On April 12, 2018, New York Governor Andrew Cuomo signed into law the New York State budget bill, which makes some big changes in the obligations of New York employers relative to sexual harassment.

The new law has both immediate and rolling implications for all New York employers.

EFFECTIVE IMMEDIATELY (I.E., RIGHT NOW)

The New York State Human Rights law now extends protections to certain non-employees, including contractors, subcontractors, vendors, consultants, and other persons providing services pursuant to a contract.

This means that employers may now be held liable for the sexual harassment of non-employees if the employer, its agents, or supervisors knew or should have known that the non-employee was subjected to sexual harassment and the employer failed to take appropriate corrective action.

This is a significant change in the law and employers should make sure that Human Resources and managers are aware of it.
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Retail employers beware: New York City’s predictive scheduling law went into effect on November 26, 2017, and now New York State is now getting in the mix. The New York State Department of Labor (“NYSDOL”) recently released draft regulations that would amend the rules for scheduling employees covered by the Minimum Wage Order for Miscellaneous Industries and Occupations. The NYSDOL comment period recently came to a close on January 22, 2018. Likely on the heels of the NYSDOL’s issuance of a final rule, we break down what employers need to know. But before diving into the proposed NYSDOL draft regulations, let’s recap the New York City predictive scheduling law that recently went into effect.

New York City Predictive Scheduling Law
On November 26, 2017, New York City’s “Fair Workweek” legislation went into effect, which is a collective of laws aimed to protect fast food and retail workers. This blog focuses on the provisions for retail workers. The following Q+A provides an overview of the law’s key provisions applicable to retail businesses:

  • Does the new law apply to all retailers? No. The law applies to “retail businesses” which are defined as entities with 20 or more employees engaged primarily in the sale of consumer goods at one or more stores within New York City.
  • Does the new law apply to all employees? Almost all. This law applies to full-time, part-time, and temporary workers. This law does not apply to employees covered under a valid collective bargaining agreement.
  • What kind of notice is required? Employers must provide each individual employee with a final schedule at least 72 hours before the employee’s schedule begins. Employers can provide employees with their schedules in the manner in which they usually contact employees so text or email works. Employers must also post the schedule in-store in an area where all employees can view it.
  • On-call outlawed? Yes. What used to be a standard industry practice is now outlawed; an employer cannot require an employee to call in fewer than 72 hours before a shift beings to determine if he or she should come to work.
  • Can you add a shift? Not with less than 72 hours’ notice. However, this does not prohibit an employer from asking an employee if he or she would be willing to do so. If the employee is willing, the employer must obtain the employee’s written consent.
  • Can you cancel a shift? Not with less than 72 hours’ notice except under limited circumstances including: 1) threats to employees or the employer’s premises; 2) public utility failure; 3) shutdown of public transportation; 4) fire, flood, or other natural disaster; or 5) a government-declared state of emergency.
  • I have to keep what for how long? An employer must retain employee work schedules for at least three years. An employer is also required to provide employees with their work schedules for any previous week worked for the past three years within 14 days of the employee’s request.


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You can count Congress among the institutions caught in the ground swell of the #MeToo movement, and they’re using the tax code to prove it.

Buried in the various changes of the new tax bill, Congress included Section 13307, titled “Denial of Deduction for Settlements Subject to Nondisclosure Agreements Paid in Connection with Sexual Harassment

As January draws to a close, New York employers are confronting the reality of many new laws and regulations that govern the employment relationship – from the new Paid Family Leave law, to the new federal tax law. We are also tracking several newly-signed and proposed pieces of legislation, which could further complicate the employment relationship in New York.

Here is what there is so far:

New York Paid Family Leave

As we previously reported, effective January 1, most employers in New York State will be covered by the new Paid Family Leave law (“PFL”). Under the PFL, employers will need to provide eligible employees with 8 weeks of family leave with salary reimbursement capped at 50% of the state’s average weekly wage. This will increase on an annual sliding schedule until 2021 when employees will be entitled to 12 weeks of family leave with salary reimbursement capped at 67% of the state’s average weekly wage.

