Effective January 7, 2020, pursuant to NYLL Section 203-E, employers of all sizes within New York State must notify employees of their rights under the law and remedies.  For those employers with an employee handbook, the notice of rights and remedies must be contained in that handbook.  The NYS Department of Labor has not issued any guidance yet, including whether independent contractors are encompassed by this law as “employees” and whether they must receive written notice of rights as well.

Employees may sue in court for violation of the law.  Violation of the law can result in damages, including, but not limited to, back pay, benefits and reasonable attorneys’ fees and costs for a prevailing plaintiff, injunctive relief against an employer, reinstatement; and/or 100% liquidated damages of the award for damages unless an employer proves a good faith basis to believe that its actions were in compliance with the law.  The law also contains civil penalties against employers that retaliate against an employee for complaining of a violation of this law.  The New York State Labor Law amendment does not exempt religious or faith-based organizations (see below for further information).  It also does not define “employee” and so it is unclear whether the mandated employee notice must also be provided to an entity’s independent contractors who are now covered by NYSHRL antidiscrimination provisions.

The justification for the law is that the federal Affordable Care Act (ACA) recently required that health insurance plans cover FDA-approved birth control methods without out-of-pocket costs to employees. Some for-profit employers have attempted to prevent employees from accessing health insurance plan coverage of FDA-approved birth control without out-of-pocket costs on the grounds that this health insurance benefit conflicts with an employer’s personal beliefs. As a result, over 100 federal lawsuits have been filed by employers to deny employees this benefit, including employers operating in New York State. New York State’s legislature seeks to ensure that employees’ decisions about pregnancy, contraception, and reproductive health are protected under state law from employment discrimination.

This amendment to New York State’s Labor Law prevents an employer from discriminating against employees based on reproductive health decisions, regardless of how the employer became aware of those decisions. Despite medical confidentiality protections under The Health Insurance Portability and Accountability Act (HIPAA), an employer does receive health insurance utilization summaries, which are distributed to each employer on a regular basis. In these reports, in some cases, an individual’s identity may be deduced by an employer based on the nature of the service and composition of the insured class reported in the summaries, and the State does not want employers using information about an employee’s reproductive health decision as a basis for discriminating against an employee or taking a negative employment action against them.

The State Labor Law amendment follows a recent amendment to New York City’s own Human Rights Law, which prohibits employers with four or more employees in New York City, labor organizations or employment agencies, from discriminating against or harassing job applicants, employees, interns, and independent contractors without employees, based on their sexual and reproductive health decisions. [1]

Note to religious/faith-based nonprofit organizations:  The State Labor Law and New York City Human Rights Law amendments are currently being challenged in federal court in New York by Evergreen Association, Inc., a nonprofit that operates pregnancy centers, and its founder and President, Chris Slattery, on the grounds that the law violates their constitutional rights to freedom of speech, freedom of association and due process, and that the term “reproductive health decision-making” is undefined, making that law unconstitutionally vague.  Stay tuned for developments in this litigation as there is no exemption for religious or faith-based organizations under the New York State Labor Law. While New York State and New York City Human Rights Laws do contain religious organization exemptions from those laws (though NYCHRL does not define a “religious organization”), those exemptions are nonetheless limited in their scope.[2]  Religious organizations, in particular, should consider the impact of the amendment to New York State’s Labor Law and consult with their legal counsel about their rights and obligations.

What Should an Employer Do Now?  Provide a written notice of employee rights and remedies as required and review and update all EEO and other policies prohibiting discrimination and employment-related hiring materials.

[1] New York City’s Human Rights Law defines “sexual and reproductive health decision” as “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions.” Services include, but are not limited to:

• Fertility-related medical procedures;
• Sexually transmitted disease prevention, testing, and treatment; and
• Family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion.

[2] NYC’s Human Rights Law does not prohibit religious organizations from limiting employment or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained.

