With winter storms around the corner, it’s the right time to revisit employer rights and responsibilities during a weather-related emergency or other major disruption.  We discuss below some typical scenarios that you are likely to face during weather-related or other emergencies, and the consequences under the wage and hour laws.

“Our office was closed for a few days because of the storm.  Do we have to pay our employees for those days?”

Non-exempt (i.e., overtime-eligible) employees generally have to be paid only for hours they actually work.  So if a non-exempt employee cannot work because your office is closed—or because the employee cannot make it into the office because of weather-related conditions—the wage and hour laws do not require you to pay the employee for non-working time.  On the other hand, a non-exempt employee who performs work remotely (say, from home, from a temporary site, or from a coffee shop) is entitled to pay for the time worked.

An exception exists for salaried non-exempt employees, who may—depending on the terms of their agreement with the employer—expect to receive their full weekly salary regardless of how many hours they actually work that week.

Exempt employees (i.e., employees not entitled to overtime pay) generally receive their full salary for any week in which the office is closed for less than a full workweek.  Employers who prorate an exempt employee’s weekly salary because of office closure risk losing the exemption for the week in question—a consequence that may or may not be material depending on how many hours the employee works that week.  If your office is closed for an entire workweek, you can inform all employees of the closure and you need not pay them for that week (unless they are working remotely).

Be sure to check any agreements with exempt employees—as well as offer letters, policies, or other statements regarding the nature of their pay—which may also limit your ability to prorate salary during office closures and/or give rise to pay claims.

 “Our office was open, but some of our staff could not make it in because of the weather.  Do we need to pay them?

As described above, non-exempt employees generally must be paid only for hours they actually work, but salaried non-exempt employees may have a contractual right to receive their full salary for any week in which they perform any work.

Exempt employees who are absent from work for one or more full days because of inclement weather, including because of transportation difficulties, are considered to be absent for personal reasons (if the office is otherwise open).  Absent a contractual right to be paid, they do not have to be paid for the days they fail to report to work, and your failure to pay them for such days will not jeopardize their exempt status.  Deductions for partial-day absences under these circumstances, however, will violate the salary basis rules and jeopardize the exemption for that week.

“Because of flooding or another dangerous condition, we had to close our office after a number of employees had already reported for work.  Do we have to pay them for the day?” 

Exempt employees who report to work but are turned away or sent home by their employer generally must receive their salary for that day.  Non-exempt employees who report to work but are turned away or sent home must be paid for all hours actually worked that day.  In addition, some states have “reporting pay” or “call in” pay laws that require employers to pay non-exempt employees a minimum number of hours’ pay for any day in which they report to work.

“Our payroll records were destroyed in the storm, or are inaccessible.  How do we pay our employees?”

Exempt employees paid on a salary basis should receive their normal salary payment (less any permissible full-day deductions).  For hourly non-exempt employees, use a reasonable method to determine the number of hours worked, such as:

• Asking the employees themselves to submit a certified time sheet indicating the number of hours they worked;
• Recreating hours worked through electronic records (g., card/ID swipes or log-ins/log-outs);
• Making assumptions based on an employee’s fixed or regular schedule of hours;
• Asking managers to verify hours worked; or
• Some combination of the above.

“Can we require our employees to use available vacation days or other paid time off during a weather-related office closure or absence?”

Yes.  Under federal law and the laws of most states, employers are not required to provide vacation benefits or other paid time off to employees.  Such benefits are generally a matter of agreement between employer and employee, or set forth in the employer’s handbook or policy.  Under these circumstances, there is no prohibition on an employer giving PTO and requiring that it be taken on specific days.  So long as it’s permitted under the applicable PTO policy or agreement, employers can reduce an employee’s accrued PTO bank for either partial or full day absences, without violating the wage and hour laws.

“Can we give our staff additional paid or unpaid time off to assist in recovery or relief efforts?”

Employers can grant their employees additional paid and unpaid time off for any reason, including assisting with storm-related recovery and relief efforts.

Employees who are assisting in relief efforts as part of the National Guard or Armed Forces Reserves may have additional rights under federal and state law.

Because of the snow, it took our employees twice as long to commute to work as opposed to most other days.  Do we need to pay them for the additional commute time?”

Time spent in an employee’s normal commute from home to work at the beginning of the workday, and from work to home at the end of the workday, is not considered time worked and need not be paid.

“Some of my employees are members of a union.  Do these rules apply to them as well?”

Collective bargaining agreements generally cannot waive or reduce the protections available to employees under federal, state, or local wage and hour laws.  Collective bargaining agreements can, however—and often do—impose different and additional pay, time off, and other obligations on employers.  Employers with unionized employees should consider all applicable agreements when analyzing their rights and responsibilities in the context of a weather-related emergency or other “force majeure” event.

“We want to do more for our employees, to go above and beyond what the law requires. What are some things we can do?”

There are many options available to an employer who wants to do more for its employees, including:

• Granting additional paid or unpaid time off
• Allowing employees to donate accrued paid time off to other employees (i.e., leave-sharing plans)
• Allowing affected employees to work remotely for some period of time
• Making emergency advances of salary or loans
• Setting up disaster-relief programs or payments
• Making certain payments to assist disaster victims that can be excluded from their taxable income
• Setting up food and clothing drives

Final Thoughts

Employers making decisions about scheduling, pay, and time off during weather-related emergencies and disruptions should bear in mind the potential implications on employee morale.  Flexibility and support in times of need—or the absence of them—are likely to be remembered long after the storm passes.

As always, check state and local laws—as well as your contracts and policies—before making any final decisions regarding wages, hours, or time off.

Stay warm and informed.  Visit Proskauer’s wage and hour blog for up-to-date information on the latest issues and developments.

The New York City Council has approved a bill that would make it unlawful for employers to inquire into or rely upon job applicants’ wage history during the hiring process, with limited exception.  The bill now goes before Mayor Bill de Blasio and, if signed, will become effective 180 days following signature.

As we previously reported, New York City Public Advocate Letitia James first introduced this legislation in August 2016.  As approved by the City Council, the bill amends the New York City Human Rights Law to prohibit employers, employment agencies, and their agents from:

• inquiring about an applicant’s salary history; and/or
• relying on an applicant’s salary history in determining the salary, benefits or other compensation for that applicant during the hiring process, including as part of the negotiation of a contract.

The bill defines “inquiry” broadly to mean “any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant’s salary history,” as well as searching publicly available records. It does not, however, include informing an applicant about a position’s  proposed or anticipated salary or salary range.

“Salary history” is also defined broadly to include an applicant’s “current or prior wage, benefits or other compensation,” though it does not include any “objective measure of the applicant’s productivity, such as revenue, sales or other production reports.”

The approved bill also has evolved from its originally proposed form to include certain carve outs, presumably to address concerns raised by businesses and employers during the legislative process. Under the approved bill, employers may consider (as well as verify) salary information for the purpose of formulating salary, benefits and compensation where a prospective employee voluntarily and without prompting discloses his or her salary history.  In addition, employers may, without inquiring about salary history, engage in discussion with an applicant about his or her expectations with respect to salary, including in situations involving unvested equity or deferred compensation that would be forfeited should the applicant leave a current position.

The bill would not apply:

• to “applicants for internal transfer or promotion with their current employer”;
• where federal, state or local law specifically authorizes disclosure or verification of salary history or “specifically requires knowledge of salary history to determine an employee’s compensation”;
• in the context of conducting a non-salary related background check, provided that if the background check discloses an applicant’s salary history, such information cannot be relied upon for determining compensation of such applicant during the hiring process; and
• for public employee positions for which salary, benefits or other compensation are determined pursuant to procedures established by collective bargaining.

It is likely that Mayor de Blasio will sign the bill into law, particularly given that, in 2016, the Mayor issued Executive Order 21, which imposes similar prohibitions on city agencies regarding inquiring about the salary history of job applicants.  With this bill, New York City follows in the footsteps of other jurisdictions that have recently passed similar measures, including Massachusetts and Philadelphia.

