Law and the Workplace

Connecticut Commission on Human Rights and Opportunities Issues Guidance on Sexual Harassment Training and Notice Requirements

By Harris Mufson and Arielle E. Kobetz on Posted in Discrimination, Harassment and Retaliation

As we previously reported, Connecticut has enacted the Time’s Up Act (the “Act”), which expanded existing sexual harassment training and notice requirements on employers. Under the new law, employers with three or more employees must provide two hours of interactive sexual harassment training to all existing employees by October 1, 2020, and to all new employees no later than six months after hire. Employers with fewer than three employees are required to provide such training only to supervisory employees by October 1, 2020; any new supervisory employees must be trained within six months of assuming supervisory duties. In addition, employers must also post a notice regarding “the illegality of sexual harassment and remedies available to victims of harassment” in a prominent and accessible place, and provide employees with a copy of this information by email within three months of hire.

To that end, the Connecticut Commission on Human Rights and Opportunities (“CHRO”) has now published (in both English and Spanish) FAQs, a “Sexual Harassment is Illegal” poster and other written materials regarding sexual harassment. The CHRO has also made available on its website a free online training and education video, which may be used by employers to satisfy their obligations under the law.

Importantly, the FAQs make clear that the Act applies to any employer with at least one employee based in Connecticut, even if the employer is based out of state (provided it also employs at least three employees). For example, the FAQs state that if a Minnesota-based company has ten employees in Minnesota and one employee in Connecticut, that one employee in Connecticut is subject to the training requirements.

Covered employers are required to either utilize the CHRO’s model training materials or establish their own training program that equals or exceeds the minimum standards set forth under the law, including the requirement that the training be interactive. According to the FAQs, training can be done via a recorded video or online (i.e., it need not be live); however, it must be in a format that allows participants to ask questions and receive answers.

The CHRO’s online training and education video is broken up into six segments and incorporates several interactive quizzes. Employees will receive a certificate of completion within 24 hours of finishing the training, and while such certificates are not required to prove an employee has completed the training, employers may want to maintain them to internally track compliance with the law. Notably, the video is designed for all employees and does not contain a separate section for supervisors. Moreover, it directs complainants to report concerns to a supervisor or seek assistance from the CHRO directly, and does not provide a mechanism for employers to incorporate their own reporting and investigative process. The video also addresses public accommodations and housing discrimination, such that it may not be appropriate for all employers.

We will continue to report on any further developments with regard to this law.

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Westchester County, New York Issues Guidance and Mandatory Notices for Safe Time Leave Law

By Allan Bloom, Laura Fant and Arielle E. Kobetz on Posted in Leaves of Absences, Workplace Policies and Procedures

As we previously reported, effective October 30, 2019, Westchester County, NY employers are required to provide paid leave to employees who are victims of domestic violence or human trafficking (“safe time”). Leave under the new ordinance will be in addition to paid time off already required to be provided to employees under the Westchester County paid sick leave law, which took effect on April 10, 2019.

In connection with the effective date of the safe time leave law, the Westchester County Human Rights Commission has released new FAQs as well as a Notice of Employee Rights and mandatory poster. While the Commission’s FAQs generally restate the law’s requirements, they do clarify the rate of pay employees must receive when taking leave. Specifically, employers must pay employees the hourly rate they would have otherwise earned had they reported to work. However, the FAQs do not address pay calculations for employees not paid on an hourly basis (e.g., piece-rate workers or employees who only earn commission).

Employers are required to provide both a copy of the safe leave ordinance and the Notice of Employee Rights to eligible employees on the first day of employment or within 90 days of the law’s effective date (i.e., by no later than January 28, 2020), whichever is later. Employers must also display a copy of the ordinance and the mandatory poster in both English and Spanish in a conspicuous location accessible to employees. Failure to comply with the notice and posting requirements can result in fines of up to $500 for each offense.

Employers in Westchester County, New York should review their existing policies and postings to ensure compliance with these requirements.

