Nancy Gunzenhauser Popper

On January 1, 2019, the length of paid leave and amount of weekly benefits under the New York Paid Family Leave Act (“NY PFL”) are scheduled to increase, the first of three yearly increases. The NY PFL, which took effect earlier this year, allows employees to collect up to a maximum of eight weeks of benefits within a 52-consecutive week period. In 2018, employees are eligible to earn 50% of their average weekly salary, up to a cap set at 50% of the state average weekly wage. Currently, the NY PFL benefits has been calculated based on the 2016 New York State average weekly wage, which is $1,305.92 per week. Thus, the maximum benefit amount in 2018 is $652.96 per week.

Beginning on or after January 1, 2019, leaves of absence taken under the NY PFL will increase to a maximum of 10 weeks of benefits within a 52-consecutive week period. The benefit amount will also increase to 55% of an employee’s average weekly salary, up to a cap set at 55% of the state average weekly wage. In 2019, the NY PFL benefits will be calculated based on the 2017 New York State average weekly wage, which is $1,357.11. The new maximum weekly benefit in 2019 will be $746.41 per week.

An employee’s payroll contribution toward NY PFL is also scheduled to increase beginning on January 1, 2019. The deduction amount will increase to 0.153% of an employee’s weekly salary, at an annual contribution amount less than the cap of $107.97. This is an increase from the 2018 deduction amounts, which were 0.126% of an employee’s weekly salary, with an annual contribution cap of $85.56.

As a reminder, beginning on January 1, 2020, the maximum length of leave will stay at 10 weeks, but the benefits will be calculated based on 60% of an employee’s average weekly wage, up to a cap set at 60% of the state average weekly wage. On January 1, 2021, the last of the annual increases will be set. Then, the maximum length of leave will increase to 12 weeks in a 52-consecutive week period and benefits will be payable based on 67% of an employee’s average weekly wage, up to a cap set at 67% of the state average weekly wage.

The New York City Commission on Human Rights (“Commission”) recently issued a 146-page guide titled “Legal Enforcement Guidance on Discrimination on the Basis of Disability” (“Guidance”) to educate employers and other covered entities on their responsibilities to job applicants and employees with respect to both preventing disability discrimination and accommodating disabilities. The New York City Human Rights Law (“NYCHRL”) defines “disability discrimination” more broadly than does state or federal disability law, and the Guidance is useful in understanding how the Commission will be interpreting and enforcing the law.

The basic principles of the NYCHRL’s prohibition against disability discrimination are as follows:

  1. Employers may not discriminate against a qualified job applicant or employee on the basis of an actual or perceived physical or mental disability;
  2. Employers may not discriminate against an applicant or employee based upon his or her association with an individual with an actual or perceived disability;
  3. Employers must provide applicants and employees, upon their request, with a reasonable accommodation to perform the essential duties of the job, if the disability is known or should have been known by the employer, unless, among other reasons doing so would result in undue hardship; and
  4. The cooperative dialogue law, which becomes effective October 15, 2018, will require employers to engage in and document a “cooperative dialogue” with a person who has requested an accommodation or who the employer “has notice may require such an accommodation.” As the Guidance makes clear, the Commission generally construes these four tenets and the myriad employer responsibilities they embody liberally. For example, as set forth in the chart below, the NYCHRL prohibits a wide range of conduct.

Prohibited Conduct under NYCHRL

Prohibited Conduct Definition Example(s)
Disparate Treatment Treating a job applicant or employee with a disability or perceived disability differently from other applicants or employees without a disability. Refusal to hire an otherwise qualified applicant as a sales clerk because the individual has a speech impediment (assuming the applicant can still be easily understood).

 

Harassment A single or repeated incident that “creates an environment or reflects or fosters a culture or atmosphere of stereotyping, degradation, humiliation, bias, or objectification,” of an individual because of his or her actual or perceived disability. Under the NYCHRL, the severity or pervasiveness of the harassment is only relevant to damages. A supervisor calls an employee who has cerebral palsy a “spaz,” and states that he would not have hired him or her if he knew that the employee’s disability was “this bad.”
Discriminatory Policies/Practices Policies or practices that exclude workers with disabilities from whole job categories or specific positions without an individualized assessment of the candidate and the essential requisites of the job, unless the employer can demonstrate a legitimate non-discriminatory justification for the exclusion policy.

