NYC Enacts New Sexual Harassment Training, Poster, and Information Sheet Requirements

New York City has enacted new sexual harassment trainingposter, and notice requirements for employers. Starting April 1, 2019, employers with 15 or more employees will be required to annually conduct anti-sexual harassment interactive training for all employees, including supervisors and managers. In addition, starting September 6, 2018, all employers will be required to:

  • Post an anti-sexual harassment rights and responsibilities poster in employee breakrooms or other common areas where employees gather; and
  • Distribute an information sheet on sexual harassment to employees at the time of hire and in the employee handbook.

The city is expected to release a model poster and information sheet soon.

Additional requirements applyClick here for more on the training requirement. Click here for more on the poster and information sheet requirements.

Posted by HR360

New York State Clean Indoor Air Act Includes Vaporizers and E-Cigatrettes

WHAT WAS ADDED: As of November 22, 2017, legislation has included electronic cigarettes, vaporizers, and similar devices to the Clean Indoor Air Act, which bans their use everywhere that smoking tobacco products are prohibited.

BACKGROUND: Effective July 24, 2003, the amended New York State Clean Indoor Air Act (Public Health Law, Article 13-E) prohibits smoking in virtually all indoor public areas including workplaces, restaurants and bars.

WHERE IS SMOKING PROHIBITED
Public Health Law, Article 13-E, Section 1399-o states that smoking shall not be permitted and no person shall smoke in the following indoor areas:

  • Places of employment;
  • Bars and Restaurants;
  • Enclosed indoor swimming areas;
  • Public transportation including all ticketing, boarding and waiting areas; buses, vans, taxicabs and limousines;
  • All places of employment where services are offered to children;
  • All schools, including school grounds;
  • All public and private colleges, universities and other educational and vocational institutions;
  • General hospitals;
  • Residential health-care facilities, except separately designated smoking rooms for adult patients;
  • Commercial establishments used for the purpose of carrying on or exercising any trade, profession, vocation or charitable activity;
  • All indoor arenas;
  • Zoos; and
  • Bingo facilities.

WHERE IS SMOKING PERMITTED
Smoking is permitted in the following areas or businesses:

  • Private homes and private residences when not used for day care; private automobiles;
  • Hotel or motel rooms rented to one or more guests;
  • Retail tobacco businesses (primary activity is the retail sale of tobacco products and accessories, and the sale of other products is merely incidental);
  • Membership associations where all duties related to the operation of the association are performed by volunteers who are not compensated in any manner;
  • Cigar bars in existence prior to January 1, 2003 (where 10% or more of total annual gross income is from the sale of tobacco products); and
  • Up to 25% of seating in outdoor areas of restaurants with no roof or ceiling enclosure may be designated smoking areas.

POSTING OF SIGNS
Public Health Law, Article 13-E, Section 1399-p Posting of Signs

“Smoking” or “No Smoking” signs, or the international “No Smoking” symbol, which consists of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it, shall be prominently posted and properly maintained where smoking is regulated (prohibited or permitted) by this article, by the owner, operator, manager or other person having control of such area. ALL IN ONE POSTER COMPANY offers a NO SMOKING and NO VAPING COMBINATION SIGN that may be used in accordance with the amendment to the law that now includes electronic cigarettes, vaporizes, and similar devices.

VIOLATION AND PENALTY
The enforcement officer for a city or county health department can assess a penalty of up to $1,000 for each violation. In areas where the State Health Department is the enforcement officer, a fine of up to $2,000 may be assessed.

New York To Develop Its Own Sexual Harassment Policy and Poster by Oct 2018

California for a long time has had its own Sexual Harassment Policy Training and Posting Requirement. This was discussed in a previous article. New York State and New York City is now following suit.

Background

In response to the tsunami of sexual harassment allegations that have swept the nation in late 2017, Senator Murphy has partnered with Senator Catherine Young and Senator Elaine Phillips to help pass milestone legislation to combat all forms of sexual harassment. The Sexual Harassment Accountability and Protection Act will ban confidential sexual harassment settlements, prohibit mandatory arbitration of sexual harassment complaints, and expand protections for independent contractors. For the first time, this legislation would also write a definition of sexual harassment in state law.

The state legislature also passed The state budget bill for the 2019 fiscal year approved by the New York State Legislature on March 31 and signed into law by Governor Andrew Cuomo on April 12 contains a host of significant provisions to strengthen the state’s sexual harassment laws.

The budget bill contains significant new obligations for private and public employers, aimed at curtailing sexual harassment in the workplace. Specifically, the bill requires employers in New York to adopt a sexual harassment policy and training program that meet certain standards. Details of the new requirements are presented below.

