New York Labor & Employment Statutes Archives

January 5, 2012

First Annual Written Pay Notice under the New York Wage Theft Prevention Act Due by February 1, 2012

            2012 is the first year that private-sector New York employers must provide the annual written pay notice required by the Wage Theft Prevention Act.  Although the initial passage of the Wage Theft Prevention Act over a year ago garnered significant attention, it is worth reiterating now that the February 1 deadline for provision of the annual notice is rapidly approaching and employers should use the remaining time to ensure compliance with the new notice obligations.


            On December 14, 2010, then-Governor David Paterson signed the Wage Theft Prevention Act, S. 8380/ A. 11726 (the "Act"), into law in New York State, which amended Section 195 of the New York Labor Law.  Joining a growing number of states with similar wage theft legislation, the Act sought to address classification of employees and payment of statutorily-mandated minimum wages and overtime, and included enhanced civil and criminal penalties for non-compliance.  In effect since April 9, 2011, the requirements applies to all private-sector employers in New York.


            Under the Act, every employee, whether full or part-time, whether covered by a union contract or not, and regardless of exempt status, must receive a written pay notice between January 1 and February 1 of each year, including the following information:

  • the employee's rate of pay, including overtime rate of pay, if non-exempt;
  • the basis of the wage payment (e.g., by  the  hour, shift, day, week, salary, piece, commission, or other); 
  • the regular payday;
  • the allowances taken as part of the minimum wage (e.g., tip, meal and lodging deductions); 
  • the employer's official name and any other "doing business as" names; and 
  • the address and phone number of the employer's main office or principal location, and mailing address if different. 


2012 is the first year that employers must provide the annual written pay notice, which applies even if none of the information has changed from the prior year.          


            Under the Act, the notice must be provided in English and in the employee's primary language if the New York Department of Labor ("NY DOL") offers a translation.  Currently, the NY DOL offers dual language translations in Chinese, Haitian Creole, Korean, Polish, Russian, and Spanish, all of which are available here.  Employers with seasonal employees on layoff between January 1 and February 1 must furnish the notice as soon as the employees return from layoff.  The notice may be distributed electronically, but only if employees' receipt of the notice and acknowledgment is verifiable and if the employee is able to print a copy for their records. 


            In addition, the Act requires employers to obtain a signed and dated acknowledgment of the notice from each employee.  Employers must retain copies of the notice and accompanying acknowledgment for six years, and provide them to the NY DOL upon request.  If an employee refuses to acknowledge the notice, an employer should still give the notice and note the refusal on its retained copy.  Moreover, an employee cannot waive the written notice requirement.  The NY DOL can assess penalties of $50 per week per employee if a proper written notice is not provided, and employees can sue for not receiving a proper written notice with damages capped at $2,500 per employee. 


            With the February 1, 2012 deadline rapidly approaching, employers should take any remaining steps necessary for to meet the annual notice requirements.  The NY DOL provides web-based, printable model templates for employers seeking guidance, which are available here.  The Act does not require the use of these particular forms, and employers may develop their own forms so long as all the information legally required is included.  The NY DOL has also published a Fact Sheet on the Act, available here, and a set of FAQs, available here.


            This post was authored by Matt Lampe, Joseph Bernasky, and Jenny Ma of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.



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February 15, 2012

Suit Against Gucci Executive Remains A Good Fit

It is common to see individuals named as defendants in discrimination cases brought under New York State or New York City law. Unlike Title VII, which does not provide for individual liability according to the Second Circuit (Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995), abrogated on other grounds by Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), both the New York State Human Rights Law and the New York City Human Rights Law provide one or more bases upon which an individual can be held liable for discriminatory conduct.

The issue of individual liability under the State law was recently the focus of a decision by District Judge J. Paul Oetken in Robinson v. Gucci America, et al., 11-CV-3742 (February 9, 2012). In Robinson the Plaintiff, a tax attorney for Gucci, accused the company and several executives, including Matteo Mascazzini, Gucci's Associate President, of several violations of State and Federal discrimination law, including sex, race, national origin and disability discrimination, and retaliation, in connection with her termination of employment. According to the Complaint, Robinson alleged that she had been subjected to sexual harassment by her supervisor "almost from the time she started at Gucci", and that her complaints to Human Resources went unheeded. After several run-ins with Human Resources and other executives, Robinson was placed on the first of two administrative leaves that Gucci directed.