 

A policy that requires employees to be “100%” healed to return to work and that does not allow for consideration of a reasonable accommodation. (An employer cannot require an employee with a disability “to have no medical restrictions if the employee is able to perform his job with or without a reasonable accommodation.”)

 

Actions Based on Stereotypes and Assumptions Reliance on stereotypes or assumptions when taking adverse action, without regard to an individual’s specific ability or circumstance. Refusal to hire an applicant:

Who uses a wheelchair, because of concerns that the applicant may be unable to attend off-site meetings; or

Whose cancer is in remission, because of concerns that the cancer will recur.

 

Neutral Policies that Have a Disparate Impact

 

Policies or practices that are facially neutral, but more harshly affect one group, unless the policy or practice bears “a significant relationship to a significant business objective of the employer.” “No fault” absence or maximum leave policies;

A policy that, without exceptions, penalizes employees who exceed a permissible amount of sick leave.

Associational Discrimination Taking adverse action against individuals who associate with people who have disabilities based on unfounded stereotypes and assumptions.

 

Firing an employee who volunteers as an aide to people who are HIV-positive out of fear that the employee will contract the disease;

Refusing to hire an applicant with a disabled child because of concerns that the applicant may be an unreliable employee.

Disability Inquiries: What May Employers Ask Applicants and Employees?

 Applicants

The NYCHRL prohibits job postings, applications, interviews, and other selection processes that “directly or indirectly suggest an intent to discriminate” based on disability. For example, employers should not ask an applicant if he or she has or has had a disability, or inquire as to the details of the applicant’s disability. Nor should an employer request medical documentation regarding a disability. The Guidance also cautions employers against adopting a range of practices and policies, from height and weight standards to employment tests, unless the job requirement for which the criterion or test is being used is significantly related to an important business objective.

However, employers may require an applicant to take or pass a medical exam or test after the applicant receives a conditional offer of employment, as long as this requirement is applied consistently to all prospective employees, the test is job-related, and it is not used to screen out individuals with a disability.

The Guidance also cautions employers against asking applicants questions concerning gaps in their work history, “as this may lead to inquiries relating to an applicant’s disability,” or the disability of an individual with whom the applicant is associated.

To avoid potentially improper questions, the Guidance advises employers to focus their application and interview inquiries on the applicant’s ability to perform “the essential requisites of the job, with or without an accommodation,” and to present such questions in a “yes or no” format.

Finally, the Guidance reminds employers that they are required to provide reasonable accommodations to prospective employees during the application and interview processes, such as screen-reading software for a visually impaired applicant.

Employees

Generally, an employer should avoid inquiries into an employee’s disability or perceived disability unless the employee makes a request for a reasonable accommodation or the employer “has notice” of the disability, for example, where a job applicant arrives for an interview in a wheelchair, or an employee shows up for work one day using crutches or wearing a hearing aid. However, within narrowly defined parameters, an employer may inquire about an employee’s disability or require a medical exam when an employee who has been on medical leave wants to return to work. With the focus of any such inquiry limited to information that is necessary to assess the employee’s ability to work, an employer may inquire about the employee’s disability if the employer:

Has reason to believe the employee’s ability to perform essential job functions is impaired;

Is concerned that the employee will pose a direct threat to the safety of him/herself or others; or

Engages in a “cooperative dialogue” to determine whether and what kind of an accommodation should be provided for the employee.

Notably, employers may require all employees to undergo periodic medical examinations, but only if the policy is uniformly applied, the exam is “narrowly focused” on assessing the employees’ ability to perform their job functions, and the test is administered in the same manner to all employees.

New York City Law on Requests for Reasonable Accommodation

Under the NYCHRL, all requested accommodations are presumed to be reasonable. As a result, an applicant or employee need not prove that the requested accommodation: (1) is necessary; (2) does not pose an undue hardship to the employer; or (3) is readily feasible. However, an employer can require medical documentation to support a request for an accommodation, although it cannot require a specific type of documentation.

