New York and New Jersey Ban Salary Inquiries

Q.  Is my company allowed to inquire about an applicant’s salary history when considering him or her for employment?

A.   The growing trend to eliminate inquiries into a job applicant’s salary history continues. In July, New York and New Jersey became the latest states to enact legislation that will restrict employers from obtaining and utilizing an applicant’s salary history information during the hiring process.

For more information, click here.

Leigh H. McMonigle

 

New York Human Rights Law Amendments Effective October 12, 2019

Q: I am a New York employer. What are the key parts of the new amendments to the New York Human Rights law and when do they go into effect?

A.  As we detailed in an earlier post, New York state recently passed a bill that makes numerous changes to the New York Human Rights Act (“NYHRL”). Governor Cuomo signed the bill on August 12, 2019, and most of the amendments go into effect on October 11, 2019.

Among the amendments that go into effect on October 11, 2019 are the significant expansion of protected categories under the NYHRL to include age, creed, color, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence, victim status or because an individual has opposed any practices prohibited by the NYHRL or participated in any proceeding under the NYHRL. The amendments also make it much easier for a plaintiff to demonstrate harassment, changing the standard of liability from “severe and pervasive” to whether the alleged harasser subjected the victim to “inferior terms, conditions, or privileges of employment.”

Also effective October 11, 2019, New York employers are prohibited from including non-disclosure provisions in a settlement agreement of any discrimination claim (not just claims for sexual harassment), unless the complainant prefers to include the provision, has 21 days to consider it, and seven days to revoke it.

Other aspects of the new law have later effective dates. Specifically, effective February 8, 2020, the NYHRL will apply to all employers, rather than those with four or more employees. Also, effective August 11, 2020, the statute of limitations for filing a sexual harassment claim with the New York State Division on Human Rights will increase from one to three years.

Jessica Rothenberg

California Supreme Court Decision Could Expand Standing For Website Accessibility Claims

Q.  Does a consumer need to actually try to buy a product or service at a store to have standing to sue under the ADA for failure to maintain an accessible website?

A.  Evolving case law regarding website accessibility under the Americans with Disabilities Act (ADA) and comparable state laws continues to impact companies across the country. In the past, courts have required plaintiffs to show that the allegedly discriminatory website prevented their full use and enjoyment of a connected brick-and-mortar location. More recently, however, courts have looked favorably on claims even absent such an alleged deprivation. A recent opinion from the Supreme Court of California not directly addressing ADA website compliance appears nevertheless to further cement this shift, allowing standing for discrimination claims regarding a website under California’s Unruh Civil Rights Act based on an individual’s intent to use the website’s services in and of themselves. This shift further emphasizes the need for commercial website owners to ensure that their online content is accessible to the visually impaired in compliance with the widely adopted Web Content Accessibility Guidelines (WCAG) 2.0.

For further information, click here.

Jeffrey M. Goldman, Tracey E. Diamond and Victoria D. Summerfield

New York State Expands Equal Pay Protections

Q: What do New York employers need to know about the recent amendment to the state’s pay equity law?

A: In November 2015, New York became one of the first jurisdictions to pass a pay equity law that was more extensive than the federal equal pay laws.  On July 10, 2019, Governor Cuomo signed an amendment to New York Labor Law Section 194, further expanding its scope.

Under the current law, employers are prohibited from paying an employee a lower rate than someone of the opposite sex for “equal work” that is performed under similar working conditions. The amended law makes it illegal for an employer to pay an employee less based on numerous characteristics in addition to sex.  These additional protected characteristics include age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status.

The amended law not only expands the current prohibition against gender-based pay inequity, but it also requires equal pay for “substantially similar work,” as opposed to the previous requirement of “equal” work. Specifically, it requires only a showing that employees are engaged in “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”

Employers should be aware that a violation of this law could result in an award to an employee of attorney’s fees and triple damages.

