EMPLOYMENT LAW: RECENT DEVELOPMENTS IN NEW YORK STATE AND CITY HUMAN RIGHTS LAWS

EMPLOYMENT LAW: RECENT DEVELOPMENTS IN NEW YORK STATE AND CITY HUMAN RIGHTS LAWS Elissa Devins, Esq. Liliana Zaragoza, Esq. General Legal Services Unit New York Legal Assistance Group (NYLAG) July 30, 2014 11:00 AM 12:00 PM CLE Credit: 1 Professional Practice (Transitional & Nontransitional) AGENDA I. INTRODUCTION 10 minutes a. Employment at Will------------------------------------------------------ 2 minutes b. Statutes and Limitations...8 minutes II. RECENT STATE AND CITY DEVELOPMENTS------45 minutes Earned Sick Time Act of 2013, Pregnant Worker Fairness Act, City and State Human Rights Laws, Domestic Workers and Undocumented Workers Rights QUESTIONS 5 minutes

RECENT DEVELOPMENTS IN NEW YORK STATE AND CITY EMPLOYMENT LAWS Trainers:Elissa Devins and Lily Zaragoza (NYLAG) Date: July 30, 2014 CLE: 1 Practice Credit Justice at Work Project The Justice at Work Project was founded in 2008 with a mission of providing free legal services to low income workers with employment issues involving wage and hour violations (overtime and minimum wage), discrimination, retaliation, the Family and Medical Leave Act and/or unemployment insurance. The Project aims to provide legal representation to those who cannot afford private bar representation. The Justice at Work Project is a division of the New York Legal Assistance Group, a non profit law office located in downtown Manhattan. 2 F Introduction Question 1: My boss fired me yesterday without any notice or explanation. My legal rights have been violated. I have a legal claim against my employer. TRUE FALSE MAYBE 3 1

Employment at Will Answer: Without a contract/union representation or facts supporting discrimination and/or retaliation there is probably no claim. New York is an employmentat will state. This means that an employer can make adverse employmentdecisions such as firing, suspensions, demotion etc. for a good reason, a bad (false) reason, or no reason at all. Employers need not give advance notice, document the reason or provide a hearing. In other words they have the right to petty, irrational and dishonest so long as they don t violate any legal obligationsplaced on them by contract or by laws governing the workplace. 5 Employment Laws Which laws, if any, protect employees? Federal Anti-Discrimination Laws (just a sampling of those most common to NYLAG s practice): American with Disabilities Act and Amendments (ADAA), 42 U.S.C. 12101, et seq. Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e, et seq. Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 through 29 U.S.C. 634 Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 USC. 4301-4335. Federal Wage and Hour Law: Fair Labor Standards Act, 29 U.S.C. 201 et seq. Federal Leave Law: Family and Medical Leave Act, 29 U.S.C. 2601 et seq. 2

Relevant State Employment Laws Discrimination Laws New York City Human Rights Law, N.Y.C. Admin. Code 8-107, et seq. New York State Human Rights Law, N.Y. Exec. Law 290, et seq. Wage and hour laws New York City Admin. Code 20-911 to 20-924 (Earned Sick Time) New York Labor Law, N.Y, Labor Law 170 et seq. Note: NYC and NYS HRL apply only to employers with 4+ employees, unless in domestic work context (then 1 is sufficient) Relevant City and State Employment Discrimination Laws: New York City Human Rights Law (N.Y.C. Admin. Code 8-107 et al.) protects against discrimination in the workplace on the following bases: Sex, gender Partnership status Military status Predisposing genetic conditions Marital status Arrest or conviction record Domestic violence status Race National origin Religion Age (for employees18 and over) Relevant City and State Employment Discrimination Laws: NYC Human Rights Law Continued: Unemployed workers Disabled workers Pregnant women Pregnant women seeking accommodations (in effect as of 1/2014) Sexual orientation Gender identity Alienage or citizenship status 3