We will continue to report on any further developments.

As Tropical Storm Harvey continues wreak havoc across Texas and beyond, it’s the right time to revisit employer rights and responsibilities during a weather-related emergency or other major disruption.  Here are some typical scenarios that employers face during weather-related or other emergencies, and the consequences under the wage and hour laws.

“Our office was closed for a few days because of the storm.  Do we have to pay our employees for those days?”

Non-exempt (i.e., overtime-eligible) employees generally have to be paid only for hours they actually work.  So if a non-exempt employee cannot work because your office is closed—or because the employee cannot make it into the office because of weather-related conditions—the wage and hour laws do not require you to pay the employee for non-working time.  On the other hand, a non-exempt employee who performs work remotely (say, from home, from a temporary site, or from a coffee shop) is entitled to pay for the time worked.

An exception exists for salaried non-exempt employees, who may—depending on the terms of their agreement with the employer—expect to receive their full weekly salary regardless of how many hours they actually work that week.

Exempt employees (i.e., employees not entitled to overtime pay) generally receive their full salary for any week in which the office is closed for less than a full workweek.  Employers who prorate an exempt employee’s weekly salary because of office closure risk losing the exemption for the week in question—a consequence that may or may not be material depending on how many hours the employee works that week.  If your office is closed for an entire workweek, you can inform all employees of the closure and you need not pay them for that week (unless they are working remotely).

Be sure to check any agreements with exempt employees—as well as offer letters, policies, or other statements regarding the nature of their pay—which may also limit your ability to prorate salary during office closures and/or give rise to pay claims.

 “Our office was open, but some of our staff could not make it in because of the weather.  Do we need to pay them?

As we note above, non-exempt employees generally must be paid only for hours they actually work, but salaried non-exempt employees may have a contractual right to receive their full salary for any week in which they perform any work.

Exempt employees who are absent from work for one or more full days because of inclement weather, including because of transportation difficulties, are considered to be absent for personal reasons (if the office is otherwise open).  Absent a contractual right to be paid, they do not have to be paid for the days they fail to report to work, and your failure to pay them for such days will not jeopardize their exempt status.  Deductions for partial-day absences under these circumstances, however, will violate the salary basis rules and jeopardize the exemption for that week.

“Because of flooding or another dangerous condition, we had to close our office after a number of employees had already reported for work.  Do we have to pay them for the day?” 

Exempt employees who report to work but are turned away or sent home by their employer generally must receive their salary for that day.  Non-exempt employees who report to work but are turned away or sent home must be paid for all hours actually worked that day.  In addition, some states have “reporting pay” or “call in” pay laws that require employers to pay non-exempt employees a minimum number of hours’ pay for any day in which they report to work.

“Our payroll records were destroyed in the storm, or are inaccessible.  How do we pay our employees?”

Exempt employees paid on a salary basis should receive their normal salary payment (less any permissible full-day deductions).  For hourly non-exempt employees, use a reasonable method to determine the number of hours worked, such as:

• Asking employees to submit a certified time sheet indicating the number of hours they worked;
• Re-creating hours worked through electronic records (e.g., card/ID swipes or log-ins/log-outs);
• Making assumptions based on an employee’s fixed or regular schedule of hours;
• Asking managers to verify hours worked; or
• Some combination of the above.

“Can we require our employees to use available vacation days or other paid time off during a weather-related office closure or absence?”

Yes.  Under federal law and the laws of most states, employers are not required to provide vacation benefits or other paid time off to employees.  Such benefits are generally a matter of agreement between employer and employee, or set forth in the employer’s handbook or policy.  Under these circumstances, there is no prohibition on an employer giving PTO and requiring that it be taken on specific days.  So long as it’s permitted under the applicable PTO policy or agreement, employers can generally reduce an employee’s accrued PTO bank for either partial or full day absences, without violating wage and hour laws.

“Can we give our staff additional paid or unpaid time off to assist in recovery or relief efforts?”

Employers can grant their employees additional paid and unpaid time off for any reason, including assisting with storm-related recovery and relief efforts.

Employees who are assisting in relief efforts as part of the National Guard or Armed Forces Reserves may have additional rights under federal and state law.

Because of the storm, it took our employees twice as long to commute to work as opposed to most other days.  Do we need to pay them for the additional commute time?”

Time spent in an employee’s normal commute from home to work at the beginning of the workday, and from work to home at the end of the workday, is not considered time worked and need not be paid.

“Some of my employees are members of a union.  Do these rules apply to them as well?”

Collective bargaining agreements generally cannot waive or reduce the protections available to employees under federal, state, or local wage and hour laws.  Collective bargaining agreements can, however—and often do—impose additional pay, time off, and other obligations on employers.  Employers with unionized employees should consider all applicable agreements when analyzing their rights and responsibilities in the context of a weather-related emergency or other “force majeure” event.

“We want to do more for our employees, to go above and beyond what the law requires. What are some things we can do?”

There are many options available to an employer that wants to do more for its employees, including:

• Granting additional paid or unpaid time off
• Allowing employees to donate accrued paid time off to other employees (i.e., leave-sharing plans)
• Allowing affected employees to work remotely for some period of time
• Making emergency advances of wages, or loans
• Setting up disaster-relief programs or payments
• Making certain payments to assist disaster victims that can be excluded from their taxable income
• Setting up food and clothing drives

Final Thoughts

Employers making decisions about scheduling, pay, and time off during weather-related emergencies and disruptions should bear in mind the potential implications on employee morale.  Flexibility and support in times of need—or the absence of them—are likely to be remembered long after the storm passes.

As always, check state and local laws—as well as your contracts and policies—before making any final decisions regarding wages, hours, or time off.

The New York State Department of Taxation and Finance has issued official guidance on several taxability issues relating to the New York Paid Family Leave Law (“PFLL”), which goes into effect on January 1, 2018.  Among other details addressed, employee contributions under the PFLL shall be made on an after-tax basis, and benefits paid to employees shall be treated as taxable non-wage income.

As we previously reported, the New York Workers’ Compensation Board in July adopted final regulations for implementation of the PFLL.  The law provides a phased-in system of paid, job protected leave for eligible employees: (i) to care for a new child following birth, adoption, or placement in the home; (ii) to care for a family member with a serious health condition; or (iii) for qualifying exigencies related to military duty.  Paid family leave (“PFL”) benefits will be funded entirely by employee payroll contributions, with an employee’s contribution level based on a percentage of his or her weekly wage, up to a maximum statutory cap.

Since the final regulations did not address taxability concerns, questions remained as to how both employee payroll contributions and PFL benefits would be treated for tax purposes. The notice addresses several issues in this regard, namely:

• Employee contributions to PFL benefit premiums will be deducted from employees’ after-tax wages.
• PFL benefits paid to employees will be taxable non-wage income that must be included in federal gross income.
• Taxes will not automatically be withheld from benefits, but employees can request voluntary tax withholding from PFL benefits paid.

With regard to reporting, the guidance provides that: (1) employers should report employee payroll contributions on Form W-2 using Box 14 – State disability insurance taxes withheld; and (2) PFL benefits paid to employees should be reported on Form 1099-MISC.

We will continue to report on further developments in the lead up to the PFLL’s effective date.

With the January 1, 2018 effective date for the New York Paid Family Leave Law fast approaching, the New York State Workers’ Compensation Board (“WCB”) has issued model paid family leave (“PFL”) request and certification forms, as well as a model waiver form. The forms are available on the WCB’s New York Paid Family Leave website.

As we have previously reported, the New York Paid Family Leave Law provides a phased-in system of paid, job protected leave for eligible employees: (i) to care for a new child following birth, adoption, or placement in the home; (ii) to care for a family member with a serious health condition; or (iii) for qualifying exigencies related to military duty.  To receive PFL benefits for any of these covered leave purposes, eligible employees will be required to complete and submit a general Request for Paid Family Leave Form (Form PFL-1).

