Employment Training, Practices and Procedures

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.

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 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.

Our colleagues  at Epstein Becker Green have a post on the Retail Labor and Employment Law blog that will be of interest to our readers in the hospitality industry: “Vermont Enacts Sweeping Sexual Harassment Prevention Law.”

Following is an excerpt:

On May 30, 2018, Vermont Governor Phil Scott signed bill H.707, titled “An Act Relating to the Prevention of Sexual Harassment” (the “Act”). Effect on July 1, 2018, the Act provides expansive protections for employees and prospective employees, as well as some groundbreaking employer obligations and potential penalties for violations of the law.

Among its key provisions, the Act:

  • Applies to all persons “hired to perform work or services,” thereby covering independent contractors and unpaid interns;
  • Prohibits employers from requiring any employee or prospective employee, as a condition of employment, to sign an agreement that waives “a substantive or procedural right or remedy available to the employee with respect to a claim of sexual harassment.” In effect, this provision bans employment agreements requiring that sexual harassment claims be resolved through arbitration; …

Read the full post here.

After nearly ten years, on Tuesday, June 5, 2018, the World Wide Web Consortium (the “W3C”), the private organization focused on enhancing online user experiences, published the long awaited update to its Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”), known as the WCAG 2.1.  Those who have been following along with website accessibility’s ever-evolving legal landscape are well aware that, despite not having been formally adopted by regulators for the vast majority of the private sector, compliance with WCAG 2.0 at Levels A and AA has become the de facto baseline for government regulators, courts, advocacy groups, and private plaintiffs when discussing what it means to have an accessible website.

WCAG 2.1’s Purpose and Key Features

The WCAG 2.1 is intended to provide a better web experience for three major groups of individuals:  users with cognitive or learning disabilities, users with low vision, and users with disabilities using mobile devices.  To achieve that goal, WCAG 2.1 builds upon WCAG 2.0, retaining all of WCAG 2.0’s Success Criteria and adding 17 new Success Criteria – 5 at Level A, 7 at Level AA, and 5 at Level AAA.  (Please note:  (i) the W3C does not recommend Level AAA conformance be required as a general policy for entire sites because it is not possible to satisfy all Level AAA Success Criteria for some content; and (ii) the current legal landscape sets website accessibility compliance at the Level A and AA conformance levels.)  Entities covered by Title III of the Americans with Disabilities Act (“ADA”), thus focusing on complying with WCAG 2.0/2.1 conformance levels A and AA to make their websites accessible, should be aware that, of the 12 Level A and AA Success Criteria new to WCAG 2.1, there a few notable guidelines that will specifically apply to desktop websites, such as:

  • Requiring the purpose of input fields requesting personal information to be identifiable by assistive technologies;
  • Providing a minimum color contrast ratio for non-text content (including all visible focus indicators) of 3:1;
  • Ensuring individuals with disabilities who choose to override spacing can read page text;
  • Modifying keyboard shortcuts so that individuals with disabilities can turn off or remap the shortcut using a non-printable keyboard character (e.g., Ctrl, Alt, etc.); and
  • Providing status messages (such as, shopping cart updates) that can be presented to the user by assistive technologies without receiving focus.

What WCAG 2.1 Means For Those Currently Complying With WCAG 2.0

As noted above, while formal website accessibly regulations governing all sectors of private business have not been adopted by the U. S. Department of Justice (“DOJ”) (and current Trump administration policies suggest that formal regulations will not be adopted in the near-term future), substantial conformance with WCAG 2.0 Levels A and AA has been considered the default standard cited to in the majority of recent litigations and settlement agreements with private plaintiffs, advocacy groups, and government regulators (e.g., DOJ).  In its abstract, the W3C notes, “The publication of WCAG 2.1 does not deprecate or supersede WCAG 2.0.  While WCAG 2.0 remains a W3C Recommendation, the W3C advises the use of WCAG 2.1 to maximize future applicability of accessibility efforts.”  Therefore, as WCAG 2.1 gains more exposure we expect that it will quickly begin to replace WCAG 2.0 as the default standard cited to in future website accessibility litigations and settlement agreements.

Companies that are currently required to conform with WCAG 2.0 (e.g., due to a settlement agreement, internal policy, etc.) should continue their efforts to achieve that required level of accessibility, however, where possible, they should also consider incorporating the new elements added to WCAG 2.1 to the extent feasible (and going forward as new content is added) as a best practice.  (The W3C joins in this recommendation.)  As WCAG 2.1 inherited WCAG 2.0’s requirements and overall structure and frame work, companies will be able to update web content to meet the WCAG 2.1 without losing conformance with WCAG 2.0 (as the backward compatibility built into WCAG 2.1 means content that conforms to WCAG 2.1 also conforms to WCAG 2.0).  That said, given that WCAG 2.0/2.1 remain privately authored guidelines as opposed government-mandated regulations (and, as such, a handful of courts have refused to specifically impose WCAG 2.0 as the required means of complying with website accessibility obligations), we would be surprised to see courts require companies already complying with WCAG 2.0 to immediately require compliance with WCAG 2.1.