Relevant City and State Employment Discrimination Laws: New York State Human Rights Law, N.Y. Exec. Law 290 et al., protects against discrimination in the workplace on basis of: Sex National origin Religion Creed Race Sexual orientation Marital status Military status Domestic violence status Arrest and/or conviction record Predisposing genetic conditions City and State Laws and Statutes of Limitations Each statute has its own deadline for filing complaints Administrative Proceedings: NYC Human Rights Law - have 1 year to fileadministrative complaint with NYC Human Rights Commission. NY State Human Rights Law - 1 year to file administrative complaint with NY State Human Rights Commission NY Labor Law-6 years to bring wage and hour complaint to NY Dept of labor. American with Disabilities Act, TitleVII, Age Discrimination in Employment Act- in New York, you have 300 days from date of discrimination to file at the federal EEOC. State court: NYC or NYS Human Rights Laws: File your complaint within 3 years of the discriminatory act(s). Neither NYC nor NYS Human Rights Laws require filing administrative complaint before going to court. NY Labor Law 6 years to bring wage and hour litigation Federal court: FLSA-2 or 3 years (for willful acts) FMLA-2 or 3 years (for willful acts) USERRA-NONE Discrimination Pop Quiz: Question 2: Equivalent provisions of the Federal state, and city human rights laws get interpreted the same way. For example, a sex harassment claim under the city law is subject to the same legal standard as a sex harassment claim under Title VII. True or False? 4

False! The New York City Human Rights Law shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title have been so construed. 8-130 Prima Facie Discrimination Claim: Must be member of protected group/category/class (look to federal, state and city laws to determine if employee protected) Must be qualified for job (must meet employer s legitimate expectations at the time of the alleged adverse action); Must be subjected to an adverse employment action; AND The employer treated similarly situated employees not in the protected class more favorably, or other factors supporting a finding of discrimination. Domestic Violence Question 3 My ex boyfriend has a history of abusing me. Last Monday, I was at work at the big department store I work at when my ex called ten times and threatened to hurt me. I told my boss about the situation and told him I was leaving to meet my ex in an hour. He told me the store was busy and had no coverage and said I couldn t leave. I did anyway and he fired me the day after for a no show. My termination was illegal. TRUE FALSE MAYBE 5

MAYBE. NYC and NY Human Rights Law prohibit victims of domestic violence and/or stalking from being discriminated against in the workplace. These laws require employers to provide reasonable accommodations to such employees as long as reasonable notice is provided to the employer. The accommodations can include but are not limited to: time off to meet with a DV counselor, for court appointments, etc. However, employer can argue undue hardship. Here, the question is whether employee who provided an hour notice gave employer reasonable notice but if it s a big store and there are many employees on each shift then it may have been an illegal termination. Gender Identity Discrimination Question 4 Joe applies for a job as an intelligence specialist. Shortly after starting, Joe lets his boss know that he plans to transition and start living his life as a man. He asks to be called Joe in the workplace, not his legal name, Joanna and to be referred to by male pronouns. The boss says, Until you change your name I have to call you Joanna. Then the next week Joe is told his job has been eliminated because of budget cuts. Joe has no legal recourse. TRUE FALSE False! The New York City Human Rights Laws includes explicit protections against gender identity discrimination. Also courts have increasingly acknowledged that federal and state prohibitions of sex discrimination apply to discrimination against transgender persons. 6

Pregnancy Discrimination Question 6 Sharon is one of many line cooks at a NYC restaurant that has 20 employees. She notifies her boss that she is pregnant. One of her job duties is setting up the kitchen and bending and lifting heavy pots of food. Though she is having a healthy pregnancy, her physician has told her to avoid lifting things that are more than 25 pounds when pregnant and these pots she lifts every morning are well more than 25 pounds. She asks her boss to have someone else do this task and he says that s your job. If you can t do it you should take disability benefits or leave. Not providing her the accommodation is illegal. TRUE FALSE TRUE. Since she works for an employer with 4 or more employees and she is pregnant, under recently the recently passed Pregnant Workers Fairness Act (part of New York City Human Rights Law), the employer must engage in an interactive process with her to find a reasonable accommodation that will allow her to work and here it is unlikely that employer cannot show an undue hardship as there are many line cooks who could help her with this task. 7