On the Form PFL-1, employees will be required to provide certain information in support of the leave request, including the covered reason for which PFL will be taken and whether it will be a continuous or intermittent leave. Form PFL-1 also contains a section (Part B) which must be completed by the employer and returned back to the employee within three business days.  Among other information, employers will be required to provide a breakdown of the employee’s last 8 weeks of gross wages and the resulting average weekly wage, as well as information about any PFL and/or New York State disability leave that the employee has taken in the preceding 52 weeks.  Once the employer has completed Part B and timely returned the Form PFL-1 to the employee, it will then be the employee’s responsibility to submit the form, along with any required supporting documentation, to the employer’s PFL carrier (in the case of a self-insured employer, the Form PFL-1 would be retained and processed by the employer).

In addition to Form PFL-1, employees must submit appropriate certification form(s) depending on the reason for requesting leave:

• An employee requesting PFL to bond with a newborn, adopted child, or foster child must complete and submit a Bonding Certification (Form PFL-2), which requires the employee to attach specified documentation evidencing the relationship between the parent(s) and child (e.g., birth certificate or court document finalizing adoption).
• An employee requesting PFL to care for a covered family member with a serious health condition must submit both a Release of Personal Health Information (Form PFL-3) and a Health Care Provider Certification (Form PFL-4).  Form PFL-3 must be completed by the family member for whom the employee will be caring or an authorized representative.  It authorizes the family member’s health care provider to release medical information about the family member to the employer’s PFL carrier (or the employer, if self-insured) in connection with the leave request.  Form PFL-4 must in turn be completed by the family member’s health care provider, and gathers information about the nature of the family member’s health condition and the anticipated duration of the care period.
• An employee requesting PFL to assist a family member with exigencies in connection with a military deployment must submit a Military Qualifying Event Certification (Form PFL-5), along with a copy of the member’s covered active duty orders.

In addition to the leave request and certification forms, the WCB has also released an Employee Opt-Out of Paid Family Leave Benefits (“Waiver Form”).  Pursuant to the final regulations, an employee who is being hired on a temporary, periodic or otherwise short-term basis must be provided the option to waive PFL benefits when either: (i) the employee’s regular work schedule is 20 or more hours per week but the expectation at the start of employment is that the employee will not work 26 consecutive weeks for the employer; or (ii) the employee’s regular work schedule is less than 20 hours per week but the expectation at the start of employment is that the employee will not work 175 days in a 52 consecutive week period for the employer.  Employees who opt to execute a Waiver Form will be relieved from making payroll contributions to the cost of PFL benefits.

However, as indicated on the Waiver Form, the waiver will be deemed revoked if the employee’s work schedule changes such that it is anticipated that the employee will either work more than 20 hours per week for 26 consecutive weeks, or work less than 20 hours per week but at least 175 days in a 52 consecutive week period. An employee may also decide to revoke a waiver at any time.  In either event, once the waiver is revoked, the employee will be responsible to begin making payroll contributions to cost of PFL benefits going forward.  An employer may also take retroactive deductions for the period of time the employee was covered by the waiver, and that period of time would count toward the employee’s eligibility for PFL.

*          *          *

We will continue to report on further developments in the lead up to the Paid Family Leave Law’s effective date.

The Austin, Texas City Council has enacted a paid sick and safe leave ordinance, becoming the first southern city to pass such a law for private sector employees.  The ordinance will take effect on October 1, 2018 for employers with five or more employees; coverage for smaller employers begins on October 1, 2020.

Employees who work at least 80 hours in Austin in a calendar year will be covered.  Eligible employees will accrue paid sick and safe leave at the rate of one hour for every 30 hours worked, up to 64 hours annually (or up to 48 hours annually for businesses with 15 or fewer employees).  Employers may also limit usage of accrued leave to no more than 8 calendar days per year.  For employees covered by collective bargaining agreements, the accrual cap may be modified so long as the modification is explicitly set forth in the CBA.

Employees shall be entitled to carry over unused leave time into the following year up to the annual accrual cap, unless the employer chooses to frontload at least 64 hours of leave (or 48 hours for employers with 15 or fewer employees) to the employee at the start of the year.  While leave accrual begins as of the first day of employment, employers may restrict new employees from using accrued leave during the employee’s first 60 days of employment if the employer establishes that the employee’s term of employment is at least one year.

Paid sick and safe leave can be used for:

• an employee’s own physical or mental illness or injury, preventative medical or health care, or health condition;
• care for a family member with a physical or mental illness, preventative medical or health care, injury or health condition; and
• an employee’s need to seek medical attention, seek relocation, obtain services of a victim services organization, or to participate in legal or court ordered action related to an incident of victimization from domestic abuse, sexual assault or stalking involving the employee or a family member.

A “family member” is defined as an employee’s spouse, child, parent, or any other individual related by blood whose close association with the employee is the equivalent of a family relationship.

While employees are required to make a “timely” request for leave before their scheduled work time, they may not be denied leave for an unforeseeable qualified absence.  Employers may implement reasonable verification procedures to establish that leave was taken for a covered purpose under the law when an employee requests to use accrued sick or safe leave for more than three consecutive work days.

Employers will be required to provide written notice to employees of their rights under the law in an employee handbook (if one exists), as well as display a notice of rights poster that will be issued by the City of Austin.  Employers will also be required to provide employees with a statement showing available sick and safe leave on at least a monthly basis.

With this ordinance, Austin joins a number of state, county and local governments that have passed similar paid sick leave laws in recent months.  However, the new law is already seeing some pushback.  Shortly after the ordinance was passed, several Texas state representatives expressed opposition to the law and stated they plan to introduce legislation aimed at overturning it.

We will continue to monitor this law and report on any additional developments in advance of the effective date.

As we have previously reported,  New York State has enacted several significant measures regarding sexual harassment in the workplace.

Effective October 9, 2018, all New York State employers are required to adopt written sexual harassment prevention policies and institute annual anti-harassment training for employees (see below for more details on specific requirements and deadlines).  After issuing draft documents in August, the State has now issued final model policy and training documents, as well as FAQs and additional guidance on the new laws, which are summarized below.  More information can also be found on the State’s website on Combating Sexual Harassment in the Workplace.

The State has also issued an “Employer Toolkit” which provides an overview of the final policy and training materials and practical guidance for employers.

Model Sexual Harassment Prevention Policy

Employers are required to adopt and distribute to employees written sexual harassment prevention policies that are compliant with the new law by October 9, 2018.  To satisfy this obligation, employers may (1) adopt the State’s model sexual harassment prevention policy and complaint form,  or (2) implement their own policy and complaint form that equals or exceeds the minimum standards provided under the statute consistent with guidance issued by the State.  As outlined in the Minimum Standards provided by the State, the policy must:

• prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
• provide examples of prohibited conduct that would constitute unlawful sexual harassment;
• include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
• include a complaint form;
• include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
• inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
• clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
• clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

In response to a number of comments submitted on the draft policy and FAQs issued in August, the State made the following notable changes to the final documents issued on October 1:

• References in the model policy to the employer having a “zero-tolerance policy” for sexual harassment and retaliation have been removed, bringing the State’s guidance in line with the federal Equal Employment Opportunity Commission (EEOC)’s position disfavoring the use of the term.
• The State’s model policy:
  • no longer requires that the investigation of a complaint be completed “within 30 days” as previously suggested, but rather states that the investigation should be completed “as soon as possible”;
  • now makes clear that the investigation process “may vary from case to case”;
  • indicates that investigation-related documents should be kept in a “confidential location”; and
  • notes that written documentation of the investigation should include “[t]he basis for the decision” regarding the resolution of the complaint, as opposed to simply a statement of any corrective actions that will be taken.

