New York State Strengthens Harassment and Discrimination Laws: Part 2 of 2

This is a continuation of our prior blog that discusses the new workplace protections in New York.

1. Restricts Non-Disclosure Agreements.

In 2018, New York State law was amended to limit the use of Non-Disclosure Agreements in connection with the resolution of sexual harassment claims. This limitation now applies to the settlement of all discrimination, harassment and retaliation claims. Specifically, the law precludes the use of non-disclosure agreements that prohibit an individual from disclosing the facts and circumstances of a discrimination or harassment claim, unless: (i) the condition of confidentiality is in the complainant’s best interest; (ii) any such non-disclosure provision is the complainant’s preference and is written in plain English, and if applicable, the primary language of complainant.

2. Hair Discrimination.

The new legislation also prohibits employment discrimination based on religious attire, clothing or facial hair. The new law amends the New York State Human Rights Law to make clear that employers cannot refuse to hire, retain, promote, or take other discriminatory action against an individual for their attire, facial hair or displaying other physical traits (ex: hair texture and braids) in accordance with the tenets of their religion or race. Further, employers are prohibited from treating applicants or employees differently because of that person’s religious beliefs.

3. Salary History Ban.

New York State has also enacted laws prohibiting employers from inquiring about salary history during the process of considering an individual for a job. Employers must not:

a) Rely on an applicant’s wage or salary history in determining whether to offer employment or in determining the wage or salary for such individual.

b) Orally or in writing seek, request, or require an applicant or current employee’s wage or salary history as a condition to be interviewed, as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion.

c) Orally or in writing seek, request, or require an applicant or current employee’s wage or salary history from a current or former employer, current or former employee, or agent of the applicant or current employee’s current or former employer.

d) Refuse to interview, hire, promote, otherwise employ, or otherwise retaliate in any manner against an applicant or current employee (i) based on the individual’s prior wage or salary history; (ii) based on the individual’s refusal to provide wage or salary history information; or (iii) based on the filing of a complaint with the Division of Human Rights alleging a violation of this law.

4. Equal Pay protections expanded to all protected classes.

The new legislation also amends the equal pay provisions of the New York Labor Law (NYLL), which currently prohibits gender-based pay inequity, to apply to members of all protected classes under the NYSHRL. Under the new legislation, individuals who believe they are underpaid due to their protected status will be able to bring a claim for equal pay directly under the NYLL. The NYLL has a six-year statute of limitations, which is double the three-year statute of limitations applicable to claims under the NYSHRL, and also provides for triple damages.

Additionally, the new law lowers the burden of proof for an individual claiming an equal pay violation by requiring employers to ensure equal pay for “substantially similar work,” as opposed to “equal” work. However, the law permits a differential in rate of pay if the employer can show that such decision is based on (i) a seniority system, (ii) a merit system, (iii) a system measuring earnings by quantity or quality of production, or (iv) a bona fide factor other than the protected status, such as education, training or experience, which is job-related and consistent with business necessity.

If you have questions regarding discrimination, harassment or any other aspect of labor and employment law, feel free to contact Mitchell Schley at 732-325-0318 or mschley@schleylaw.com.

New York State Strengthens Harassment and Discrimination Laws: Part 1 of 2

On August 12, 2019, Governor Andrew Cuomo signed legislation that further strengthens New York’s existing workplace harassment and discrimination protections.

Until now, workplace protections applied only to employees. However, in recognition that employers often characterize workers differently, the legislation expands workplace protections to independent contractors, subcontractors, vendors and consultants. In addition, the legislation requires employers to adopt sexual harassment prevention policies and conduct annual, interactive sexual harassment prevention training for all employees.

Summary of the Laws:

  1. Covers all employers in the state.

    Previously, except with respect to alleged sexual harassment, an employer with fewer than four employees was not covered by the New York State Human Rights Law (NYSHRL). Now, every employer within the state of New York is covered by the NYSHRL

  2. Expands protections against all forms of discriminatory harassment based on all protected categories.

    In addition to protection from sexual harassment, non-employees, are now protected from all forms of unlawful discrimination where the employer knew or should have known the non-employee was subjected to unlawful discrimination in the workplace and failed to take immediate and appropriate corrective action.

