New York State

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As we have reported, since March, New York State has implemented a variety of measures to limit the spread of COVID-19 and to protect workers during the pandemic. These measures include essential business designations, limiting in-person work, paid leave for certain employees impacted by COVID-19, phased reopening of nonessential businesses, mandatory health and safety protocols, and requiring a business reopening safety plan. The New York State Department of Labor (NYSDOL) is charged with enforcing many of these measures with which all New York businesses have been and are required to comply.

With many regions now in “Phase Three” of the state’s reopening scheme, the NYSDOL will likely begin auditing employers and investigating complaints to ensure that businesses are complying with New York’s many COVID-19 regulations. For example, the NYSDOL may request from employers an explanation or documentation of the health and safety measures in place at their in-person places of business. In addition, the NYSDOL may inquire as to whether employees have contracted COVID-19 and, if so, what protocols businesses implemented as a result.
Continue Reading Reminder to New York employers: the New York State Department of Labor will be enforcing COVID-19 regulations

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

Today is the last in a five-part blog series on New York’s sweeping changes to the legal landscape for Empire State employers. In prior posts, we covered limitations on the use of nondisclosure provisions in settlement and separation agreements, the new standards for litigating and defending harassment claims, expanded equal pay protections, and the statewide ban on salary history inquiries. Today, we will explore the remaining changes to the state’s anti-discrimination laws. All of the changes discussed in this article will take effect 60 days after Governor Cuomo signs the Bill, unless otherwise noted:

Expanding Protections to More Employers and More Workers

All New York employers will now be subject to the state’s anti-discrimination law, regardless of size. Under the prior incarnation of the law, employers with fewer than four employees were excluded from coverage (except for sexual harassment claims). Now, every single employee and employer in New York will be covered by these protections. This change will take place 180 days after enactment.

In addition, non-employees – such as independent contractors, vendors, and consultants (and their employees) – will now be entitled to the protections afforded by the state’s anti-discrimination law. This expands on a 2018 law that afforded such protections to non-employees asserting claims of sexual harassment. In addition, the law will also now protect domestic workers from all forms of harassment.…

Continue Reading New York Lawmakers Upend the Employment Law Landscape…Again (Part 5)

Today is the third in a five-part blog series on New York’s sweeping changes to the legal landscape for Empire State employers. In prior posts, we covered limitations on the use of nondisclosure provisions in settlement and separation agreements and the new standards for litigating and defending harassment claims. Today, we will cover the expansion of New York’s equal pay law.

As part of New York’s overhaul of its existing anti-discrimination laws, legislators have expanded the scope of the state’s Equal Pay Act (N.Y. Labor Law § 194) to encompass all classes and characteristics protected by the New York State Human Rights Law. In addition, the new law lowers the standard of proof needed to establish pay discrimination. These changes will take effect 90 days after Governor Cuomo signs the legislation, which he is expected to do.

By way of background, federal and New York State law have, for decades, prohibited pay differentials between employees of the opposite sex who perform equal work. In 2015, New York amended its Equal Pay Act to limit an employer’s defenses against equal pay claims. The State also increased the amount of liquidated damages available to a prevailing plaintiff-employee in an equal pay lawsuit.…

Continue Reading New York Lawmakers Upend the Employment Law Landscape…Again (Part 3)

This is the second in a series of blog posts concerning a suite of legislation passed last week by New York State legislators. Yesterday, we discussed a Bill that will change how nondisclosure provisions are used in the context of settlement and separation agreements. Today, we look at a series of measures that will change how harassment claims are litigated in New York State (although many of these changes should already be familiar to New York City employers).

Perhaps most notably, the new laws lower the standard for proving claims of workplace harassment under New York State’s anti-discrimination law. Currently, under both federal and New York State law, an employee-plaintiff alleging harassment must establish that the conduct at issue was “severe or pervasive.” Without this showing, the employee cannot succeed in proving their claim of harassment.

Under the new law, however, harassment will be deemed unlawful “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” In other words, New York State will no longer recognize the longstanding “severe or pervasive” standard. As a slight consolation to the business community, the new laws do provide an affirmative defense to harassment claims if the employer can show that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” These changes align New York State law with New York City law, which eliminated the “severe or pervasive” standard and adopted the “petty slights or trivial inconveniences” affirmative defense years ago. …
Continue Reading New York Lawmakers Upend the Employment Law Landscape…Again (Part 2)

New York State and City legislators have enacted a flurry of new workplace-related regulations in the past few years. The new laws touch upon everything from high-profile issues like sexual harassment prevention and paid family leave, to seemingly more mundane matters like paid time off to vote. With this bustle of legislative activity, it is entirely possible that one or more of the new laws flew under your radar. With that in mind, we want to flag some of the more important New York State and City legislative developments from the past few years (with corresponding links to our prior posts on these topics):…
Continue Reading Don’t Fuggedaboutit: Keeping up with the ever-changing New York State and City employment law landscape