The New York City Commission on Human Rights (the “Commission”) has adopted new rules (“Rules”) which establish broad protections for transgender, non-binary, and gender non-conforming individuals. The Rules, which define various terms related to gender identity and expression, re-enforce recent statutory changes to the definition of the term “gender,” and clarify the scope of protections afforded gender identity status under the New York City Human Rights Law. New York State also just added gender identity and expression as protected classifications under the state Human Rights Law, following the adoption of the Gender Expression Non-Discrimination Act.

The Rules incorporate key pieces of community feedback following a public hearing on the proposed rules. Most notably, the Rules have been updated to explicitly include non-binary identities. Under the Rules, “non-binary” is defined as “a term used to describe a person whose gender identity is not exclusively male or female. For example, some people have a gender identity that blends elements of being a man or a woman or a gender identity that is neither male nor female.” Furthermore, non-binary individuals are now also included in the Rules’ examples section, which illustrates possible violations of the prohibition on discrimination based on gender. For instance, deliberately using the pronoun “he” for a non-binary person who is perceived as male but has indicated that they identify as non-binary and use the pronouns “they,” “them,” and “theirs” is identified as an example of misusing individual’s chosen name, pronoun, or title, along with deliberately calling a transgender woman “Mr.” after she has made clear that she uses female titles.

The Commission has also added a list of terms typically associated with gender expression, such as “androgynous,” “butch,” “feminine,” “femme,” “gender non-conforming,” and “masculine,” to the existing definition of gender expression. Terms associated with gender identity, such as “agender,” “bigender,” “woman,” “gender diverse,” “gender fluid,” “gender queer,” “man,” “man of trans experience,” “pangender,” and “woman of trans experience” have similarly been added to the definition of gender identity.

While the Rules have added some important language, the key takeaways remain the same. As the proposed rules initially laid out, deliberate misuse of an individual’s chosen name, pronoun, or title, refusing to allow individuals to use single-sex facilities or participate in single-sex programs consistent with their gender identity, imposing different dress or grooming standards based on gender, and refusing a request for accommodation on the basis of gender will all be considered violations under the Rules. Additionally, covered entities must provide equal employee benefits, regardless of gender, such as ensuring that the health plans they offer provide gender-affirming care.

The Rules will go into effect March 9, 2019.

Our colleague Kevin Sullivan at Epstein Becker Green has a post on the Wage and Hour Defense Blog that will be of interest to our readers in the hospitality industry: “California Court of Appeal Concludes That Certain Types of On-Call Scheduling Triggers Requirement to Pay Wages.”

On February 4, 2019, a divided panel of the California Court of Appeal issued their majority and dissenting opinion in Ward v. Tilly’s, Inc. It appears to be a precedent-setting decision in California, holding that an employee scheduled for an on-call shift may be entitled to certain wages for that shift despite never physically reporting to work.

Each of California’s Industrial Welfare Commission (“IWC”) wage orders requires employers to pay employees “reporting time pay” for each workday “an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work.” …

Read the full post here.

On February 1, 2019, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that the agency is giving employers two additional months to file their EEO-1 workforce data surveys, extending the deadline from March 31, 2019 to May 31, 2019. The extension comes as a result of the EEOC’s partial lapse in appropriations and closure during the recent shutdown of the federal government. According to the EEOC website, detailed instructions for submission of EEO-1 data will be forthcoming.

Each year, the EEOC requires private employers who are subject to Title VII with 100 or more employees[1] and federal contractors and subcontractors with 50 or more employees and at least $50,000 in contracts, to file an Employer Information Report, commonly known as an EEO-1. The EEO-1 is a compliance survey mandated by federal statute and regulations that requires employers to break down their workforces by race/ethnicity, gender and job title. The EEOC represents that it uses the data “to support civil rights enforcement and to analyze employment patterns, such as the representation of women and minorities within companies, industries or regions.” A sample copy of the EEO-1 survey and instruction booklet are available here.

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[1] Also subject to the EEO-1 requirements are employers who are subject to Title VII and have fewer than 100 employees, but the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.

