On August 12, 2019, Governor Cuomo signed legislation that expanded again the rights of employees in New York. Less than one year earlier, the State issued final guidance regarding significant changes made to its sexual harassment prevention laws. There were many important changes in 2016 too.
Here are the 2019 changes that apply to all employment discrimination claims:
ALL EMPLOYERS ARE COVERED. Employers who employ less than four (4) people can discriminate legally against employees based on their membership in certain protected classes (e.g., race and religion). EFFECTIVE FEBRUARY 8, 2020, no employer in New York (regardless of the number of employees they employ) may discriminate against an employee based on their membership in ANY protected class.Protected classes in New York include, but are not limited to, race, religion, sex, national origin, disability, age, marital status, military status, sexual orientation, gender identity, predisposing genetic characteristic, domestic violence victim or familial status.
DOMESTIC WORKERS AND NON-EMPLOYEES ARE NOW PROTECTED FROM ALL FORMS OF EMPLOYMENT DISCRIMINATION. EFFECTIVE OCTOBER 11, 2019, domestic workers and non-employees (e.g., contractors, subcontractors, vendors, etc.) are protected from all forms of unlawful employment discrimination. Until that change, domestic workers and non-employees were protected from unlawful sexual harassment but no other forms of unlawful discrimination (e.g., harassment based on race or religion).
PUNTIVE (AKA PUNISHMENT) DAMAGES ARE AVAILABLE. For the first time, EFFECTIVE OCTOBER 11, 2019, private employers may be held liable for punitive (aka punishment) damages in discrimination cases. An employee is not entitled to an award of punitive damages unless she can show that the actions of her employer were “evil or outrageous.” This is a difficult standard to meet.
RESTRICTIONS ON NON-DISCLOSURE CLAUSES ARE EXPANDED. The 2018 changes included restrictions regarding the use of non-disclosure clauses when sexual harassment claims were settled. EFFECTIVE OCTOBER 11, 2019, these restrictions apply to the settlement of ALL claims of employment discrimination.
REQUIRED LANGUAGE IN NON-DISCLOSURE CLAUSES. EFFECTIVE JANUARY 1, 2020, non-disclosure clauses that prevent “the disclosure of factual information related to any future claim of discrimination” must include plain language confirming that employees may: (a) file a complaint of harassment or discrimination with a government law enforcement agency; (b) testify or otherwise participate in a government investigation; and (c) may disclose facts necessary to apply for and receive unemployment insurance benefits, Medicaid, or other public benefits.
EMPLOYERS MUST PAY ATTORNEYS’ FEES INCURRED BY EMPLOYEES WHO PREVAIL IN A LEGAL ACTION AGAINST THEM. EFFECTIVE OCTOBER 11, 2019, an employee who prevails on any employment discrimination claim must be awarded attorneys’ fees. Previously, an employee who prevailed on a claim of sex/gender discrimination could have been awarded her attorneys’ fees in the discretion of the decisionmaker.
AN EMPLOYEE MUST PAY ATTORNEYS’ FEES INCURRED BY THE EMPLOYER IF THEIR COMPLAINT WAS FRIVILOUS. EFFECTIVE OCTOBER 11, 2019, a prevailing employer may recover attorneys’ fees it incurred from an employee IF it establishes that the employee’s case was “frivolous.” This is a difficult standard to meet. Previously, this opportunity was available to employers ONLY in a claim of sex/gender discrimination.
Here are the 2019 changes that apply to sexual harassment claims:
LONGER DEADLINE TO FILE CHARGES OF UNLAWFUL SEXUAL HARASSMENT WITH THE NEW YORK STATE DIVISION OF HUMAN RIGHTS [“DHR”]. Currently, the deadline for an employee to file a charge of unlawful sexual harassment with the DHR is one (1) year from the date of the event(s) they want to challenge. EFFECTIVE AUGUST 12, 2020, an employee may file such a charge within three (3) years from the date of the action(s) they want to challenge.
IT IS EASIER FOR EMPLOYEES TO PROVE UNLAWFUL SEXUAL HARASSMENT. Before October 11, 2019, a plaintiff alleging unlawful sexual harassment was required to prove that the salient conduct was “severe or pervasive.” EFFECTIVE OCTOBER 11, 2019, an employer will be liable for harassing conduct motivated by sex so long as it rises above what a reasonable person would consider “petty slights or trivial inconveniences.”