The post NY Employers Must Provide Notice of Rights to Employees Regarding Reproductive Health Decision Discrimination first appeared on Perlman Sandbox.

New York City’s “cooperative dialogue” law– an amendment to  New York City’s Human Rights Law (“NYCHRL”)– takes effect October 16, 2018.  In anticipation of that development, the New York City Commission on Human Rights (“NYCCHR”) has issued written guidance for covered employers on “best practices” to comply with their legal obligation to reasonably accommodate job applicants and employees with disabilities under NYCHRL.[1]  It also addresses the legal obligations of other covered entities[2] to provide reasonable accommodations.

The guidance is useful in understanding how the NYCCHR is enforcing, and plans to enforce, the law.

NYCCHR Guidance on Reasonable Accommodation

Citing that approximately one million New York City residents live with disabilities (or 11.2% of New York City’s population), the NYCCHR recently issued lengthy guidance on reasonable accommodation obligations of employers (landlords and places of public accommodation) with respect to disability.  With respect to employers, the guidance addresses and provides examples of:

1) violations of New York City’s Human Rights Law (harassment– treating people “less well” because of disability is a violation of the law, discriminatory policies, and actions based on stereotypes or assumptions);

2) neutral employment policies that have a discriminatory impact;

3) job postings, employment applications, and hiring selection processes that are discriminatory;

4) failure to engage in the cooperative dialogue, failure to provide reasonable accommodations for disabilities, and defenses to a claim of failure to provide reasonable accommodations; and

5) reasonable accommodations based on disability, the prohibition of retaliation, and discriminatory harassment.

Recommendations

Employers with employees in New York City would be well-advised to:

• review the NYCCHR’s recent guidance on reasonable accommodation requirements for employers
• review any policies or practices prohibiting light duty work
• conduct trainings for managers on the new legal requirements of the cooperative dialogue process for reasonable accommodations
• post required notice (i.e., Pregnancy Rights notice) and consider voluntarily posting Notice of Rights
• conduct training for employees on their legal rights and process for requesting a reasonable accommodation
• review hiring practices and job postings
• update policies on absences, light duty and reasonable accommodation to comply with the NYCCHR guidance and the law
• confer with employment counsel.

Our employment law department can conduct audits of your employment practices, conduct training for managers on lawful hiring and handling reasonable accommodations and staff training, and update your 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 an audit, training or update of your  employment policies for your organization. 

[1] The NYCHRL requires covered entities “provide reasonable accommodations to individuals with disabilities to enable them ‘to satisfy the essential requisites of a job or enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.”

[2] Covered entities include: (1) employers with at least four employees, including independent contractors; (2) providers of public accommodation; and (3) providers of housing accommodation, land, and commercial space. See N.Y.C. Admin. Code § 8-102.

The New York City Human Rights Law requires an employer to provide reasonable accommodations unless doing so would create an undue hardship for the employer, for the needs of individuals who have a physical, medical, mental or psychological impairment, or a history or record of such impairment (disability), pregnancy, childbirth or related medical condition, religious observance, and status as victim of domestic violence, sexual violence, or stalking.  The NYCCHR guidance addresses only disability, not the other reasonable accommodation categories.

As per the NYCCHR, “a reasonable accommodation is a change made to the work schedule or duties of an employee to accommodate their specific needs and allow them to do their job.”

The post NYC Employers Take Note! Enforcement Guidance Issued By NYC Commission on Human Rights on Employer Obligations for Reasonable Accommodation 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.

Effective September 6, 2018, New York City employers must display a notice of anti-sexual harassment rights and responsibilities poster in employee break rooms and employee common areas in English and Spanish and distribute an information sheet to employees regarding sexual harassment and their rights, upon hire.  Last week, the New York City Commission on Human Rights launched a web page containing resources about sexual harassment prevention.[1]

Effective October 9, 2018, all employers in New York State must provide mandatory sex harassment prevention training to their employees and implement sex harassment prevention policies that comply with or exceed the requirements of model policies issued by New York State Division of Human Rights and New York State Department of Labor.