NYC Pregnant Workers Fairness Act Went into effect January 2014. The law requires employers to provide a reasonable accommodation to the needs of an employee for her pregnancy, childbirth or related medical condition so long as it does not cause an undue burden to the employer. Undue burden usually defined as financial burden to employer. Significance of the PWFA Women will be entitled to a range of reasonable accommodations including but not limited to: assistance with manual labor, periodic rest breaks, and a reasonable period of recovery for childbirth. Under the law, employers must provide written notice to pregnant employees about their workplace rights. Significance of Pregnant Workers Fairness Act Continued Federal laws, such as Title VII and the American with Disabilities Act, have often left pregnant workers who do not have disabilities and require accommodations to do their work without legal remedies. This is because 1) Title VII does not provide for accommodations for pregnant employees, and 2) pregnant women have not been considered disabled under the federal ADA. NYC Human Rights law, however, has been interpreted more generously in case law state courts have held that pregnancy is a disability that must be accommodated. 8

Remedies under NYC & NYS Employment Discrimination Laws Possible remedies (not exhaustive): back pay, front pay, pre-judgment interest, injunctive relief, punitive damages, compensatory damages (e.g. emotional distress damages), attorneys fees, hiring to the job in question. All of these statutes have antiretaliation provisions Prima facie case of retaliation: 1) Did employee engage in protected activity by complaining of discrimination to her employer; 2) was she qualified for his job; 3) Did she suffer an adverse employment action; 4) Under circumstances giving rise to an inference of retaliation. What is a Protected Activity? few examples of protected activity are making an internal complaint of discrimination to the employer, filing a complaint of discrimination in court or an outside agency like the NYC or NY State Human Rights Commissions or asking employer for a reasonable accommodation. For FLSA claims, the complaint cannot be an internal complaint. What is an Adverse Employment Action? This is not just financial loss, as in termination. The question is whether the employer s action was materially adverse, meaning it would thwart a reasonable worker from exercising their protected rights. (New York City and State Human Rights laws contains a similarly broad interpretation of retaliation). More on Retaliation In the past, plaintiffs attorneys have liked retaliation claims because they have been easier to prevail on in court than discrimination claims. Even if the underlying discrimination claim is not strong (e.g. could not show that harassment based on sex was severe or pervasive) employees could win on retaliation claim if could show retaliation was a motivating factor for the adverse employment action. But recent federal case law may make it more difficult for employees to prevail. See University of Southwestern Medical Center v. Nassar (US 2013) (holding Title VII retaliation claims must be proved by showing that but for the retaliatory motive, the adverse employment action would not have occurred) 9

Sick Time Question 8 Regina works as the florist for a grocery store with 25 employees in NYC. It is July 30, 2014 and she has the flu and calls her boss to ask for the day off. Her boss says there are no sick days here for anyone. When she takes the day off regardless, he fires her. This termination is illegal. TRUE FALSE TRUE. But note that if the date in the example were December 6, 2013, this would be false! Under federal law, there is no right to paid sick time. Furthermore, the right to unpaid sick time is limited: The Family and Medical Leave Act gives employees the right to unpaid sick time only if the employee (1) has worked for their employer for at least 12 months, (2) has worked for at least 1,250 hours over the previous 12 months, and (3) works at a location where at least 50 employees are employed by the employer within 75 miles. However, the NYC Earned Sick Time Act will provide employees the right to sick time, even paid sick time 10

