New York Governor Andrew Cuomo and the State Department of Labor (“DOL”) have taken several steps in recent weeks that will significantly affect employers in 2016. Among other changes to be discussed in upcoming blogs, these changes concern the rights of women in the workplace. Our Award-Winning New York Sexual Harassment Lawyer summarizes some of those changes below.
Governor Cuomo signed into law five new statutory provisions affecting women’s rights in the workplace, all of which will become effective on January 19, 2016:
1. Protecting Victims of Sexual Harassment by Expanding the Definition of “Employer” in Sexual Harassment Cases: The New York State Human Rights Law (“NYSHRL”) currently excludes employers with fewer than four employees from the definition of “employer.” The new law will expand this definition, in sexual harassment cases only, to all employers within New York regardless of size. This is a victory for employees who previously were forced to pursue a tort claim if the employer had 3 or less employees. It is important to note that covered employers will only include 4 or employees for other types of cases including employment discrimination cases.
2. Removing Barriers to Discrimination by Employees May Recover Attorneys’ Fees in Sex Discrimination Cases: Under the current law, prevailing plaintiffs cannot recover attorneys’ fees at trial in employment discrimination cases. This bill will amend the New York State Human Rights Law (NYSHRL) to allow successful plaintiffs to recover fees in employment or credit discrimination cases where the discrimination is based on sex. This is a significant win for employees as the law starts to put it on par with federal and New York City law which already permit prevailing plaintiffs to collect attorney’s fees in certain cases.
3. Ending Familial Status Discrimination: This bill amends the NYSHRL to prohibit discrimination in employment based on familial status (which covers women who are pregnant as well as families with children under the age of 18 or who are in the process of adopting a child under the age of 18.) Currently only cases involving fair housing or credit include familial status as a protected category. That will change with the update.
4. Providing Better Protections for Women from Pregnancy Discrimination: This bill amends the NYSHRL to clarify that employers must provide reasonable accommodations to employees with pregnancy-related medical conditions, unless doing so would create an undue hardship. Under the new law, pregnancy-related conditions are to be treated as temporary disabilities. Also, the employee must cooperate in providing medical or other information necessary to verify the existence of the pregnancy-related condition or necessary to consider the accommodation. Employers must keep such medical information confidential.
5. Fair Pay For Women and Men: Under The Achieve Pay Equity bill, New York’s laws will make it easier for employees to pursue gender-based pay equity claims. New York Labor Law §194, the State’s counterpart to the federal Equal Pay Act, currently prohibits discrimination in pay based on sex, but like the federal Equal Pay Act, its reach is limited.
Changes to the new law include:
▪ Employees can be compared even if they do not work at the same establishment so long as they work in the same “geographic region,” no larger than the same county. This is a significant extension of the existing federal and state law and will impact employers with multiple work sites within the same county. This will benefit employees in prosecuting their claim;
▪ Under the new law, employers will be required to justify pay differentials. The amendments will put the burden on employers to affirmatively demonstrate that any pay differences are based on one or more of a limited number of factors. The permitted reasons for differences in pay are:
• A merit system;
• A Seniority system;
• A system that measures earnings by quantity or quality of production; or • A bona fide factor other than sex such as education, training, or experience.
This bona fide factor exception will replace the “any other factor other than sex” language in the current law, and will apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a “business necessity” (i.e., the factor relied upon effectively fulfills the business purpose it is supposed to serve). But this defense will not be applicable if there is an employment practice that causes a disparate impact, or if the employer refuses to adopt a neutral alternative practice that would serve the same business need.
▪ Transparency in Compensation: Employers may not prohibit employees from inquiring about, discussing, or disclosing wage information. This will be an interesting area to watch as some employers previously had policies stating that employees should not discuss their salaries publicly; and
▪ Increased Penalties for Willful Violations: Finally, liquidated damages for willful violations of §194 will be increased to 300% of wages due. This should serve as a significant deterrent for employers.
As you can see, there are significant changes to coming to workplaces in New York in 2016. These are only some of the issues to be aware of. If you are an employee and have any questions about your rights in the workplace or you are an employer and want to develop best practices and learn about compliance issues, our Award-Winning NY Employment Law Attorney for a confidential consultation at (800) 893-9645.
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