NYC Council amends the New York City Human Rights Law definition of covered employer

New York City’s Human Rights Law (NYCHRL) is one of the broadest anti-discrimination statutes in the country. But does it apply to all Big Apple employers, regardless of size? A recent amendment passed by the City Council clarifies precisely which entities are considered “employers” for purposes of the NYCHRL.

In its current incarnation, the NYCHRL simply states that it does not apply to any employer with fewer than four persons in its employ. This definition has been subject to debate, however, due to the statute’s broad definition of employee, which currently encompasses employees that are full- or part-time, permanent or temporary, paid on or off the books, or are paid or unpaid interns. However, the amended law expands these protections to (1) independent contractors, (2) freelancers and (3) an employer’s parent, spouse, domestic partner or child, if employed by the employer.

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Supreme Court poised to hear oral arguments in blockbuster LGBTQ+ workplace discrimination cases

On October 8, 2019, the Supreme Court will hear oral arguments in three landmark LGBTQ+ rights cases, which could broaden protections for the LGBTQ+ community by prohibiting employers from discriminating against employees based on their sexual orientation, transgender-status, or gender identity under federal law. Currently, conflicting federal cases and shifts in interpretation and policies at administrative agencies such as the Equal Employment Opportunity Commission and the Department of Justice have left employers without clear guidance on what is, or is not, protected at a federal level (separate and apart from state and local protections). In Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, since consolidated, the Court will consider whether the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EEOC, the Court will consider whether Title VII prohibits discrimination against transgender people. The cases are summarized below.

Altitude Express, Inc. v. Zarda / Bostock v. Clayton County, Georgia – factual background

Donald Zarda worked as a skydiving instructor for Altitude Express, Inc., responsible for taking clients on tandem skydives, strapped hip-to-hip and shoulder-to-shoulder to the client. In June 2010, while carrying out a tandem skydiving session with a young woman, Zarda stated he was gay in defense of a female client’s allegation that he touched her inappropriately. Altitude Express terminated Zarda’s employment on the grounds that he shared inappropriate information with clients regarding his personal life. After a three-judge panel ruled against Zarda, the Second Circuit, in an en banc decision, overturned the lower court, holding that discrimination based on sexual orientation violates Title VII.

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New York City’s Commission on Human Rights issues new guidance on immigration status and national origin discrimination

For decades, the New York City Human Rights Law (NYCHRL) has provided protections against discrimination, harassment, and retaliation on the basis of an individual’s actual or perceived immigration status or national origin. However, last week, New York City’s Commission on Human Rights (NYCCHR) issued new guidance (the Guidance) that greatly expands the basis on which an employer can be penalized under the law. The Guidance provides examples to illustrate prohibited harassment and retaliation against individuals, based on their immigration status or national origin. Below is a list of the hiring practices and employee policies which can often lead employers to inadvertently violate the NYCHRL.

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California legislature passes expansion of CFRA rights for flight crew employees

The California Legislature has recently passed a new bill to expand the California Family Rights Act (CFRA) to flight deck and cabin crew employees (pilots and flight attendants). The new bill conforms California’s CFRA to the federal Family and Medical Leave Act (FMLA) with regard to protected leave.

Currently under the CFRA, employees are eligible to take up to 12 weeks of paid or unpaid protected leave during a 12-month period for the birth or adoption of a child, to care for an immediate family member with a serious health condition, or when the employee is unable to work because of a serious health condition.

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Guarding against sexual harassment in the workplace: a robust policy is only the starting point

One in two women have been sexually harassed at work according to a survey conducted earlier this year by the Trades Union Congress. It is timely, therefore, that last month saw the launch of a specialist legal advice line for women in England and Wales experiencing sexual harassment at work. The advice line, run by the charity Rights of Women, provides women with advice on identifying sexual harassment, how to bring complaints against employers, the employment tribunal procedure, settlement agreements and nondisclosure agreements. The advice line is the first of its kind in the UK and supporters hope that it will empower women to exercise their legal rights in the workplace. The increased awareness generally of employees’ rights in relation to workplace harassment means that responsible employers should be proactive (rather than reactive) in ensuring that their policies and procedures on this topic are in order.

The launch of the advice line follows the publication earlier this year of a report by the Women and Equalities Committee of the UK parliament on the use of nondisclosure agreements in discrimination cases. The report set out the UK government’s view that confidentiality clauses and nondisclosure agreements should not be used to ‘gag’ and intimidate victims of workplace harassment and/or discrimination. The government intends to legislate on this topic in due course. Other initiatives and proposals include the introduction of a statutory code of practice on sexual harassment and harassment at work. It is clear that sexual harassment is a subject matter which continues to remain a key focus of the government, press and public.