Up to this point, there is no mention of wrongdoing by Mascazzini in the Complaint, a not unsurprising development, given his position as Associate President. Mascazzini became involved, however, upon Robinson's return from her first administrative leave, when Robinson was told to report to a different work location, in New Jersey. When Robinson demurred, Mascazzini directed her to report to New Jersey, and it was this instruction that formed the basis of her claim that Mascazzini retaliated against her under the "aiding and abetting" theory of liability found in the New York State Human Rights Law.

In moving to dismiss the claim against him, Mascazzini conceded for the purpose of the motion that the move to New Jersey constituted an adverse employment action. Nor did he dispute that Robinson engaged in protected activity. Instead, Mascazzini focused on the absence of any allegation in the Complaint that he had knowledge of Robinson's alleged prior protected conduct; therefore, he could not have "retaliated" against her for engaging in that protected conduct.

Citing the "plausibility" standard for determining dismissal motions (that a Plaintiff must plead sufficient facts to state a claim to relief that is plausible on its face), the Court rejected Mascazzini's argument, and denied his dismissal motion. The Court was persuaded by several factors: (1) that Robinson was not licensed to practice in New Jersey, and told this to Mascazzini; and (2) that Robinson told Mascazzini at their meeting that she was being retaliated against. According to the Court, these factors lead to the conclusion that there was "no logical reason" for the direction to work in New Jersey, and that such a circumstance "constitute[s] strong evidence of an intent to discriminate." Thus, based on the pleadings, the Court determined that a reasonable inference that Mascazzini aided and abetted retaliation could be drawn.

The decision provides a cautionary tale for executives one or two levels removed from direct supervsion of an employee turned plaintiff. Presumably, had Mascazzini not inserted himself into the dispute by directing Robinson to report to the New Jersey location, either he would not have been named a defendant, or the Court would have dismissed the claim against him. Mascazzini can take some comfort, however, in the fact that the decision was rendered only at the pleading stage, and that Robinson still has the burden of proving to a jury that he unlawfully retaliated against her.

April 10, 2012


On February 29, 2012, the New York State Senate passed Bill S60631-2011, which would eliminate the annual notice requirement under the New York State Wage Theft Prevention Act, which we discussed in a prior post.  The Bill does not add text to the Wage Theft Prevention Act, and keeps intact the notice requirements for new hires, but deletes the language regarding the requirement that such notices be provided "on or before February first of each subsequent year of the employee's employment with the employer...." 

The Bill was introduced by Senator DeFrancisco on January 4, 2012.  The Senate Memo summarizing the Bill explains, as its justification, that the annual notice requirement "imposes a new administrative cost on every private sector employer in the state, with aggregate costs in the millions of dollars, and will do little to improve overall compliance with the state's wage laws. The Department of Labor has conceded that wage compliance is an issue for only a small percentage of New York State employers, despite the universal application of this annual notice requirement. This type of annual notification requirement should be reserved for instances where non-compliance has been an issue, however, as an across the board measure, it will add costs and provide little if any additional benefit.  Moreover, this modification to the WPTA leaves in place its most significant reforms intended to assure payment of all wages earned by employees."

Now that the Bill has passed the Senate, it has been delivered to the Assembly, where an identical bill (A08856) is pending, and if passed by the Assembly, will be presented to the Governor for signature.  New York employers should stay tuned for further developments on this Bill. 

This post was authored by Matt Lampe and Joseph Bernasky of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association. 

January 26, 2013

New York City Council Votes to Amend Human Rights Law to Include "Unemployment" as Protected Classification; Veto and Override Expected

On Wednesday, January 23, 2013, the New York City Council passed a bill amending the City's Human Rights Law to prohibit employment discrimination based upon an employee or applicant's "unemployment status." It defines "unemployment status" as "an individual's current or recent unemployment." Under the amendment, however, an employer is not precluded from considering unemployment status data that is substantially job related where it has a bona fide reason for doing so. Nor is an employer barred from inquiring as to prior terminations or demotions, including whether such action was taken for cause.

The amendment also addresses the advertisement of job vacancies by proscribing the inclusion of any statement that being currently employed is a job requirement or that unemployed applicants will not be considered.

It has been reported that Mayor Michael Bloomberg plans to veto the bill. In response, City Council Speaker Christine Quinn was quoted saying that should Bloomberg veto it, she is confident she has the votes to override him.

