Law Blog

On May 10, 2019, the New York City Council’s bill prohibiting employers from drug testing prospective employees for marijuana and tetrahydrocannabinols (“THC,” the active ingredient in marijuana) was passed into law. The law, which is the first of its kind in the country, makes such testing an unlawful discriminatory practice under the New York City Human Rights Law.

As of May 5, 2018, the New York City's Earned Sick Time Act permits employees paid time off, if they or their family members are victims of domestic violence. Such time off, referred to as “safe time” in the Act, may be utilized to address certain non-medical needs concerning domestic violence, sexual assault, stalking and human trafficking.

Paid time off (PTO) is a term used to describe time employees are entitled to pay when they are away from work. PTO is sometimes categorized more specifically as sick time or vacation time or by other similar terms, but this is becoming increasingly less popular.

Job termination is a fact of life. Employees are let go all the time and in many cases, the reasons for termination are justified.

On December 12, 2018, the New York State Department submitted proposed regulations on employee scheduling for public comment. These proposed regulations require employers to compensate employees for unscheduled shifts, canceled shifts and “on-call” shifts.

Making a request for accommodations in the workplace can be a stressful and intimidating process for many. Luckily, New York has enacted guidelines to make the process easier for employees and employers.

In some cases, misclassification is a mistake and an employer just doesn’t understand the different classifications or their responsibilities concerning each type. But in other cases, employers intentionally misclassify employees to avoid providing benefits.

On November 6, 2018, the U.S. Supreme Court issued a unanimous decision in Mount Lemmon Fire District v. Guido, holding that the Age Discrimination in Employment Act of 1967 (“ADEA”) applies to state and federal government employers regardless of their size. In Mount Lemmon, a small Arizona municipal fire department terminated its two oldest employees, arguing that it was exempt from the requirements of the ADEA because it had fewer than 20 employees. The Supreme Court disagreed and found that all government employers, regardless of size, are subject to the ADEA. The Supreme Court’s opinion focused its analysis on the phrase “also means” as it was used in the statute, finding that the phrase was additive as opposed to clarifying and meant that under the statute “employer” “also means … a State or political subdivision of a State.” As a result of the decision, employees working for state or federal government agencies with less than 20 employees now have protection against discrimination on the basis of age and it is important for such employees to be aware of their new rights and protections.

Earlier this week, the Trump administration announced that it was considering defining “sex” for purposes of Title IX of the Educational Amendments Act of 1972 as meaning a “person’s status as male or female based on immutable biological traits identifiable by or before birth . . . The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.” This would be an effective refusal by the federal government to recognize transgenders as an entity.

The New York State Division of Human Rights (“NYSDHR”) released the final version of the new sexual harassment policy, along with training guidelines, on October 1, 2018 and the new, updated policy took effect on October 9, 2018. The final policy contains some changes from the earlier proposed version, most notable however, is that employers now have until October 9, 2019, to provide employees with the mandated training in accordance with the new policy. Other changes include removal of the “zero tolerance policy” language as it conflicted with federal guidelines on sexual harassment policies and removal of the requirement that new hires receive sexual harassment training within thirty days in favor of encouraging employers to complete new hire training “as soon as possible.” Additional changes to the policy from the proposed policy and required training are listed below:

Effective October 15, 2018, employers in New York City will be required to engage in a “cooperative dialogue” with any person who may be entitled to a workplace accommodation. This recent amendment to the New York City Human Rights Law (“NYCHRL”) expands an employer’s obligation to address possible accommodations with the employee beyond what is required under either Federal or New York State law, and further expands the categories for which an employee may request accommodations.

On September 7, 2017, New York Governor Andrew Cuomo signed an amendment to Civil Service Law Section 75 extending notice and hearing rights to “Labor Class” employees after five years of continuous service. Previously, Labor Class employees (who were not veterans or exempt volunteer firefighters) were not afforded the right to written disciplinary charges and a hearing when facing charges that could impose a reprimand, fine, suspension without pay, demotion, or termination. After the recent amendment, all Labor Class employees with five years of continuous service will receive the protections of Civil Service Law Section 75, entitling them to a disciplinary notice and hearing. These protections are effective as of September 7, 2018, and Labor Class employees should familiarize themselves with their new rights; a brief outline is provided below.

On July 18, 2018, the new Temporary Schedule Change Law took effect in New York City. Under the law, covered employees have a right to temporary changes to their work schedule for certain “personal events.” All employees who work over 80+ hours per calendar year in NYC and who have been employed by their employer for more than 120 days are covered by this law. Government employees, certain collective bargaining employees, and certain employees in motion picture, television, and live entertainment industries are exempt from the new law. The new law also requires that employers place a conspicuous notice of the law in the workplace.

Most people understand the law protects people with disabilities. Laws provide protection for consumers just trying to live normal, healthy lives, as well as those who are employees. Employers are legally required to accommodate employees with disabilities.

In December 2017, Governor Andrew Cuomo announced that the New York State Department of Labor would be conducting hearings regarding the elimination of the so-called “tip credit,” which allows workers in predominantly service industry jobs to receive an hourly wage that is below the applicable minimum wage, as long as they receive enough tips so that their take-home pay reaches the threshold of minimum wage. In New York City, for example, the applicable 2018 minimum wage is $13.00 per hour, but restaurants employing eleven or more employees are able to pay their workers a minimum of $8.65 per hour, as long as their employees make at least $4.35 per hour in tips, or the restaurant must make up the difference. There are varying minimum wage rates and allowable tip credits for Long Island, Westchester, and the rest of New York State as well.

Many employers require employees to wear a uniform when they are on the clock. In some cases, the uniform is supplied free of charge, but some employers want to charge employees for their uniforms.

Some employers offer benefits related to the education of employees. Companies provide this type of benefit because they know it is something that attracts the best and brightest in the industry, and a more educated employee is advantageous for the company. It’s a mutually beneficial arrangement and one you should consider when searching for a job.

Telecommuting has grown in popularity in the last decade. This is due in part to the fact that the internet and other communication technology has made it so much easier for people to work from home. Telecommuting is a great way to allow employees freedom and flexibility, while still ensuring they are able to meet their work responsibilities.

New York Mayor Bill de Blasio and State Speaker Melissa Mark-Viverito recently announced a new group of laws aimed at protecting low-wage earners in the city by ensuring scheduling and a variety of other rights.

New Collective Action filed in the Eastern District of New YorkBetty Moncion v. Paris Maintenance & Management Co. Inc., et al. Case No. 16-cv-07142