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NYS Enacts Several Laws Affecting Sexual Harassment Claims in the Workplace

Photo by Mihai Surdu on Unsplash
Bill No.In BriefEffective DateEnacted
S5870Amends existing law to prohibit release of an employee’s personnel file in retaliation for an employee’s complaints about employer’s discriminatory practices.March 16, 2022Yes
S812aCreates a toll-free, confidential workplace sexual harassment hotline.  Requires employers to post and otherwise advise employees about the existence of this hotline in employer-provided materials.July 14, 2022Yes
S3295aAmends New York Human Rights Law to apply to all public employees and officials, including any elected official, of the New York state executive, legislature, or judiciary, including persons serving in any judicial capacity, and persons serving on the staff of any elected official in New York State.March 16, 2022Yes
S738Known as the Let Survivors Speak Act, this law would amend the General Obligation Law to prohibit settlement agreements in matters involving discrimination, harassment or retaliation from containing inter alia (1) non-disparagement or non-disclosure clauses, (2) clauses calling for forfeiture of all or part of consideration for violation of non-disclosure or non-disparagement clauses, or (3) clauses requiring any affirmative statement, assertion, or disclaimer by the complainant that the complainant was not in fact subject to unlawful discrimination, including discriminatory harassment, or retaliation.Passed by Senate.  Not yet passed by Assembly.No
S766Amends General Obligations Law to prohibit releases or settlement agreements between employees (or general contractors) and employers to contain a “no rehire” clause.”  The amendment does not preclude anemployee and employer from agreeing to terminate an existing employment relationship as part of a settlement of a claim.Passed by Senate.  Not yet passed by Assembly.No
S566aExtends the statute of limitations for administrative claims resulting from unlawful discriminatory practices to three years.Passed by Senate. Not yet passed by Assembly.  Effective 90 days after enactment.No
S849aExtends the statute of limitations for harassment in the workplace to six years under the NYHRL.Passed by Senate. Not yet passed by Assembly.  Effective 60 days after enactment.No

Next Steps

Employers should audit their current investigative practices concerning all allegations of sexual harassment in the workplace. They should ensure that appropriate protective measures are being taken during investigations, proper interview and documentation practices are being followed, and confidentiality, due process, and non-retaliation obligations are upheld. 

This trend of increasing protections for employees victimized by sexual harassment and assault in the workplace sends a strong signal to business owners and human resources professionals to carefully audit their internal practices, business communications, and employee contracts. 

Employers should also review and update any employee policies, handbooks, communications, and employee contracts, for prohibited waivers, obligations and representations concerning sexual harassment investigations and prohibitions.   This will include updating your sexual harassment training training materials, as well as reviewing your current sexual harassment policy, individual employee contracts, non-disclosure agreements, separation agreement templates, and any pre-employment arbitration agreements. 

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In Case You Missed It: New York City Closes Out 2021 with New Laws

Three important updates, addressed below, amend the NYC’s Earned Safe and Sick Time Act (“ESSTA”) and the NYC Human Rights Law (“NYCHRL”) and enact a limitation on automation of certain human resources functions.  While the Automated Employment Decision Tools Law is not effective until January 1, 2023, employers would be prudent to familiarize themselves with this law now, as it fundamentally alters certain automated hiring and promotion operations for employers in NYC.

ESSTA Amendments Provide for COVID-19 Child Vaccination Leave

The law provides for a 60-day phase in period after which penalties for non-compliance can be assessed, including:

  • up to three times the wages that should have been paid under this chapter or $250, whichever is greater (for each instance of safe/sick time taken by an employee but unlawfully not compensated by the employer);
  • $500, if sick/safe time is denied or charged against other accruals.

This amendment is set to expire December 31, 2022.

NYCHRL Amendments Require Employers to Post Salary Ranges in Job Postings

The NYC Commission on Human Rights (“NYCCHR”) is expected to promulgate rules to implement the law’s before the effective date. At present, without clarifying regulations, the geographic scope of the new amendment remains unclear. Challenges to this amendment are expected on First Amendment compelled speech grounds.

Automated Employment Decisions Tools Law

  • they have been the subject of a bias audit conducted no more than one year prior to the use of such tool, and
  • a summary of the results of the most recent bias audit of such tool as well as the distribution date of the tool to which such audit applies has been made publicly available on the website of the employer or employment agency prior to the use of such tool.

