bears the burden of showing there is a written contract if any dispute arises regarding the terms of engagement.

The freelancer may bring a complaint with the Director of New York City’s Office of Labor Standards or bring an individual cause of action in state court. Violation of this law may result in damages equal to the value of the services, double damages, statutory damages, injunctive relief and attorney’s fees and costs. Where there is evidence of a pattern or practice of violations, the Corporation Counsel may bring a civil action in court on behalf of the City, and a civil penalty up to $25,000 may be imposed.  The law takes effect in 180 days from its signing, or on May 15, 2017.

Any nonprofits that are planning to engage freelancers should be mindful of this new law and ensure their independent contractor engagements are in writing and compliant with the new law.

In light of the above developments, it would be wise for New York employers to confer with their employment counsel to ensure their workers are properly classified and that their independent contractor agreements are properly drafted.

The post New Legal Developments Affect New York Organizations Using Independent Contractors first appeared on Perlman Sandbox.

In a March 3, 2015 Dilbert comic strip, the boss tells his subordinates that because of a study showing that tall people earn more than shorter people, the company will not be doing performance reviews but will instead simply measure the height of each employee and then pay them accordingly. The boss then adds: “Alice will earn 10% less than the men. I think that’s the law.”

Well, jokes like those about women earning less than their male counterparts for doing the same job–as a matter of fact, if not a matter of law– may soon be “history” or “herstory” if laws like the one recently passed in Massachusetts and the one proposed this week in New York City take hold. On August 1, 2016, Massachusetts became the first State in the nation to prohibit employers from asking about a job applicant’s salary history or past benefits before extending an offer of employment with compensation, in a new pay equity law. Although Massachusetts had already passed a pay equity law requiring equal pay for comparable work back in 1945, this new law goes further.

The Massachusetts pay equity law also prohibits employers from requiring employees not to talk about wages, benefits or other compensation, or not to inquire, discuss or share information about any other employee’s wages, benefits or other compensation. An employee who prevails in a lawsuit under this new pay equity law may also recover his/her reasonable attorneys’ fees and costs.

The law does, however, allow an employer who is sued for alleged violation of the law to raise an affirmative defense to liability by showing that, within 3 years and before the commencement of the action, it had conducted a self-evaluation of its pay practices in good faith and can demonstrate that reasonable progress has been made towards eliminating compensation differentials based on gender for comparable work in accordance with that evaluation. A copy of the Massachusetts bill can be found here: https://malegislature.gov/Bills/189/Senate/S2119.

This provision of Massachusetts’ pay equity law is truly groundbreaking in the United States, and may be one of the first real impactful acts to alter the pay disparity at the outset of employment between men and women performing comparable work.

Why this law when federal and State equal pay laws have been “on the books” for decades? As the Dilbert comic strip makes plain, those laws have largely failed to accomplish their intended purposes. Paying new hires based on salary history rather than market-competitive rates has historically disadvantaged women who may have been victims of wage discrimination at a prior job, taken a break from the workforce to bear children or made other economic sacrifices that later disadvantaged them when they sought new employment despite their performing work comparable to that of their male counterparts.

Massachusetts is now attempting to level the playing field for women by requiring employers to essentially pay women based on their worth to the employer or in the marketplace.

New York City may be next on the gender pay equity path. On the “high heels” of Massachusetts’s law, on August 10, 2016, New York City’s Public Advocate Letitia James announced a proposed bill that also would prohibit New York City employers and employment agencies from asking job applicants about salary history, including benefits. See http://pubadvocate.nyc.gov/news/articles/pa-james-announces-legislation-close-gender-wage-gap.

New York employers may recall that, effective January 19, 2016, New York State amended New York’s Labor Law Section 194, by enacting a gender pay equity law. That law requires that any differential in rate of pay between a man and woman performing the same job be based on a bona fide factor other than sex such as education, training or experience. Such a factor may not be based on a sex-based differential, and must be “job-related and consistent with business necessity.” But the New York State law does not go as far as the one in Massachusetts to prohibit inquiries about salary history.

Like the Massachusetts law, New York State’s gender pay equity law prohibits employers from paying women less than their male counterparts for performing comparable work. Failure to comply with the New York State law may result in liquidated damages of up to 300% of the amount of unpaid wages (you read it right).

As the New York State legislature explained in passing the gender pay equity law last year, “[d]espite existing protections under the law, women in New York earn 84 percent of what men earn and jobs traditionally held by women pay significantly less than jobs predominately employing men. In New York, on average, a woman working full time is paid $42,113 per year, while a man working full time is paid $50,388 per year. This creates a wage gap of $8,275 between full-time working men and women in the state.”

And as noted elsewhere by the New York State legislature, “[d]espite the enactment of the federal Equal Pay Act and the state Equal Pay Law in 1963 and 1966 respectively, there are still incidences of discrimination in pay based on sex.” New York’s gender pay equity law–like Massachusetts’ new law– also prohibits employers from “forbidding employees from sharing wage information that would otherwise deny women workers the ability to discover whether their wages are unequal to their male counterparts” (despite the fact that the National Labor Relations Board had already made it unlawful for many years for covered U.S. employers to prohibit employees from discussing their compensation in the workplace).

Some other States like California have their own equal pay laws as well. California has also introduced legislation that would bar inquiries into a job applicant’s salary history.

In view of the above legal developments and more expected to come throughout the U.S., employers would be well advised to consider reviewing their pay practices and adjusting as needed to ensure that employees performing the same jobs are paid comparably to their counterparts of a different gender and are paid based on their worth to the employer and market-rate, regardless of gender.

The post Is Asking A Job Applicant about Their Past Salary, History? first appeared on Perlman Sandbox.