Background Summary

These recent developments follow on the heels of legislation implemented at the State and local level.  Specifically, in April 2018, Governor Cuomo signed measures in the 2018-19 budget bill requiring employers in New York State to adopt sexual harassment prevention policies and conduct annual training on such policies, restricting the use of non-disclosure and arbitration provisions related to claims of sexual harassment, and extending workplace protections against sexual harassment to non-employees, among other things.[2]

In May 2018, the New York City Council enacted the Stop Sexual Harassment in NYC Act, to prevent sexual harassment in the workplace. The law requires private employers with 15 or more employees in New York City to conduct annual, interactive anti-sexual harassment training for all employees starting April 1, 2019.

New Legal Requirements for New York State and New York City Employers

Below is a chronology of the timing of new legal requirements for employers in New York State and New York City:

Sexual harassment prevention postings, policies and training

September 6, 2018: New York City employers must display a notice of anti-sexual harassment rights and responsibilities poster in employee breakrooms and employee common areas in English and Spanish and must distribute an information sheet to employees regarding sexual harassment and their rights, upon hire.  Last week, the New York City Commission on Human Rights issued a sample notice and fact sheet on its website for use by employers that satisfies this requirement.[3]

October 9, 2018:  Policy and annual training requirement:  Employers in New York state must adopt a sexual harassment prevention policy that meets the following specified requirements:

• Provide examples of prohibited (sexual) conduct
• Provide information on state and federal laws concerning sexual harassment and remedies available to victims
• Include a procedure for timely and confidential investigation of complaints that ensures due process for all parties
• Inform employees of their rights and all available forums for adjudicating complaints administratively and judicially
• Include a standard complaint form
• State that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisors and managers who knowingly allow such behavior to continue
• State that retaliation against individuals who complain of sexual harassment or those who testify or assist in any legal proceeding is unlawful

The New York State Division of Human Rights and New York State Department of Labor must issue model policies and the employer’s policy must meet or exceed the requirements of those model policies.  The agencies have not yet issued the model policies.

April 1, 2019: New York City employers with 15 or more employees are required to conduct annual interactive, sexual harassment prevention training for all employees, and within 90 days of a new hire start. Such training must include, but is not limited to:

• Interactive (participatory) training, such as interactions between trainer and trainee, and use of audio-visuals
• Explanation of sexual harassment as a form of unlawful discrimination
• Description of what sexual harassment is, and is not, using examples
• Explanation of internal and external complaint processes to address sex harassment claims, including judicial fora and legal remedies
• Prohibition of retaliation after a complaint has been raised
• Importance of bystander intervention
• Additional interactive training for supervisors and managers which should include: (1) specific responsibilities of supervisors and managers in preventing sexual harassment and retaliation, and (2) measures that supervisors and managers may take to appropriately address sexual harassment complaints

The New York City law requires employers to keep a record of all trainings and employee acknowledgement of attending the training, which employers must maintain for at least three years and be made available for inspection by the New York City Commission on Human Rights upon request.

January 1, 2019:  Any employer submitting a bid to New York State or any of its public departments or agencies for a public contract will need to include a prescribed statement in the bid certifying compliance with the sexual harassment prevention policy and annual training requirements. Failure to provide such certified statement may result in ineligibility for the contract.

Organizations with contracts with New York City must also include their anti-sexual-harassment policies in their applications for City business.

Restrictions on non-disclosure provisions

Effective July 11, 2018, non-disclosure provisions in agreements settling claims of sexual harassment are prohibited, unless the complainant prefers to include a non-disclosure requirement.  If a non-disclosure provision is presented to a complainant in connection with a settlement, s/he has 21 days to consider it and if, after 21 days, the complainant’s preference is to include the provision, then the parties must memorialize such preference in writing. The complainant then has 7 days to revoke her signed agreement.