June 4, 2013

Second Circuit Vacates Summary Judgment, Finding District Court Applied Wrong Standard In Evaluating Claims Under NYCHRL

The Second Circuit, in Mihalik v. Credit Agricole Cheauvreux North America, Inc., No. 11-3361-cv (2nd Cir. April 26, 2013), ruled that federal standards do not govern claims under the New York City Human Rights Law ("NYCHRL"). Instead, such claims require a separate and independent analysis. The court explained that that the 2005 amendment of the NYCHRL compels this result.

Citing the First Department's decision in Williams v. New York City Housing Authority, 872 N.Y.S.2d 27 (1st Dep't 2009), the Second Circuit explained that under the NYCHRL the "severe and pervasive standard" is not the test of liability for gender discrimination, but is relevant only to the issue of damages. To prevail on liability, the plaintiff need only demonstrate by "a preponderance of the evidence that she has been treated less well than other employees because of her gender." The court cautioned, however, that the NYCHRL is not a "general civility code." Therefore, the plaintiff still must demonstrate "discriminatory motive," which requires a showing that she has been treated less well, at least in part, due to her gender.

Addressing the standard for a retaliation claim under the NYCHRL, the Second Circuit instructed that the plaintiff must establish that she opposed her employer's act(s) of discrimination and the employer responded with conduct "reasonably likely to deter a person from engaging in such action." The court opined that in the context of this case, Mihalik did not need to demonstrate that she was discharged for opposing her supervisor's alleged offensive behavior because "a jury could reasonably find that publicly humiliating Mihalik in front of her male counterparts and otherwise shunning her was likely to deter a reasonable person from opposing his harassing behavior in the future."

July 9, 2013

The New York City Council Overrides Mayor Bloomberg's Veto of the Earned Sick Time Act By A 47 To 4 Margin

On June 26, 2013, the New York City Council (the "Council") voted 47-4 to override Mayor Michael Bloomberg's veto and adopt the New York City Earned Sick Time Act (the "Act"). The Act will require employers with 20 or more employees to begin providing paid sick leave on April 1, 2014. Employers with 15 to 19 employees would be required to provide paid sick leave starting October 1, 2015. These dates could be delayed depending on economic conditions, as measured against the New York Coincident Economic Index, a Federal Reserve Index that measures the New York City economy.

The Act entitles employees to up to five paid sick days (40 hours) annually, which will accrue at the rate of one hour for every thirty hours worked. Employees can begin to use accrued paid sick time after they have been employed for at least 120 days or 120 days after the Act goes into effect, whichever is later. Both part-time and full-time employees are covered, so long as they are employed more than 80 hours in a calendar year. At the end of the year, the employer must either allow the employee to carry over unused accrued paid sick time to the following year (subject to the 40 hour maximum) or pay the employee for the unused accrued paid sick time. Employers are not required to reimburse employees for unused accrued paid sick time upon the employee's termination, resignation, retirement, or other separation from employment.

Employees are entitled to use sick time for absences due to (1) the employee's mental or physical illness, injury or health condition, need for medical diagnosis, care or treatment, or need for preventative medical care; (2) care of a family member needing such medical diagnosis, care or treatment; or (3) closure of the place of business due to a public health emergency or to care for a child whose school is closed due to a public health emergency.

Employees working for employers with less than fifteen employees will be entitled to up to five days of unpaid, job-protected leave once the Act becomes effective. The Act also imposes sick leave requirements on employers of domestic workers. The Act will not apply to any employee covered by a collective bargaining agreement that expressly waives the Act's provisions or provides for comparable benefits. Any employer with a paid leave policy that provides an amount of paid leave sufficient to meet the accrual requirements of the Act is not required to provide additional paid sick time.

The Act mandates that employers retain records documenting the number of hours worked by employees and sick time accrued and taken by employees for a period of at least two years. Employers are required to provide employees with written notice of their entitlement to paid sick time and display a poster in a conspicuous location highlighting the rights guaranteed under the Act. Additionally, the Act includes non-retaliation provisions, which if violated can lead to monetary penalties and other forms of equitable relief.

The Department of Consumer Affairs (the "Department") is responsible for investigating and enforcing the Act. The Department can impose civil penalties ranging from $500 to $1,000 per violation. The Department can also order the employer to pay penalties to the affected employee. For unlawful termination, the Department can award back pay and equitable relief (including reinstatement). Employees have no right to bring a private civil action for violations of the Act.

Employers should begin to consider what steps are necessary to comply with the Act in advance of the effective date. Even those employers who already provide paid leave will need to review existing policies to determine whether those policies meet the specific accrual requirements of the Act, as well as its unique coverage requirements (which extend protection to both part-time and full-time employees). Furthermore, employers will need to ensure compliance with the recordkeeping and notice requirements of the Act.