The use of automated employment decision tools turns on whether such tools supplant the human discretionary decision-making processes. Automated employment decision tools are defined in the law as “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.” The law excludes from the definition any tool “that does not automate, support, substantially assist or replace discretionary decision-making processes and that does not materially impact natural persons, including, but not limited to, a junk email filter, firewall, antivirus software, calculator, spreadsheet, database, data set, or other compilation of data.” It remains unclear at this time what a “bias audit” entails, aside from the statutorily mandate third-party review of the relevant AI-driven tools.

Penalties for violation of the new law range from $500 to $1,500. Aggrieved candidates or employees are not precluded by this law from otherwise bringing any civil claims in a court of competent jurisdiction.

Employers should take their time to review the functional role of the tools used by their internal HR departments as well as third-party vendors. The NYCCHR is expected to promulgate regulations to clarify the obligations of employers under this new law.

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New York Expands Whistleblower Protections for Employees in January 2022

Imagine this: You run a food delivery service. One day, you learn that a new operations consultant you recently contracted with to help with payroll has complained to the local health department and reported a suspected violation on your business.  Specifically, she has reported that the food your company produces and delivers to senior centers is contaminated.  Now you have a major PR problem on your hands. And, you’re angered that the consultant didn’t raise the issue internally before going public.  Moreover, you are sure the food your company produces is safe. Can you terminate your contract with her? 

Not so fast. 

Employee, redefined

Pursuant to the recent amendments, whistleblower protections now extend not only to current employees, but also “former employees” as well as self-employed independent contractors who “work in furtherance of an employer’s business enterprise who are not themselves employers.”

What is Protected Activity?

The law now protects employees from retaliation by the employer where the employee discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of law, rule or regulation (including executive orders!) or is a substantial and specific danger to the public health or safety whether or not the complained-of violation is within the employee’s job duties. Whereas the pre-amendment statutory language specifically required actual violations of the law, an employee’s reasonable belief is now sufficient to trigger statutory whistleblower protections.

Additionally, the employee is also protected from retaliation if he or she provides information or testifies in a regulatory investigation, hearing or inquiry about an employer’s practices. Lastly, an employee is protected if he or she objects to participation in any activity, policy or practice of his or her employer.

Elimination of Employer Notification Provisions

Prior to the amendments, Section 740 of the Labor Law required that the employee actually notify the employer and give the employer a reasonable opportunity to cure any alleged wrongdoing. The statute is now amended in two significant ways:

  • The employee is now required only to make a good faith effort to notify his or her employer before affording such employer an opportunity to correct;
  • Employees are not required to make a good faith effort to notify where (1) there is an imminent and serious danger to the public health or safety, (2) employee reasonably believes that notification will result in destruction of evidence or concealment, (3) the activity could reasonably be expected to lead to endangering a minor, (4) employee reasonably believes that notification to supervisor would result in physical harm to employee or another person, (5) employee reasonably believes that employer is already aware of the complained activity and will not correct it.

What is Considered Retaliation?

A retaliatory action is now defined as “an adverse action taken by an employer or his or her agent to discharge, threaten, penalize, or in any other manner discriminate against any employee or former employee exercising his or her rights under this section. This expanded definition covers the following broad categories:

  • Adverse employment actions or threats, including, but not limited to, discharge, suspension or demotion;
  • Actions or threats that would adversely impact a former employee’s current or future employment;
  • Threats to contact or actual contacting of immigration authorities concerning employee’s suspected or actual citizenship status.

Expansion of Remedies

The statute of limitations for filing a civil claim under Section 740 has been extended to two years. Additionally, jury trials are available for claims thereunder as well as penalties up to $10,000.

Posting Requirements

Employers are now required to inform their employees about their rights under the Labor Law through conspicuous postings.

Three Steps Employers Should Take Now

  • Review and, if necessary, revise your anti-retaliation and whistleblower policies.
  • Train your managerial employees to recognize when issues raised by employees may touch upon the provisions of this law.
  • Prepare appropriate postings to inform your employees about their rights under the law. 

NY DOL Issues Guidance Regarding Recreational Marijuana

Photo by Avery Meeker on Unsplash

Generally, Section 201-D limits employers’ ability to take adverse action against employees who engage in certain statutorily defined “protected” activities, such as engagement in political speech, outside of the workplace. Among other things, the MRTA amended Section 201-D to include the legal use of cannibals and other lawful consumable products as protected activity under Section 201-D.  In other words, NY employers are now prohibited from discriminating against employees based on the employee’s use of legal cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.  In contrast, the illegal use, sale, or transportation of cannabis is not protected by Section 201-D of the Labor Law.

  • employer’s actions are otherwise required by state or federal law, 
  • the employee is impaired by the use of cannabis, or 
  • employer’s actions would result in the loss of a federal contract or federal funding.