Model Policy
The state is expected to create and publish a model sexual harassment prevention guidance document and sexual harassment prevention policy. A basic outline of the model policy is available by clicking here (§ 201-g(1)(a)).

The model sexual harassment prevention policy must include the following:

  • a statement prohibiting sexual harassment;
  • examples of prohibited conduct that would constitute sexual harassment;
  • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims, along with a statement that there may be additional applicable local laws;
  • a standard complaint form;
  • the procedure for the timely and confidential investigation of complaints;
  • a statement informing employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  • a statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals engaging in sexual harassment and managers and supervisory personnel who knowingly allow such behavior to continue; and
  • a statement that retaliation against individuals reporting sexual harassment or who testify or assist in any proceeding is unlawful.

Every employer must adopt the model sexual harassment prevention policy or establish a policy that equals or exceeds the minimum standards provided by the state’s policy. The policy must be provided to all employees in writing.

Training Program
The state is also expected to produce a model sexual harassment prevention training program. The program will be interactive and will contain certain required content (§ 201-g(2)).

Basically, the model sexual harassment prevention training must be interactive and include the following:

  • an explanation of sexual harassment;
  • examples of conduct that would constitute unlawful sexual harassment;
  • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims; and
  • information concerning employees’ rights of redress and all available forums for adjudicating complaints.

The model training must also include information addressing conduct by supervisors and additional responsibilities for supervisory personnel.

Every employer must utilize the state’s model sexual harassment prevention training program or establish a training program that equals or exceeds the minimum standards provided by the state’s model training. The training must be provided annually to all employees.

These new requirements take effect October 9, 2018. The law also contains provisions on sexual harassment relating to non-employees (e.g., contractors). Click here (Subparts E and F) to read the law.

Following this, the New York City Council passed a package of bills this week aimed at addressing sexual harassment at work. The new training rule will apply to any private employer with more than 15 people on its payroll. Managers and supervisors will also be required to complete training, according to the bill’s text. The legislation, called the Stop Sexual Harassment in NYC Act, taps the city’s commission on human rights to develop an “online interactive” program that can be used to satisfy the training requirement.

New York Paid Family Leave: Updated Information for Employers

The state of New York has updated two provisions of its paid family leave guidance regarding deductions from employees’ wages and voluntary coverage. Highlights of the changes are presented below.

Wage Deductions
The 2018 payroll contribution is 0.126% of an employee’s weekly wage and is capped at an annual maximum of $85.56. If an employee earns less than the New York State average weekly wage ($1,305.92 per week), he or she will have an annual contribution amount less than the cap of $85.56, consistent with his or her actual weekly wages.

Click here for a calculator that provides an estimate of weekly employee deductions.

Voluntary Coverage 
A self-employed individual who has employees must obtain paid family leave coverage for such employees. The self-employed individual must opt in for both disability and paid family leave benefits and cannot opt in for only paid family leave.

Click here for additional information.

Background
New York has enacted a paid family leave policy, which is being phased into effect beginning January 1, 2018. It applies to employers of all sizes. When the law is fully phased-in over the next several years, employees will be eligible for 12 weeksof paid, job-protected leave when certain life events occur.

Click here for more information about the law.

Post an employee notice
A “Notice To Obtain” is included in our All In One Poster for the state of New York, and not the actual notice. Here is what you need to know with regards to obtaining it:

  • Your insurance carrier will provide you with a notice to employees (Form PFL-120) stating that you have Paid Family Leave insurance.
  • If you are self-insured, you can get this notice by contacting the NYS Workers’ Compensation Board at certificates@wcb.ny.gov.
  • Post and maintain this notice in plain view.

Originally posted by HR360

New York: Discrimination Based on Association Prohibited

Law Applies to Certain Employers

The New York State Division of Human Rights has issued a regulationthat prohibits discrimination against an individual because of his or herknown relationship or association with a member of a protected class under the state Human Rights Law.

Background
Under state law, it is generally an unlawful discriminatory practice for an employer with 4 or more employees to refuse to hire or employ or to bar or to discharge from employment an individual or to discriminate against an individual in compensation or in terms, conditions, or privileges of employment because of an individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability,predisposing genetic characteristics, familial status, marital status, or domestic violence victim status (collectively referred to as “protected classes”).

Note: The prohibitions against sex discrimination (in all areas of jurisdiction where sex is a protected category) also prohibit discrimination on the basis of gender identity or the status of being transgender.

New Regulation
Where the term “unlawful discriminatory practice” is used in the Human Rights Law, it is construed to prohibit discrimination against an individual because of his or her known relationship or association with a member (or members) of a protected class covered under the relevant provisions of the Human Rights Law.

The new regulation is effective as of May 18, 2016. Click here to read the text of the new rule. The text of the New York State Human Rights Law is available here.