The final FAQs also state that if an employer has already established investigative procedures that are similar to those provided in the State model (in that they provide for a timely and confidential investigation of complaints in a matter that ensures due process for all parties), the employer need not expressly adopt the investigative procedure set forth in the State model.  That said, employers must nevertheless outline their investigative procedures in their policy document.

With regard to distribution of the policy, the FAQs state that a signed acknowledgment of receipt is not required, but that employers are “encouraged” to obtain one from employees.  Employers must provide employees with a copy of the policy in writing or electronically, and if made available electronically, employees must be able to print a copy for their records.

The State has also finalized its model complaint form, for employees to use when reporting incidents of sexual harassment.  Though largely similar to the earlier draft complaint form, the final form contains a few notable updates: (1) the form does not ask whether the individual has filed a claim with a government agency or a lawsuit in connection with the complaint; and (2) nor does the form ask whether employees have hired an attorney (though it does still provide the opportunity to share contact information for a legal representative if the employee has such representation). Also, employers need not include a copy of the complaint form in their anti-harassment policy, as long as the policy informs employees where the form may be found (e.g., on the company’s internal website).

Model Sexual Harassment Training Documents

In a development sure to have employers breathing a sigh of relief, under the final guidance, all New York employees must complete sexual harassment prevention training that meets or exceeds the minimum standards under the law by no later than October 9, 2019, after which future training must be completed on an annual basis.   (The State’s earlier draft indicated that the first round of employee training had to be completed by January 1, 2019.)   Similarly, while the draft guidance stated that new employees would need to be trained within 30 days of the start of employment, the final guidance provides some flexibility to employers by requiring that new employees complete training as soon as possible after their start date. (The draft guidance stating that such training must be completed in the first 30 days of employment has been removed.)

All full-time and part-time employees, seasonal employees and temporary employees must receive training.  Unlike the draft guidance, which indicated that employers would need to train “someone [who] just works for one day for the employer, or . . . works for just one day in NY,” the final guidance states that employers need to train individuals who “work[]a portion of their time in New York State, even if they’re based in another state.”

To satisfy the training requirements, employers may either: (1) adopt the State’s model training script, slides, and/or case studies (discussed further below); or (2) provide other live training or interactive online/video training that meets or exceeds the law’s minimum standards for training.  Of particular note under the new guidance, sections in the State’s model training that are “not expressly required in the law” are not required to be included, but instead are “strongly recommended.”  Therefore, employers can meet the training requirement as long as their training programs meet the minimum standards set by the law, even if the employer does not use the precise language contained in the State’s model training materials.

Other notable changes made by the State to the draft model training documents and the associated FAQs include the following:

• There is no requirement to train (or provide a copy of the harassment prevention policy) to third-party vendors or other non-employees, though employers are “encouraged to provide the policy and training to anyone providing services in the workplace.”
• There is no minimum number of training hours required per year for employees – that is, there is no minimum length of time for each training session.
• With regard to the requirement that training address “additional responsibilities for supervisors”, the final guidance states that all employees (not just managers and supervisors) must be “[made] aware of the extra requirements for those in managerial/supervisory roles.”
• The final guidance provides that in order for training to be “interactive”, some form of employee participation is required.  Examples given of such participation include:
  • if the training is web-based, it has questions at the end of a section and the employee must select the right answer;
  • if the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner;
  • in an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions;
  • web-based or in-person trainings that provide a Feedback Survey for employees to turn in after they have completed the training.

While a live trainer is not required in order to comply with the new requirements, simply having employees watch a training video or read a document, with no feedback mechanism or interaction, would not be considered interactive.  Where live trainers are used, however, they must appear in person or via phone, video conference, or other similar remote mechanism.

Nondisclosure Provisions

Finally, although the State’s final guidance does not alter existing requirements pertaining to the confidentiality of sexual harassment claims, the final FAQs do provide some further insight on those requirements.

• The final FAQs retain language from the draft guidance setting forth a three-step process for memorializing that a nondisclosure provision is the preference of the complainant as follows:
  1. Any nondisclosure term or condition must be provided to all parties, and the complainant shall have 21 days from the date provided to consider such term or condition;
  2. If, after 21 days, such term or condition is the preference of the complainant, such preference shall be memorialized in an agreement signed by all parties; and
  3. For a period of 7 days following the execution of an agreement containing such a term or condition, the complainant may revoke the agreement and the agreement shall not become effective or be enforceable until such revocation period has expired.
• The 21-day consideration period cannot be waived, shortened or calculated to overlap with the 7-day revocation period. Rather, the 21-day period must expire before the complainant’s preference can be memorialized in an agreement signed by the parties, and the minimum 7-day period does not start to run until after that agreement is executed.
• Under the final guidance, two agreements are needed to establish a complainant’s agreement not to disclose facts underlying a claim of harassment—one agreement memorializing the complainant’s preference to maintain the allegations as confidential, and a second agreement containing the nondisclosure language and any other terms of the parties’ agreement resolving the dispute.
• The approach to the 21-day consideration period and 7-day revocation period for purposes of sexual harassment nondisclosure provisions differs from similar time periods mandated for waivers of age discrimination claims under the federal Age Discrimination in Employment Act (ADEA).  In that regard, the final FAQs explain that “while the practice of some under the [ADEA] is to fold waivers into standard representations and warranties provisions of settlement agreements that can be presented and executed on the spot, in a single agreement, without waiting for the 21-day consideration period to expire, the new state law requires a separate agreement to be executed after the expiration of the 21-day consideration period before the employer is authorized to include confidentiality language in a proposed resolution.”

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With the October 9, 2018 deadline for implementing a new policy on sexual harassment fast approaching, employers are encouraged to take immediate steps to review their current policies and make appropriate updates, or adopt the State’s model language.  Similarly, though the initial training deadline has now been extended to October 9, 2019, it is also prudent for employers to begin considering how they will fulfill their training obligations under the law, particularly in light of the training requirements that will become effective on April 1, 2019 for employers covered by the New York City Human Rights Law.   We are, of course, monitoring any developments that may arise regarding the New York City training requirements and will keep readers apprised of any updates.

As always, Proskauer attorneys are standing by to provide guidance and answer questions you may have regarding these new requirements.

As we have previously reported, New York State has recently enacted several significant measures regarding sexual harassment in the workplace. Effective October 9, 2018, all New York State employers are required to adopt written sexual harassment prevention policies and institute annual anti-harassment training for employees. According to the final guidance issued by the State, all New York employees must complete sexual harassment prevention training that meets or exceeds the minimum standards under the law by no later than October 9, 2019, after which training must be provided on an annual basis. Also, new employees should complete training as soon as possible after their start date.

To satisfy the training requirements, employers may either: (1) adopt the State’s model training script, slides and/or case studies; or (2) provide other live training or interactive online/video training that meets or exceeds the law’s minimum standards. To that end, the State has recently published two sexual harassment prevention training videos, which are available for download or viewing on YouTube and which track the State’s model training script, slides and case studies. Each video runs approximately 20 minutes.

The first video includes explanations regarding: (1) what constitutes sexual harassment and sex stereotyping; (2) individuals and conduct covered by the law; (3) retaliation; (4) the responsibilities for supervisors and managers, including the duty to report any harassing (or suspected harassing) behavior; (5) the investigation procedure and possible corrective action; (6) external remedies and legal protections; and (7) an overview of other forms of harassment based on other protected characteristics under federal and state law. The second video presents the State’s model case studies and poses “true or false” questions to employees about topics relating to sexual harassment in the workplace, along with explanations about the correct answer and the reasoning behind the answer.

Importantly, utilizing the training videos alone will not satisfy the law’s “interactivity” requirements for sexual harassment training. If an employer is using the State’s videos to satisfy its training requirements, it must also: (i) ask questions of employees as part of the program; (ii) accommodate questions asked by employees, with answers provided in a timely manner; or (iii) require feedback from employees about the training and the materials presented. The State has also advised employers to be prepared to address questions raised by employees that are specific to their industry, questions about how the organization’s reporting process works, and how hypothetical cases would be handled.

