Each day this week, we will “unwrap” one of five pressing employment law issues on the 2015 horizon for New York state and city employers. On Monday and Tuesday, respectively, we covered the minimum wage hike and the anticipated enforcement of two new NYC laws. Today’s topic is the reemergence of NYC’s equal employment opportunity agency.
As we head into 2015, NYC employers can expect increased visibility and enforcement initiatives from the recently overhauled NYC Commission on Human Rights (NYCCHR or Agency) – the administrative agency tasked with enforcing the NYC Human Rights Law (NYCHRL). Responding to pressure from Public Advocate Letitia James, on November 21, 2014, Mayor Bill de Blasio appointed an employee-plaintiffs’ side attorney, Carmelyn Malalis, as the Agency’s new chair. Ms. Malalis replaces Patricia Gatling, a holdover from the Bloomberg administration. De Blasio also appointed eight new NYCCHR commissioners, commenting that he expects the revamped Agency to “be a robust enforcer of our fundamental civil rights.”
One initiative that NYC employers can expect from the newly populated NYCCHR is an aggressive, continued push to combat discriminatory job postings on Craigslist and other websites. Even before the addition of de Blasio’s newest pro-employee appointees, the Agency had already, in recent months, been ramping up scrutiny of online job postings that arguably express a preference for applicants with particular demographic characteristics – such as females for a food server job (by posting an opening for a “waitress” rather than “waiter/waitress” or “food server”).
Upon discovering a potentially biased job posting, the NYCCHR will reportedly then try to build a case against the posting employer by sending “tester” resumes by email. Next, using tracking software, the Agency can determine which “tester” applicant emails the employer opens. In the case of a “waitress” job posting, for instance, if the employer opens the email from a “tester” applicant who is female, but not from one who is male (traits the Agency would make obvious through the email addresses it uses), the Agency may use this fact as evidence that the posting employer was indeed motivated by gender bias in hiring for the food server position. Despite modest pushback – one state senator recently criticized the NYCCHR for these surreptitious procedures – the Agency’s practice persists.
NYC employers should keep an eye out for these and other NYCCHR tactics to strengthen its enforcement of the NYCHRL – already one of the nation’s most expansive anti-discrimination laws – in 2015 and beyond.
What Does this Mean for My Company?
New York employers can and indeed should expect a bevy of changes over the next year. From the minimum wage increase to expanded protections for pregnant employees to the use of unpaid labor, the New York employment law landscape remains in flux and is as dynamic as ever. Employers should therefore consult with experienced counsel immediately to discuss these issues and prepare a cogent plan of action to face them head-on.
Be sure that this is a New Year’s resolution that you actually keep!