Latest new laws dealing with anti-sexual harassment rights and responsibilities
NEW YORK CITY
11 new bills – passed by City Council – signed by Mayor on 5/9/18
Provisions affecting private employers (“Stop Sexual Harassment in NYC Act”):
- anti-sexual harassment rights and responsibilities poster for employee employee break rooms/common areas and distribution of information sheets
- coverage of sexual harassment cases to employers with fewer than four employees.
- expansion of the Statute of Limitations – claims of gender-based harassment can be filed within 3 years after occurrence of alleged harassing conduct (used to be 1 year)
- increased Coverage – expansion of coverage of sexual harassment cases to employers with fewer than 4 employees
- Anti-sexual harassment interactive training requirement – Effective April 1, 2019, private employers with 15 or more employees must annually conduct an “anti-sexual harassment interactive training” for all employees, including supervisory and managerial employees,
- Effective July 8, 2018, NYC contractors must describe their employment practices, policies and procedures “related to preventing and addressing sexual harassment” in a pre-existing report associated with certain city contracts.
NEW YORK STATE
On April 12, 2018, Gov. Andrew Cuomo signed the New York state budget for fiscal year 2018-2019, which include workplace sexual harassment provisions. The significant provisions of the bill include the following:
- Employers are prohibited from including in any contract pre-dispute mandatory arbitration clauses for claims or allegations of sexual harassment.
- Settlement agreements may not prevent disclosure of underlying facts and circumstances of sexual harassment unless the claimant voluntarily agrees to such a provision after being provided 21 days to consider it and 7 days after execution to revoke it
- All New York employers must either adopt the model policies and programs regarding sexual harassment and training to be published by the New York State Department of Labor, or establish their own policies and programs that meet or exceed the model provisions.
- Employers may be liable for sexual harassment of contractors, subcontractors, vendors or other persons providing services pursuant to a contract under the NYS Human Rights Law when the employer “knew or should have known” that such an individual was subjected to sexual harassment in the employer’s workplace.
Westchester County Earned Sick Leave Law
Westchester County has just enacted an Earned Sick Leave Law which takes effect on March 30, 2019. The law applies to all Westchester employers and requires that they provide sick leave to employees. All employees—both full-time and part-time—who work more than 80 hours per year are eligible to earn sick time. The law requires employers to provide 40 hours of sick leave per year to eligible employees (nothing prohibits you from providing more). For employers with 5 or more employees, the earned sick time must be paid at the “rate the employee normally earns during hours worked,” while for employers with less than five employees, the earned sick time can be unpaid.
One hour of sick time is accured for every 30 hours worked. Earned, but unused, sick time can be carried over to the following year; however, the law only mandates that an employer provide 40hours of sick time per year, and there is no requirement that earned, but unused, sick time be paid out to the employee when their employment terminates.
Earned sick time can be used:
- for an employee’s mental or physical illness, injury or health condition; an employee’s need for medical diagnosis, care, or treatment of such illness, injury, or health condition; or an employee’s need for preventative medical care.
- for care of a family member (broadly defined under the law) for a mental or physical illness, injury, or health condition; for the family member’s need for medical diagnosis, care, or treatment of such illness, injury, or health condition; or for the family member’s preventative medical care.
- for situations where the public health authorities have either determined that an employee or family member’s presence in the community may jeopardize the health of others or have closed the employer’s place of business.
- The law allows for employers to satisfy the requirements of the law by providing 40 hours of combined sick and personal time. However, the employer must allow the employee to take the time as needed for sick time with no advance notice necessary and no additional restrictions.
Of course there are penalties for failure to comply as well as the right of an employee civil action to enforce rights provided.
Minimum Wage Increases in New York
Consult our chart to find out the details and easily maintain compliance.
|NYC fast-food jobs||$15||–||–|
|Other large NYC employers*||$15||–||–|
|Other small NYC employers**||$13.50||–||–|
|Fast-food jobs outside NYC||$12.75||$13.75||$15|
|Other jobs (Nassau, Westchester , Suffolk)||$12||$13||$14|
|Other jobs in rest of NY||$11.10||$11.80||$12.50|
What NY Employers Should Know About Deductions From Wages
In October, 2015, Governor Andrew M. Cuomo signed into law an amendment to the New York Labor Law Section 193 (“NY Wage Deduction Law”) extending the law, which sets forth permissible deductions from wages, for another three years. Find out what exactly what may be deducted!