Importantly, the new pay equity legislation will still maintain four exceptions protecting employers from liability where employees do not receive equal pay for substantially similar work. These are where pay is based on a:  (1) seniority system; (2) merit system; (3) system which measures earnings by quantity or quality of production; and (4) bona fide factor unrelated to protected class status (such as education, training or experience) that is job-related and consistent with business necessity.

This new legislation will take effect on October 8, 2019.

Next Steps for Employers

These developments follow the trend of the equal pay movement taking place in cities and states across the country. It is recommended that employers review their payroll to ensure that salaries, hourly rates, benefits and all forms of compensation are equal among employees performing substantially similar work.  As a reminder, when evaluating what is “substantially similar work,” the focus should be on the job duties being performed and not simply on job titles.

For assistance in ensuring that your policies and practices comply with this amendment, we recommend consulting with labor and employment counsel.

Leigh McMonigle

New York Enacts Broad Changes to New York Human Rights Law

Q: I am a New York employer. What should I know about the recent amendments to the New York Human Rights Law?

A: In June 2019, New York State approved a bill that makes numerous changes to the New York Human Rights Law (“NYHRL”), governing discrimination and harassment.  Governor Cuomo has not yet signed the bill, but is expected to shortly.

As explained in more detail below, the legislation significantly increases the NYHRL’s coverage by expanding the definitions of “harassment” and “employer.” The legislation also prohibits non-disclosure clauses in any settlement agreement involving discrimination allegations. Finally, the legislation expands employers’ sexual harassment training obligations, and extends the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights to three years.

Definition of Harassment

The NYHRL currently prohibits harassment based on gender, race, religion, sexual orientation, gender identity or expression, or national origin. The amendments expand these protected categories to include age, creed, color, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or because an individual has opposed any practices prohibited by the NYHRL or participated in any proceeding under the NYHRL.

The amendments also significantly expand the definition of harassment. Currently, to prove harassment under the NYHRL, a plaintiff must demonstrate that the harassment was “severe and pervasive.”  Under the amendments, a plaintiff need only show that the harassment “subjects an individual to inferior terms, conditions, or privileges of employment.”  Employers will no longer be permitted to rely on the affirmative defense that the employer had an effective complaint procedure, the individual did not take advantage of it, and there was no adverse employment action.  Rather, the employer’s only affirmative defense is if 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.”  Lowering the standard from “severe or pervasive” harassment to harassment that rises above “petty slights or trial inconveniences” greatly expands the universe of potential harassment claims and aligns the New York state law with the standards set forth in the New York City Human Rights Law.

The new definitions will be effective 60 days after the bill become law.

Definition of Employer

The amendments remove the NYHRL’s current carve-out for employers with fewer than four employees. Beginning 180 days after the bill become law, the NYHRL will apply to all employers regardless of size

Inclusion of Non-Disclosure Clauses in Settlement Agreements

New York employers may recall that, in 2018, the state passed a new law prohibiting non-disclosure provisions in any settlement agreement of a sexual harassment claim unless the complainant prefers to include the provision, has 21 days to consider it, and has a seven-day revocation period. The amendments expand these prohibitions to settlement agreements of any discrimination claim, rather than just claims of sexual harassment.  In addition, non-disclosure provisions are void to the extent that they prohibit or restrict the complainant from participating in an investigation by a government agency or disclosing any facts necessary to receive unemployment insurance or other public benefits.

These changes will be effective 60 days after the bill becomes law.

Sexual Harassment Training

The amendments expand upon last year’s new law requiring employers to give annual sexual harassment training. Employers will be required to train employees and distribute policies in the employees’ primary language.  The New York Commissioner of Labor will create versions of the template sexual harassment training and policy in other languages.  If there is not a template available from the Commissioner in an employee’s primary language, the employer can provide the policy and training in English.

Statute of Limitations

Effective one year after the bill becomes law, the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights will be increased to three years, as compared to the current one year statute of limitations.

Steps for Compliance

To prepare for the amendments, employers should review and update all relevant policies and training materials. While anti-harassment should always be an area of focus for employers, employers should be especially aware of any potentially harassing situation given the forthcoming lower standard for harassment under New York State law.

Jessica Rothenberg