Eligible employees will be permitted to take leave to care for a qualified family member’s serious medical condition, to care for the birth or placement of a child, or for a qualified military exigency. Leave under the PFL will overlap with an employee’s leave under the Family and Medical Leave Act under certain circumstances.

For a more extensive analysis of the PFL, its requirements (including employer notice requirements), and suggested steps for compliance, we encourage you to read our previous blog post on this law: “A New Headache – New York’s Paid Family Leave
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Happy Halloween New York City Employers!

Just in time to scare even large employers, beginning October 31, 2017, it will be against the law for employers in New York City to ask about, rely on, or verify a job applicant’s salary history during the hiring process. As discussed in detail in our prior posts, this new legislation also permits disgruntled applicants to pursue claims against an employer for violations of the law either with the New York City Commission on Human Rights or directly in court.

With only a few weeks left before the law goes into effect, employers in New York City should take care in reviewing their hiring policies and practices to ensure compliance with the law.

The New Law

First, this law applies to all employers, regardless of size, in New York City.

The new law prohibits employers from:

(1) “Inquiring about” an applicant’s salary history throughout the entire employment process; and/or

(2) “Relying” on the salary history of a job applicant, when determining an applicant’s salary amount at any stage in the employment process, including when negotiating a contract.

The law defines “salary history” broadly to encompass not just wages but also benefits and any other form of compensation.

It also bans employers from searching publicly available records to obtain an applicant’s salary history.

There are limited exceptions to the ban:

  • First, an employer may consider an employee’s salary history if the applicant voluntarily disclosed his or her salary history “without prompting.
  • Second, an employer may discuss salary, benefits and other compensation expectations with the employee as long as the employer does not inquire about salary history.
  • Third, the definition of “salary history” does not include any “objective measure” of the applicant’s productivity, such as revenue, sales, or other production reports.


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Employers have long understood that what their employees do on company time is directly linked to the company’s own potential liabilities. When employees using mobile electronic devices cause harm, their carelessness isn’t only a problem for them—on company time, it can become a major problem for employers, as courts across the country have made clear in the past few years. Many employers are now reevaluating their cell phone usage policies for precisely this reason.

When a driver is using a cell phone at the time of an accident and the accident happens while the driver is on company business, the phone call is a business one, or the cell phone was provided by the company, companies have been sued along with the driver/employee, under a theory of “vicarious liability” or respondeat superior for the actions of its employee.  Under these doctrines, an employer may be responsible for the harm caused by its employee if that employee was acting within the course and scope of his or her employment at the time the accident occurred.


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The venerable New York Whistleblower Protection Act has long allowed employees to report misconduct by their employer, at which point the public interest could be vindicated by the state Attorney General. But does an employee have a right to bring a personal claim under New York’s whistleblower law against alleged wrongdoers? The answer now appears to be “yes.”

This past Friday, Justice Loren Bailey-Schiffman rejected arguments by defendants in a whistleblower case that the Attorney General and the Board of Directors of a non-profit school have the ability to file suit under the Nonprofit Revitalization Act of 2013, which requires employers to enact policies to protect whistleblowers from retaliation. Instead, she ruled the whistleblower herself has a private right of action against the school and its Headmaster.


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As part of our efforts to update employers regarding the newly-enacted statutes that will affect employers in the coming year, this post addresses a bill recently signed into by California Governor Jerry Brown that prohibits employers from requiring most employees who live and work in California to agree to a forum selection or choice of law clause that would designate a forum or substantive law of a jurisdiction outside California.

The bill, designated as Senate Bill 1241, is straightforward on its face adding section 925 to the California Labor Code.  It prohibits any employer from requiring an employee who “primarily resides and works in California” to adjudicate outside of California a claim arising in California, or to deprive California-based employees of “the substantive protection of California law” with respect to such a claim.  “Adjudication” is defined to include litigation and arbitration.  The statute becomes effective on January 1, 2017, with respect to contracts entered into after that date.


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