December 16, 2019
It is that time of year when employers should start thinking about revising their handbooks, and 2019 has proven to be a very busy year with respect to employment-related laws in New York. Below we highlight eight policies that need to be updated:
Anti-Harassment/Discrimination. New York State lowered the burden of proof for harassment claims this year, eliminating the requirement that sexual harassment be “severe or pervasive.” There have also been changes to reporting requirements and standards under the New York State sexual harassment laws. Thus, employers should ensure that their anti-harassment/discrimination policies are compliant with these changes.
In addition, employers in New York State with fewer than four employees must now put in place anti-harassment/discrimination policies. Previously, the New York State Human Rights Law (NYSHRL) only applied to private employers with four or more employees. In October 2018, the sexual harassment laws became applicable to private employers of all sizes, and on February 8, 2020, the four-employee threshold will be eliminated altogether in connection with claims of discrimination, harassment, and retaliation under the NYSHRL. Further, New York City clarified that employers must count freelancers and independent contractors when determining whether they are a covered employer of four or more employees subject to the New York City Human Rights Law (NYCHRL).
Equal Employment Opportunity. New York State and City have added or expanded several protected classifications that will impact equal opportunity, as well as anti-harassment/discrimination policies. The NYSHRL was amended to add “gender identity or expression” to the list of protected classifications; prohibit discrimination based on natural hair or hairstyles; and expand protection for victims of domestic violence to prohibit certain discriminatory actions and require employers to provide reasonable accommodations. The NYCHRL was amended to add “sexual and reproductive health decisions” to the list of protected classifications. Additionally, the New York City Commission on Human Rights issued guidance, advising employers that workplace grooming and appearance policies “that ban, limit, or otherwise restrict natural hair or hairstyles” violate the NYCHRL.
New York State Paid Family Leave (PFL). New York employers should update their PFL policies to reflect the new rates. Effective January 1, 2020, employees taking PFL will receive 60% of their average weekly wage (up from 55% in 2019), capped at 60% of the current Statewide Average Weekly Wage, which in 2020 will increase to $1,401.70. As a result, the maximum weekly benefit for 2020 will increase from $746.41 to $840.70. The number of weeks available under PFL will remain at 10 weeks per year. Also effective January 1, 2020, the employee contribution rate will increase from 0.153% to 0.270% of an employee’s gross wages each pay period (capped at the Statewide Average Weekly Wage), making an employee’s maximum annual contribution $196.72. Employees earning less than the Statewide Average Weekly Wage, however, will contribute less, consistent with their actual wages.
Arbitration. Employers in New York State should revisit their arbitration policies. Effective October 11, 2019, the State’s ban on mandatory arbitration provisions covering sexual harassment claims was expanded to prohibit mandatory arbitration of all claims of discrimination or harassment. However, employers should also be aware that at least one federal district court in New York has found the law was preempted by the Federal Arbitration Act, which allows arbitration of such claims. See Latif v. Morgan Stanley & Co. LLC, et al., No. 1:18-cv-11528 (S.D.N.Y. June 26, 2019).
Paid Time Off to Vote. Voting policies and postings must be updated to reflect that workers in New York State are now entitled to up to three hours of paid time off to vote regardless of their work schedules, as long as the request is made at least two working days prior to the election. The employer may designate that any requested time be taken at the beginning or the end of a shift. A link to the required posting is here.
References. Effective January 6, 2020, employers in New York State will be prohibited from asking job applicants and employees about their wage or salary history. Reference policies that provide that employers will only provide title, dates of employment and salary must be amended. Similarly, applications should be reviewed. Salary history inquiries have been prohibited in New York City since October 31, 2017, and are similarly prohibited in Suffolk and Westchester Counties.
Drug Testing. Effective May 10, 2020, employers, labor organizations and employment agencies in New York City are prohibited from testing job applicants for marijuana and tetrahydrocannabinols, or THC (the active ingredient in marijuana). The law makes exceptions for certain job positions, including: police/peace officers; emergency responders; safety-related positions; jobs requiring security clearance; people who supervise or care for children, medical patients or vulnerable persons; workers who operate vehicles requiring a commercial driver’s license; and jobs tied to a federal or state contract/grant. New York City employers should review their drug and alcohol policies to ensure compliance with this new law.
Lactation Accommodation. Lactation policies should be updated to reflect the newly enacted amendments to the NYCHRL, requiring New York City employers with 15 or more employees to provide lactating employees with reasonable unpaid or paid break time and a private space to express milk. The law also requires employers to provide employees with a written policy that informs employees of their lactation accommodation rights and a request form. Model policies and the request form can be found here. While use of the model policies is not required, employers should review their current accommodation policies to ensure that they are compliant with these new laws.
* * * * * *
Moses & Singer LLP employment lawyers can assist you in making sure your employee handbooks remain compliant.