NYC Earned Sick Time Act of 2013 Covered employers: Covered employers who have 5 or more employees must provide their employees paid sick time in accordance with the Sick Time law. N.Y.C. Admin. Code 20-913(a)(1) et seq. For chain businesses, if the owner or principal of the multiplelocations (1) owns at least 30% of each location, and (2) the businesses are engaged in the same business or operate under a franchise agreement with the same franchisor, then the total number of employees should include employees at all NYC locations All covered employers with fewer than 5 employees must provide unpaid sick time in accordance with the law. Certain employers will not be covered by the law, including Government employers Certain hourly occupational therapists, speech therapists, physical therapists, and audiologists. (See N.Y.C. Admin. Code 20-912 (j), 20-913 (f)(iv)) Which Employees Are Covered by the Earned Sick Time Act? Employees who: Work full or part time, Work for an employer with the requisite number of employees, & Work in NYC for more than 80 hours per calendar year Provision meant to ensure employees are sufficiently connected to NYC. NYC Earned Sick Time Act of 2013 How Much Sick Time Will Employees Get? Covered employers must provide 1 hour of sick time for every thirty hours worked by an employee.* Employers are not required to provide more than 5 days (40 hours) of sick time for an employee in a calendar year. Employers can allow earned sick time to accrue at a faster rate or allow use of sick time at an earlier date than required by law. Employees begin to accrue sick time at the start of employment or the law s effective date whichever is later). But accrued sick time cannot be used until the 120 th calendar day following the commencement of employment (or 120 th calendar day following the law s effective date, whichever is later). After the 120 th calendar day, sick time can be used as accrued. *While domestic workers are covered by the Sick Time law, they are included in a separate provision. Domestic Workers currently have a right to 3 paid days per year if working for same employer for at least a year. NYC Sick Time Law will raise the number of sick days for Domestic workers to 5 days per year in October 2015.. 11

Purposes and Uses of Sick Time: Workers can use sick time to care for their own health needs Defined as employee smental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventativemedical care. N.Y.C. Admin. Code 20-914(a)(1) Workers can use sick time to care for the health needs of a family member Defined as care of a family member who needs medical diagnosis, care or treatment of a mental or physicalillness, injury or health condition or who needs preventative medical care. 20-914(a)(1). Family member is: an employee schild, spouse, domestic partner or parent or the child or parent of an employee s spouse or domestic partner. 20-912(h) Other Uses and Limits on the Earned Sick Time Act Workers can use sick time for certain purposes during a public health emergency. If child s school is closed for a public health emergency, then can use sick days. The public health emergency must be declared by the Commissioner of Health and Mental Hygiene or the Mayor. Employees can determine how much sick time they need to use, BUT employers may set a reasonable minimum increment for the use of sick time not to exceed four hours per day Example: If an employee would like to take just two hours off for an appointment, employer can require employee to take no less than four hours at a time. Limits to Earned Sick Time Act Up to 40 hours of unused sick time can be carried over to the next year (except for domestic workers) but employers are never required to allow use of more than 40 hours of sick time in a calendar year. Employer determines how calendar year is measured, but employee must get notice of the start date of calendar year. A collective bargaining agreement can provide that the law does not apply. The details are in 20-916(a) and 20-916(b). 12

Notice Requirements Under Earned Sick Time Act If the need for leave is foreseeable, an employer may require reasonable advance notice of the intention to use such sick time, not to exceed seven days prior to the date such sick time is to begin. If the need is not foreseeable, an employer may require notice of the need as soon as practicable. Enforcement of the Earned Sick Time Act: Anti Retaliation Provision: Workers who request and/or use sick time may file a complaint for alleged violations of this chapter with the department, communicate with any person about violation of this chapter, participate in any administrative or judicial action regarding an alleged violation of this chapter, or inform any persons of his or her potential rights under this chapter. 20-918 Enforcement The Earned Sick Time Act will be enforced administratively by the N.Y.C. Dept of Consumer Affairs. Complaints must be filed within two years from the date the person knew or should have known of the alleged violation. Currently the Act provides no private right of action at the moment, but addition of this right is being lobbied for as we speak. DCA has an administrative tribunal already. Attorneys can be present to represent workers. 13