 

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NYC Releases Guidance on Pregnancy Discrimination

Guidance Clarifies Violations and Accommodations Under the Law

New York City has released guidance that clarifies violations of pregnancy protections under the New York City Human Rights Law, and provides examples of when and how covered employers should make accommodations for employees based on pregnancy, childbirth, or a related medical condition.

Background
The New York City Human Rights Law, generally applicable to employers with 4 or more employees, prohibits unlawful discrimination in employment on the basis of (among other things) pregnancy or perceived pregnancy, through its prohibitions on discrimination based on gender. It also requires employers to reasonably accommodate the needs of an employee for her pregnancy, childbirth, or related medical condition.

Guidance
Among other things, the guidance:NYC-Pregnancy-11x17.gif

  • Outlines specific violations of pregnancy protections under the law in employment, including firing or refusing to hire or promote employees because they are pregnant;
  • Requires employers to accommodate reasonable requests from employees related to pregnancy, childbirth, or a related medical condition (e.g., allowing employees to eat at their desks, providing seating, arranging for light duty or desk duty assignment, transferring workers to other available positions, and allowing for unpaid leave to recover from childbirth);
  • Specifies what an employer must prove in order to deny an accommodation, such as undue hardship or that an employee would not be able to satisfy the essential requisites of a job even with a reasonable accommodation;
  • Clarifies that employees undergoing fertility treatment, who have had abortions or miscarriages, or who are breastfeeding are entitled to reasonable accommodations under the law;
  • Requires employers to initiate and engage in a “cooperative dialogue” with employees when the employer is on notice that an employee is in need of an accommodation based on pregnancy, childbirth, or a related medical condition; and
  • Discusses an employer’s obligation to provide notice regarding pregnancy protections.

The guidance was issued on May 6, 2016. Click here to read the guidance.

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New York Issues Regulations Prohibiting Harassment and Discrimination on the Basis of Gender Identity, Transgender Status, or Gender Dysphoria

Regulations Now in Effect

The Governor of New York has issued regulations—under the stateHuman Rights Law—which prohibit harassment and discrimination on the basis of gender identity, transgender status, or gender dysphoria.

Background
Under New York’s Human Rights Law, it is an unlawful discriminatory practice for an employer to refuse to hire or employ or to bar or to discharge from employment an individual or to discriminate against an individual in compensation or in terms, conditions, or privileges of employment because of an individual’s sexual orientation, sex, disability, familial status, marital status, or domestic violence victim status (amongother protected classes).

The law generally applies to employers with 4 or more employees; however, the law’s prohibitions against sexual harassment apply to all employers—regardless of size.

New Regulations
Highlights of the new regulations include the following:

  • Discrimination on the basis of gender identity is sex discrimination.
  • The prohibitions contained in the state Human Rights Law against discrimination on the basis of sex (in all areas of jurisdiction where sex is a protected category) also prohibit discrimination on the basis of gender identity or the status of being transgender.
  • Harassment on the basis of a person’s gender identity or the status of being transgender is sexual harassment.
  • The term “disability,” when used in the state Human Rights Law, includes gender dysphoria or other condition meeting the definition of disability in the law.
  • Refusal to provide reasonable accommodation for persons withgender dysphoria or other condition meeting the definition of disability in the law, where requested and necessary (and in accordance with state regulations on reasonable accommodation), isdisability discrimination.
  • Harassment on the basis of a person’s gender dysphoria or other condition meeting the definition of “disability” in the law is harassment on the basis of disability.

The regulations are effective as of January 20, 2016. Additional information is available in the text of the regulations. A press releaseconcerning the regulations is also available.

HR360 Editorial Team http://www.hr360.com

NYC: Local Law Grants Caregivers Protections Under Nondiscrimination Law

Legislation Effective May 4, 2016

Under a new local law, the New York City Human Rights Law (NYCHRL) prohibits employment discrimination based on an individual’s actual or perceived status as a caregiver. Under the NYCHRL, employers with 4 or more employees are prohibited from discriminating against individuals on the basis of age, race, creed, color, national origin, gender, disability, pregnancy, or marital status, among other protected classes.

Under the local law, “caregiver” means a person who provides direct and ongoing care for a minor child or a care recipient.

A “care recipient” is a person with a disability who:

  • Is a covered relative, or a person who resides in the caregiver’s household; and
  • Relies on the caregiver for medical care or to meet the needs of daily living.

The local law contains additional definitions, and takes effect May 4, 2016.

Click here to read the text of the local law.

HR360 Editorial Team http://www.hr360.com

We are family—And now we have protected status

On January 1, a new law in New York will make “familial status” a protected characteristic under the state’s fair employment law. With the new law, New York joins several other states (including Alaska, Oregon, Minnesota, Pennsylvania, and the District of Columbia) that expressly prohibit an employer from discriminating against an applicant or employee because of familial status—or, in some jurisdictions—family responsibilities.