AN IMPORTANT DEFENSE FOR EMPLOYERS HAS BEEN UNDERMINED. Before October 11, 2019, an employer could defeat a sexual harassment claim if (a) it attempted to prevent and correct the harassing conduct through, for example, an effective internal complaint procedure; and (ii) the employee unreasonably failed to take advantage of it. EFFECTIVE OCTOBER 11, 2019, the fact that an employee did not make an internal complaint about harassment “shall not be determinative” of whether the employer is liable. That said, an employer can prevail if it can establish that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” I expect this defense rarely will be successful.
Please contact us if we can help you navigate these changes.
(Adapted from a February 23, 2019 presentation by Steve Modica for an educational program sponsored by the New York State School of Industrial and Labor Relations of Cornell University)
You probably know someone who has been touched by the opioid crisis. I do.
I participated in a program for Union leaders sponsored by the Cornell University School of Industrial and Labor Relations. Here’s some of what I discussed.
CIVIL RIGHTS LAWS
Laws that prohibit unlawful discrimination—and laws that guarantee job-protected leave—can help members affected by the opioid crisis.
Employers may not discriminate against an employee if they are motivated by the employee’s membership in a protected class. Disability is a protected class and can apply to members who are addicted to opioids.
Disability discrimination laws protect members who: (1) have successfully completed a supervised drug rehabilitation program OR otherwise have been successfully rehabilitated AND are NOT currently using illegal drugs; and (2) are in a supervised drug rehabilitation program AND are NOT currently using illegal drugs.
Members whose rights have been violated can file a charge of discrimination with the New York State Division of Human Rights for FREE.
Family & Medical Leave Act [“FMLA”]
Members may be protected by the FMLA if they need time off from work due to their opioid addiction or the addiction of a loved one. Opioid abuse is a “serious health condition” (a reason entitling the member to FMLA) if it involves inpatient care or continuing treatment by a health care provider. An eligible member gets up to 12 weeks of job-protected (but unpaid) leave.
Members whose rights have been violated can file a complaint with the United States Department of Labor for FREE. Alternatively, members can sue in federal court.
EMPLOYEE BENEFIT PROGRAMS
Employee benefit programs can help members affected by the opioid crisis.
New York Paid Family Leave Law [“NYPFL”]
Members may be protected by the NYPFL if they need time off from work due to the opioid addiction of a loved one (but NOT for themselves). In 2019, an eligible member gets up to 10 weeks of job-protected leave paid at 55% of their average weekly wage but NOT more than $746.41/week.
Members whose rights have been violated can file a complaint with the New York Workers’ Compensation Board for FREE.
Short Term Disability [“STD”]
Most employers in New York are required to provide STD insurance benefits to members. Members who are unable to work due to an injury or sickness that does NOT arise out of employment are entitled to up to 26 weeks of STD benefits (paid at 50% of their average weekly wage but NOT more than $170/week).
Opioid abuse should qualify for STD so long as the member is under the care of a duly licensed physician or a duly registered and licensed psychologist
Workers’ Compensation [“WC”]
Members who are injured at work are entitled to lost income benefits (paid at two-thirds of their average weekly wage up to a maximum benefit amount) and medical treatment through the WC system. Some members who have suffered serious workplace injuries have become addicted to opioids.
Opioid abuse resulting from treatment of a workplace accident can be a covered “consequential condition” and, if so, treatment is free to the member. If a member is injured solely from using drugs or alcohol, however, they are NOT entitled to WC benefits.
Social Security Disability [“SSD”]
Members who have been (or who expect to be) unable to work due to opioid addiction for one year or more may be eligible for SSD benefits. A person who could work but for their opioid addition is NOT entitled to SSD. In my experience, however, most people who abuse drugs/alcohol have an underlying disability (most often a mental impairment).
HOW UNIONS CAN HELP
- Negotiate language that mandates treatment for a member addicted to opioids instead of immediate termination or other harsh disciplinary action.
- Negotiate for employee assistance programs that help members impacted by opioid abuse.
- Partner with employers, other unions and the community to educate and provide services to members and apprentices impacted by opioid abuse. This could include union led addiction programs, peer advocacy training for addiction recovery, courses about substance abuse, etc.
- Get trained on how to use Narcan and secure it for use in the workplace and at union meetings. The Monroe County Department of Public Health provides Opioid Overdose Prevention Training, typically on the 4th Wednesday of the month, in the morning and evening. Training is open to all who are interested and there is no cost. Learn more at https://www.monroecounty.gov/opioids/narcan.php
Thank you for all that you are doing to stem this awful crisis.