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New Jersey prohibits employers from asking about salary history

A part of the hiring process for many employers involves asking applicants about their prior salary and compensation information. Employers might use this information in deciding whether to make an offer to a particular candidate and the amount of compensation to offer the potential employee. However, beginning January 1, 2020, employers in New Jersey will no longer be permitted to request this information.

The new law prohibits New Jersey employers from inquiring into an employee’s salary history before making an offer; using salary history to “screen” an applicant; or requiring an applicant’s salary history to meet any minimum or maximum criteria. Employers also cannot use an applicant’s refusal to volunteer compensation information as a factor in any employment decision. There are certain exemptions, including internal applicants and disclosures required by federal law.

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DOL final overtime rule issued with few significant changes from 2019 proposed rule

On September 24, 2019, the U.S. Department of Labor (DOL) published a highly anticipated final rule that updates the salary thresholds necessary to qualify for overtime exemptions – often referred to as the “salary level test” – under the Fair Labor Standards Act (the 2019 Final Rule).[1] This rule will replace the prior final rule published on May 23, 2016 (the 2016 Final Rule) under the Obama administration, which was enjoined in 2016 and remains the subject of an abated appeal pending before the Fifth Circuit Court of Appeals.

The DOL published the Notice of Proposed Rulemaking (NPRM) underlying the new rule on March 22, 2019. In response, the DOL received more than 116,000 comments. Based on those comments, the DOL made several changes that are reflected in the 2019 Final Rule.

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Eighth Circuit affirms working overtime can be essential job function

Overtime work is essential in many industries. As a result, employers frequently structure job roles to require mandatory overtime. Although mandatory overtime can present difficult questions when an employee has a disability that disqualifies them from working overtime, the Eighth Circuit Court of Appeals, in McNeil v. Union Pac. R.R., No. 18-2333, recently confirmed that overtime work can be an essential function of a job in appropriate circumstances.

In McNeil, the Eighth Circuit evaluated whether Union Pacific could lawfully terminate a disabled emergency dispatcher who could no longer perform the mandatory overtime required of all Union Pacific emergency dispatchers. The plaintiff brought suit against Union Pacific following her termination and alleged disability discrimination under federal and state law. In the district court, Union Pacific moved for summary judgment arguing that the plaintiff was not a qualified individual with a disability because she was unable to perform an essential function of the position due to her inability to work overtime. The district court agreed, and granted Union Pacific’s motion.

On appeal, the Eighth Circuit affirmed the district court’s decision that the plaintiff’s ability for overtime work was an essential function of her job as a dispatcher. In doing so, the Eighth Circuit emphasized the authority of an employer to establish the essential functions of a job. To defeat a “failure to accommodate” discrimination claim, an employer must prove that the function at issue is, indeed, essential. Notably, the district court in McNeil relied on the company’s clear scheduling and attendance policies, which expressly articulated that overtime work is “mandatory.” The McNeil court also highlighted the public safety concern of always having a capable dispatcher ready and on duty. If plaintiff were permitted to avoid working overtime on an ongoing basis, then that burden would fall on another dispatcher to absorb. Such a situation, the court reasoned, could create a public safety risk.

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Macron scale of damages for unfair dismissal: the lower French industrial tribunals strike back

In two decisions both rendered on 17 July 2019, the French Supreme Court ruled that the Macron scale (a mechanism introduced on 24 September 2017 to provide for caps and floors on damages for unfair dismissal) complies with international conventions ratified by the French government. These decisions were rendered through a specific procedure (demande d’avis) in which the French Supreme Court does not judge a case but is invited to take a legal position on a specific issue in order to harmonize legal practice.

These decisions should have ended the dissension of several French industrial tribunals which had set aside the Macron scale, considering it to be in breach of article 10 of the Termination of Employment Convention of the International Labor Organization and article 24 of the European Social Charter, both of which provide for adequate protection and appropriate compensation in the event of unfair dismissal. Continue Reading

Fall to bring more than just foliage for New York employers

New York lawmakers had a busy summer overhauling many of the state’s existing workplace laws. Many of the newly enacted changes, as well as others enacted within the past year, become effective in October 2019. Below we will highlight the new laws taking effect in October and discuss measures employers should take to ensure their workplaces are compliant.

Already in effect:

  • All New York State employers must provide new hires with a notice containing the company’s sexual harassment policy. In addition, at the required annual sexual harassment prevention training sessions, employers must again furnish to all employees a notice containing the sexual harassment policy and, also, the information presented at the training.

While the law does not indicate precisely what information presented during the training must be provided, we recommend that employers provide new hires with the handouts and a copy of   the presentation (presumably, PowerPoint slides) used at the training program.

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