New York Enacts Legislation Protecting Interns from Discrimination and Harassment in the Workplace
On July 22, 2014, New York Governor Andrew Cuomo enacted
legislation that extends the laws against workplace discrimination
and harassment to interns. The new law amends the New York State
Human Rights law and is effective immediately. New York City passed
similar legislation earlier this year amending the New York City
Administrative Code.
Who is an "Intern"
Intern means a person who performs work for an employer for the
purpose of training under the following circumstances:
A. The employer is not committed to hire the person performing the
work at the conclusion of the training period;
B. The employer and the person performing the work agree that the
person performing the work is not entitled to wages for the work
performed; and
C. The work performed:
(1) provides or supplements training that may enhance the
employability of the intern;
(2) provides experience for the benefit of the person performing
the work;
(3) does not displace regular employees; and
(4) is performed under the close supervision of existing
staff.
Prohibitions
Under the new law, employers are prohibited from discriminating
against interns on the basis of age, race, creed, color, national
origin, sexual orientation, military status, sex, disability,
religion, predisposing genetic characteristics, marital status, or
status as a victim of domestic violence.
The law also extends protection to interns who are sexually
harassed at work. The law provides that it is an unlawful
discriminatory practice for an employer to engage in unwelcome
sexual advances, request sexual favors, or engage in other verbal
or physical conduct of a sexual nature with an intern when that
action affects the terms and conditions of the intern's
employment. It also prohibits harassment based on any other
protected class set forth above.
The new law provides protections for interns who are pregnant,
prohibiting employers from compelling a pregnant unpaid intern to
take a leave of absence unless the pregnancy prevents her from
performing the activities associated with her position in a
reasonable manner.
Lastly, the law includes an anti-retaliation provision, barring
employers from retaliating against interns who oppose any action
prohibited under the new law.
Take-Away for Employers
In light of this new law, New York employers should take the following steps:
- Ensure that any individual who performs unpaid work for you meets the definition of intern;
- Ensure you apply all equal employment opportunity and anti-harassment policies to your interns, in addition to your employees;
- Inform managers and supervisors about the new protections afforded to interns under the new law; and
- Update your anti-discrimination and anti-harassment training to reflect the change in the law.
New York Legislative Developments: Wage Theft Prevention Act Amended and Medical Marijuana Bill Passed
N.Y. Wage Theft Prevention Act Amendments: Repeal of Annual Wage Rate Notice, New Liability, and Increased PenaltiesOn June 19, 2014, the New York State legislature passed a bill
that would amend the N.Y. Wage Theft Prevention Act (the
"Act"). The amendments eliminate the annual requirement
for employers to issue a wage rate notice to all employees between
January 1 and February 1. Employers, however, will still be
required to issue a wage rate notice to all new hires and the
document retention requirements remain in place.
While the elimination of the annual notice requirement is welcome
news for New York employers, many of whom viewed the notice
requirement as an administrative burden with no significant benefit
to employees, the amendments also create new liability and increase
the current penalties for wage payment violations.
Governor Cuomo is expected to sign the amendments, which will take
effect 60 days after his approval.
Use of Medical Marijuana Approved By N.Y. State
Legislature
On June 20, 2014, the New York State legislature approved a bill
that would permit the use of medical marijuana by individuals
suffering from covered medical conditions.
Significant for employers, the bill includes a non-discrimination
clause which provides that patients who use the drug will be deemed
to have a "disability" under the Human Rights Law.
Patients will, however, be required to satisfy several criteria in
order to be eligible to receive medical marijuana, and thus be
deemed "disabled" under the law.
Under the new law, employers may continue to create policies, or
enforce existing policies, prohibiting employees from performing
their employment duties while impaired by a controlled substance.
Moreover, even though the use of medical marijuana will be legal in
New York under certain circumstances, employees must consider that
it remains illegal under federal law and is currently excluded from
ADA protection.
Governor Cuomo is expected to sign the bill into law. The bill will
not take effect until 18 months after it is signed by the Governor,
providing employers with ample time to consider its impact on their
business.
Special thanks to
Daniella M. Muller, an associate in the Employment Practice
Group, for her assistance preparing this alert.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.