Building on progressive legislation passed last year, Governor Andrew Cuomo announced a sweeping proposal to strengthen protections against harassment in the workplace. The four part sexual assault and harassment safety reforms initiative, titled “TIME’S UP New York Safety Agenda,” is contained in the Governor’s 2019 Executive Budget, which was released on January 22, 2019. The safety reforms seek to prevent sexual harassment and assault from occurring while simultaneously enabling survivors to seek justice.

Currently, in order to prevail on a claim of sexual harassment/hostile work environment under the New York State Human Rights Law (“NYSHRL”), a plaintiff must show that the “workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’. . . that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’”[1]  Governor Cuomo has proposed to amend the NYSHRL to lower the “severe or pervasive” standard, although his proposal did not articulate the new standard that would take its place. Additionally, the proposal would amend existing legislation to require that all Non-Disclosure Agreements include specific language advising employees of their ability to file a complaint with a state or local agency, and to testify or participate in a government investigation.  New York employers would also be required to conspicuously post a sexual harassment educational poster designed and distributed by the State Division of Human Rights. Cuomo further proposes eliminating the statute of limitations on rape claims.

The TIME’S UP New York Safety Agenda arose out of recommendations made by TIME’S UP, led by a coalition of women in New York, including actresses, activists, attorneys and business executives.

_________________________

[1] Father Belle Community Ctr., Inc. v. New York State Div. of Human Rights, 221 A.D.2d 44 (4th Dep’t 1996), leave to appeal denied, 89 N.Y.2d 809 (1997).

On December 20, 2017, New Jersey Gov. Chris Christie signed a bi-partisan bill that effectively makes asking about expunged criminal records off-limits during the initial employment application process.

The law, an amendment to the New Jersey Opportunity to Compete Act (“OTCA”), generally referred to as the “Ban the Box” law, applies to employers with 15 or more employees over 20 calendar weeks who do business, employ persons, or take applications for employment within New Jersey. The OTCA generally prohibits employers from making any oral or written inquiry about an applicant’s criminal background during the initial employment application process.

The amendment, which became effective with signing, goes farther. Now, covered employers are barred from seeking information about the current and expunged criminal records of applicants during the early stages of the employment application process. In addition to barring employers from making oral or written inquiries, the amendment also bars employers from doing online searches for an applicant’s criminal record or expunged criminal record.

In New Jersey, individuals who have been convicted of a prior criminal offense up to and including certain felony offenses may apply to the New Jersey Superior Court to have their record expunged. An individual who was convicted for an indictable offense may present an expungement application after 6 years from the date of his or her most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration. For disorderly persons offenses and petty disorderly persons offenses an individual may present the expungement application after the expiration of a period of 5 years from the date of his or her most recent conviction, payment of fine, satisfactory completion of probation or release from incarceration. The waiting period to expunge juvenile record is decreased from 5 to 3 years.

Employers may ask about criminal records and any expungements after the initial employment application process. Currently, NJ law does not prohibit employers from refusing to hire an individual because of his or her criminal history. However, under the amendment, employers may not refuse to hire an applicant because of a criminal record that has been expunged or erased through executive pardon, unless the refusal is consistent with other applicable laws, rules and regulations.

This issue of Take 5 encapsulates the incredible breadth of societal changes and challenges facing the entire retail workplace. The topics addressed below reflect a microcosm of the many issues currently facing our overall society, covering growing political activism in the workplace, increasing expectations to accommodate religious beliefs, otherwise outrageous employee speech that may very well enjoy protection under the law, and the ever-increasing requirements for criminal background checks enacted piecemeal by states and cities. These extremely topical subjects often tap into broader emotionally charged concerns encountered by retailers.

We also address the ever-timely issue of wage and hour classification, in this case, focusing on the classification of assistant store managers.

The articles in this Take 5 include:

  1. Managing Employees’ Political and Social Activism in the Workplace
  2. Religious Accommodation: Handling Unusual Requests
  3. Second Circuit Agrees with NLRB That Employee’s Vulgar Facebook Tirade Against Manager Is Protected Concerted Activity
  4. Increasing Criminal Background Check Requirements Pose Challenges for National Retailers
  5. Correctly Classifying Assistant Store Managers to Avoid Wage and Hour Misclassification Claims

Read the full Take 5 online or download the PDF.