HR Strategy

31

May, 2019

Why Local Law Matters for Westchester Employers

By: Tracey I. Levy and Alexandra Lapes

Employers in Westchester County must pay close attention to legal developments at the county level, as the past ten months have brought an unprecedented array of new mandates specific to private employers in the county, and further requirements are likely to come.  For those employers who may have overlooked it, the new mandates include paid leave benefits – first sick time and soon “safe time” leave – as well as restrictions on hiring practices – a ban on salary history inquiries, and limits on when employers can inquire about criminal history.

Earned Safe Time

Beginning October 30, 2019, employers in Westchester County must provide employees with up to 40 hours of paid safe time leave for victims of domestic violence, family offense matters, and human trafficking.  Employees are eligible for safe time leave after being employed in the county for more than 90 days in a calendar year, on a full-time or part-time basis.

Employees can use their safe leave time to:

  • attend or testify in criminal or civil court proceedings related to domestic violence or human trafficking; or
  • move to a safe location.

In providing the time, employers cannot set a minimum increment of use but can require an employee to provide reasonable documentation that leave was used for a covered purpose.  Employers must keep confidential the information an employee provides in support of a request for safe time leave, and such information cannot be disclosed without the employee’s written permission, or as required by law.  Employers must keep any health or safety records on a separate form and in a separate file from an employee’s other personnel information.

Mimicking the County’s paid sick leave procedural requirements, employers are obligated to:

  • post a copy of the law in English, Spanish and any other language deemed appropriate by the County, in a conspicuous location in the workplace; and
  • to provide employees with a copy of the law and written notice of how it applies with 90 days of the effective date and, thereafter, upon hire.

Employers face a fine of up to $500 per violation for failing to meet the notice and posting requirements.

Earned Sick Time

Since April 10, 2019, employers in Westchester must provide employees with at least one hour of sick time for every 30 hours worked, up to a maximum of 40 hours per year.  For employers with five or more employees, the sick time must be paid.

Employees can use their sick time:

  • to care for themselves or a family member due to illness, injury, or health condition, need for diagnosis, care, or treatment of mental or physical illness, injury, or health condition, and for preventative medical care;
  • when their place of business, child’s daycare, or child’s school closes due to public health emergency; or
  • if public health authorities deem the employee or a family member a health risk to the community because of his or her exposure to a communicable disease.

As mentioned above, in addition to providing the time, employers must also conspicuously post a copy of the law in English, Spanish and any other language deemed appropriate, as well as provide employees with a copy of the law and written notice of how it applies to them as of July 9, 2019, and, thereafter, upon hire.

An employer that willfully violates the notice and posting requirements may be subject to a fine of up to $500.

The Fair Chance to Work Act

As of March 4, 2019, Westchester County law prohibits employers from discouraging applicants with an arrest record or criminal record from applying for jobs, and from asking about arrest and criminal history on the initial employment application.

More specifically, it prohibits employers with at least four employees from:

  1. making oral or written inquiries or statements related to criminal convictions or arrest records in an employment application;
  2. disqualifying an applicant from employment for refusing to answer an unlawful inquiry or statement related to criminal history, or
  3. specifying qualification criteria based on criminal history in a job advertisement.

Employers can inquire about criminal history after the stage of the initial employment application, but the law requires that employers conduct a relevance analysis under Article 23A of the New York Correction law before making a hiring decision based on an applicant’s adverse criminal history.  An applicant who is denied employment based on criminal history may request a written statement from the employer that details the reasons for the adverse employment decision.

The law recognizes two limited exceptions to the restrictions on criminal history inquiries:

  1. when the employer is subject to “state, federal or county law that required criminal background checks for employment purposes or bars employment based on criminal history”; or
  2. when the applicant is applying for a position at a law enforcement agency, or as a police/ peace officer.

Employers face fines up to $10,000 for willful, wanton, or malicious violations, backpay and compensation, as well as costs and reasonable attorney’s fees.

The Wage History Anti-Discrimination Law

As of July 9, 2018, employers in Westchester have been prohibited from:

  • relying on a prospective employee’s current or prior wage history when determining the wages for a prospective employee, unless the information is voluntarily provided by the prospective employee to support a wage higher than the one being offered by the employer;
  • requesting or requiring that prospective employees disclose current or prior wage information as a condition of being interviewed, considered, or offered employment; and/or
  • seeking wage information from any current or former employer of the prospective employee.