Generally, the laws prohibit discrimination against an individual Parents Giving Children Piggyback Ride Outdoorsbecause he or she is a parent of a dependent child, has legal custody of a child, or contributes to the support of a person in a dependent relationship. Although familial status discrimination is most often thought of in terms of housing discrimination claims brought by tenants or prospective tenants, it has been making inroads in the employment setting.

In 2007, the EEOC issued enforcement guidance on “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” that explained how an employment action that affects an employee who is a caregiver might unlawfully discriminate on the basis of prohibited characteristics under Title VII of the Civil Rights Act of 1964 (Title VII) or the Americans with Disabilities Act (ADA).

The guidance points out that caregiver status is not a separate protected category under Title VII or the ADA, but that stereotyping and other kinds of disparate treatment in the workplace may violate the laws.

For example, let’s say an employer allows its female employees to take time off for caregiving responsibilities, but balks when male employees make similar requests. That kind of disparate treatment can get an employer into trouble because it appears to be based on the stereotype that women—but not men—are expected to provide care for family members.

An employer is also vulnerable to a sex discrimination claim if it denies a female employee a promotion because of actual or presumed caregiving responsibilities. In one case, a court allowed an employee to proceed to trial with her failure-to-promote sex discrimination lawsuit—even though the employer had promoted a female coworker to the job in question (Chadwick v. WellPoint, Inc., 561 F.3d 38 (1st Cir. 2009)).

The evidence of discrimination included comments by the interviewers about the plaintiff’s four young children. The employer pointed out that the promoted employee also had children, but the court noted the two children were older and there was no evidence the employer knew about the children at the time of the promotion decision.

Adverse employment actions based on caregiving responsibilities or family relationships can also violate the ADA. The ADA expressly prohibits employers from taking an adverse action against an employee based on the employee’s association with an individual whose disability is known to the employer.

If an employer’s assumptions or stereotyping about the negative effect of an employee’s caregiving responsibilities (actual or perceived) on the employee’s job performance result in an adverse action against the employee, that’s a violation of the ADA.

Although Title VII and the ADA do not expressly prohibit caregiver discrimination, employers should remember that they may have specific obligations to caregivers under laws like the Family and Medical Leave Act (FMLA) and state or local laws.

Many cities and counties prohibit discrimination on the basis of familial or parental status including Atlanta, Georgia; Columbus, Ohio; Madison, Wisconsin; Cook County and the city of Chicago, Illinois; and three counties in southern New York. Also, under Executive Order 13152, federal government employers are prohibited from discriminating against applicants or employees based on their status as a parent.

To avoid discrimination claims based on parenthood, familial status, or caregiving responsibilities related to protected categories, employers should make sure similarly situated employees are treated equally under the employer’s policies—e.g., same leave policies apply equally to male and female employees.

Employers should also be sure their antiharassment policies are communicated clearly to all employees and that all employees are familiar with procedures for reporting harassment

By Joan Farrell, JD, Senior Legal Editor HR.BLR.COM

New York Enacts Several Civil Rights Measures Affecting the Workplace

Changes Take Effect January 19, 2016

New York has enacted a series of changes to its workplace nondiscrimination laws. The changes take effect on January 19, 2016. A summary of the key changes is presented below:

  • Expanded Coverage for Sexual Harassment Actions. A new lawprovides that the state nondiscrimination law’s prohibitions againstsexual harassment apply to all employers—regardless of size. (Prior to January 19, 2016, the provisions regarding sexual harassment are applicable to employers with 4 or more employees.)
  • Pay Equity and Sharing of Wage Information. An amended lawprovides that (among other things) an employer cannot prohibit an employee from inquiring about, discussing, or disclosing his or her wages or the wages of another employee. However, an employer may—in a written policy provided to all employees—establish reasonable workplace and workday limitations on the time, place, and manner for such inquiries, discussions, or disclosures.
  • Discrimination Based on Family Status Prohibited. An amended law (applicable to employers with 4 or more employees) prohibits discrimination in employment based on familial status.
  • Clarification Regarding Pregnancy-Related Conditions. A new measure clarifies that employers with 4 or more employees are generally prohibited from refusing to provide reasonable accommodations to the known disabilities—or pregnancy-related conditions—of an employee/applicant in connection with a job or occupation sought or held. Additionally, pregnancy-related conditions must be treated as temporary disabilities under the law.

The governor’s office has issued a press release regarding the new legislation. Additional information regarding New York workplace nondiscrimination law is available from the New York State Division of Human Rights.

To review other state laws specific to New York, visit the State Lawssection, click on New York, and choose your topic of interest from the left-hand navigation menu.

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