On January 9, 2019, Mayor Bill de Blasio announced his plan to make New York City the first city in the country to mandate that private sector employers provide paid personal time (“PPT”) for their employees. Under the proposal, employers with five or more employees would be required to grant their employees 10 days of PPT to use for any purpose, including vacation, religious observance, bereavement, or simply to spend time with their families. It is unclear whether the proposed legislation would apply to only full-time workers, or whether, similar to the Earned Safe and Sick Time Act (“ESSTA”), it would include many part-time employees as well. The Mayor said he would work with the New York City Council to develop the legislation, and several Council members have already voiced their support for the proposal.

According to the press release accompanying the mayor’s announcement of the PPT proposal, more than 500,000 employees in New York City currently are not provided paid personal time off, including 90,000 retail workers, 200,000 hotel and food service workers, and 180,000 workers in professional services. In his announcement and the press release, the mayor further asserted that: “Every other major nation recognizes the necessity of Paid Personal Time. We as a country must get there, and New York City will lead the way.”

Notably, the press release provided a few additional details of the anticipated legislation, including the following:

  • Similar to ESSTA, the law would contain a “carryover” provision under which employees could carry over up to 10 unused PPT days from one year to the next. And, like under ESSTA, employers would be able to cap an employee’s annual usage of PPT. With respect to PPT, the cap would be a maximum of 10 days per year;
  • Employees would be able to access their PPT after 120 days of employment; and
  • Employers could require employees to provide up to two weeks’ notice of their intent to use PPT. Moreover, an employer could deny such a request if granting it would leave the employer understaffed because one or more other employees will be on PPT leave at that time.

At this point, other details of what mandates a PPT law might contain, such as its applicability to part-time employees (as noted above), are speculative. For instance, while the Mayor’s announcement suggests that entitlement to PPT may be automatic, the press release implies that PPT would be accrued, similar to the ESSTA model. Also, it is possible that employers with fewer than five employers could incur some form of a time off obligation, such as having to grant unpaid personal time.

In light of recent trends to increase time off for employees, what is more certain is that some version of PPT is likely to garner sufficient support from the City Council and, probably sooner than later, become law. If so, most New York City employers will be obligated to afford their employees up to 15 paid days off per year – 10 under a PPT law and five pursuant to ESSTA. Also keep in mind the recently enacted New York City law that requires employers to grant most employees working in New York City a temporary schedule change – or unpaid leave – for up to two business days per year to attend to certain “personal events.” Though this law does not contain a paid time off requirement, it further expanded an employer’s obligations to provide employees with time off from work.

Thus, if past is prologue, employers should pay close attention to the mayor’s PPT plan.

We will keep you advised of any further developments on the PPT proposal.

On January 10, 2019, newly elected California Governor Gavin Newsom proposed funding six months of partial-paid leave for new parents. The plan, which was announced as part of the governor’s budget, would compensate new parents or caretakers up to 70 percent of their wages to care and bond with a newborn or adopted baby. Newsom stated that “public health and economic research shows that providing up to six months of paid parental leave leads to positive health and educational outcomes for children, greater economic security for parents, and less strain on finding and affording infant child care.”

Currently, each parent may qualify for up to six weeks of paid family leave benefits, and a birth mother may qualify for State Disability Insurance pay for any additional time she is unable to work due to pregnancy or childbirth (often six to eight weeks to recover from childbirth), thus granting some parents access to a combined average of four months of leave at partial pay. However, adoptive and single parents may not have the same access to paid leave benefits. Newsom’s proposal would permit two caretakers to split six months of paid leave.

The administration will convene a task force to consider different options to phase in and expand the current Paid Family Leave program. Currently, workers in the state pay a 1 percent payroll tax on wages of up to $115,000 to fund the program, which is running a surplus. Newsom mentioned that one way to pay for an expansion would be to utilize the surplus or raise the payroll tax or income limit so that those earning more than the current taxable ceiling would pay more.

