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.

In 2018, we have seen important new wage and hour developments unfolding on a seemingly weekly basis. To help you stay up to date and out of the crosshairs of the plaintiffs’ bar, we invite you to join Epstein Becker Green’s Employment, Labor & Workforce Management Webinar Series presentation for September. Presented by our Wage and Hour practice group, this webinar will focus on wage and hour developments affecting the hospitality and home health care industries, although much of the information will also be of interest to employers in other industries.

With an eye toward the hospitality industry, the key issues we plan to cover include:

  • New statutory and regulatory changes affecting tip pooling and sharing, as well as required notice to employees
  • Litigation risks presented by service charges
  • New York’s requirements concerning spread-of-hours and call-in pay

For home health care businesses, we will focus on these topics:

  • The emerging case law on 24-hour sleep time
  • How to track hours worked, especially for employees previously viewed as exempt
  • Whether to classify workers as “employees” or “independent contractors”

Thursday, September 13, 2018

1:00 p.m. – 2:30 p.m. ET

Register for this complimentary webinar today!

Featured on Employment Law This Week: NYC Employers Required to Grant Temporary Schedule Changes .

New York City employers are now required to accommodate some employee schedule changes – As of July 18th, employees in New York City can request temporary schedule changes, or permission to take unpaid time off for personal events like a caregiving emergency. Employers are required to grant up to two changes per year for up to one business day per request. Employees must be on the job for a minimum of 120 days to be eligible. A new poster has also been issued by the City.

Watch this week’s segment below and read our recent post.

On July 9, 2018, Governor Edmund Brown, Jr. signed into law Assembly Bill 2770 (“AB 2770”) to protect victims of sexual harassment and employers from defamation claims brought by alleged harassers. AB 2770 was sponsored by the California Chamber of Commerce and passed by the California Legislature to address the chilling effect that the threat of defamation suits can have on harassment victims and employers: deterring victims and witnesses from coming forward; deterring employers from telling prospective employers about a genuine harasser; and allowing repeat sexual harassers to harass future victims at their new place of employment.

Privileged Communications Before AB 2770.

Existing law provides a qualified privilege to employer communications about a former or current employee’s job performance and qualifications. (Cal. Civil Code § 47(c).) Although court interpretations of Civil Code section 47(c) arguably allow for sexual harassment complaints and communications during a sexual harassment investigation to be covered by the privilege, the statutory language does not explicitly mention such communications.

AB 2770 Adds to the List of Privileged Communications.

AB 2770 amends Civil Code section 47(c) expressly to include the following three types of communications related to sexual harassment in the workplace:

  1. A complaint of sexual harassment, based on credible evidence and made without malice, by an employee to an employer;
  2. Communications between an employer and “interested persons,” made without malice, regarding a complaint of sexual harassment; and
  3. An employer’s answer, given without malice, to an inquiry about whether or not it would rehire a current or former employee, and whether the decision not to rehire is based on the employer’s determination that the former employee engaged in sexual harassment.

AB 2770 Does Not Protect Malicious Statements

Only statements made “without malice” are protected. A statement is made with “malice” if (1) it is motivated by hatred or ill will; or (2) the speaker lacked reasonable grounds for believing the truth of the statement. Further, AB 2770 does not impose an outright ban on defamation lawsuits by accused harassers. Accused harassers can still bring such suits, but they must prove malice in order to overcome the qualified privileged in Civil Code section 47(c). Thus, AB 2770 should deter and limit accused harassers from bringing defamation claims with little or no basis.

Our colleague  at Epstein Becker Green has a post on the Wage & Hour Defense Blog that will be of interest to our readers in the hospitality industry: “Proposed D.C. Council Legislation Puts Voter-Approved Elimination of Tip Credit Into Question.”

In our June 28, 2018 post on District of Columbia voters approving Initiative 77, which would incrementally increase the minimum cash wage for tipped workers to $15.00 per hour by July 1, 2025, and effectively eliminate the tip credit staring July 1, 2026, we noted the possibility of action by the D.C. Council to amend or overturn it. Consistent with the opposition to the initiative previously expressed by a majority of the Council, on July 9, 2018, a seven-member majority of the Council introduced a bill (Tipped Wage Workers Fairness Amendment Act of 2018) to repeal Initiative 77. As the Council is now on a two-month summer recess, no further formal action will occur until the fall. …

Read the full post here.

Our colleague  at Epstein Becker Green has a post on the Wage & Hour Defense Blog that will be of interest to our readers in the hospitality industry: “Supreme Court Prevents Successive Class Actions from Reviving Time-Barred Claims.”

In most wage and hour cases, each workweek gives rise to a separate claim, at least for statute of limitations purposes. Thus, an employee seeking payment for alleged off-the-clock work or an independent contractor claiming misclassification and entitlement to overtime ordinarily may seek back wages and related recovery only for work performed within a set amount of time—usually two to six years preceding the filing of the complaint, depending on the jurisdiction—preceding the filing of the complaint. …

Read the full post here.

On June 4, the Supreme Court voted 7-2 in favor of a Christian Colorado baker and owner of Masterpiece Cakeshop, who had refused to create a custom wedding cake for a gay couple due to his religious objections to gay marriage.

Although the case previously had been litigated on free speech grounds, the Court’s opinion largely avoids this constitutional question, and does not address whether Title VII prohibits discrimination based on sexual orientation. Instead, the decision focuses on the Colorado Civil Rights Commission’s decision finding against Masterpiece Cakeshop and, more specifically, what Justice Kennedy described as the Commission’s “impermissible hostility” as to the baker’s religious beliefs.

In the underlying administrative proceeding that preceded the Masterpiece Cakeshop lawsuit, the Commission found that Masterpiece Cakeshop engaged in religious bias in violation of the First Amendment’s free exercise clause. In its impassioned decision, one of the Commission members rejected the breadth of the free exercise clause as a justification for Masterpiece Cakeshop’s actions, noting that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.” In dissent, Justice Ginsburg, joined by Justice Sotomayor, wrote that such comments in the Commission’s decision should not be “taken to overcome” Masterpiece Cakeshop’s conduct, given the “several layers of independent decision-making” throughout the various hearings leading up to the Supreme Court decision. Justice Ginsberg added that unlike other cases addressing freedom of religion (for example, where religious customers have requested anti-gay messages from secular bakers), here, the circumstances were fundamentally different because Masterpiece Cakeshop regularly made the kind of cake the couple requested and refused to sell it to them simply because of their sexual orientation.

The Court’s decision is narrowly tailored, however, and leaves open the broader constitutional issues of sexual orientation discrimination and free exercise of religion. In addition, the ruling’s effect on employers may be limited due to the extremely fact-specific nature of the decision. In fact, while the scope of Title VII, has recently been expanded by Circuit Courts to include LGBT workers, has not been considered by the Supreme Court and therefore all lower court precedents still apply. For example, the U.S. Supreme Court has refused to take any action in a pending case involving a Washington florist who refused to provide arrangements for a same-sex wedding, which presented similar constitutional issues as Masterpiece Cakeshop. Stay tuned for any further updates addressing these important issues.

Featured on Employment Law This Week:  NJ Senate Advances Ban on Sex Harassment Confidentiality Agreements.

The New Jersey Senate wants no more secrecy around harassment claims. On a 34-to-1 vote, the chamber approved legislation banning confidentiality agreements involving sexual harassment claims. The bill is still pending in the House, where a vote is expected in the next few weeks. The legislation would also allow victims to keep their identities confidential and would establish jurisdiction in Superior Court, arguably bypassing arbitration agreements.

Watch the segment below.