If a prospective employee responds to an offer by providing his or her wage information to support a wage higher than the one offered by the employer, the employer may only seek to confirm that wage information from a current or former employer after obtaining written authorization from the prospective employee.

Employers are prohibited from retaliating or refusing to hire an individual based upon their salary history or because they exercised their rights under the law.

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9

July, 2018

Moving Forward After #MeToo – Consider Your Policies

Recent changes to New York State law regarding prevention of sexual harassment will require employers to revisit existing policies to comply with newly-mandated provisions, as summarized in our lead story from Takeaways, Spring 2018.  But looking beyond the state law, one key lesson to be derived from the #MeToo movement is that workplace policies prohibiting harassment must also emphasize power disparities.  The common thread in so many of the #MeToo-type incidents reported in the media is the use of, or perceived threat to use, power to objectify or demean someone.   This power-based focus is not just limited to gender; it plays out in interactions between individuals of different races, national origin, religions, sexual orientation and other protected classes, and thus it should be emphasized in any policy prohibiting harassment, not just those pertaining to sexual harassment.

Power disparities also are not limited to supervisor-subordinate relationships.  Consider a new hire being shown the ropes by an employee with five or ten years of experience.  Those individuals may be peers on an organization chart, but there still is a power disparity that can cause the new hire to feel uncomfortable objecting to offensive behavior.

Other times, the behavior at issue may not fall into the category of actionable harassment based on a protected characteristic.  Sometimes the behavior is just demeaning and abusive on an individual or group level.

Regardless of whether the behavior would give rise to a legal claim, the nature of such conduct can be corrosive in the work environment.  It can undermine morale, loyalty and productivity.  One step in addressing that is to add a clear, express statement in your anti-harassment policy that you will not tolerate the use of, or perceived threat to use, power to objectify or demean someone based on a protected class.  Employers that want to go further than the law can build on that with an anti-bullying or workplace conduct policy emphasizing that actual or perceived misuse of power, including abusive behavior, is not acceptable and grounds for disciplinary action.

Employment policies need to comply with legal requirements, but employers have the option of holding employees to a higher standard of behavior.  Updating policies to incorporate lessons learned from #MeToo is an important step in that process.

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15

May, 2018

What’s Different About New York’s Harassment Prevention Training Mandate

Beginning this fall, employers in New York State will be required to provide interactive harassment prevention training to employees.  This is not a new concept – such training has been mandated for years in California, Connecticut and Maine – but the scope, nature and frequency of the training are quite different from what other states have legally required.  Consider:

  • All private employers are covered – other states only mandate employers of a certain size to provide such training; New York’s law applies to every private sector employer;
  • All employees are covered – other states only mandate training for those at a supervisor level or above; New York’s law covers employees at every level of the organization;
  • It must be done annually – other states require biannual training;
  • It needs to cover legal rights and remedies with regard to sexual harassment – other states take a more holistic approach to discussing all forms of unlawful harassment, discrimination and retaliation; a prudent New York State employer would do the same and look beyond just sexual harassment;
  • There is no minimum duration – other states mandate two hours of training; New York sets no time limit, but mandates interactivity and a list of subjects to be covered.

The Department of Labor and the Division of Human Rights are currently working to develop a model of the type of training program they expect employers to implement.

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28

November, 2016

NY Employers Still Must Consider Classification of Exempt Employees

For New York employers, the recent federal hold on the FLSA regulatory changes is not the final word. New York State law changes have been proposed, which are far more likely to move forward, that will similarly increase the base salary thresholds for employers in the state, albeit not quite to the level of the proposed FLSA regulations (that level will be reached within the next two to four years, and ultimately surpassed for employers in New York City and the surrounding suburbs). Read More

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8

September, 2016

Restrictive Covenants: One Size Should Not Fit All

As employers strive for that little edge to stay ahead of their competitors, restrictive covenants – clauses that limit an employee’s ability to work for a competitor, solicit and/or service their employer’s customers, contract with their employer’s vendors, and/or entice away their employer’s staff – have become increasingly common in all types of work environments and for all levels of employees.  From my business clients I know that these clauses are valued for their deterrent effect, even if the employer does not intend to actively enforce them in most situations.  But from my representation of departing and departed employees, I have also seen the dark side of such covenants, with employers who threaten departed employees and imperil their status with their new employer by claiming a breach of covenants that are of questionable enforceability. Read More

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