Noteworthy Recent Developments for New York Employers

Global Publication March 29, 2016

There have been a number of developments in recent months involving New York's employment laws. New York employers need to be aware of and responsive to these developments. These developments, which are addressed in more detail below, include: (1) a new law generally allowing employees to discuss their compensation, even if the employer has a policy otherwise; (2) a new focus on protecting employees who may be discriminated against because of their gender identity or expression (including allowing employees to use the bathroom that is consistent with their gender identity or expression); (3) updated rules under New York City’s sick time law, including more stringent written policy and recordkeeping requirements; (4) proposed rules that clarify what New York City employers cannot include in their job advertisements and applications regarding criminal histories and background checks; (5) an obligation to reasonably accommodate an employee’s pregnancy-related condition; (6) greater protections for employees under New York State’s equal pay law; and (7) protections for employees against discrimination based on familial status and caregiver status.

What Should Employers Do Now? In light of these developments, affected employers should (a) review and update their workplace policies, including those relating to reasonable accommodations and sick time (all New York employers should maintain these policies), (b) consider developing new workplace policies, including policies addressing when employees may discuss their compensation and which bathrooms employees may use, (c) review their job advertisements, job applications, employment contracts, offer letters, and similar agreements to ensure that they comply with these developments, (d) review their pay practices to ensure that they comply with the New York State equal pay law, (e) ensure that their recordkeeping practices comply with New York laws, and (f) ensure that their HR and other managers are educated about these changes in the law and trained to properly respond to and handle workplace issues. (Many employers fail to take this last step, which hampers an employer’s ability to handle workplace issues before they turn into something bigger and more costly).

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1. Employee Discussions of Compensation. While many employers prefer that their employees not discuss their compensation with co-workers, and some employers even maintain written policies prohibiting such discussions, New York State law now allows employees to ask about, discuss, or disclose their compensation or the compensation of their fellow employees. Further, unlike the federal National Labor Relations Act, which provides similar rights but only to non-supervisory employees, New York State’s new law applies to all employees, even supervisors.

a. The law does permit an employer to issue a written policy that sets reasonable limits as to when and where discussions about compensation may occur. Many employers may want to put reasonable limits on such discussions during working hours. Also, before one employee discusses another employee’s compensation, the employer may require that that other employee’s permission be obtained first.

b. The law recognizes an exception with respect to employees who have access to other employees’ compensation as a part of their essential job functions (such as HR employees). Those employees may not disclose the compensation of other employees, but they may disclose their own compensation.

2. Protection of Gender Identity and Gender Expression. New York City has issued new guidance under its Human Rights Law addressing discrimination based on gender identity or expression (including transgender individuals). The following rules are most relevant to employers:

a. An employer may not refuse to use an employee’s preferred name, pronoun, or title (e.g., Mr./Ms.), except where the law requires otherwise (such as using an individual’s legal name for employment verification purposes).

b. An employer may not refuse to allow an employee to use a bathroom that is consistent with the employee’s gender (including the employee’s gender identity). This is the case even if others (such as co-workers) object to sharing a bathroom in such cases. Nor may an employer require “proof” of gender before permitting the employee to use the selected bathroom.

c. Employers may not maintain dress codes or grooming standards that differ based on the employee’s gender (e.g., requiring women, but not men, to wear make-up or their hair in a certain way; requiring men, but not women, to wear ties). Catering to client or customer preferences is not a defense.

New York employers outside of New York City also need to be concerned about gender identity discrimination and related matters. New York State recently promulgated regulations under its Human Rights Law making clear that the law’s prohibition against sex discrimination protects both gender identity and transgender individuals, and that the law’s prohibition against disability discrimination protects individuals with gender dysphoria, a medical condition where the individual’s gender identity differs from the individual’s sex assigned at birth.

3. Updated Rules Under New York City’s Sick Time Law. New York City has updated its rules under its Earned Sick Time Act, the law which requires New York City employers to provide its employees with paid or, for employers with less than five employees, unpaid sick time. The new rules make clear that employers must not only provide employees with a “Notice of Employee Rights” under the law, but also prepare and distribute a written sick leave policy. Further, employers are required to maintain certain records and information under the law for at least three years.

4. Automatic Violations of the Fair Chance Act. New York City has issued proposed rules under the recently enacted “Fair Chance Act,” the law which regulates how and when New York City employers may inquire about criminal histories and utilize criminal background checks. Of note are certain “per se” violations of the law, including job advertisements that state “background check required,” and use of job applications that require or refer to the applicant’s criminal history, even if the applicant is instructed not to answer those questions. Affected employers will want to review their job advertisements and applications to ensure compliance. The proposed rules are generally consistent with the enforcement guidance previously issued by New York City.

5. Reasonable Accommodation of Pregnancy-Related Conditions. New York State law now requires employers to reasonably accommodate “pregnancy-related conditions,” unless such accommodation would pose an undue hardship. Pregnancy-related conditions include medical conditions related to pregnancy or childbirth. Reasonable accommodations could include job restructuring and modified work schedules. Any medical information provided by an employee or applicant to support a reasonable accommodation request must be kept confidential by the employer. New York City employers have been subject to a similar law since 2014.

6. Strengthening the Equal Pay Law. New York State has strengthened its equal pay law, which requires that employees performing equal work at the “same establishment” receive equal pay, without regard to the employee’s sex. At the same time, New York State tripled the amount of liquidated damages that can be awarded (up from 100% of the economic damages to 300% percent) against an employer for a violation of the equal pay law.

7. Protections Based on Familial Status and Caregiver Status. New York State law now prohibits discrimination based on familial status. Broadly speaking, this right protects employees who are “parents” and guardians. This protection is in addition to New York State’s existing prohibition against discrimination based on marital status. Taking this protection one step further, New York City will soon prohibit discrimination based on caregiver status, which protects employees caring for covered relatives (the effect of which is to protect more than just employees who are parents or acting as guardians of a minor). The New York City law takes effect on May 4, 2016. Neither law expressly requires that employers reasonably accommodate the parental or caregiving responsibilities of their employees. However, all employers are cautioned about making work-related decisions based upon assumptions about what an employee can or cannot do based upon his or her parental or caregiving responsibilities.

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Our client alerts are for general informational purposes and should not be regarded as legal advice. If you would like additional information or have any questions, please contact the authors.

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