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New York State Issues Additional Guidance Following Recent Expansion of Workplace Anti-Discrimination Protections

By Evandro Gigante, Arielle E. Kobetz and Laura Fant on Posted in Discrimination, Harassment and Retaliation

As we previously reported, on August 12, 2019, New York State Governor Andrew Cuomo signed into law significant legislation to expand workplace anti-discrimination protections. The State has now updated its FAQs to provide additional guidance on these new requirements. There are several key points now included in the guidance that provide some clarity on employers’ notice, policy and training responsibilities.

Under the recently amended law, New York employers are required to provide employees, both at the time of hire and at every annual sexual harassment prevention training, with a notice containing the employer’s sexual harassment prevention policy and “the information presented at the employer’s training program.”  Employers must provide the notice, policy and training materials in writing in English and in the language identified by an employee as their primary language, if different.

As part of the new guidance, the State has now published a template Sexual Harassment Prevention Notice, which must be provided to employees in addition to the employer’s anti-harassment policy and training materials. The notice may be distributed digitally or in print, and employers must either attach their complete policy (including the required complaint form) and training materials or provide a link to such materials. Employers must also designate a person or office to whom individuals can go to with questions or file a complaint, and provide appropriate contact information.

With respect to the training materials that must be distributed, the updated FAQs clarify that this includes “any printed materials, scripts, Q+As, outlines, handouts, PowerPoint slides, etc.” If an employer uses the State’s model materials, or other training materials that are delivered through software or video, a link to such materials would be sufficient. In other instances, employers and training providers should make “reasonable efforts” to provide the information (e.g., providing print-outs or links to training materials, scripts or PowerPoint slides).

The updated FAQs state that for new employees, employers should provide the notice, policy and training materials prior to or at the beginning of their first day of work. The guidance also states that employers must provide these materials in both English and in an employee’s primary language if it is Spanish, Chinese, Korean, Polish, Russian, Haitian-Creole, Bengali or Italian; the State has published model materials online that may be used to satisfy this requirement. While the guidance appears to only require that these materials be provided in the above-mentioned languages (as applicable), it also states that because employers may be held liable for the conduct of all of their employees, employers are strongly encouraged to provide a policy and training in the language spoken by the employee (even if not one of the languages listed above).

As a reminder, the new law also now bars nondisclosure provisions in any settlement, agreement or other resolution of any claim, the factual foundation of which involves discrimination on the basis of any protected class, unless the condition of confidentiality is the preference of the complainant. In order to be deemed the “preference of the complainant,” any term or condition regarding nondisclosure must be provided in writing to all parties “in plain English” and, if applicable, the primary language of the complainant.   In addition, the existing prohibition on mandatory pre-suit arbitration of sexual harassment claims has been extended to any claims of unlawful discrimination.  However, as is the case with the prohibition on mandatory arbitration of sexual harassment claims, the expanded prohibition applies only to the extent it is not inconsistent with federal law and recently, the Southern District of New York held in Latif v. Morgan Stanley Co. (S.D.N.Y. June 26, 2019), that the prohibition on mandatory arbitration of sexual harassment claims is, in fact, preempted by the Federal Arbitration Act in situations where both laws apply. The new FAQs do not provide any further insight.

We will continue to report on any further developments with regard to this law.

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Voting and Other Political Activities: Is Your Workplace Ready for Election Day?

By Evandro Gigante and Laura Fant on Posted in Discrimination, Harassment and Retaliation, Workplace Policies and Procedures
Hand dropping ballot into box

Another Election Day is just around the corner. And with nearly every state having at least one law addressing voting leave and/or other political-related activities, it can be easy to get tripped up in the details. In addition, some states, including New York, have recently updated their employee voting laws.

The following is an overview of just some of the laws to be aware of when election time rolls around.