NYC Commuter Benefits Law
Starting Jan. 1, 2016, businesses in the city will be required under a new law to enroll its
employees in a tax break for commuting expenses up to $130 a month.
The law will require city businesses with 20 or more full-time employees to offer a federal
commuter tax benefit that allows workers to put aside up to $130 in earnings a month before
taxes to pay for transportation costs.
Amendment to The NY Wage Theft Protection Act - Notice of Pay Rate
On December 29, 2014, Governor Andrew M. Cuomo signed a bill eliminating the requirement that before February 1 of each year, employers notify and receive written acknowledgement from every worker about their rate of pay, allowances, pay day, etc. According to the signing statement, legislative leaders and the Governor have agreed to a chapter amendment to make this change effective immediately. Accordingly, the Department will not require annual statements in 2015.
Please note, businesses are still required to notify employees as required at the time of hire.
Changes in 2014 For New York State, New York City & New Jersey Employers
Changes in 2014 For New York State, New York City & New Jersey Employers
Pregnancy Accommodations under New York City Human Rights Law
New York City has amended its Human Rights Law to provide more protection for pregnant employees. City law now requires employers with 4 or more employees that knows or should have known of an employee’s pregnancy, childbirth, and related medical conditions to provide reasonable accommodations for those conditions. Employers are also required to provide both a notice of rights to its employees upon hire and to display a poster explaining the law. (Need a Poster?)
Reasonable accommodations can include bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for lengthy periods, assistance with manual labor, and unpaid medical leave. Note that the only basis an employer may use for declining to extend a reasonable accommodation is if the accommodation poses an undue hardship to the company. Whether a proposed accommodation constitutes an undue hardship is a case-by-case determination that requires consideration of cost, employer size, and impact on the employer’s operations.
The new law creates a private right of action for employees to sue for failure to make a reasonable accommodation.
New York City Earned Sick Time Act
As of April 1, 2014, pursuant to NYC Administrative Code 20-911, employers in the City (with at least 5 employees) must offer up to 40 hours of paid sick leave per year under the Earned Sick Time Act. Companies with less than 5 employees must offer employees up to 40 hours of unpaid leave per year. This is based on employees earning leave time at the rate of one hour for every 30 hours worked up to an annual maximum of 40 leave hours. These requirements do not apply, no matter how many employees are working, to employers which already provide at least 40 hours of paid leave including paid time off, paid vacations and/or paid personal days that can be used by employees to take care of themselves or a family member, and for the other reason the act specifies it is not required to provide additional paid time off to comply with the Act.
Paid leave may be used for absences resulting from: (i) an employee’s mental or physical medical condition, including diagnosis, care, and treatment; (ii) care for family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition, or who needs preventive medical care; or (iii) closure of employee’s place of business, or of the employee’s child’s school or child-care provider, due to a public health emergency. “Family member” includes an employee’s child, spouse, domestic partner, parent, sibling (including any half-sibling, step-sibling or sibling related through adoption), grandchild, grandparent, or the child or parent of an employee’s spouse or domestic partner.
The law covers full time, part time, and temporary employees who work in New York City at least 80 hours during a calendar year but does not apply to government agencies; federal work study programs; employees who are compensated by qualified scholarship programs; physical therapists, occupational therapists, speech language pathologists, and audiologists who are licensed by the New York State Department of Education; independent contractors; participants in work experience programs; employees who do not work more than 80 hours in a calendar year; or employees covered by a collective bargaining agreement when the law went into effect, until the expiration date of the CBA.
Leave is earned at the rate of one hour of paid leave for every 30 hours worked, and employers may require that it be used in increments of no less than 4 hours. An employee may have to provide up to seven days’ advance notice of the need to use sick leave if the need is foreseeable. If the need is unforeseeable, the employer may require an employee to give notice as soon as practicable. If an employee is absent for more than 3 consecutive work days, the employee may be required to provide medical certification of the need for leave.
Also, employees may carry over unused sick leave into the next calendar year which employers may cap at 40 hours. As an alternative to permitting employees to carry over sick leave, an employer can choose to pay the employee for the unused sick leave at year end. Notably, upon termination of employment, employers have no obligation to “cash out” unused sick leave.
Finally, companies must give written notice to its employees of their sick leave rights and keep records of notices and other documentation of their compliance with the law for three years.