This post was authored by Matt Lampe, Wendy Butler, Emilie Hendee, and Joshua Grossman of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

October 4, 2013

Mayor Bloomberg Signs Law Expanding Protections for Pregnant Workers

On October 2, 2013, Mayor Bloomberg signed into law an amendment to the New York City Human Rights Law that expands protections for employees who need reasonable accommodations relating to pregnancy, childbirth, or related medical conditions (Bill No. 0974-2012), after the bill was unanimously approved by the New York City Council on September 24, 2013.  The law will take effect on January 30, 2014 (120 days after it was signed into law). 

The amended law will require most New York City employers to provide reasonable accommodations to pregnant women and those who suffer medical conditions related to pregnancy and childbirth.  The text of the amended law includes examples of reasonable accommodations that might be required, such as "bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor."  Consistent with existing law, a reasonable accommodation does not include accommodations that would cause "undue hardship" to an employer's business.

The law will apply to all businesses with four or more workers, counting both employees and independent contractors, thereby expanding protections that are already available under existing federal, state and local laws.  Employees who believe they have been discriminated against will be able to file a complaint with the New York City Commission on Human Rights or bring an action in court against their employer.

Employers will be required to provide written notice in a form to be determined by the NYC Commission on Human Rights of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions.  The notice must be provided to: (1) new employees at the commencement of employment; and (2) existing employees within 120 days after the effective date of the new law.  Such notice may also be conspicuously posted at an employer's place of business in an area accessible to employees.  The commission will conduct ongoing public education efforts to inform employers, employees, employment agencies, and job applicants about their rights and responsibilities under this law.

This post was authored by Matt Lampe and Emilie Hendee of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

October 19, 2014

New York City Council Considers Legislation Limiting Inquiries into Applicants' Criminal and Credit Histories

Currently pending before the New York City Council (the "Council") are two bills that could significantly affect hiring processes utilized by New York City employers.  The proposed Fair Chance Act and the Stop Credit Discrimination in Employment Act would restrict what employers may inquire about regarding job applicants' criminal and consumer credit histories.  If passed, the bills would require employers to review and potentially revise their hiring practices, including the use of criminal background searches and credit checks. 


Introduced in April 2014, the Fair Chance Act (the "FCA"), which has been described as "ban-the-box" legislation, would amend the New York City Human Rights Law (the "NYCHRL") to prevent pre-employment inquiries into an applicant's conviction or arrest history.  The New York Correction Law § 23-A currently requires employers to conduct a multi-factor analysis before refusing to hire an applicant based on his or her criminal history.  This analysis considers, among other things, any bearing the criminal offense would have on the applicant's fitness or ability to perform the duties related to the position, the time that has elapsed since the offense, the applicant's age at the time of the offense, the seriousness of the offense, any information produced on behalf of the applicant relating to his or her rehabilitation and good conduct, and the employer's legitimate interest in protecting property and the safety and welfare of specific individuals or the general public.  The employer may only refuse to hire an applicant based on his or her criminal conviction if there is a direct relationship between the prior criminal offense and the specific job sought, or if hiring the individual would pose an unreasonable risk to property or others' safety.


The FCA extends these protections by requiring that employers first deem an applicant qualified for a job and make a conditional job offer before inquiring into an applicant's criminal history or conducting any criminal history search.  The bill defines "inquiries" to include questions in a job application or in a standalone document, searches of publicly available records or consumer reports, or even mentioning that a background check will be required.  However, employers who are legally required to conduct a criminal history search may inform applicants that the job is subject to a background check and that the employer is prohibited from employing individuals with certain criminal convictions.


The FCA also provides that if an employer intends to take an adverse employment action based on a criminal inquiry, it must provide the applicant with a written copy of the criminal inquiry and the multi-factor analysis the employer is required to conduct.  The applicant must then be provided a minimum of seven business days to respond, during which time the position must remain open.  Once the response time has lapsed, the employer no longer needs to wait for an answer.  An employer who violates these new requirements could be liable for a minimum of $1,000 in damages and is presumed to have engaged in unlawful discrimination, which can only be overcome with "clear and convincing evidence" demonstrating otherwise.  Further, an applicant may not be disqualified from prospective employment based on a response to an unlawful inquiry or statement under the FCA.  Employees who claim that their rights have been violated under the FCA would be entitled to a private cause of action.