If passed, Newsom’s proposal would set a precedent in the United States, which is the only developed country in the world that does not guarantee paid time off for new mothers. Since there is no national paid family leave, some states have enacted their own legislation to provide paid leave. For example, New Jersey, New York, and Rhode Island offer paid parental and caregiving leave, and Washington, Massachusetts, and the District of Columbia have paid leave policies that are set to start paying out within the next couple of years. It is clear that there is a momentum to enact family-friendly legislation.

Featured on Employment Law This Week: The Department of Labor (“DOL”) rolls back the 80/20 rule.

The rule prohibited employers from paying the tipped minimum wage to workers whose untipped side work—such as wiping tables—accounted for more than 20 percent of their time. In the midst of a federal lawsuit challenging the rule, the DOL reissued a 2009 opinion letter that states that the agency will not limit the amount of side work a tipped employee performs, as long as that work is done “contemporaneously” with the tipped work or for a “reasonable time” before or after that work. The letter was previously withdrawn by the Obama administration.

Watch the segment below and read our recent post.

Watch Paul DeCamp’s full segment here.

The brand-new Massachusetts Department of Family and Medical Leave (“DFML”) has launched its webpage and issued the first set of guidance for both employers and employees. The DFML was created to help facilitate the implementation of Massachusetts’ new Paid Family and Medical Leave programs (“PFML”). The deadline for employers to start making contributions toward the PFML programs is July 1, 2019, and employees may begin receiving benefits beginning on January 1, 2021.

The DFML’s first set of guidance provides comprehensive FAQ documents, one for employers and one for employees. The employers’ FAQs largely summarize key components of the new statute:

  • Businesses with one or more employee are subject to the new PFML law, but businesses with less than 25 employees or covered individuals do not have to pay the employer portion of the contributions;
  • Those employers with programs that go above and beyond these new minimums may apply for annual exemptions from the new programs;
  • While self-employed individuals are not subject to the new PFML law, independent contractors who contract with companies that issue 1099s to more than 50% of their workforce will be covered by the new law;
  • The contribution rate is 0.63% on the first $128,400 of a covered individual’s earnings, and employers must remit the full contribution (both the employer and employee contributions) to the DFML;
  • Employers may deduct up to 40% of a covered individual’s total medical leave contribution from their pay, and may deduct up to 100% of a covered individual’s total family leave contributions from their pay; and
  • The statutory deadline for the publication of the PFML regulations by the DFML is March 31, 2019, with early drafts to be disseminated before then.

For employees, the first set of FAQs generally address questions about eligibility. This guidance is also relevant to employers, who should take note of the requirements in order to ensure compliance with the new law:

  • Employees and covered individuals must have approximately 15 weeks or more of earnings in a year before they may apply for these new benefits;
  • Individuals may take PFML for:
    • Their own serious medical condition
    • Bonding with a child in the 12 months following birth or adoption
    • Dealing with a qualifying exigency arising out of a family member’s active duty, or notice of impending call or order to active duty
    • Caring for a family member who is a covered service member with a serious injury or illness that is the result of, or aggravated by their service
  • The employee or covered individual’s weekly benefit is calculated as a percentage of their earnings, up to $850 per week;
  • Paid medical leave is capped at 20 weeks per year; paid family leave is capped at 12 weeks per year; paid family leave arising from a covered service member’s call to active duty is capped at 26 weeks per year; and the maximum amount of combined family and medical leave that one person may take is capped at 26 weeks per year.

The DFML is expected to publish more content, including the regulations, during 2019.

 

Anastasia A. Regne, a Law Clerk – Admission Pending – in the firm’s New York office, contributed significantly to the preparation of this blog post.

Pursuant to its mandate to implement the new anti-sexual harassment training requirements under the Stop Sexual Harassment Act (the “Act”), the New York City Commission on Human Rights (“Commission”) just released FAQs clarifying various aspects of the Act’s training mandates. Most notably, the FAQs address how an employer should determine whether it is covered by the training requirement, as well as a covered employer’s obligations with regard to training independent contractors. The training mandate becomes effective on April 1, 2019.