New York City Law Against Unemployment Discrimination
On June 11, 2013, New York City amended its Human Rights Law to prohibit employment agencies and employers with at least 4 employees from discriminating against potential or actual job applicants on the basis of their being unemployed. Because of this, an employer may not make any decisions pertaining to hiring, compensation, or terms and conditions of employment based on an employee’s or applicant’s employment status. Employers should not indicate on classified ads that applicants must be employed to apply or be considered for a position.
Employers may still consider an applicant’s unemployment status where there is “substantially job-related reason” for doing so. Also, an employer may permissibly inquire into the circumstances surrounding an applicant’s separation from employment, give priority to their own current employees for an open position, or set compensation or terms or conditions of employment based on actual amounts of experience.
Under this law, individuals and the New York City Commission on Human Rights (NYCCHR) may now bring a private action against the employer alleging unemployment discrimination. The individual or NYCCHR may seek damages, punitive damages, injunctive relief and attorneys’ fees.
Changes in New York State Wage Deduction Law
In October 2013, New York State, which has traditionally been restrictive in its wage deduction provisions, amended the State’s labor law to allow employers to deduct salary advances (a cash payment by the employer to an employee under the expectation that such money will be earned in the form of future wages), and make deductions from employees’ paychecks in order to recover overpayments where those overpayments are due to a mathematical or clerical error.
To make deductions for overpayments, an employer must provide notice to the employee of the intent to make deductions and it must set up a procedure to allow the employee to contest the deduction. Only overpayments made within the eight-week period prior to the date of notice to the employee may be recovered. Accordingly, employers must be vigilant with respect to possible overpayments. The deductions for those overpayments, however, may be made over a period of six years from the date of the original overpayment.
To make a deduction from an employee’s wages to recover an advance, the timing, duration and frequency of the repayment deduction must be agreed to in writing before the advance is made and deductions may be made only during the company’s regular payroll periods and no interest or fees may be charged. Further, the agreement may provide that total reclamation may be made at the final payroll period if employment terminates before full repayment. Finally, the employer must implement a procedure that allows an employee to dispute to deductions.
Pregnancy Accommodations under New Jersey Law
On January 21, 2014, New Jersey implemented the Pregnant Worker’s Fairness Act (PWFA) which prohibits discrimination on the basis of pregnancy, childbirth, and childbirth recovery. It applies to all New Jersey employers, with the exception of federal employers, and requires those covered employers that know or should have known that an employee is pregnant or affected by pregnancy to make reasonable workplace accommodations for those employees who request accommodations based upon the advice of their doctors. Such accommodations include bathroom breaks, modified work schedules, assistance with manual labor, and temporary transfers to positions requiring less strenuous or less hazardous work.
Under the PWFA, an employer is not required to provide the employee’s requested accommodation if doing so would pose an undue hardship to the employer. Care should be exercised by employers in their evaluations of requests for pregnancy accommodations because the PWFA creates a private right of action for failure to make a reasonable accommodation.
New Jersey Safe Act
The New Jersey Safe Act provides new protections to employees who have been victims of domestic or sexual violence, or whose child, parent, spouse, domestic partner, or civil-union partner was the victim of such conduct. The new law requires employers to provide up to 20 days of unpaid leave during any 12-month period to eligible employees but the employer may require an employee to use accrued paid leave during any this time and may also require that employees use leave under the Family and Medical Leave Act (FMLA) concurrently with Safe Act leave. This assumes that the employee is eligible for FMLA leave and the reason for the Safe Act leave would also qualify to leave under the FMLA (e.g., an employee’s serious health condition).
Employers must also display a poster (need a poster?) that explains employees’ rights under the Safe Act.
To qualify for Safe Act leave, an employee must have worked for an employer for at least 12 months and at least 1,000 hours in the 12-month period immediately preceding the leave. Also, the employee must use the time off within one year of the underlying event or incident. Finally, the employee must provide the employer with as much advance notice of the need for the leave of absence is possible under the circumstances.
The Safe Act provides that any unpaid leave time taken as a result of this act may be used for the purposes of seeking medical attention for physical or psychological injuries; obtaining services from a victim services organization or to pursue psychological or other counselling; participation in safety planning for temporary or permanent relocation; seeking legal assistance to ensure the health and safety of the employee or the employee’s relative; or attending, participating in, or preparing for a criminal or civil court proceeding relating to an incident of domestic or sexual violence.
Finally, the SAFE Act also prohibits an employer from discriminating or retaliating against an employee who requested or took leave under the act.
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