  3. Eliminates restriction that harassment be “severe or pervasive” in order to be legally actionable.

    The burden of proof for harassment claims has been significantly lowered in New York State. Specifically, the legislation removes the requirement that complainants prove “severe or pervasive” conduct that altered their conditions of employment and created a hostile and abusive work environment.

    Now, employers must address all forms of harassment in the workplace, including isolated instances. Thus, any harassment based on a protected class is unlawful “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” This definition of harassment applies to all protected characteristics including, but not limited to, age, race, creed, color, national origin, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, and sexual harassment.

  4. Eliminates the Faragher/Ellerth Affirmative Defense

    The legislation eliminates the Faragher/Ellerthaffirmative defense, which is commonly used by employers to dismiss claims of sexual harassment. The defense was articulated in two U.S. Supreme Court cases regarding workplace harassment. Those rulings, handed down more than two decades ago, held that an employer is not liable for sexual harassment if it can demonstrate that: (a) the employer exercised reasonable care, such as maintaining a complaint procedure, to prevent and correct promptly harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Now, under the new law, an employee’s failure to invoke his or her employer’s internal complaint procedure will not shield the employer from liability. This is important because victims of harassment are often afraid make a complaint for fear of retaliation.

  5. Allows punitive damages and mandates attorneys’ fees in employment discrimination cases.

    The award of attorneys’ fees to a prevailing plaintiff in an employment discrimination, harassment or retaliation case is now mandatory, not discretionary. Conversely, attorneys’ fees are only available to prevailing defendants if the claims brought against them are frivolous. Also, a prevailing plaintiff may be awarded punitive damages in a discrimination, harassment and/or retaliation case against private employers.

  6. Expands the statute of limitations for Human Rights complaints.

    As of August 12, 2020, the statute of limitations to file a sexual harassment administrative complaint with the New York State Division of Human Rights is extended from one year to three years, which is the same amount of time an individual has to pursue a claim in court. It will remain one year for all other types of claims.

  7. Requires employers to provide employees with sexual harassment policies and sexual harassment training materials in English and employee’s primary language.

    Employers will be required to provide employees with their sexual harassment policies and sexual harassment training materials in English and in each employee’s primary language, both at the time of hire and during each annual sexual harassment prevention training.

  8. The remaining amendments to the New York States Harassment and Discrimination Laws will be outlined in our next blog post.

    **Note: All the changes above have already taken effect, except: #1 will become effective on February 8, 2020; and #6 will become effective on August 12, 2020.

New Jersey’s New and Improved Wage Theft Act

On August 6, 2019, New Jersey passed one of the toughest wage theft statutes in the country. This amended statute, the New Jersey Wage Theft Act, emphasizes the importance of worker protection. The statute not only raises the level of protection for retaliation claims, but also increases wage theft penalties.

First and foremost, the Wage Theft Act greatly expands the time period in which an employee may bring a claim for unpaid wages, unlawful discharge and other retaliatory acts from two years to six years. Furthermore, remedies for employees now include reinstatement, corrective action by the employer and, most importantly, payment of lost wages plus 200% of the lost wages amount as liquidated damages. This essentially establishes threefold damages for wage theft violations.

Furthermore, with regards to maintaining proper records, the Wage Theft Act states that employers that fail to produce the records required under the wage and hour laws face a rebuttable presumption that allegations concerning the period of time and number of hours relevant to an asserted violation are true.

The Wage Theft Act also expanded the liability of joint and successor employers. There is a now rebuttable presumption that a successor entity is liable for the violations of the predecessor if only two of the following factors are shown:

  • They perform similar work within the same geographical area.
  • Occupy the same premises.
  • Have the same telephone or fax number.
  • Have the same email address or Internet website.
  • Employ substantially the same work force, administrative employees, or both.
  • Utilize the same tools, facilities, or equipment.
  • Employ or engage the services of any person or persons involved in the direction or control of the other or
  • List substantially the same work experience.

Lastly, the Wage Theft Act also adds criminal penalties onto the civil/monetary penalties. It increases the penalties for a first offense from up to $100 to between $500 and $1,000, 10 to 90 days’ imprisonment or both. For second and subsequent offenses, the penalties increase to between $1,000 and $2,000, 10 to 100 days imprisonment or both.

The majority of the law went into effect on August 6, except for some of the criminal penalties which went into effect on November 1, 2019.