Restrictions on mandatory arbitration clauses

Effective July 11, 2018, New York’s Civil Practice Law and Rules (“CPLR”) was amended to prohibit employers from using arbitration to resolve claims of sexual harassment.   The enforceability of such a restriction is questionable since the U.S. Supreme Court has repeatedly upheld parties’ use of arbitration as a forum to resolve employment disputes under the Federal Arbitration Act (FAA), and has rejected public policy arguments as a means to override parties’ choice of arbitration under the FAA.   Nonetheless, employers in New York would be well-advised to comply with New York law and this amendment to the CPLR.  With respect to union employees, however, if there is a conflict between this prohibition and a collective bargaining agreement, the collective bargaining agreement will control.

What Nonprofit Organizations Are Doing in Response to #MeToo

In addition to conducting the required annual trainings for supervisors and staff and updating sex harassment prevention policies and procedures, a number of non-profit organizations have taken some concrete steps to eradicate workplace sexual harassment, including:

• Requiring grant recipients to disclose any finding of sexual or other harassment involving grant personnel, to disclose the placement of any individuals on administrative leave relating to harassment investigations or findings, and suspending or terminating a grant. Researchers may be banned from seeking federal grants for some period of time as well, potentially
• Training board members on an organization’s sex harassment policies and procedures, creating an HR committee on the Board to ensure Board awareness of allegations of sex harassment, and seeking “360 performance reviews” of the CEOs/Executive Directors by staff to determine whether there are systemic issues relating to sex harassment or failure to adequately address such complaints
• Implementing codes of conduct at conferences sponsored by nonprofit organizations and ensuring attendees are aware of how to make complaints of inappropriate conduct during such conferences
• Reviewing policies and practices carefully to determine if there are other ways to manage risk and ensure employees are safe
• Ensuring that mandatory conferences/events or destinations where organizations are sending their employees are not unsafe spaces for an organization’s workers and that workers know how to make complaints to their employing organization if they feel unsafe while working outside the office
• Ensuring high-level hires and board members are properly “vetted” to ensure no past history of sexual harassment claims or findings; and of course,
• Obtaining employment practices liability insurance to provide coverage in the event of a claim of sexual harassment.

It remains an open question whether State Attorneys General or at least New York’s Attorney General will– now or at some point–require nonprofit organizations to disclose whether they have sexual harassment prevention policies and complaint procedures and conduct annual sex harassment prevention trainings, and/or the number and amounts of sex harassment settlements.  Those numbers may be material to an inquiring Attorney General as to whether tax-exempt donations are being directed to programming and operations to support an organization’s mission or instead to pay off the misdeeds of an employee.  It also remains to be seen whether States other than California will enact legislation to provide immunity from defamation to employers who report to prospective employers whether they would not rehire an employee due to a finding of sexual harassment.

Practical next steps/recommendations

Employers in New York State should review and update their existing policies and training programs addressing sexual harassment prevention, any contracts with New York State or City agencies, and any mandatory arbitration and confidentiality provisions regarding sexual harassment, to ensure compliance with the new legal requirements.  Employers in New York State that do not currently have such policies and/or training programs will need to adopt them promptly to comply with the new laws.

Our employment law department conducts civility/respect in the workplace trainings. 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 by the October 9^th deadline.

[1] See https://www1.nyc.gov/site/cchr/law/stop-sexual-harassment-act.page.

[2] In addition, any employee of a “public entity” in New York State (including government entities operating a public school, college or university) who has been found personally liable for intentional wrongdoing related to a sexual harassment claim must reimburse the State for payment of  funds made on employee’s behalf in satisfaction of that judgment.

[3] See https://www1.nyc.gov/site/cchr/law/stop-sexual-harassment-act.page

The post #MeToo Catches Up with New York State and New York City first appeared on Perlman Sandbox.