In addition to the new training videos, the State has also released a webinar for employers that provides an overview of the recent changes in the law. The 8-minute video summarizes the requirements with respect to implementing sexual harassment prevention policies and training (including a review of the minimum requirements for compliance), and provides information regarding the State’s website and model documents. If using the State’s model training materials, the video suggests that such materials be modified to reflect the policies and practices of the particular employer and/or industry.

As always, Proskauer attorneys are standing by to provide guidance and answer questions you may have regarding these requirements.

Westchester County, NY has become the latest jurisdiction to enact a law providing eligible employees with paid leave for their own medical needs, those of a family member, or other covered reasons. The Ordinance will take effect on March 30, 2019.

Covered Employees and Accrual of Sick Leave

Similar to the New York City Earned Safe and Sick Time Act (“ESSTA”), all full-time and part-time employees who work more than 80 hours per year in Westchester County are eligible to earn sick leave at a rate of 1 hour for every 30 hours worked, up to 40 hours per calendar year (or any other 12 month period used by the employer to calculate sick time). For employers with five or more employees working in Westchester County, this leave must be paid at the employee’s normal rate of pay; employers with fewer than five employees need only provide unpaid leave. Special rules apply for domestic workers. While new employees begin accruing sick leave at the start of employment, they may be restricted from using any accrued leave for up to 90 days following hire.

Where an accrual method is used to calculate earned sick leave, employees must be permitted to carry over available but unused sick leave for immediate use in the following year, though the maximum amount of sick leave to be used by employees in a given year may be capped at 40 hours. Alternatively, employers can satisfy the law’s requirements and avoid having to track employee accruals by providing an employee with sick time equaling 40 hours or more at the start of each calendar year (or any other 12 month period used by the employer to calculate sick time), provided the frontloaded time can be used for the same purposes and under the same conditions as accrued sick time under the Ordinance.

An employer that currently offers its employees paid time off (which may include personal, sick and/or vacation days) that is equal to or greater than that required by the Ordinance, and that can be used for the same purposes and under the same conditions as provided by the Ordinance, may use such time to satisfy its obligations under the Ordinance.

Similar to ESSTA, the Ordinance shall not apply to employees covered by a valid collective bargaining agreement so long as the agreement: (i) expressly waives the provisions of the Ordinance; and (ii) provides for a comparable benefit in the form of leave, compensation, other employee benefits, or some combination thereof.

Use of Sick Leave

Employees will be able to use sick leave under the Ordinance for any one or a combination of the following reasons:

• For an employee’s mental or physical illness, injury or health condition; an employee’s need for medical diagnosis, care or treatment of such illness, injury or health condition; or an employee’s need for preventative care;
• Care of a family member with a mental or physical illness, injury or health condition; for the family member’s need for medical diagnosis, care or treatment of such illness, injury or health condition; or for the family member’s need for preventative care;
• Care of an employee or family member when it has been determined by public health authorities that the employee’s or family member’s presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease; and/or
• Closure of the employee’s place of business or a day care or elementary or secondary school attended by an employee’s child where such closure is due to a public health emergency.

For purposes of the Ordinance, “family members” include an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent; and the child or parent of an employee’s spouse, domestic partner or household member (as defined in the Ordinance).

Employers may require that employees use sick leave in minimum daily four hour increments, following which any additional sick leave needed in the same day must be made available in the smallest increment that the employer’s payroll system uses to account for absences or use of other time.

Employees may be required to comply with the employer’s usual notice and procedural requirements for absences or for requesting leave. Employers may require documentation of the need for sick leave for absences of more than three consecutive days.

Notice and Recordkeeping Requirements

Employers shall be required to provide both current employees and new hires with a copy of the Ordinance along with “written notice of how the law applies to that employee.” Such notice must be provided within 90 days of the effective date of the law (i.e., June 28, 2019) or at the commencement of employment, whichever is later. Employers also shall be required to display a copy of the Ordinance and a notice of rights poster in a conspicuous location accessible to employees. It is unclear whether the County plans to issue any form notices to satisfy these requirements.

Employers will be required to maintain records reflecting both the hours worked and sick hours accrued and used by employees for a period of three years.

Remedies Available

Unlike ESSTA, the Ordinance provides employees with a private right of action for violations of the law. Employees may recover the greater of $250 or three times the wages that should have been paid for each instance of undercompensated sick time taken, and$500 for each instance where employees have been unlawfully denied requested sick time. Other available remedies include reinstatement and back pay, attorneys’ fees, the costs of an administrative hearing, and other monetary and equitable relief.

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We will continue to report on new developments with regard to this and other paid leave laws around the country as they arise.

As we previously reported, in February 2018, the city of Austin, Texas passed a paid sick and safe leave ordinance (the “Ordinance”) that would have required companies to provide paid sick and safe leave to their employees. The Ordinance obligated companies with 15 or more employees to provide eight days of paid leave, and companies with fewer than 15 employees to provide six days of paid leave. The Ordinance was scheduled to go into effect on October 1, 2018.

In Texas Association of Business et al. v. City of Austin, Texas, however, the Texas Court of Appeals recently declared the City of Austin’s Ordinance unconstitutional and ordered the district court to grant a temporary injunction barring its implementation.

The Court held that the Ordinance “violates the Texas Constitution because it is preempted by the Texas Minimum Wage Act”. The Texas Constitution bars city ordinance provisions “inconsistent” with the laws “enacted by the Legislature of the State.” The Texas Court of Appeals held that the Ordinance established a “wage”, violating the Texas Minimum Wage Act (TWMA), and thereby the Texas Constitution.

The TMWA precludes municipalities from regulating “wages” for employers subject to the minimum wage requirements of the Fair Labor Standards Act. The Texas Court of Appeals held that the Ordinance regulated “wages” because it requires employers to pay employees for hours they did not work, effectively raising their rate of pay for hours they actually worked. The Court illustrated this concept by using a hypothetical example of an hourly worker who earned $10 per hour, working 15 hours per week, who used 25 hours of accrued sick time in a year. The Court reasoned that under the Ordinance, this employee would receive “$250 for time she did not work, making her actual hourly wage $10.33.” Although the City of Austin argued that “wages” under the TWMA referred only to payments made to compensate workers for their services and not additional benefits, the Texas Court of Appeals disagreed and concluded that the TMWA’s definition of “wages” did not “necessarily preclude the inclusion of paid sick leave.”

The Suffolk County, NY Legislature has unanimously enacted a bill that will prohibit employers and their agents from inquiring about job applicants’ wage or salary history during the hiring process. The Restricting Information on Salaries and Earnings Act (the “RISE Act”) goes into effect on June 30, 2019.

The RISE Act amends the Suffolk County Human Rights Law, which applies to employers with four or more employees.

The Act provides that it is an unfair discriminatory practice for an employer or employment agency (or an employee or agent of same) to:

• Inquire, whether in any form of application or otherwise, about a job applicant’s wage or salary history, including but not limited to, compensation and benefits.
• Rely on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process, including at offer or contract.

For purposes of the Act, “to inquire” means to ask an applicant or former employer orally, or in writing, or otherwise or to conduct a search of publicly available records or reports.

An employer, employment agency, employee or agent thereof may, however, seek to confirm wage information if required by applicable law or pursuant to a collective bargaining agreement.  Unlike similar laws in New York City and Westchester, NY, which recognize certain additional exceptions to this prohibition including, for example, when the applicant makes an unprompted and willing disclosure of his or her salary history to the prospective employer, the Suffolk County law does not address this scenario or otherwise include any other exceptions.

Individuals alleging violations of the Act may file a complaint with the Suffolk County Human Rights Commission. Potential remedies include compensatory damages, payment to the Suffolk County general fund, and civil fines and penalties.