Time Off to Vote

Presently, twenty-two states require some form of paid voting leave for employees. For example:

  • As we previously reported, earlier this year New York amended its voting law to require employers to provide employees with as much time off as is needed to enable the employee to vote in any election, up to three hours of which must be paid. Previously, NY state law provided that an employee was entitled to time off to vote only if the employee did not have four consecutive hours between the opening of polls and the beginning of the employee’s work shift, or the end of the employee’s work shift and the close of polls, and further only required paid time off of up to two hours. Now, time off to vote (up to three hours of which must be paid) must be provided regardless of an employee’s work schedule in relation to polling hours, if such time is needed to enable the employee to vote. However, employees may be required to provide at least two days’ advance notice of the need for time off to vote. In addition, an employee may only take time off to vote at the beginning or end of their shift, as designated by the employer, unless the employer and the employee agree otherwise.
    • New York employers also are required to post a notice regarding the employee voting law “conspicuously in the place of work where it can be seen as employees come or go to their place of work” at least ten working days before every election.
  • California also requires that employers provide paid leave for employees to vote. However, leave need only be provided if an employee does not have “sufficient time” outside of working hours to vote, and only up to two hours of such leave must be paid. The time off must be taken at the beginning or end of the employee’s shift, whichever allows the most free time for voting and the least time off, unless otherwise mutually agreed to by the employer and employee. At least two working days’ notice must be provided by an employee if the employee knows or has reason to believe that time off will be necessary to be able to vote.
    • Also, effective January 1, 2020, California employers cannot request or require employees to bring their vote by mail (“VBM”) ballot to work or to vote their VBM ballot while at work.
  • Illinois requires employers to provide up to two hours of paid voting leave if an employee’s working hours begin less than two hours after the opening of the polls and end less than two hours before the closing of the polls. Employees must provide notice of the need for leave prior to the day of the election.
  • Maryland also requires employers to grant up to two hours of paid leave to vote, unless employees have two continuous off-duty hours while the polls are open. To be eligible for such pay, employees must furnish proof that they have voted or attempted to vote.
  • Minnesota employers must allow employees to take paid leave “for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work” on the day of an election, regardless of the employee’s work schedule in relation to polling hours.

Other states require employers to grant voting leave, but do not require that the time off be paid. For example:

  • Georgia requires employers to provide up to two hours of unpaid voting leave if an employee does not have at least two hours before beginning work or after leaving work during which the polls are open. Employees must provide notice of the need for leave prior to the day of the election.
  • Massachusetts’ voting leave law applies only to employees in a “manufacturing, mechanical or mercantile establishment” and requires that a covered employer provide unpaid leave, if requested by an employee, during the period of two hours after the opening of the polls.

Other Political Leave Laws

Some states provide for leave beyond just the voting context:

  • Alabama, Delaware, Illinois, Kentucky, Minnesota, Nebraska, Ohio, and Wisconsin require employers to provide unpaid leave (or, in the case of Minnesota, paid leave) to serve as an election judge or election official.
  • Minnesota and Texas require employers to provide unpaid leave for employees to attend political conventions or party committee meetings.
  • Connecticut, Iowa, Maine, Nevada, Oregon, South Dakota, Oregon, and Vermont require that employers provide employees with an unpaid leave of absence to serve as elected members of state (and in some cases municipal) government.

Prohibitions on Political Coercion or Restricting Political Activity

Regardless of whether a state requires voting or other political leave, there are laws prohibiting employers from attempting to influence employee’s political opinions or discouraging employees from voting or engaging in other political activities, such as running for office or campaigning.  For example, numerous states, including Arizona, Louisiana, Massachusetts, New Mexico, and Pennsylvania, prohibit employers from making threats or promises in an attempt to influence employees’ choice to vote for a particular candidate or belong to a certain political party.  Washington, D.C. goes a step further and includes “political affiliation” as a protected category under the D.C. Human Rights Act.  In addition, some jurisdictions, such as New York, California, Colorado, and North Dakota, have outside activities laws that may prohibit or limit employers from discriminating or taking adverse action against employees for engaging in certain lawful political activities outside of working hours and off of the employer’s premises.

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Given the wide range of laws governing employee voting and political activities, as November approaches, employers are well advised to review their policies to ensure their compliance. And as always, your Proskauer counsel are standing by to provide assistance.