To overcome the presumption of reasonableness, an employer must show that: (i) there is no accommodation that would enable the applicant or employee to perform the essential duties of the job; (ii) the proposed accommodation would impose “undue hardship” on the employer; or (iii) the applicant or employee was offered and rejected a different accommodation that was reasonable. The mere fact that the accommodation will cause the employer to incur an expense does not constitute undue burden. Rather, the Commission weighs the cost involved in the context of other considerations, including the size of the employer and the duration for which the accommodation is needed.

Further, the NYCHRL imposes a duty on employers to provide reasonable accommodations to applicants and employees both when the disability is known and when the employer should have known about the disability, even if the applicant or employee did not request an accommodation. If the employer suspects or should suspect that the individual may need an accommodation, the employer should not ask the individual if he or she has a disability. Rather, the employer should “ask if there is anything going on that the employer can help with” and inform the person of the support services provided by the employer to individuals with disabilities.

The Guidance instructs employers to assess requests for a reasonable accommodation on a case-by-case basis, and offers some specific suggestions for reasonably accommodating the needs of a disabled applicant or employee. For example, employers can make their online application process accessible to individuals with visual impairments, or allow an employee with anxiety to bring his or her service dog to the office. Employers can also provide a quieter workspace to reduce noisy distractions for an employee with a mental health condition.

The Guidance also discusses leaves of absence as a reasonable accommodation. It advises that a paid or unpaid leave of absence is an appropriate accommodation mostly “in circumstances in which no other accommodation can be made,” or where, under the facts of the situation, it is the “preferred” accommodation. The Commission advises that, absent special circumstances, an employer should seek an accommodation that allows an employee to remain working.

Finally, the Guidance encourages employers to include information on their reasonable accommodation policies and processes in an employee handbook.

Compliance

Employers should review current policies and practices, including application forms and accommodation request forms, to ensure that they are consistent with the Guidance, particularly with respect to the procedures and documentation requirements under the new “cooperative dialogue” law. Additionally, employers should update employee handbooks to reflect any modifications in company practices concerning accommodation and the cooperative dialogue process. Employers also should train managers and supervisors on their obligations with respect to avoiding disability discrimination and following the reasonable accommodation process, including the substantive and documentation requirements imposed under the cooperative dialogue law.

Finally, employers should ensure that Human Resources and supervisory personnel understand the potential interplay of the cooperative dialogue law with another recently enacted statute – the Temporary Schedule Change for Personal Events Law – which became effective on July 18, 2018. Many requests for accommodation involving proposed changes to the hours or location of work will implicate both laws, and will require the employer to document the requests and employer responses in a particular manner.

This post was written with assistance from Alison Gabay, a 2018 Summer Associate at Epstein Becker Green.

The expiration date for the U.S. Department of Labor’s (“DOL”) model Family and Medical Leave Act (“FMLA”) notice and medical certification forms has once again been extended. The new expiration date is now August 31, 2018. Expiration dates are located at the top right corner of the model FMLA forms.

The DOL’s model FMLA notices and certification forms were originally due to expire on May 31, 2018, then again on June 30, 2018, and the DOL has again pushed the expiration date, now to the end of August, from the July 31, 2018 expiration date. Once approved by the Federal Office of Management and Budget, the new FMLA forms will be valid through 2021.

As previously posted, we will continue to monitor the DOL’s website and post any further developments on an extension of the current forms or issuance of new forms.

This post was written with assistance from Alison Gabay, a 2018 Summer Associate at Epstein Becker Green.

A legislative bargain requires give-and-take from all stakeholders. On June 28, 2018, Massachusetts Governor Baker signed House Bill 4640, “An Act Relative to Minimum Wage, Paid Family Medical Leave, and the Sales Tax Holiday” (the “Act”). This “grand bargain” gradually raises the minimum wage, provides for paid family and medical leave, makes permanent the Commonwealth’s annual tax holiday, and phases out Sunday and holiday premium pay requirements. While Massachusetts employers must now adjust to an increased minimum wage and new paid family medical leave program, retailers with eight or more employees may see those costs mitigated by the gradual elimination of Sunday and holiday premium pay mandates.