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We will continue to report on new developments with regard to this law as they arise.

As we approach the New Year, it is important to keep in mind several updates to the New York Paid Family Leave Law (“NYPFLL”) that will become effective January 1, 2019. As we have previously reported, the NYPFLL provides a phased-in system of paid, job protected leave for eligible employees: (i) to care for a new child following birth, adoption, or placement in the home; (ii) to care for a family member with a serious health condition; or (iii) for qualifying exigencies related to military duty.

Effective January 1, 2019, the paid leave period under the NYPFLL will increase from 8 weeks to 10 weeks per year. The number of weeks available for paid family leave will continue to increase through 2021, when employees will be eligible for up to 12 weeks of paid leave under the NYPFLL.

Also effective January 1, 2019, employees taking leave under the NYPFLL will receive 55% of their average weekly wage (up from 50% in 2018), up to a cap of 55% of the current Statewide Average Weekly Wage ($1,357.11). In other words, the maximum weekly benefit for 2019 will increase from $652.96 to $746.41.

The employee contribution rate will also increase from 0.126% to 0.153% of an employee’s gross wages each pay period (capped at the Statewide Average Weekly Wage), which means that an employee’s maximum annual contribution will increase from $85.56 to $107.97. Employees earning less that the Statewide Average Weekly Wage, however, will contribute less, consistent with their actual wages.   Employers may start taking deductions at the new rate on January 1, 2019.

The State has updated the FAQ section of its website, which addresses, among other things, the benefits available to employees who start a period of leave under the NYPFLL in 2018 that extends into 2019. The FAQs make clear that employees will receive the benefit rate and number of weeks in effect on the first day of their leave. For example, if an employee starts continuous leave in 2018, and it extends into 2019, the employee is not eligible for the benefits at the 2019 rate. However, an employee who takes intermittent leave in 2018 may be eligible for increased benefits if more than three months passes before the employee’s next day or period of leave (as this is considered to be a new claim under the law).

In addition, the FAQs also address employees who have exhausted their NYPFLL benefits in 2018 and experience another qualifying event in 2019. Because eligibility for paid family leave is based on a rolling 52-week period measured retroactively from each day leave is requested, an employee requesting leave in 2019 who took eight weeks of leave in the last 52 weeks may be limited to two additional weeks of leave at the 2019 rate. The employee would begin to accrue additional weeks of leave at the increased rate once 52 weeks passes from the start of the employee’s 2018 leave period.

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Employers in New York are encouraged to review their current NYPFLL policies and practices to ensure compliance with the updated requirements.

The Philadelphia City Council recently passed the Fair Workweek Employment Standards Ordinance (the “Ordinance”), which will impose new restrictions on retail, fast food and hospitality employers with regard to employee scheduling and pay practices. The Ordinance was signed by Mayor Jim Kenney on December 20, 2018, and will take effect on January 1, 2020.

The Ordinance applies to employers that have 250 or more employees and 30 or more locations worldwide, regardless of where those employees perform work (including full-time, part-time, temporary and seasonal employees). Such employers will be required, among other things, to:

• Provide newly hired employees with a written, good faith estimate of their work schedule, including the average number of hours the employee can be expected to work each week;
• Provide employees with at least ten days’ written notice of their work schedules (which will increase to fourteen days as of January 1, 2021);
• Notify employees of any proposed changes to their work schedules as promptly as possible and before the change takes effect; and
• Give consideration to employee work schedule requests, including requests not to be scheduled for certain times or locations.

Employers may make changes to schedules for up to 24 hours after they are posted. Subject to certain exceptions, schedule changes made after 24 hours will trigger “predictability pay” for employees, which is measured by the employee’s hourly rate of pay and must be paid each time the employer makes a qualifying change (in addition to the employee’s regular pay for hours worked).

The Ordinance also provides a right to rest between work shifts by permitting employees to decline additional shifts, without penalty, that would begin less than nine hours after the end of a previous shift. Alternatively, employees who accept such shifts will receive an additional payment of $40 for each accepted shift.

Employees subject to a collective bargaining agreement may waive the requirements of the Ordinance provided such waiver is explicitly set forth in the agreement in “clear and unmistakable terms and only so long as the agreement is in effect contractually.” Unilateral implementation of a waiver is prohibited.

In addition to including a notice requirement and record retention requirements, the Ordinance provides employees with a private right of action for violations of the law. Available remedies include back pay, liquidated damages up to $2,000, attorney’s fees and other equitable relief.

States across the country have passed new laws addressing sexual harassment, paid family leave, and other labor and employment law issues. As many of these laws will soon become effective, employers should be prepared for the following changes in the legal landscape.

Sexual Harassment Laws

New York City’s Stop Sexual Harassment Act, effective April 1, 2019, will require employers with 15 or more employees to conduct annual anti-sexual harassment training for all employees. For purposes of the Act, independent contractors who perform work for an employer for more than 90 days and more than 80 hours in a calendar year are also deemed employees. For additional information regarding the Act’s requirements, please refer to our previous posts.   This New York City law complements a similar law in New York State, which became effective on October 9, 2018, and which also requires employers to conduct annual anti-harassment training. For additional information regarding the State’s requirements, please refer to our previous post.

California recently amended Section 12950.1 of its Government Code to expand the reach of its anti-harassment requirements. Previously, employers with 50 or more employees were required to provide 2 hours of anti-harassment training to all supervisors every other year. Under the amended law, employers with at least five employees must provide 2 hours of anti-harassment training to all supervisors, plus 1 hour of anti-harassment training to all non-supervisory employees, every other year. Current employees must complete their first session of anti-harassment training on or before January 1, 2020. For additional information regarding these new training requirements, please refer to our previous post.

Delaware Governor John Carney signed HB 360 into law, effective January 1, 2019, which creates a new section in the Delaware Discrimination in Employment Act prohibiting sexual harassment in the workplace.

In addition to defining the circumstances in which an employer can be found liable for harassment, the law imposes new notice and training requirements. Employers with 4 or more employees must distribute an information sheet (available here) on sexual harassment to all employees by July 1, 2019. Employers with at least 50 employees will be required to provide interactive anti-sexual harassment training to all employees every 2 years. New employees must be trained within 1 year of hire and existing employees must be trained on or before January 1, 2020. Such employers must also provide sexual harassment training for all supervisors every 2 years. And, under the new law, new supervisors must be trained within 1 year of assuming a supervisory position, and existing supervisors must be trained on or before January 1, 2020.

Leave Laws

As we previously reported, effective July 1, 2019, the Massachusetts Paid Family and Medical Leave Program, will provide eligible employees with up to 20 weeks per year of paid medical leave for an employee’s own serious health condition, as well as 12 weeks per year of paid leave for family-care purposes. Employees taking leave under the Massachusetts law will receive up to 80% of their average weekly wage (up to a designated cap).

Michigan’s Paid Medical Leave Act, effective March 29, 2019, will require employers with 50 or more employees to provide paid medical leave for personal or family health needs. Eligible employees will accrue 1 hour of paid leave for every 35 hours worked, up to a maximum of 1 hour per calendar week and 40 hours per benefit year. Where employers permit employees to accrue paid medical leave, employees must also be permitted to carry over available but unused medical leave to the following year, though the maximum amount of leave to be used by employees in any given year may be capped at 40 hours. Alternatively, employers may frontload the time to be used for the same purposes and under the same conditions as accrued medical leave, and when frontloading the time employers are not required to allow employees to carry over accrued, unused leave. New employees may be restricted from using their accrued medical leave for up to 90 days after they are hired.

New York’s Westchester County Earned Sick Leave Law, effective April 10, 2019, will require employers to provide all employees (including part-time, exempt and seasonal employees) who work in Westchester County 1 hour of paid sick leave for every 30 hours worked, up to a maximum of 40 hours per year. The new Westchester law applies to employers with five or more employees and grants employees a private right of action for employer violations. For additional information regarding these new requirements, please refer to our previous post.

