The authors of this article explain recent progressive, employeefriendly legal changes New York employers should be aware of and consider in light of their existing workplace policies.
New York State and New York City legislatures have continued to enact progressive, employee-friendly changes during 2019. Here is a look at recent legal changes New York employers should be aware of and consider in light of their existing workplace policies. Employers must make sure their management teams understand these changes to the law and update policies to ensure compliance.
NEW YORK STATE
Expansion of Human Rights Law to Protect Gender Identity/Expression
Effective February 24, the Gender Expression Non-Discrimination Act (GENDA) amended the New York State Human Rights Law (NYSHRL) to prohibit discrimination based on an employee's gender identity and/ or expression. GENDA defines this protected category as an individual's actual or perceived gender-related "identity, appearance, behavior, expression, or other gender-related characteristics regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender."1
Heather Weine Brochin is a partner at Day Pitney LLP and chair of the firm's Employment and Labor practice, representing employers in employment and employee benefits litigation and counseling them on day-to-day employment law matters. Gregory S. Tabakman is an associate at the firm representing employers in a broad spectrum of employment-related matters in state and federal courts, as well as before state and federal administrative agencies. The authors may be reached at firstname.lastname@example.org and email@example.com, respectively.
Extension of Paid Voting Leave
New York State also amended its election law to provide all employees who are registered to vote up to three hours of paid leave, at the beginning or end of their workday, to vote in any election, as long as the request is made at least two days before the election. Previously, New York law required employers to provide only two hours of paid leave to vote under limited circumstances. In addition to providing the leave, at least 10 days before any election and until the polls close, employers must post (in a conspicuous area) a notice that sets forth the provisions of the voting leave law. 2
Expansion of "Race" Definition in New York State Human Rights Law
Effective July 12, Governor Cuomo signed into law amendments to the NYSHRL to make clear that the term "race" includes traits historically associated with race, including but not limited to hair texture and "protective hairstyles," which include, but are not limited to, braids, locks and twists. This change mirrors the guidance issued by the New York City Commission on Human Rights in February (discussed below). Employers should note hairstyle is but one example provided by the amendment, and "traits historically associated with race" may include other forms of expression or appearance closely associated with race or culture. Employers should be mindful of the bases for personnel decisions in the context of these new amendments and their potentially broader application. 3
Expansion of State's Equal Pay Law
Effective October 10 the statute that previously required employers to provide equal pay for equal work based on gender will expand its protections to employees of all "protected classes" (e.g., age, race, religion). There are exceptions (unchanged from the previous version of the law) permitting pay differentials based on seniority, merit, a system that measures quantity and/or quality of work, or a "bona fide" factor other than a protected characteristic, such as "education, training, or experience." 4
Prohibition on Requesting Previous Salary Information
Effective January 8, 2020, employers will be prohibited from
(1) Relying on salary history in establishing an applicant's wage rate;
(2) Asking an applicant or employee about their wage history as a condition of receiving an interview or continued employment;
(3) Asking an applicant or current employee's former employer about the individual's wage history; and
(4) Retaliating against an applicant or current employee based on his or her wage history because the individual did not provide his or her wage history or because the individual filed a complaint pursuant to the statute.
Nothing in the statute prohibits an applicant or current employee from voluntarily and without prompting disclosing this information. If, after the employer makes an offer to an applicant, the applicant seeks to negotiate compensation by relying on previous salary information, the employer may confirm that information.5
Expansion of Protections Against Sexual and Other Unlawful Harassment
On June 19, the New York State legislature voted to strengthen its prohibitions against sexual and other unlawful harassment. Employers may now be liable for unlawful harassment even if the alleged conduct does not rise to the "severe or pervasive" standard that previously governed harassment claims under state law. In addition, the statute expressly states that the fact an employee did not complain about the alleged harassment is not determinative of whether an employer may be found liable. The statute of limitations for sexual harassment claims will also be lengthened from one to three years (other discrimination claims are still one year).6
In July 2018, New York law began prohibiting the inclusion in any settlement agreement or other resolution of claims involving sexual harassment terms that would prevent the disclosure of the underlying facts or circumstances of those claims (unless the complainant requested confidentiality in writing). Under the proposed amendments, the prohibitions on confidentiality will be expanded to include any discrimination claim unless requested by the employee. Where permitted, any confidentiality terms that restrict employees from participating in investigations of discrimination by state or federal agencies will be void and, beginning January 1, 2020, confidentiality of facts relating to future claims will be void unless the employee is notified, in writing, that he or she can cooperate with state or federal agencies. 7
Finally, employers will be required to provide all employees, in writing – at the time of hire and then annually – a notice of the employer's sexual harassment policy and the information presented at the employer's annual sexual harassment training. Prior legislation only detailed the content of such policies and mandatory annual training requirements.
Although Governor Cuomo has not yet signed the bill, he has endorsed it and is expected to sign it.
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1. N.Y. Exec. Law §§ 291, 292, 295, 296, 296-a, and 296-b; N.Y. Civ. Rights Law § 40-c; N.Y. Educ. Law § 313; N.Y. Penal Law §§ 200.50, 240.00, 240.30, 240.31, 485.00, and 485.05.
2. N.Y. Elec. Law § 3-110.
3. N.Y. Exec. Law § 292; N.Y. Educ. Law § 11.
4. N.Y. Lab. Law § 194.
5. N.Y. Lab. Law § 194-a.
6. N.Y. Exec. Law §§ 292, 296, 296-b, 296-d, 297, and 300.
7. N.Y. Gen. Oblig. Law § 5-336.
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