Currently, Massachusetts retailers must provide premium pay of 1.5 times the regular hourly rate to non-exempt employees who work on Sundays or certain holidays designated by state law. The holidays covered by the premium pay laws are New Year’s Day, Memorial Day, Independence Day, Labor Day, Columbus Day, and Veterans Day. The premium pay requirements do not apply to employees who are exempt from overtime pay mandates under Massachusetts law, specifically executive, administrative, and professional employees who earn more than $200 per week.

The Act will reduce, and ultimately remove, Massachusetts’ Blue Law premium pay requirement in accordance with the following schedule:

Effective Date Premium Pay Rate
January 1, 2019 One and four-tenths (1.4)
January 1, 2020 One and three-tenths (1.3)
January 1, 2021 One and two-tenths (1.2)
January 1, 2022 One and one-tenth (1.1)
January 1, 2023 No premium pay

Though covered employers will no longer be required to offer premium pay for Sunday and holiday work, the other provisions in the Blue Law remain unchanged. As such, retail employers may not require employees to work on Sundays or holidays, nor may employers discriminate or take adverse action against employees who refuse to work such shifts.

The phase out of premium pay is intended to provide relief for retailers; however, it also appears to create a subtle complication that may raise costs for Massachusetts retailers over the next four years. Under federal and state law, employers must pay non-exempt employees one-and-one-half premium pay for all hours worked over 40 in a week. Premium pay for work on Sundays and holidays may be creditable toward overtime compensation, but only if it is at least one-and-a-half times that employee’s “regular rate” of pay for the given workweek.

The “grand bargain” legislation thus reduces premium pay below this one-and-one-half-times threshold, such that it is no longer excluded from the overtime pay calculation, and therefore, the Massachusetts premium pay can no longer be used to satisfy the federal and state overtime pay requirements. As such, if an employee works more than 40 hours in the workweek, and some of those hours fall on a Sunday or qualified holiday, Massachusetts retailers may be required to provide the employee with both (1) the Sunday or holiday premium, and (2) overtime (above and beyond the premium pay already provided). To further complicate matters, the premium pay received for time worked on the Sunday or holiday will need to be incorporated into the employee’s regular rate of pay, which will affect the calculation of the employee’s overtime rate of pay. Note also that employees’ entitlement to decline Sunday/holiday work (and not be retaliated against) stays in effect as part of the grand bargain. It remains to be seen whether this fact, when considered along with the elimination of premium pay, will impact the number of employees willing to work on Sundays/holidays.

While state lawmakers may choose to revise the statute as it pertains to this complication, overall, the elimination of premium pay should still come as a welcome relief to many Massachusetts retailers, especially those directly competing with stores across the border in New Hampshire. Given that the first reduction in pay is set to take effect in a matter of months, covered employers should notify their employees about the reduction, ensure overtime calculations comply with federal and state laws, and confirm payroll systems are updated to reflect these changes.

This post was written with assistance from Eric I. Emanuelson, Jr., a 2018 Summer Associate at Epstein Becker Green.

The U.S. Department of Labor’s (“DOL”) model Family and Medical Leave Act (“FMLA”) notices and medical certification forms expire on July 31, 2018. However, the new model forms have not yet been released. The current FMLA forms were originally due to expire on May 31, 2018, but the expiration date was first extended to June 30, 2018 and then to July 31, 2018.

Every three years, the DOL must obtain approval for continued use of its forms from the Federal Office of Management and Budget (“OMB”). Once the OMB approves the new model FMLA forms, they will be valid through 2021. Employers can continue to use the current forms, but they should be aware of the upcoming expiration date and check the DOL’s website periodically for the updated forms. Expiration dates are located at the top right corner of the model FMLA forms.

We will continue to monitor the DOL’s website and post any further developments on an extension of the current forms or issuance of new ones.

This post was written with assistance from Alison Gabay, a 2018 Summer Associate at Epstein Becker Green.