WCAG 2.1 Is Not Quite the Update Places of Public Accommodation Have Been Looking For

While the publication of WCAG 2.1 will likely receive a reasonable amount of fanfare, once the dust settles and everyone has had time to fully appreciate its content, WCAG 2.1 will likely be considered a let down by both businesses and individuals with disabilities.  As WCAG 2.1 was being drafted over the past four years, the W3C would regularly offer open comment periods to the public.  In the comments received, a large number of respondents requested, even moreso than adding new Success Criteria, that WCAG 2.1 provide updates to the original WCAG 2.0 requirements to help developers apply these guidelines to the newest types of technologies (e.g., touch screen, mobile devices, apps, responsive technology, etc.).  Unfortunately, due to time limitations, such updates are not included in WCAG 2.1 and the original WCAG 2.0 Success Criteria text remains largely unchanged.  The W3C has publically acknowledged this shortcoming noting the WCAG 2.1 advancements are “incremental” and stating, “[m]any people hoped WCAG 2.1 would provide more new guidance than it does.  The requirement of compatibility with WCAG 2.0 along with the aggressive timeline limited what could confidently be added to it. WCAG 2.1 provides important and timely guidance but is still only a step—the Working Group expects to develop another dot-release, WCAG 2.2, to expand the new coverage even further. WCAG 2.2 may be developed under a similar timeline and requirements set than WCAG 2.1 was, though we plan to refine the process to address process challenges experienced during the development of WCAG 2.1.”  Therefore, at this time, companies looking for additional guidance regarding how to apply the WCAG 2.0 requirements using modern programming and design techniques and/or to mobile devices/apps should continue to refer to other sources of  guidance such as:  

Looking Forward

While an additional dot release of WCAG 2 (WCAG 2.2) may be published in the future, the next major version update to WCAG will be WCAG 3.0 (also known as project “Silver”).  Currently, WCAG 3.0 is scheduled for release in 2021 and is intended to be a much more inclusive set of guidelines that are easier to understand and implement.  We will provide additional information on WCAG 3.0 developments as they become available.

Additional Information and Resources

In anticipation of the WCAG 2.1 release, the W3C has completely updated its website to create a helpful, easy to use, interface intended to assist website developers with meeting the WCAG 2.0/2.1 guidelines.  This new information provided on the updated W3C website includes: a list of transcription services (for creating videos with audio descriptions), WCAG 2.0/2.1 tutorials, and information for applying WCAG 2.0/2.1 to mobile apps.   Please see https://www.w3.org/WAI/ for more information.

We published an article in Club Director, titled “Harassment and the #MeToo Movement in the Private Club Industry.” Following is an excerpt:

The recent heightened awareness to sexual harassment issues affects a wide range of industries, and has prompted employers to consider ways to get ahead of the problem. In order to reduce the risk of such complaints, private clubs may take a number of proactive steps.

Anti-Harassment Policy: Clubs should develop a zero-tolerance policy against harassment that includes, at a minimum, the following elements:

  • Expressly prohibit any sexually harassing or inappropriate behavior by staff or members toward employees, guests, members or patrons.
  • Define sexual harassment, making clear that it includes inappropriate relations, touching, and communication (i.e., emails, phone calls, text messages, or messages through social media).
  • Firmly state that any individual (staff or members) found to have engaged in sexually harassing behavior will be subject to discipline and/or immediate dismissal or expulsion.

Click here to download the full version in PDF format.

Our colleagues Jeffrey H. Ruzal, Adriana S. Kosovych, and Judah L. Rosenblatt, attorneys in the Employment, Labor & Workforce Management practice, co-authored an article in Club Director, titled “Recent Trends in State and Local Wage and Hour Laws.”

Following is an excerpt:

As the U.S. Department of Labor (DOL) appears to have relaxed its employee protective policy-making and enforcement efforts that grew during the Obama administration, increasingly states and localities have enacted their own, often more protective, employee-protective laws, rules and regulations. To ensure full wage and hour compliance, private clubs should consult their HR specialists and employment counsel and be mindful of all state and local requirements in each jurisdiction in which they operate and employ workers. Here are just some of the recent wage and hour requirements that have gained popularity among multiple jurisdictions.

Click here to download the full version in PDF format.

So far, 2018 has brought an increasing number of labor and employment rules and regulations. To help you stay up to date, we are pleased to introduce the Employment, Labor & Workforce Management Webinar Series.

Epstein Becker Green’s Hospitality service team took a deeper dive into our recently released Take 5 during the first webinar. Topics discussed include:

  • Additional measures to protect lesbian, gay, bisexual, and transgender employees in the hospitality workplace
  • Compliance training in the hospitality workplace
  • Transactional due diligence, including labor relations issues
  • The risk of self-reporting overtime and minimum wage violations under the Payroll Audit Independent Determination (PAID) program

Watch a recording of the webinar video here and download the webinar presentation slides.