Remedies Ender Earned Sick Time Act [For] every instance of sick time taken by employee but not paid to employee: 3 x the wages should have been paid or $250 dollars, whichever is greater. [For] every instance of sick time requested and denied by employer and not taken by employee or unlawfully conditioned upon finding replacement or where employer requires employee to make up original hours: $500. [For] each incident of retaliation not including discharge from employment: full compensation including wages and benefits lost, $500 and equitable relief as appropriate. [For] each incident of unlawful discharge from employment: full compensation including wages and benefits lost, $2,500 and equitable relief, including reinstatement, as appropriate. There are also Civil penalties for employers. See N.Y.C. Admin. Code.20-924(e) and (c). Domestic Workers Question 9 I work as a home health aide for an elderly woman named Bella. Bella s adult son Sid is my employer and he does not employ anyone else. If Sid subjects me to severe sexual harassment and I refuse his advances and he fires me, I am out of luck. I have no legal claim. TRUE FALSE FALSE. If Bella works in New York and was harassed on or after November 29, 2010, she may have a harassment and retaliation claim. NYS Human Rights law protects domestic workers from discrimination, harassment, and retaliation on the basis of gender, race, religion, and national origin. Furthermore, NYC HRL s more generous protections against discrimination (i.e. status as a victim of domestic violence, conviction record) also cover domestic workers. 14

Domestic Workers Employment Rights Some background 1974 to present: The Fair Labor Standards Act (FLSA) is the federal law that requires employers to pay employees minimum wage and overtime. Domestic workers were initially excluded from FLSA protections. Since 1974, the minimum wage and overtime requirements apply to domestic service employees, i.e., workers providing services of a household nature in or about private homes. For example, nannies, housekeepers, and home health aides are domestic service employees. But, certain domestic workers are exempt from FLSA protections. The two exemptions are: 1) The FLSA s minimum wage and overtime requirements do not apply to domestic service employeeswho provide companionshipservices. 2)The FLSA s overtime requirement does not apply to employees who are live-in domestic service employees. Domestic Workers Employment Rights 2010: NY Domestic Workers Bill of Rights Amended NYS HRL and NYLL: NYS Human Rights Law now provides domestic workers protection against harassment, discrimination, and retaliation NYS Labor Law now provides domestic workers rights to minimum wage overtime pay 1 unpaid day of rest per week 3 paid days of rest per year, after 1 year of work for employer Undocumented Workers 12) Undocumented workers have no legal recourse under any of the above employment laws. TRUE FALSE. 15

FALSE. Federal Law: Undocumented workers have wage and hour rights to pay for work performed. They are also protected by anti-discrimination and sick time laws. However, it is true that some damages may be limited for undocumented workers under federal statutes, such as back pay. In ordinary retaliation cases, an employee can demand back pay, damages for pay the employee would have earned but for the unlawful termination. Undocumented immigrants do not have a right to income that theoretically would have been earned. In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the U.S. Supreme Court held that an undocumented immigrant who had been illegally terminated in retaliation for union activity was not entitled to receive back pay for the period following his termination. Undocumented Workers (continued) State and City Law: New York courts have not applied the Hoffman ruling to state law claims and may support the position that undocumented immigrants are entitled to back pay damages under state and city antidiscrimination laws. The New York Court of Appeals held that undocumented immigrants who are injured on the job may recover lost income damages (i.e., for work they did not actually perform) as part of the compensation they receive under state labor law. See Balbuena v. IDR Realty, LLC, 6 N.Y.3d 338 (2006); see also Janda v. Michael Rienzi Trust, 78 A.D.3d 899, 912 N.Y.S.2d 237 (2d Dept 2010) (same). The U.S. Court of Appeals for the Second Circuit (which covers New York) has held that federal immigration law does not preempt state labor law on this issue. See Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219 (2d CIr. 2006). 16