Also pending before the Council is the Stop Credit Discrimination in Employment Act (the "Act"), which would amend the NYCHRL to prohibit employers from requesting or using for employment purposes information contained in an applicant's consumer credit history or to retaliate or otherwise discriminate against an applicant based on the applicant's credit history.  The Act defines "consumer credit history" as "any information bearing on an individual's credit worthiness, credit standing, or credit capacity, including but not limited to an individual's credit score, credit account and other consumer account balances and payment history."  However, the Act would not apply to employers that are required under state or federal law to use an individual's consumer credit history for employment purposes.


Employers should monitor the Council's legislative activity on both bills and, if they are passed, review and revise hiring policies and practices.


This post was authored by Matt Lampe, Emilie Hendee, and Sharon Cohen of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

November 20, 2015

Governor Cuomo Signs Amendments to Equal Pay and Human Rights Laws

On October 21, 2015, New York Governor Andrew Cuomo signed legislation amending New York State's Human Rights Law and New York Labor Law to expand protections available to employees.  The amendments will become effective January 19, 2016. 

New York Equal Pay Law

New York's equal pay law (N.Y. Lab. Law §§ 194, 198), which currently allows employers to justify a pay difference between employees of opposite genders based on a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or "any other factor other than sex," has been amended in three ways.  First, the new law (S.1/A.6075) removes the last permissible basis for differentiation, replacing it with narrower language that allows a pay differential to be based on "a bona fide factor other than sex, such as education, training, or experience."  Under the amended law, a "bona fide factor" cannot be based on a "sex-based differential in compensation" and must be "job-related with respect to the position in question" and consistent with business necessity.  An employee may challenge a "bona fide factor" defense by showing that the employer's practice causes a disparate impact on the basis of sex, that an alternative practice exists that would serve the same business purpose, and that the employer has refused to adopt the alternative practice.

Second, the bill bans employers from retaliating against employees for discussing their wages with one another.  Employers may, however, establish reasonable time, place and manner prohibitions on such discussions, such as "prohibiting an employee from discussing or disclosing the wages of another employee without such employee's permission."  This retaliation prohibition and the new "bona fide factor" exception closely follow language in the so-called "Paycheck Fairness Act," a long-proposed amendment to the federal Equal Pay Act.

Third, the bill provides for additional "liquidated" damages of up to 300% of the wages due in cases where an employer is unable to prove that it acted in good faith when violating the law.  This is a significant increase from the current version of New York's equal pay law, which, like the federal Equal Pay Act, only provides for liquidated damages of up to 100% of wages due. 

New York Human Rights Law

The New York State Human Rights Law has been amended in four ways.  First, S.2/A.5360 amends N.Y. Exec. Law § 292 to allow sexual harassment suits against employers regardless of the number of employees employed by the company.  Under existing law, employers with fewer than four employees are excluded from the definition of "employer."  This amendment creates a limited exception to this definition for sexual harassment suits. 

Second, S.3/A.7189 amends N.Y. Exec. Law § 297 to  grant courts and the state Commissioner of Human Rights the discretion to award reasonable attorneys fees to the prevailing party in claims of employment or credit discrimination on the basis of sex.  Under existing law, attorneys fees may only be awarded in housing discrimination cases.

Third, S.4/A.7317 amends N.Y. Exec. Law § 296 to prohibit employment discrimination on the basis of "familial status."      

Fourth, S.8/A.4272 amends N.Y. Exec. Law §§ 292 and 296 to require reasonable accommodations for employees with a "pregnancy-related condition."  The amendment defines the term "pregnancy-related condition" 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."  The term is limited, however, to conditions that may be reasonably accommodated without preventing the complainant from performing in a reasonable manner the activities associated with the job in question. The term "reasonable accommodation" is defined to exclude actions that would "impose an undue hardship" on the employer.  The amendment also requires employees seeking an accommodation for their disability or pregnancy-related accommodation to cooperate in providing medical and other information necessary to verify the disability or pregnancy-related condition or for the consideration of the accommodation.

Employers should evaluate their current workplace policies to ensure they are consistent with these amendments. 

This post was authored by Matt Lampe, Emilie Hendee, Michael Casertano, and Michael Ferruggia of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association. 

March 9, 2016

New York City Council Amends Human Rights Law

On March 9, 2016, the New York City Council passed legislation to amend the City's Human Rights Law ("NYCHRL").  Together, the legislation requires that exceptions or exemptions to the NYCHRL be construed narrowly, endorses three court opinions that the Council states properly applied the 2005 "Restoration Act," allows attorney's fees to be awarded to prevailing complainants in administrative complaints, and repeals language addressing how to construe the NYCHRL's prohibition on discrimination based on sexual orientation.