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Tags: outside activities, political affiliation, time off to vote, voting, voting leave

NYC Commission on Human Rights Issues Enforcement Guidance on National Origin and Immigration Status Discrimination

By Evandro Gigante, Arielle E. Kobetz and Laura Fant on Posted in Discrimination, Harassment and Retaliation
NYC Commission on Human Rights

The New York City Commission on Human Rights has issued new enforcement guidance on discrimination based on actual or perceived national origin or immigration status in employment, as well as in housing and public accommodations.  While enforcement guidance does not have the same force of law as a statute or formal regulations, it provides significant insight into how the Commission would evaluate complaints of discrimination under the New York City Human Rights Law (NYCHRL) based on these categories.

With regard to employment, the enforcement guidance emphasizes that while employers have an obligation to follow all legal requirements for verifying work authorization upon hiring, once an employer has decided to hire an individual, that individual enjoys the same protections under the NYCHRL as any other employee, regardless of immigration status or work authorization.  Specifically, the guidance acknowledges that federal law may require differential treatment of individuals based on immigration status to comply with the Immigration Reform and Control Act.  However, “[o]utside of this limited circumstance, it is a violation of the NYCHRL for employers to discriminate among work-authorized individuals—including, but not limited to, citizens, permanent residents, refugees, asylees, and those granted lawful temporary status—unless required or explicitly permitted by law.”

Examples of potential hiring violations noted in the guidance include:

  • asking applicants questions related to work authorization in an inconsistent manner based on actual or perceived immigration status or national origin (e.g., asking an applicant who has an accent whether they have work authorization but not asking the same question of someone who does not have an accent);
  • asking to see work authorization documents before an individual accepts a job offer;
  • refusing to accept specific documents or requiring specific documents beyond what is required to establish work authorization under federal law, even if the policy is applied on a “neutral” basis (e.g., demanding that all new hires show a social security card when other documents would satisfy legal requirements); or
  • requiring an employee to re-verify their work authorization status unless required to do so by law (e.g., demanding updated verification documents upon promotion, transfer, or return from an authorized leave of absence).

The guidance further notes that an employer’s receipt of an “Employee Correction Request Notice” (commonly referred to as a “No-Match Letter”) from the Social Security Administration (SSA) advising that reported information about an employee’s name and/or Social Security number does not match the name or number in the SSA’s records, by itself may not be used as a basis for taking adverse action against an employee or for re-verifying the employee’s work authorization, as mismatches can be caused by such things as clerical errors and name changes.

The guidance also provides examples of other types of conduct by employers or their employees that could be considered unlawful discrimination or harassment based on national origin and immigration status under the NYCHRL, including:

  • threatening to call immigration authorities or law enforcement on undocumented workers as a means to force employees to work in unsafe, unequal, or unlawful conditions or otherwise based on a discriminatory or retaliatory motive;
  • telling an employee that they do not have the same rights to workplace benefits or accommodations because they are undocumented;
  • prioritizing employees of a certain national origin over other workers with regard to terms and conditions of employment, such as scheduling or granting time off requests;
  • making harassing or threatening comments such as “go back to your country”;
  • using terms like “illegal alien” or “illegals” with the intent to demean, humiliate, or offend;
  • acting upon stereotypes or assumptions based on actual or perceived immigration status or national origin (e.g., refusing to hire or promote an individual with an accent based on the assumption that the accent indicates the individual is not smart or well-educated);
  • prohibiting employees from speaking a language other than English where it is not a requirement for the work (for example, while performing housekeeping duties) because it would “offend” customers or clients or make them uncomfortable; and
  • engaging in “associational” discrimination based on actual or perceived immigration status or national origin (e.g., refusing to pay for health benefits for an employee’s spouse where such benefits are otherwise available because the spouse is not a U.S. citizen).

The guidance also advises on how employers can prepare for worksite immigration enforcement, whether in the form of an Immigration and Customs Enforcement (ICE) inspection (sometimes referred to as a “raid”) or an I-9 audit.  For example, unless otherwise expressly prohibited (such as during an ongoing criminal investigation), “[e]mployers are encouraged to give notice to their employees when they know or suspect that an audit or raid will occur so that employees have an opportunity to update any necessary documents and make other preparations.”