On May 30, 2018, Vermont Governor Phil Scott signed bill H.707, titled “An Act Relating to the Prevention of Sexual Harassment” (the “Act”). Effect on July 1, 2018, the Act provides expansive protections for employees and prospective employees, as well as some groundbreaking employer obligations and potential penalties for violations of the law.

Among its key provisions, the Act:

  • Applies to all persons “hired to perform work or services,” thereby covering independent contractors and unpaid interns;
  • Prohibits employers from requiring any employee or prospective employee, as a condition of employment, to sign an agreement that waives “a substantive or procedural right or remedy available to the employee with respect to a claim of sexual harassment.” In effect, this provision bans employment agreements requiring that sexual harassment claims be resolved through arbitration;[1]
  • Prohibits employment agreements that prevent or restrict an employee or prospective employee from “opposing, disclosing, reporting, or participating in an investigation of sexual harassment;”
  • Requires that all sexual harassment settlement agreements contain specific statements (discussed below) describing when a claimant-party has the right to disclose information about his or her allegations and the settlement;
  • Mandates that a sexual harassment settlement agreement may not prohibit the claimant-party from working for the employer “or any parent company, subsidiary, division, or affiliate of the employer;”
  • Directs the development of a public education and outreach program, including the establishment of a hotline and web portal for the reporting of sexual harassment complaints to the Vermont Human Rights Commission or the Attorney General’s Office;
  • Requires the Attorney General’s Office to develop a streamlined reporting system;
  • Provides the Attorney General broad powers to investigate and enforce the law, including, among other things, the authority to conduct an inspection of an employer’s records, and in certain circumstances (described below), require the employer to conduct employee training; and,
  • Directs the Office of Legislative Affairs to develop “mechanisms” for essentially voiding non-disclosure agreements in prior settlements where, in a separate, later claim, the alleged harasser is “adjudicated by a court or tribunal of competent jurisdiction to have engaged in sexual harassment or retaliation in relation to a claim of sexual harassment.”

Further, consistent with existing law, which mandates that employers must adopt an anti-harassment policy, the new Act reiterates that employers:

  • Must provide all new hires with a copy of their written policies on sexual harassment, and again distribute copies to all employees if the policies are revised; and
  • Are encouraged, but not required, to provide sexual harassment prevention training to all employees as well as supervisors and managers.

Inclusion of Required Statement in Sexual Harassment Settlements

As noted above, the Act imposes limits on the extent to which a sexual harassment settlement agreement can require confidentiality. Under the new law, employers must expressly state in such settlement agreements that the agreement does not prohibit or restrict the claimant from:

  • Testifying, assisting, or participating in an investigation of a sexual harassment claim conducted by any state or federal agency:
  • Complying with a discovery request or testifying in a proceeding concerning a claim of sexual harassment; and
  • Exercising “any right” the claimant has under State or federal labor relations laws “to engage in concerted activities with other employees for the purposes of collective bargaining or mutual aid and protection.”

The statement also must make clear that the claimant “does not waive any rights or claims that may arise after the date the settlement agreement is executed.”

The State’s Powers to Audit Employers and Enforce the Law

As stated above, the Act grants the Attorney General broad authority to conduct inspections and collect data. Specifically, the Act authorizes the Attorney General’s Office, on 48 hours’ notice to the employer, to “enter and inspect any place of business, question any person who is authorized by the employer to receive or investigate complaints of sexual harassment, and examine an employer’s records, policies, procedures, and training materials related to the prevention of sexual harassment.” This authority includes the right to examine all documents related to sexual harassment claims, including the number and details of such complaints and their resolution.

If, after inspection, the Attorney General’s Office or the Human Rights Commission determines that action is “necessary to ensure the employer’s workplace is free from sexual harassment,” either office can, among other remedies, order the employer to provide annual sexual harassment education and training for up to three years.

Finally, the previously described directive to the Office of Legislative Affairs to explore “mechanisms” which would allow the Attorney General to void non-disclosure agreements in prior settlements after a subsequent finding of sexual harassment in a separate case would be a significant development in this area of the law should it actually be developed and implemented.