As we previously reported, on July 10, 2017, Washington State enacted its Paid Family and Medical Leave Law, which will provide employees with a maximum of 12 weeks of paid leave per year for their own serious health condition. Employees will also be eligible for a maximum of 12 weeks of paid leave per year for family care purposes; and a maximum of 16 weeks of a combination of paid family and medical leave may be used per year. Although benefits for employees do not begin until January 1, 2020, employers must deduct and remit premiums beginning on January 1, 2019. In addition, in April 2019, employers must begin reporting all worker hours and wages to the State’s Employment Security Department.

Salary History

As we previously reported, effective January 1, 2019, employers in Connecticut are prohibited from asking (or directing a third party to ask) about an applicant’s salary history, unless the applicant has voluntarily disclosed such information. In addition, employers cannot prohibit employees from disclosing or discussing the amount of their wages or the wages of another employee that has been voluntarily disclosed by the other employee. The law also provides employees a private right of action with available damages including compensatory and punitive damages, as well as attorneys’ fees.

Effective June 30, 2019, the Restricting Information on Salaries and Earnings Act (the “RISE Act”) will prohibit employers in Suffolk County, New York from inquiring about an applicant’s wage or salary history, as well as an applicants’ prior or existing compensation and benefits. For additional information regarding these new requirements, please refer to our previous post.

Other Laws

Lactation Breaks – Effective March 18, 2019, employers in New York City will be required to provide nursing mothers with a private lactation room and a refrigerator suitable for breast milk storage. Employers must also develop and implement a written policy regarding the provision of a lactation room. For additional information regarding these new requirements, please see our previous post.

Recent Developments in Illinois – As we previously reported, lawmakers in Illinois were quite active this past year in passing legislation affecting employers. For example, employers in Illinois must now provide paid breaks for nursing mothers and include in their handbooks information concerning an employee’s rights under the Illinois Human Rights Act, including the right to be free from unlawful discrimination and sexual harassment and the right to certain reasonable accommodations. There are also new laws in effect in Illinois governing expense reimbursements, additional protections for military service members and equal pay protections for African-American employees. For additional guidance navigating this new terrain, employers in Illinois should refer to our previous post.

Given these recently enacted changes, employers should review their workplace policies and practices to ensure compliance with these new requirements. As always, Proskauer attorneys are available to advise on these new laws.

After 16 years of debate and discussion, the New York State Legislature recently passed the Gender Expression Non-Discrimination Act (“GENDA”), which would amend the New York State Human Rights Law to expressly prohibit discrimination on the basis of gender identity or expression.

Under the Act, gender identity or expression is defined as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” Under existing provisions of the New York State Human Rights Law, employees who successfully establish claims of discrimination are entitled to back pay and compensatory damages. The Act also expands New York’s hate crime laws to include crimes against transgender and gender non-conforming people.

The legislation has been sent to Governor Cuomo, who is expected to sign the bill. If signed, the Act will be effective thirty days after it is signed, with the exception of certain amendments relating to the hate crime laws, which will not become effective until November 1, 2019.

Notably, the New York City Human Rights Law currently prohibits discrimination based on gender identity or expression. Nonetheless, if and when the state legislation is signed, employers should review their existing policies, including their non-discrimination and anti-harassment policies, to ensure that they are in compliance with these state law requirements.

On January 25, 2019, New York Governor Andrew Cuomo signed into law the Gender Expression Non-Discrimination Act (GENDA).

As we previously reported, GENDA amends the New York State Human Rights Law to expressly prohibit discrimination on the basis of gender identity or expression. The Act also expands New York’s hate crime laws to include crimes against transgender and gender non-conforming people.

The new law will take effect on February 24, 2019, with the exception of certain provisions relating to the hate crime laws which will take effect on November 1, 2019.

New York has joined 19 other states and the District of Columbia in prohibiting discrimination on the basis of gender identity, including the status of being transgender.

A new bill seeking to expand paid family leave in New Jersey passed the Senate and Assembly on January 31, 2019, and was signed by Governor Phil Murphy today. The bill makes sweeping changes to the New Jersey Family Leave Act that provides greater benefits for more employees. Following are some highlights of the bill:

• As of June 30, 2019, the definition of a covered employer would include those with 30 employees, as opposed to 50 employees, for each calendar day of 20 or more calendar workweeks.
• The definition of “parent” is now expanded to include foster parents and those who became parents via a gestational carrier. Likewise, the definition of “family leave” is now expanded to include care for foster children and children who are born via a gestational carrier.
• The definition of “family member” is now expanded to include siblings, grandparents and grandchildren, parents-in-law, domestic partners, any individuals related to the employee by blood, and more broadly, “any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.” This expanded definition would align with the definition of a covered family member under the New York City Earned Safe and Sick Time Act.
• Employees are now eligible to take leave under the New Jersey Security and Financial Empowerment Act (“NJ SAFE Act”) to care for any of the aforementioned individuals in the event of a domestic violence or sexually violent incident.

Under the new law, employees are now entitled to a reduced leave schedule for up to 12 consecutive months for any one period of leave, as opposed to 24 consecutive weeks. The new law allows employees to take leave for the birth or adoption of a child on an intermittent basis pursuant to New Jersey’s Temporary Disability Benefits Law. Under the prior law, individuals were entitled to receive up to 6 weeks of benefits for family temporary disability leave, or 42 days of intermittent leave, for any one period of family temporary disability leave or any 12-month period. The new law increased those benefits to 12 weeks of consecutive leave or 56 days of intermittent leave for any period of leave commencing on or after July 1, 2020. Also, individuals taking disability and those taking family temporary disability leave beginning on July 1, 2020 or thereafter will be entitled to 85% of their average weekly wage, up to a maximum of 70% of the Statewide average weekly wage, for up to 12 weeks of consecutive leave or 56 days of intermittent leave.

On February 19, 2019, the New York City Commission on Human Rights (“NYCCHR”) issued new enforcement guidance on appearance and grooming policies that ban or restrict naturally curly hair, dreadlocks, braids, cornrows and other hairstyles. Such policies constitute a violation of the New York City Human Rights Law (“NYCHRL”) because, according to the City Commission, prohibitions on “natural hair or hairstyles closely associated with Black people are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.”

In its guidance, the NYCCHR makes clear that the NYCHRL “protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities.” Accordingly, employers may not enact policies that force Black employees to straighten, relax, or otherwise manipulate their hair to conform to employer expectations, as this “constitutes direct evidence of disparate treatment based on race and/or other relevant protected classes under the NYCHRL.” Examples of violations may include, among other things, a policy that prohibits “twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with Black people.”

While the guidance specifically details protections for Black people – who, according to the NYCCHR, are frequent targets of race discrimination based on hair – it also cites as unlawful “any grooming or appearance policies that generally target communities of color, religious minorities, or other communities” that are protected under applicable law. Examples of such policies may include:

• a Sikh job applicant turned down for religiously maintained uncut hair kept under a turban;
• an Orthodox Jewish employee ordered to shave his beard and cut his payot (sidelocks or sideburns) to keep his job;
• a 60-year-old employee with gray hair told to color their hair or lose their job; or
• a male server ordered to cut his ponytail while similar grooming policies are not imposed on female servers.

The enforcement guidance applies to employers as well as operators of restaurants, fitness clubs, stores, schools, libraries and other areas of public accommodation.

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Employers in New York City should review their current grooming and/or appearance policies to ensure compliance with these new guidelines.

In this episode of The Proskauer Brief, partner Evandro Gigante and associate Arielle Kobetz discuss the labor and employment landscape in 2019, including some significant laws set to go into effect this year, as well as other legislative developments. They will highlight cases pending before the Supreme Court and what we can expect from the National Labor Relations Board (NLRB). Be sure to tune in for this 2019 preview.

