Client Alert: New Harassment and Discrimination Laws Put Employers at Risk
June 15, 2018
The EEOC Files Seven Lawsuits Accusing Employers of Ignoring Legal Responsibilities makes it abundantly clear that the New Harassment and Discrimination Laws in NY and NJ are in Full Effect. Employers Must Act Now to Comply with the New Laws.
Yesterday, June 14th, the U.S. Equal Employment Opportunity Commission (EEOC) announced the filing of seven lawsuits that accuse a national trucking company, a restaurant franchisee and other employers of ignoring their legal responsibilities as their employees were being sexually harassed. These suits coincide with the EEOC reconvening its harassment task force. These legal actions come on the heels of the EEOC’s Select Task Force On Harassment meeting entitled “Transforming #MeToo Into Harassment-Free Workplaces.”
Employers should understand that the legal environment on federal, state and even city levels are rapidly changing and that there will be no tolerance for workplace harassment that is permitted or suffered with no effective response. Workplace harassment exposes the employer to strict liability. This simply means that, if it happens in your workplace, you will have the legal responsibility for the damages (compensatory, punitive and legal fees). UNLESS:
- you have an up-to-date policy (including any new requirements of recently passed laws),
- the policy is periodically published and discussed with the rank and file,
- supervisors are properly trained on what to do when they see or hear of improper conduct
- and that it is made abundantly clear to all that there will be ZERO TOLERANCE for unwanted sexual advances or other forms of discrimination or bullying in the workplace.
New York and New Jersey Workplace Harassment and Discrimination Laws
Recently, both New York and New Jersey have passed laws that address workplace harassment and other forms of discrimination:
NEW YORK LAWS
Effective immediately, New York State has expanded mandated protections against sexual harassment for even non-employees, including contractors, subcontractors, vendors and This change has the biggest potential impact because businesses now have a whole new category of possible plaintiffs that can sue a company for sexual harassment. The legislation amends the New York State Human Rights Law to ensure that regardless of their specific title or role, all individuals are protected against sexual harassment in the workplace. Another provision of the amended law, effective July 11, 2018, prohibits companies from using non-disclosure clauses in settlements or agreements relating to claims of sexual harassment unless they are agreed to by the complainant. Mandatory arbitration clauses applicable to claims of sexual harassment are also prohibited (other forms of discrimination are not exempted, however). Effective October 9, 2018, employers will be required to distribute written workplace harassment policies to all employees and provide annual anti-harassment training, based upon models to be developed and published by the New York State Department of Labor and Division of Human Rights.
Not to be outdone by the state, the New York City Council also very recently passed the Stop Sexual Harassment in NYC Act (the “Act”). The Act amends the New York City Human Rights Law (“NYCHRL”) and the New York City Charter. New York City employers must be familiar with both state and city requirements and, where such requirements may overlap, ensure they are meeting the requirements of both laws. A key requirement of the New York City law is that employers with 15 or more employees (including interns) conduct annual anti-sexual harassment training for all employees, including supervisory and managerial employees. This required training must cover a number of topics, including definitions and examples of sexual harassment, educate on bystander intervention, and explain how to bring complaints both internally and with applicable federal, state and city administrative agencies. The training must be conducted on an annual basis for incumbent employees, and new employees, who work 80 or more hours per year on a full or part-time basis in New York City, must receive the training within 90 days of initial hire. The law further requires employers to obtain from each employee a signed acknowledgment that he or she attended the training. The NYC Commission on Human Rights (“City Commission”) will be publishing online sexual harassment training modules for employers’ use, and these will satisfy the requirements of the Act so long as the employer supplements the module with information about the employer’s own internal complaint process to address sexual harassment claims. Required posters concerning the law will be provided by the City Commission.
INQUIRING ABOUT AN APPLICANT’S SALARY
As of October 31, 2017, New York City made it illegal for public and private employers of any size to inquire about an applicant’s salary history during the hiring process, including in advertisements for positions, on applications or in interviews. Rather than relying upon salary history, employers must base compensation offers on the applicant’s qualifications and the requirements for the job. The prohibition is based upon the assumption that salary history perpetuates a cycle of inequity and discrimination in the workplace, especially for women and people of color. While this prohibition only applies to New York City, it should be anticipated that policy is a trend and that the states will soon follow. Accordingly, it is recommended that job applications and pay policies be reviewed to anticipate this very predictable change.
NEW JERSEY – ALLEN ACT
As we have recently alerted our clients, New Jersey passed the Diane B. Allen Equal Pay Act which becomes effective July 1, 2018. This Act amends New Jersey’s powerful Law Against Discrimination (NJLAD) to forcefully ban pay disparities based on any characteristic relating to an employee’s membership in one of the many classes protected by the NJLAD. Thus, under the Allen Act, it is an unlawful employment practice to pay less to any member of a protected employee category for “substantially similar work.” Compliance failures will now expose employers to six years of damages, mandatorily trebled plus attorneys’ fees. Employers must not sit on their hands, and are urged to immediately engage in critical reviews of present pay practices to ensure that compensation is tied to legitimate factors such as training, education, past experience, quality of work or measurable factors of productivity. Job titles and responsibilities should be reviewed to ensure that they properly tie into objective wage standards, although subjective factors cannot be eliminated altogether. It is recommended, among other things, that formal Job Descriptions be adopted and pay practices, after review, be formalized, subject to continuing periodic, critical review.
NJ MANDATORY PAID SICK LEAVE
On May 2nd, New Jersey became the tenth state to enact a statewide mandatory paid-sick-leave The New Jersey Paid Sick Leave Act will go into effect on October 29, 2018. Once effective, New Jersey employers of all sizes, including temporary help services firms, will be required to provide up to 40 hours of paid sick leave per year to covered employees. Consequently, every affected employer must start to prepare policies and practices to comply with the Act. The Act expressly excludes employees in the construction industry employed under a collective bargaining agreement, per diem healthcare employees, and public employees who already have sick leave benefits. The Act requires employers to designate any period of 12 consecutive months as a “benefit year”, and the established benefit year cannot be changed without first notifying the New Jersey Department of Labor and Workforce Development. In each benefit year, an employee will accrue up to 40 hours of sick time at a rate of one hour for every 30 hours worked. Alternatively, employers may opt to “frontload” the full 40 hours at the beginning of the benefit year in order to avoid the record-keeping requirements. Employers with existing paid time off (PTO), personal days, vacation days and sick-day policies may utilize those policies to satisfy the requirements of the act as long as employees can use the time off as required by the act. In the case of a temporary help service firm placing an employee with client firms, paid sick leave will accrue on the basis of the total time worked on assignment with the firm, not separately for each client firm to which the employee is assigned.
As should be clear from the above, the time to act is NOW. Delay or inaction can and will lead to potentially painful consequences. Please contact Gary Young or the Scarinci Hollenbeck attorney with whom you work with to schedule an appointment to review the law, your employment practices and next steps towards effective compliance.