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[1] Arguably, mandatory arbitration of sexual harassment claims already was banned in Vermont under another law, which bars arbitration agreements that prevent a person from “seeking or obtaining the assistance of the courts in enforcing his or her constitutional or civil rights.” It should be noted that this arbitration ban, along with others, such as the one recently enacted in New York, may be preempted by the Federal Arbitration Act. With the increase in these kinds of laws, it is likely that, at some point, there will be a court challenge to at least one of them on preemption grounds.

This post was written with assistance from Alison Gabay, a 2018 Summer Associate at Epstein Becker Green.

On March 7, 2018, the New York City Council formally introduced “The Stop Sexual Harassment in NYC Act,” a package of 11 bills, aimed at strengthening protections against, and remedies for, sexual harassment in the workplace. As discussed below, four of these bills, if enacted, would significantly expand the obligations of many employers to prevent sexual harassment and would increase all private NYC employers’ vulnerability to sexual harassment claims.

Mandatory Sexual Harassment Training

Int. 632 would require all private NYC employers with 15 or more employees to conduct annual, “interactive” training on sexual harassment for all full-time and part-time employees who work more than 80 hours in a calendar year in NYC. The training could be in person or through an online program.

Specifically, the annual, interactive training for employees must include the following:

  • An explanation of sexual harassment as a form of unlawful discrimination under local, state and federal law;
  • A description of what sexual harassment is and is not, using practical examples;
  • A description of the employer’s internal complaint processes, if any, available to employees to address sexual harassment claims;
  • A description of the complaint process available through the Commission on Human Rights (“Commission”), the New York State Division of Human Rights and the federal Equal Employment Opportunity Commission, including contact information;
  • An explanation, with examples, of what constitutes “retaliation” under the New York City Human Rights Law (“NYCHRL”); and
  • A discussion of the importance of bystander intervention.

In addition to this general training requirement, NYC employers would also be required to train their supervisors and managers annually on subjects such as their role in the prevention of harassment and retaliation, and how to address sexual harassment complaints.

The bill defines “interactive training” as “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, or other participatory forms of training as determined by the commission.” The bill further directs the Commission to develop online training modules for small, medium and large workplaces that would satisfy the training requirement, and to allow for the electronic provision of certification each time an employee completes a training module.

Additionally, covered employers would be required to maintain records, for three years, of all training, including a signed employee acknowledgement that must include (i) the date, time, title, duration and location of the training; (ii) whether the training was conducted live or online; and (iii) the name of the person(s) who conducted the training.

If passed, Int. 632 will take effect on September 1, 2018. Penalties for violations of the law would range from $100-$500 for the first violation and from $500-$2,000 for each succeeding violation. However, an employer would be able to avoid a penalty for a first-time violation if the employer could prove within 60 days of the issuance of the notice of violation that it has complied with the law. 

New Sexual Harassment Poster

Int. 630 would require all employers in New York City to post a sexual harassment rights and responsibilities poster in English and Spanish, and to provide new hires with an information sheet on sexual harassment, which would both be created by the Commission and made available to employers.  If passed, Int. 630 would take effect 120 days after enactment and would carry civil penalties for non-compliance.

More Time to File a Complaint

Int. 663 would lengthen the statute of limitations for harassment claims arising under the NYCHRL. Instead of the current one-year statute of limitations, aggrieved employees would be permitted to file complaints up to three years from the date of the alleged harassment. This longer statute of limitations would apply to claims “based on unwelcome conduct that intimidates, interferes with, oppresses, threatens, humiliates or degrades a person based in whole or in part on such person’s gender.”  This bill would take effect immediately upon enactment.

Expanded Employer Coverage under the NYCHRL

Currently, the NYCHRL applies to employers with four or more employees. Int. 657 would eliminate that employee threshold with respect to gender-based harassment claims, thereby subjecting all NYC employers to potential liability for sex harassment under the NYCHRL.[1]

Conclusion

We will continue to monitor these bills as the legislation proceeds and provide updates on any significant developments.

[1] New York State expanded sexual harassment and discrimination protections to all employees in 2015.