The Mayor is expected to sign the bills within a few weeks.  Once the Mayor signs them, they will become law effective immediately. 

The first bill, Intro 814-A, would build on the Council's Restoration Act of 2005, which required that the NYCHRL "be construed liberally for the accomplishment of [its] uniquely broad and remedial purposes" regardless of how courts have interpreted similar provisions under state and federal anti-discrimination laws.  Intro 814-A adds a specific provision requiring that any exceptions and exemptions in the NYCHRL be construed narrowly.  It also specifically endorses three court opinions that the Council characterizes as having "correctly understood and analyzed the liberal construction requirement" of the Restoration Act: Albunio v. City of New York, 16 N.Y.3d 472 (2011); Bennett v. Health Management Systems, Inc., 92 A.D.3d 29 (1st Dep't 2011); Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep't 2009).

Taken together, these cases set forth the following guidance for courts in interpreting the NYCHRL:   

·                 ·         The Restoration Act requires that all provisions of the NYCHRL be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible."  See Albunio, 16 N.Y.3d at 477-78.

·               ·         The following analysis of the NYCHRL's burden shifting framework in the context of summary judgment motions is appropriate:

o        In determining whether a prima facie case has been made, the inquiry is whether "the initial facts described by the plaintiff, if not otherwise explained, give rise to the McDonnell Douglas inference of discrimination."

o        If a defendant puts forth evidence of a legitimate, nondiscriminatory motive, the court "ordinarily" should avoid the issue of whether the plaintiff brought forth a prima facie case.  Instead, the Court should determine whether the defendant has shown that no jury could find for the plaintiff under "any" of the "evidentiary routes--McDonnell Douglas, mixed motive, 'direct' evidence, or some combination thereof."

o       "[E]vidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied" regardless of conflicting Supreme Court precedent stating that the evidence must indicate that the pretext was pretext for discrimination in order to survive summary judgment.   See Bennett, 92 A.D.3d at 45.

·              ·         Retaliation claims under the NYCHRL are not limited to material changes in terms and conditions of employment.  See Williams, 61 A.D.3d at 70-71.

·              ·         The continuing violations doctrine applies to discreet acts of discrimination.  Id. at 72-73.

    ·         The "severe and pervasive" test does not apply to sexual harassment claims brought under the NYCHRL except in considering damages.  Id. at 73-81.

The second bill, Intro 818-A, would permit the City's Commission on Human Rights (the "Commission") to award attorney's fees and costs to complainants in cases brought before the Commission.  The bill does not permit the Commission to award fees to a prevailing respondent.  Currently, the NYCHRL permits courts to award attorney's fees and costs to a prevailing party only in civil actions. 

Intro 818-A directs the Commission and courts to consider "the hourly rate charged by attorneys of similar skill and experience litigating similar cases in New York county" when factoring an hourly rate into an attorney's fee award.  It also permits the Commission and courts to award expert's fees.

The final bill, Intro 819, would repeal language addressing how to construe the NYCHRL's existing prohibition on discrimination based on sexual orientation.  Specifically, the existing language being repealed states that the law should not be construed to: (a) restrict an employer's right to insist that an employee meet bona fide job-related qualifications of employment; (b) authorize or require affirmative action quotas or to make inquiries regarding the sexual orientation of current or prospective employees; (c) limit or override exemptions in the human rights law (including the exemption of employers of fewer than four persons and religious institutions); (d) make lawful any act that violates the New York penal law; or (e) endorse any particular behavior or way of life.

Notably, there is no complimentary language in the NYCHRL addressing how to construe the law's prohibitions on discrimination based on other protected categories.  Based on testimony in Committee, the intended effect of this bill appears largely symbolic, as the Council deems the repealed language to be unnecessary, antiquated, and offensive.

The Committee also passed two bills that would amend the NYCHRL that are not related to discrimination in the workplace.  Intro 805-A applies the NYCHRL's prohibitions on discrimination in public accommodations to franchisors, franchisees, and lessors.  Intro 832-A prohibits housing discrimination based on a tenant's actual or perceived status as a victim of domestic violence, sex offense, or stalking. 

This post was authored by Matt Lampe, Kristina Yost, and Michael Casertano of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

January 2, 2017

NY Employers Should Be Aware of Recently Adopted Changes to Salary Threshold For NY Overtime Exemptions

On December 28, the New York State Department of Labor adopted regulations that will increase the salary threshold for exempt employees. As a result, many more employees in New York (i.e., those who will no longer meet the new salary threshold) will become eligible for overtime pay.