The DOL’s guidance answers key several questions about how the MRTA’s amendments to Section 201D will impact the workplace, and what steps employers can take to discipline employees found to engage in marijuana use.  The guidance specifically does not address the issues relating to medical use of cannabis.  

Key Takeaways

  • An employer can take action against an employee if the employee is “impaired” by cannabis while working, meaning the employee manifests specific articulable symptoms of impairment that (1) decrease or lessen the performance of such employee, or (2) interfere with an employer’s obligation to provide a safe worksite as provided in occupational health and safety laws.
  • Articulable symptoms are defined as observable indications that the employee’s performance of duties is lessened or decreasedHowever, observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment.  Thus, simply detecting cannabis odor standing alone is an insufficient predicate for disciplinary action.
  • Employers can prohibit cannabis use at the workplace (or in a company vehicle) during work hours or on-call hours, including meal and break times, even where an employee otherwise leaves the worksite during “work hours”.
  • But, an employer cannot prohibit remote employees from using cannabis while working from home since the DOL does not consider a private residence as a “worksite”.  However, an employee exhibiting the above-defined articulable symptoms of impairment can be disciplined.  
  • Section 201-D does not apply to remote employees working out-of-state.
  • Employers cannot prohibit the use of cannabis outside of the workplace absent the limitations of Subsection 4-a discussed above.  Similarly, employers cannot ask their employees to waive the protections of Section 201-D nor keep the existing cannabis use prohibitions in place.
  • Lastly, employers cannot test their employees for cannabis use unless otherwise authorized to do so under Subsection 4-a or other applicable laws, e.g., mandatory testing for drivers of commercial motor vehicles under 49 CFR Part 382.

Next Steps

  • Employers should review and amend discipline policies which discipline employees who use legal cannabis recreationally outside of work hours, absent separate state or federal authority to do so.
  • Employers should review their existing workplace policies such as drug-free workplace policies, attire and grooming standards, and safety policies, among others, to reflect the protections for recreational cannabis use pursuant to Section 201-D. 
  • Employers should train managers and HR staff on recognizing, reporting, and documenting articulable symptoms of impairment and remember that cannabis odor alone is not a sufficient basis for discipline. Further, employers should be aware that the defined articulable signs of impairment due to cannabis use may also be an indication that an employee has a disability protected by federal and state law, which could give rise to a duty to engage in an interactive dialogue and potentially offer reasonable accommodations. 
  • Lastly, the guidance specifically did not address medicinal cannabis use. Employers who are considering taking adverse action against an employee in connection with his or her use of medicinal cannabis use, or need guidance on offering accommodations to medical cannabis users,should consult with an employment attorney.

Dr. A, et al. v. Hochul: Vaccine Mandate Must Allow for Religious Exemptions

“Defendants, their officers, agents, employees, attorneys and successors in office, and all other persons in active concert or participation with them, are preliminarily ENJOINED from enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with § 2.61 [that required most healthcare workers to be vaccinated against COVID-19 within thirty days] such that: … Section 2.61 is suspended in operation to the extent that the Department of Health is barred from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination or that they revoke any exemptions employers already granted before § 2.61 issued[.]”

NY Governor Hochul has signaled that the state intends to appeal this decision and that she “stands behind [the healthcare workers’ vaccination] mandate.” However, ultimately, the state may end up allowing for religious exemptions under this emergency order, while otherwise remaining aggressive in pursuing vaccination mandates through a variety of carrot-and-stick approaches.

NYS Designates COVID-19 a Highly Contagious Communicable Disease: Now What?

What to do ASAP

At the time of the HERO Act’s adoption, COVID-19 was not designated as a highly contagious communicable disease. But now, a number of key provisions are triggered. At this time employers are required to:

Employers are required to ensure that their exposure prevention plans are actually followed at the worksite and, as a result, must designate certain supervisory employees to implement and ensure compliance with the plans.

Anti-Retaliation Reminder

Of particular import now are the anti-retaliation provisions of the HERO Act. Employers must not retaliate against employees who:

  • in good faith report potential violations of the Act or the exposure prevention plans adopted in connection therewith to any state, local or federal authority,
  • report an airborne infectious disease concern or seek assistance or intervention with such exposure concerns from their employer or a governmental body, or
  • refuse to work where they believe in good faith that such work exposes them, other employees or the public to an unreasonable exposure to an airborne infectious disease, provided an employer is given notice or reasonably should have known of such unreasonable exposure.

An employer is required to maintain records of communications between them and employees regarding potential risk of exposure for two years after the conclusion of the designation from the Commissioner of Health.

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