Last year was a ‘big year’ in New York in terms of new employment laws, and 2016 is shaping up to be just as big – as employers come into compliance with the many new laws, and brace for additional changes to come.
Among the most significant new laws are the series of statutes signed by the Governor in October, which all go into effect next week – January 19, 2016 – and which focus on women’s rights and gender equality. While some of these laws do not break new ground– as they mirror existing federal legislation – they increase penalties, expand the scope of existing laws, and will likely cause the issues of gender equality to be more in the forefront than they were before passage.
Combined with the new minimum wage and an aggressive “employee friendly” agenda by the Governor and the Attorney General, New York employers should stand by and be ready for even greater changes.
In 2015, New York City passed several new laws that have now gone into effect:
Background Checks: The City Council passed both the “Fair Chance Act” (“FCA”) and the “Stop Credit Discrimination in Employment Act”, each of which limit the use of credit checks and criminal background checks in hiring. There are exceptions in each statute, but each also contains significant restrictions as well as requirements for notice to applicants if such checks are used. Now that both laws are in effect, employers need to be mindful of them and the additional reporting requirements which they contain.
A summary of the FCA’s requirements, as described by the City Commission:
“No employer may seek, obtain, or base an adverse employment action on a non-conviction. No employer may seek, obtain, or base an adverse employment action on a criminal conviction until after extending a conditional offer of employment. After a conditional offer of employment, an employer can only withdraw the offer after evaluating the applicant under Article 23-A and finding that the applicant’s conviction history poses a direct relationship or unreasonable risk… Consistent with Article 23-A, an employer’s focus must instead be on an applicant’s qualifications. Also, solicitations, advertisements, and publications for employment cannot mention criminal history.”
The City Commission has also publicized sample forms which you can use to comply.
You should not be confused by the sample forms and understand you are not required by law to use the proposed forms. However, if you develop your own forms, your forms should comply with the requirements of the proposed forms. Employers are required by the law to send the required pre-action and post-action notices, but those notices can be sent via a form or letter which you design.
Many employers are just coming to grips with the reality of these new statutes, and are getting the first legal letters and threats of litigation from disappointed job applicants. Going forward, all New York employers must recognize that a nuanced approach to background checks and job offers is now a necessity.
New Protections for Employees
New York State is at the forefront of gender equality, having enacted a number of new laws in 2015. All of these new laws go into effect on January 19, 2016.
- The “Protect Women from Pregnancy Discrimination Law” – As indicated by its name, this statute, much like the City’s Pregnancy Fairness Act, mandates that employers engage in an interactive process and consider individualized accommodations for any pregnancy or ‘pregnancy – related’ condition. Thus, all New York employers must now be aware that the old rules no longer apply, and that you cannot have a policy saying ‘no light duty’ or once you cannot lift, you must take a leave.
Every pregnant employee who requests an accommodation must receive individualized attention, and it is advisable to document clearly the reasons why an accommodation may or may not be granted.
- The “Achieve Pay Equality Act” is similar to the federal Equal Pay Act, but broader in its scope and remedies. This amendment to the NY Labor Law provides that an employer may not pay a lower wage to a female, for performing the same type of work as a male. Significantly, damages are 300% of the wages.
This act also prohibits an employer from issuing a rule which prohibits employees from discussing their wages. The employer can, however, set rules as to the ‘time, place and manner’ of such conversations, and employees in Human Resources and other departments who have access to wage information are prohibited from disclosing that information.
- The “Protect Victims of Sexual Harassment Law” also seeks to do what its name implies – expand the prohibitions on sexual harassment to all employers, even those with fewer than 4 employees.
- The “End Family Status Discrimination Law” creates a new protected classification of “familial status” and prohibits an employer from discriminating against an employees because he/she has children, is pregnant, or is seeking to secure legal custody of a minor, or a disabled person.
- Transgender/LGBT Guidelines – The City Commission issued guidance in late December regarding accordance of LGBT and transgender employees. Some exceptions, highlights are:
(i) Employers cannot issue grooming standards or dress codes which differentiate based on gender;
(ii) Employers must use an employee’s “preferred” name of pronoun; and
(iii) Employers must allow employees to use restrooms and locker rooms, regardless of their “anatomy” or “sex at birth.”
All of these laws together signal clear shift in the ‘winds’ in New York City and State, with more laws than ever expanding the protections available to employee.
Other developments we are monitoring for 2016:
- Wage/Hour Developments – The Attorney General continues to investigate abuse of “call-in” shifts and to call for the use of “predictive scheduling”. Employers should be aware that the state and federal DOL are on the lookout for the misclassification of employees as “1099 workers”.
- Unpaid Interns – If you still use unpaid interns, be mindful of the requirements for a legal internship.
- Medical Marijuana – Now that the first dispensaries have opened in New York, be aware of your obligations to employees who are prescribed medical marijuana.
What should you be doing?
Make compliance more than a policy, it should be part of your culture.
- Train/ Train/ Train – The best thing you can do as an employer is educate your managers and Human Resource personnel. Make sure that every manager knows what these new laws are, are aware of the protections which they have created, and apply them in their daily interactions in the workplace.
- Establish the right policies – It is obvious that you should make sure that your written policies are updated, to reflect these new laws. However, this is secondary to training. The policies are easy to write, but making the policies part of your culture and making sure your manager understands their obligations is much more important.
- Have a good grievance procedure – Make sure that you have in place a grievance process that is user-friendly and is used. If no one is filing grievances or using your hotline, beware, as that doesn’t necessarily mean that nothing is wrong. Use other employee surveys and measurement tools to ‘take the pulse’ of your workforce.
- Be careful in handling background checks and job offers – Your old procedures must go out the window, and your hiring process must be revamped, to comply with the new laws.