The amount of the increase varies by region and by the size of the employer and will gradually increase over time. In New York City, for employers with 11 or more employees, the new salary threshold will be $825 per week on and after December 31, 2016; $975 per week on and after December 31, 2017; and $1,125 per week on and after December 31, 2018. For small employers with employees in New York City, and for employers with employees outside New York City (but within New York State), the increases are smaller and phase in over a longer period. For example, for upstate employees, the new salary threshold will be $727.50 per week on and after December 31, 2016, and will gradually increase each year until it reaches $937.50 per week on December 31, 2020.

Importantly, this change in New York law will become effective without regard to the fate of the federal regulations that were scheduled to go into effect on December 1, 2016. Those regulations, which were enjoined by a federal court in the Eastern District of Texas, would have increased the federal salary threshold for white collar employees from $455 per week to $913 per week.

The changes in the New York salary threshold could very well take employers by surprise, since the regulations were published with little fanfare. The New York Department of Labor published the rule to comply with a 2016 law that increased minimum wage rates for nonexempt employees in New York. Although that law did not specifically call for increases to the salary threshold for exempt employees, the law instructed the Department of Labor to revise its wage orders "to increase all monetary amounts specified therein in the same proportion as the increase in the hourly minimum wage as provided in this [section]." The law further provided that the changes could be promulgated by the DOL without public hearing and without reference to a wage board, and that such changes "shall become effective on the effective date of such increases in the minimum wage ...."

The upshot of these changes is not intuitive and requires a close examination of New York's wage orders. For employers covered by the Miscellaneous Wage Order, there are two different overtime rates. One overtime rate, applicable to employees who are entitled to overtime under the Fair Labor Standards Act ("FLSA"), is calculated as 1.5 time the employee's regular rate. The other overtime rate, applicable to employees who are not entitled to overtime under the FLSA, but are entitled to overtime under New York law, is calculated as 1.5 times the New York minimum wage, which may very well be lower than the employee's regular rate.

Take, for example, an employee in New York City who earns $800 per week and works for a large employer. As of December 31, 2016, that employee will meet the salary threshold for the federal exemption (assuming the injunction is not lifted), but will not meet the salary threshold for the New York exemption. Thus, the employee, if he or she satisfies the duties test for exemption, will be exempt from federal overtime. But the employee will be below the salary threshold for New York, and thus must receive 1.5 times New York minimum wage for hours worked over 40 in a week. In New York City, the minimum wage for large employers will be $11 per hour as of December 31, 2016. So this employee's overtime rate will $16.50 (which is 1.5 x $11). While the overtime pay for such an employee could be significant, it would be less than what would be required under federal law if the employee were overtime eligible under federal law. Federal overtime would be $30 an hour, which is 1.5 times the employee's hourly rate of $20.

Employers subject to the Hospitality, Fast Food, and/or Building Service wage orders should consult the provisions of the applicable wage order, which may vary from the provisions described above. For instance, employers covered by the Hospitality Wage Order must pay overtime at 1.5 times the regular rate to all overtime-eligible employees, and cannot take advantage of the lower rate (1.5 times minimum wage) described in the above example.

Another compliance challenge arises due to the regional variation in salary thresholds. An employee who works in New York City some weeks, but travels upstate in other weeks, may satisfy the exemption test when working upstate, but loose exempt status while working in New York City because of the higher salary threshold applicable in New York City. The New York Department of Labor has issued guidance indicating that in such situations, the employer can increase the employee's salary in weeks the employee works in a higher salary threshold region to avoid paying overtime.

This post was authored by Matt Lampe and Wendy Butler of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

January 27, 2017

Governor Cuomo Signs Executive Orders Concerning Salary Issues

New York Governor Andrew Cuomo has unveiled his annual State of the State proposals for 2017, which include new salary reporting requirements for state contractors, a prohibition on salary history inquiries to job applicants by state agencies, and proposed legislation aimed at punishing wage theft, among other initiatives.

Executive Order 162, signed by Governor Cuomo on January 9, 2017, will require state contractors and subcontractors to report job title and salary data for all employees working on state contracts, in addition to the data on gender, race, and ethnicity that is currently required. If an employer cannot identify the individuals working directly on a State contract, it will be required to report such information for its entire workforce. State agencies and authorities are required to include provisions mandating such reporting in all contracts, agreements, and procurements issued and executed on or after June 1, 2017. Executive Order 162 requires monthly reporting on all contracts in excess of $100,000 and quarterly reporting all contracts in excess of $25,000. The form of these reports, and the manner for reporting, has been delegated to the New York State Department of Economic Development, which will be issuing regulations pursuant to this Executive Order.

