Another New Year is upon us, and employers doing business in New York will begin 2016 with some significant New Year’s resolutions. So here are the top five new laws signed by Governor Andrew Cuomo that are designed to continue the push toward pay equity, expand legal protections against workplace discrimination, and otherwise further regulate the employer-employee relationship.
Pay Equity and Discussion
Section 194 of the New York Labor Law addresses differentials in pay because of sex. Effective January 19, 2016, section 194 will provide additional gender-related provisions. First, an employer cannot prohibit inquiries, discussions or disclosures by an employee about the wages of that employee or other employees. There are three exceptions: (i) a written policy may “establish reasonable workplace and workday limitations on the time, place and manner for inquiries about, discussions of, or the disclosure of wages”; (ii) employees are not required to disclose their own wages; and (iii) the prohibition in this amendment “shall not apply to instances in which an employee who has access to the wage information of other employees as a part of such employee’s essential job functions discloses the wages of such other employees to individuals who do not otherwise have access to such information.”
Second, the penalty provision increases the potential liquidated damages awarded for a willful violation of section 194 to as much as 300 percent of the wages found to be due as a result of an unlawful pay differential because of sex.
Covered Employers for Sexual Harassment Cases
The New York State Human Rights Law generally covers employers with four or more employees. Effective January 19, 2016, all employers — regardless of the number of employees — will be subject to the Human Rights Law in cases of sexual harassment.
Attorneys’ Fees in Sex Discrimination Cases
The New York State Human Rights Law generally does not provide for the recovery of attorneys’ fees to successful plaintiffs, except in housing discrimination cases. Effective January 19, 2016, in addition to housing discrimination cases, a prevailing party may recover reasonable attorneys’ fees in cases of “employment or credit discrimination where sex is a basis of such discrimination[.]”
New York law currently bars familial status discrimination in areas of housing and credit determinations. Effective January 19, 2016, familial status is added as a protected class for purposes of employment discrimination by employers, licensing agencies, employment agencies, and labor organizations. Thus, employees can no longer be discriminated against because they are a parent or guardian of a child under the age of 18.
The trend toward equating certain pregnancy-related conditions with disabilities continues in New York. Thus, while the New York State Human Rights Law currently requires a reasonable accommodation for covered disabilities, effective January 19, 2016, the same obligation will exist for a “pregnancy-related condition.” The term “pregnancy-related condition” is defined as a “medical condition related to pregnancy or childbirth that inhibits the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques[.]”
There are three provisos to this new reasonable accommodation requirement: (i) the employee must be able to reasonably perform the “activities involved in the job or occupation sought or held”; (ii) pregnancy-related conditions “shall be treated as temporary disabilities”; and (iii) the employee is required to cooperate in providing information needed for the employer to verify the existence of the pregnancy-related condition or to consider whether an accommodation is needed.
P.S. Governor Cuomo has introduced legislation to add gender identity, transgender, and gender dysphoria as protected classes under the New York State Human Rights Law. The proposed law is now subject to a public comment period prior to implementation.
P.P.S. Don’t forget that the New York State minimum wage will increase to $9.00/hour on December 31, 2015. Corresponding increases will also take place in the minimum wage and tip-related credit provisions in the hospitality industry, as well as in the minimum salary thresholds that must be met for employees to be classified as “exempt” under New York law for wage and hour purposes.
Happy New Year.