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The release of this enforcement guidance suggests that national origin and immigration status discrimination is presently a particular priority of the Commission.  Among other remedies, the Commission may seek penalties of up to $250,000 against employers who engage in unlawful discriminatory practices under the NYCHRL.  As such, employers in New York City are well advised to review their anti-discrimination policies and ensure that personnel, including (but not limited to) managers and hiring staff, are familiar with the requirements of the law.

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Tags: discrimination, enforcement guidance, immigration, national origin, New York City Commission on Human Rights, New York City Human Rights Law, NYC, NYCCHR, NYCHRL

San Antonio, Texas Approves Revisions to Paid Sick and Safe Leave Ordinance

By Evandro Gigante and Laura Fant on Posted in Leaves of Absences
Leave of absence form

The San Antonio, Texas City Council has approved revisions to the city’s sick and safe leave ordinance, which is now scheduled take effect on December 1, 2019.

As we previously reported, in the face of legal challenges to the law, the City Council had agreed to delay the effective date of the ordinance (previously slated for August 1, 2019) to review how the ordinance will affect businesses and employees and to make necessary changes.

Updates under the revised ordinance include the following:

  • Any individual who performs work for pay within the City of San Antonio for a covered employer is eligible to accrue sick and safe leave, unless otherwise exempted under the law. Independent contractors, paid and unpaid interns, employees subject to a collective bargaining agreement, and employers subject to the Railway Labor Act are exempt from coverage under the law.
    • Under the original ordinance, eligibility was limited to individuals who perform at least 80 hours of work in a year.
  • Employees who are typically based outside the City of San Antonio (that is, for more than 50% of their work hours in a year) but who perform work in the city on an occasional basis are covered by the ordinance only if they perform more than 240 hours of work in San Antonio within a year.
  • A modified accrual schedule for sick and safe leave will apply across all businesses, regardless of size.  Specifically, employees will be eligible to accrue one hour of paid sick and safe leave for every 30 hours worked, up to 56 hours per year.
    • The original ordinance would have required larger businesses to provide up to 64 hours of leave while smaller businesses would have been required to provide up to 48 hours of leave.
  • While sick and safe leave begins to accrue from the first working day for new employees, employers may require that new employees wait up to 90 days before using any accrued time.
    • Under the original ordinance, the waiting period for new employees was capped at 60 days and was only applicable if the employer could establish that the employee’s term of employment was at least one year.
  • The definition of a covered family member under the ordinance will now include an employee’s: (i) spouse, domestic partner, or different-sex or same-sex significant other; (ii) any other family member within the second degree of consanguinity or affinity; and a member of the covered employee’s household, as well as a minor’s parents, regardless of the sex or gender of either parent. In addition, the concept of parenthood “is to be liberally construed without limitation as encompassing legal parents, foster parents, same-sex parent, step-parents, those serving in loco parentis, and other persons operating in caretaker roles.”
    • Under the original ordinance, a covered family member included an employee’s spouse, child, parent, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
  • An employer may not request medical documentation or other verification of the use of paid sick or safe leave under the ordinance until an employee’s fourth consecutive day of using leave. Employers may also request documentation where they reasonably suspect abuse of sick and safe leave.
    • Under the original ordinance, documentation was allowed only after three consecutive days of absence.
  • The revised ordinance specifies that sick and safe leave under the ordinance “is a fringe benefit as defined by the Texas Labor Code and not a wage or a component of salary.”  To that end, the ordinance “does not require the payment of sick and safe leave upon separation from employment and it does not require that sick and safe leave be calculated as an increase to salary or wages of an employee.”

While the ordinance is now slated to take effect on December 1, 2019, penalties will not be assessed until April 1, 2020 except in cases of retaliation against an employee.

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Tags: paid safe leave, paid sick leave, San Antonio, Texas
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