New York City Human Rights Law (NYCHRL)

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In conjunction with New York City’s recent employer vaccine mandate, the New York City Commission on Human Rights (NYCCHR) issued enforcement guidance on the equitable implementation of COVID-19 vaccine requirements for employees, independent contractors, and interns.

Non-discriminatory application of vaccine policies

In its guidance, the NYCCHR underscored that employers must ensure their policies and practices treat all employees evenly, regardless of protected class status, when implementing vaccine requirements. Specifically, the guidance advises that employers should not (i) scrutinize proof of vaccination more closely when it is provided by employees of a particular race, national origin, or religion based on the perception that people in those groups are less likely to be vaccinated; (ii) require proof of vaccination only for older employees or employees with disabilities based on the belief that COVID-19 is more dangerous for them; or (iii) refuse to accept certain types of valid proof of vaccination, such as official immunization records from other countries or photographs of Centers for Disease Control and Prevention (CDC) vaccination cards.

The guidance reiterates that employers are prohibited from retaliating against employees because they requested an accommodation, opposed discrimination, or filed or assisted with a claim under the New York City Human Rights Law (NYCHRL).Continue Reading NYC guidance addresses intersection of vaccine policies and workplace laws

Independent contractors have long been excluded from the protections afforded by traditional workplace anti-discrimination laws. That is no longer the case in New York State and City. In recent months, legislators in both Albany and Manhattan have extended substantial workplace-related protections – once only afforded to traditional employees – to freelancers, consultants, and the like (that is, independent contractors). We will discuss these measures below.

New York State

Effective October 2019, the antidiscrimination provisions of the New York State Human Rights Law (NYSHRL) now protect nonemployees, such as contractors, subcontractors, vendors, consultants, temporary workers, “gig” workers, and other non-employee persons providing services pursuant to a contract. In practice, this means that independent contractors may now pursue claims of workplace discrimination, harassment, and retaliation under the NYSHRL. This change is particularly impactful when considered in conjunction with the recently lowered standard for proving claims of harassment.

At present, these laws only apply to entities with four or more employees. However, effective February 8, 2020, the protections will cover all businesses operating within the state.
Continue Reading New York State and City expand Human Rights Law protections to freelancers and independent contractors

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

On April 9, 2019, New York City Council passed a bill amending the New York City Human Rights Law (NYCHRL), to bar NYC employers from testing prospective employees for marijuana use. The Bill comes in the wake of the City’s efforts to reduce the legal consequences of marijuana use, including reducing arrests and prosecutions for low-level marijuana-related crimes.

The text of the Bill declares it to be “an unlawful discriminatory practice for an employer … to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” However, the Bill excludes the following jobs from the ban:

  • Police officers
  • Peace officers
  • Positions with a law enforcement or investigative function at the New York City Department of Investigations
  • Workers on construction sites
  • Positions requiring a commercial driver’s license
  • Positions requiring the supervision or care of children, medical patients, or vulnerable persons
  • Positions with the potential to significantly impact the health or safety of employees or members of the public

Continue Reading New York City Council gives the green light to a ban on marijuana testing for job applicants

A New York City Council member recently proposed an amendment to the New York City Human Rights Law (NYCHRL) that would restrict fast food establishments from firing employees without “just cause.” The purported reason for this amendment is to provide more job security to fast food workers.

The bill defines “just cause” as an “employee’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful” to the business. If enacted, the proposed bill would require that a termination for just cause be the result of the fast food establishment’s use of “progressive discipline” within a one-year window from the date of the employee’s termination. “Progressive discipline” refers to “a disciplinary system that provides a graduated range of reasonable responses” to an employee’s failure to perform their job satisfactorily. Any discipline issued to the employee outside of the one-year timeframe would not be considered a part of the progressive discipline supporting a just cause termination. The bill would also require employers to provide the employee with a final, written explanation of the specific reasons for their termination. However, these protections would not extend to any fast food employee (1) covered by a collective bargaining agreement or (2) within their probationary period (30 days from date of hire).Continue Reading Not so fast … New York City Council proposes ban on no-cause firings

On February 19, 2019, the New York City Commission on Human Rights (NYCCHR) issued new enforcement guidance regarding (1) policies that place restrictions, or ban, naturally curly hair, dreadlocks, braids and cornrows, among other hairstyles; or (2) neutral grooming policies that are discriminatorily applied to employees based on aspects of their appearance associated with race.

In its guidance, the NYCCHR emphasized that the New York City Human Rights Law (NYCHRL) “protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.” For “Black people,” which the NYCCHR defines as individuals “who identify as African, African American, Afro-Caribbean, Afro-Latin-x/a/o or otherwise having African or Black ancestry,” this includes the right to maintain natural hair, treated, or untreated hairstyles. Grooming or appearance policies that restrict natural hair or hairstyles associated with “Black people” therefore violate the NYCHRL’s anti-discrimination provisions.Continue Reading New York City Commission on Human Rights issues new guidance on race discrimination on the basis of hairstyle

In Amaya v. Ballyshear LLC, et al., a case before a New York Federal District Court, Nelly Amaya, a Long Island resident, alleged that her former employers engaged in unlawful discrimination and retaliation, in violation of the New York City Human Rights Law (NYCHRL). Amaya’s employers argued that Amaya failed to show that their alleged conduct had an “impact” on her within the confines of New York City. At the time of the alleged conduct, Amaya was employed as a housekeeper at Ballyshear, Michael Bloomberg’s Southampton, Long Island residence.

Despite the long-standing precedent that the protections of the NYCHRL are only afforded to those who inhabit or are “persons in” New York City, Amaya attempted to invoke the law’s broader protections by claiming that the following connections to city satisfied this requirement: (1) the decision to hire and fire her was made in New York City; (2) she attended several meetings in the corporate defendants’ New York City office; (3) supervisors in the New York City office interacted with her during the course of her employment; and (4) there was a possibility that she might work at other locations within New York City.Continue Reading New York Federal Court lays down the law: Employees cannot invoke NYCHRL’s broad protections when impact of discrimination is felt outside NYC