The Act requires employers with 15 or more employees to provide annual, interactive training to all employees who work more than 80 hours in a calendar year and work for at least 90 days. In determining whether it meets the 15-employee threshold, the FAQs instruct employers to determine the number of employees they employed “at any point within the prior calendar year.” In making this assessment, employers must count independent contractors as “employees,” regardless of how many hours or days they worked in the prior year.

Additionally, the FAQs state that employers will be required to provide training to independent contractors who have performed work in the furtherance of the business for more than 90 days and more than 80 hours in a calendar year. Employers are not required to train independent contractors who reach the 90-day/80-hour threshold if they already received the mandated annual training elsewhere.

Additionally, the FAQs:

  • Reiterate the specific topics that the training must cover, including the Commission’s complaint process;
  • Clarify that employees must receive training every calendar year (rather than by the anniversary date of their last training);
  • Stress that employers must maintain records of all training for three years, including a signed acknowledgment by each employee (which may be done electronically);
  • Confirm the notice posting requirements and instruct as to when electronic posting is acceptable; and
  • Clarify when and how newly hired employees must receive the City-issued Fact Sheet, i.e., in print or electronically and by the end of the employee’s first week of work.

The City will be providing additional information in the next few months about harassment training obligations.

Our colleagues at Epstein Becker Green has a post on the Retail Labor and Employment Law blog that will be of interest to our readers in the hospitality industry: “NYC Commission on Human Rights Issues Guidance on Employers’ Obligations Under the City’s Disability Discrimination Laws.”

Following is an excerpt:

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

Read the full post here.

The New York City Commission on Human Rights (the “Commission”) recently proposed new rules (“Proposed Rules”), which, among other things, define various terms related to gender identity, re-enforce recent statutory changes to the definition of the term “gender,” and clarify the scope of protections afforded gender identity status under the New York City Human Rights Law (“NYCHRL”). If the proposed rules are adopted, the Commission’s interpretation of the NYCHRL will establish broad protections for individuals covered by the law’s prohibition against discrimination based on gender identity.

Initially, the term “gender” was defined by the New York City Council in 2002, when it enacted Local Law No. 3 of 2002 (“Local Law 3”). Recently, Local Law No. 38 of 2018 (“Local Law 38”) expanded the definition of the term so that it now reads: “’Gender’ includes actual or perceived sex, gender identity, and gender expression including a person’s actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristics, regardless of the sex assigned to that person at birth.” (Emphasis added to reflect the most significant revisions to the term’s original definition.) The Commission’s proposed rules adopt this new definition.

Beyond defining the term “gender,” Local Law 38 also defined the term “sexual orientation” as “an individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, bisexuality, asexuality, and pansexuality.” The Proposed Rules also establish definitions for “cisgender,” “gender identity,” “gender expression,” “gender,” “gender non-conforming,” “intersex,” “sex,” and “transgender,” as well as describing covered entities’ non-discrimination obligations.

Significantly, the intent of both Local Law 3 and Local Law 38 was to ensure that the NYCHRL’s prohibition against discrimination based on sexual orientation or gender identity covered the full range of affected individuals, and that employers clearly understood the scope of the prohibition’s reach. Toward this end, the proposed rules broadly interpret the breadth of the ban on gender identity discrimination.

For example, under the proposed rules, discriminatory conduct includes:

  • deliberate misuse of an individual’s chosen name, pronoun, or title;
  • refusing to allow individuals to use single-sex facilities or participate in single-sex programs consistent with their gender identity;
  • imposing different dress or grooming standards based on gender; and
  • refusing a request for accommodation on the basis of gender.

Further, covered entities must provide equal employee benefits, regardless of gender, such as ensuring that the health plans they offer provide gender-affirming care.

The Commission will hold a public hearing on the proposed rules on September 25, 2018.  Anyone can comment on the proposed rules by signing up to speak at the hearing, or submitting written comments to policy@cchr.nyc.gov or through the NYC rules website. Comments also can be mailed or faxed to Michael Silverman, New York City Commission on Human Rights, 22 Reade Street, New York, New York 10007. The fax number is 646.500.7022.