Listen to the podcast.

Evandro Gigante:  Welcome to the Proskauer Brief, hot topics in employment and labor law. I’m Evandro Gigante, and I’m joined by Arielle Kobetz. Today we will discuss the labor and employment landscape in 2019, including some significant laws set to go into effect this year, as well as other legislative developments, cases pending before the Supreme Court, and what we can expect from the NLRB. Arielle, what is one of the biggest changes to the labor and employment landscape in 2019?

Arielle Kobetz:  Well, I’m not sure it’s a change necessarily, but I think we will continue to see activity in the #MeToo space, with continued emphasis on internal and external complaints, investigations and possibly litigation. For its part, the EEOC continues to focus on enforcing the federal anti-discrimination statutes in 2018, filing 66 harassment lawsuits in fiscal year 2018. 41 of which included allegations of sex harassment. This is more than a 50 percent increase in suits challenging sex harassment from fiscal year 2017. I think it’s fair to say that the trend is likely to continue into 2019. Given the impact of the #MeToo movement, many states and cities have passed new laws combatting sexual harassment in the workplace. For example, in addition to complying with new state laws requiring employers to implement written anti-harassment policies, and provide annual anti-harassment training to all employees, employers in New York City must also comply with the Stop Sexual Harassment Act, which takes effect on April 1, 2019. Under that New York City law, employers with 15 or more employees will be required to conduct annual interactive, anti-sexual harassment training for all employees who work more than 80 hours in a calendar year. Qualifying employers in California and Delaware must also provide anti-sexual harassment training to all employees by January 1, 2020, and then again every two years. Notably, in California, employers with at least five employees, must provide two hours of anti-harassment training to all supervisors, plus one hour of anti-harassment training to all non-supervisory employees every other year. The requirement to provide non-supervisory employees with training is new. In addition to these new sexual harassment laws, we will also see new leave laws take affect this year. Evandro, tell us about some of those laws.

Evandro Gigante: Certainly. Massachusetts Paid Family and Medical Leave Program will provide eligible employees with up to 20 weeks of paid medical leave for an employee’s own serious health condition. Employees eligible will also have access to 12 weeks per year of paid leave for family care purposes. After some political debate and negotiation, Michigan will also see its paid medical leave act take affect this year. Beginning March 29 of 2019, employers in Michigan with 50 or more employees will be required to provide paid medical leave for personal or family health needs for employees. Unlike the Massachusetts law, Michigan’s law will only require employers to provide 40 hours of paid leave per benefit year. Beyond leave laws, what other significant measures will be taking effect this year?

Arielle Kobetz: Well, Connecticut’s prohibition on salary inquiry histories took effect on January 1^st, and prohibits employers from asking about an applicant’s salary history unless the applicant has voluntarily disclosed such information. In addition, employers cannot prohibit employees from disclosing or discussing the amount of their wages or the wages of another employee that has been voluntarily disclosed by that other employee. Under the law, employees can bring a private right of action against violating employers, seeking compensatory and punitive damages, as well as attorney’s fees. This, of course, is similar to laws that already exist in other jurisdictions, such as California, Delaware, New York City and Massachusetts. In addition to laws taking effect this year, politicians around the country are calling for new legislative measures in their states. Evandro, why don’t you tell us about some of those?

Evandro Gigante: Lawmakers in California, Maine, Nebraska, New Hampshire, Vermont and Virginia have all introduced or announced plans to introduce paid family leave legislation. Now, while employees in California are already eligible for up to six weeks of paid family leave benefits, the new proposal would increase that benefit to six months. In terms of paid vacation, New York City’s Mayor Bill de Blasio recently proposed a law that would require private employers with five or more employees to provide up to 10 days of paid vacation to full and part-time employees each year. This is in addition to sick and safe leave entitlements that employees in New York City already receive. Arielle, what employment issues are making their way to the Supreme Court.

Arielle Kobetz: The Supreme Court is currently contemplating whether to grant review on a trio of employment discrimination cases involving sexual orientation and gender identity. While some circuit courts have held that Title VII’s prohibition against discrimination on the basis of sex, includes protections for sexual orientation and gender identity, others have not. The Supreme Court has yet to decide the matter. Likewise, the Supreme Court is weighing whether to grant cert to review the Ninth Circuit’s recent decision in Yovino v. Rizo. There, the Ninth Circuit ruled that under the equal pay act, salary history cannot be used as a factor for justifying a pay disparity between male and female employees. Evandro, what can we expect from the NLRB this year?

Evandro Gigante: Well, we may see the Board turn its attention back to its 2014 election rule, which modified the Board’s representation election procedures. Early last year, the Board sought and extended the timeframe for submitting feedback on whether the rules should be changed, but it has not yet taken action since then, so it remains to be seen whether these new rules will be issued. In a fairly recent development, the Board has modified the test for whether an individual is considered an employee or an independent contractor under the NLRA, in a case called Super Shuttle DFW, where the Board rejected the standard established in 2014, which actually limited the significance of an individual’s entrepreneurial opportunity when determining whether someone is an independent contractor or an employee. Instead, the Board has now returned to its traditional common law agency test, which applied prior to 2014. Not long after this decision was issued in January of this year, the Board’s chairman suggested that the Board may actually propose new regulations to further clarify the independent contractor versus employee analysis, so that is certainly something to be on the lookout for.

From a practical perspective, we’ll also see regional offices move away from practices that have been in place since the 1980’s concerning the case handling process. Last year, the NLRB’s general counsel Peter Robb issued a memorandum, which set forth goals to reduce case processing time at the board by five percent. To do so, the general counsel eliminated prior case processing guidelines and really granted the regions the discretion on how they would process cases in order to achieve that goal of a five percent reduction in processing time. The discretion granted to regions may result in a significant variation in how cases are processed in different NLRB regions across the country. Thank you for joining us on the Proskauer Brief today. Stay tuned for more insights on the latest hot topics in labor and employment law and be sure to follow us on iTunes, Google Play and Spotify.

Update: On February 25, 2019, after the recording of this episode, the U.S. Supreme Court vacated the Ninth Circuit’s decision in Yovino v. Rizo due to the death of Judge Stephen Reinhardt, stating that the appeals court should not have counted the vote of the ruling’s author because he died before the decision was issued.

On March 18, 2019, New Jersey Governor Phil Murphy signed into law Senate Bill 121, which prohibits nondisclosure clauses in settlement agreements relating to workplace discrimination, retaliation or harassment.

Effective immediately, the law renders unenforceable any provision in an employment contract that waives “any substantive or procedural right or remedy relating to a claim of discrimination, retaliation or harassment.” The law also does not permit prospective waivers of any right or remedy under the New Jersey Law Against Discrimination, or any other state statute or case law. These provisions, however, do not apply to collective bargaining agreements.

The new law states that any provision in an employment contract or settlement agreement “which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment . . . shall be deemed against public policy and unenforceable against a current or former employee who is a party to the contract or settlement.”  The law also provides that a non-disclosure provision as described above will be unenforceable against the employer if the employee publicly reveals “sufficient details” of the claim so that the employer is “reasonably identifiable.” Going forward, every settlement agreement that resolves discrimination, harassment or retaliation claims must also include a “bold, prominently placed notice” indicating that although the parties agree to maintain the confidentiality of the settlement and underlying facts, such a provision would be unenforceable as against an employer if the “employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.” The law makes clear that these provisions should not be construed as prohibiting employers and employees from entering into non-compete agreements and confidentiality agreements relating to proprietary information, such as non-public trade secrets, business plan and customer information.

Finally, under the recently amended law, employees are protected from retaliation if they refuse to enter into an agreement or contract that contains a provision deemed unenforceable and against public policy. The law provides a private right of action for individuals claiming a violation of the statute and available remedies include all those available in common law tort actions, as well as attorneys’ fees and costs.