Governor Cuomo's issuance of Executive Order 162 comes on the heels of the September 2016 amendments by the United States Equal Employment Opportunity Commission to the Employer Information Report (or "EEO-1"). The new EEO-1 would require employers with 100 or more employees and government contractors with at least 50 employees and a contract of at least $50,000 to report summary pay data in aggregate form according to a set of pay bands starting in March 2018.

Under a separate Executive Order also signed by Governor Cuomo on January 9, 2017 (Executive Order 161), state agencies are prohibited from inquiring about or relying on a job applicant's salary history until a conditional offer of employment has been made. The announcement is the latest in an emerging trend in cities and states to prohibit or restrict salary inquiries. Governor Cuomo's Executive Order, which applies only to State agencies, suggests he will support S.24, a state bill introduced in January that would prohibit salary inquiries by private employers. New York City Mayor Bill de Blasio executed a similar measure in November 2016 prohibiting salary inquiries by City agencies. The New York City Council, with Mayor de Blasio's support, is also expected to pass legislation prohibiting such inquiries by private employers.

Governor Cuomo also announced legislation targeting wage theft. One bill would hold the top ten shareholders of out-of-state limited liability companies ("LLCs") personally liable for wage theft claims, extending an existing law that applies to in-state LLCs and both in- and out-of-state corporations. According to Cuomo, the legislation is intended to provide relief for claimants seeking damages from bankrupt companies. Governor Cuomo also announced legislation to "empower the Labor Commissioner to directly enforce all wage liabilities on behalf of workers with unpaid wage claims" but did not provide further details.

Finally, Governor Cuomo announced legislation that would require the state to give preference to American-made goods and products in any new procurement contracts of $100,000 or more. To qualify as "American-made" under the Governor's proposal, "end manufacturing processes should take place in the United States and more than sixty percent of the components of the manufactured good should be of domestic origin."

Governor Cuomo's Executive Orders and announcements are another sign of a continuing trend by federal, state and local jurisdictions focusing on compensation related issues. State contractors in particular should be cognizant of the new reporting requirements, which will likely be more burdensome and take effect sooner than their Federal counterparts.

This post was authored by Matt Lampe, Martin Schmelkin, and Michael Casertano of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

April 3, 2017

NYC Poised to Ban Salary History Inquiries

On April 5, 2017, the New York City Council (the "Council") will vote on legislation to prohibit employers from inquiring about the salary and benefits histories of job applicants. The Council's Civil Rights Committee held a hearing on an earlier draft of the bill in December 2016. Following a Committee vote on the amended bill on April 4, 2017, the full Council is expected to pass the legislation with Mayor Bill de Blasio's support.

Introduction Number 1253-A would prohibit employers from inquiring about the salary history of an applicant or from relying on an applicant's salary history in determining compensation. The amended bill defines "to inquire" broadly to include questions to the applicant, the applicant's current or former employer, or current or former agents of such applicant's current or former employer. It also includes conducting searches of publicly available records, but does not prohibit employers from informing applicants about the proposed or anticipated salary or salary range.

The amended bill also defines "salary history" broadly to cover all wages and benefits, but does not preclude employers from making inquiries regarding objective measures of productivity, such as revenue or sales.

As with the original draft of the bill, the amended bill allows employers to consider an applicant's salary history where an "applicant voluntarily and without prompting discloses [such] salary history." Importantly, the amended bill also makes clear that an employer "may, without inquiring about salary history, engage in discussion with the applicant about their expectations with respect to salary, benefits and other compensation, including but not limited to unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant's resignation from their current employer." Additionally, an employer may verify an applicant's voluntarily disclosed salary history.

As amended, Intro. No. 1253-A does not apply to internal applicants for transfer or promotion.

If, as anticipated, the bill passes the Council and is signed by Mayor de Blasio, it will take effect 180 days thereafter, or roughly by the end of October 2017, depending on the exact date of the bill signing.

The New York City law reflects a growing trend in states and municipalities around the country, including an Executive Order signed by New York Governor Andrew Cuomo in January prohibiting state agencies from making salary inquiries.

This post was authored by Matt Lampe, Martin Schmelkin, and Michael Casertano of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

About New York Labor & Employment Statutes

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