Effective May 10, 2020, New York City’s Human Rights Law will prohibit employers from requiring job applicants to submit to a marijuana or THC drug test as a condition of employment, with some limited exceptions. The NYC law is the first to ban pre-employment testing, but likely not the last in light of increasing momentum to legalize the recreational use of marijuana. Even states that permit medical or recreational use of marijuana have not enacted laws that prohibit employers from testing job applicants. New York City has opted to ban pre-employment testing even though recreational use of marijuana is not yet legal under New York State or City law. To read more, click here.
New York City continues to advance a progressive workers’ rights agenda that places employees who work in the city in a better position than those who work outside the five boroughs.
Last week, Mayor Bill de Blasio pledged that New York City would seek to pass a mandatory paid two-week vacation law for private-sector employees. Although a proposed bill has not been released, it appears that it will be modeled on New York City’s Earned Safe and Sick Time Act, which applies to employers of at least five employees and confers benefits on workers who work at least 80 hours a year.
On October 17, 2018, the New York City Council passed several bills, referred to as a parental empowerment package, which will likely be signed by the mayor. These bills require employers with 15 or more employees to provide a “lactation space” and “lactation accommodation” for employees who need to express and store breast milk. Specifically, employers will be required to designate a private sanitary place that is not a restroom for purposes of expressing milk. Although since 2008 New York State law has required employers to allow nursing mothers with breaks to express milk, New York City will require a dedicated room for this purpose. In addition to providing a lactation space, which must be in reasonable proximity to the employee’s work area, the law will also require that employers provide a refrigerator that is suitable for breast milk storage.
For employers that are unable to designate a room solely for lactation purposes, the law will permit employers to use a room that is also used for other purposes provided that the primary function of the room will be as a lactation space. An employer will be exempt from the requirement of providing a lactation space if the employer can demonstrate that it would pose an undue hardship in the form of “significant expense or operational difficulty.” Nevertheless, the standard for demonstrating an undue hardship would be high and employers would still be required to accommodate the needs of the employee.
The law will go into effect 120 days after the mayor signs it. In the meantime, employers should prepare now to identify a room that qualifies as a lactation space, and revisit their lactation policies, which will be required to conform to the law’s specific requirement. We are available to answer questions on this law, and as always, will keep you posted on developments, including the effective date of the proposed law.
On December 6, the New York Council introduced several bills as part of New York City’s “Fair Work Week” initiative. The bills primarily apply to certain fast food employers, as well as some retail establishments. These bills may never be enacted into law, and are still subject to negotiation and debate:
- Int. 1384-2016 – Allows fast food employees to designate amounts from wages for contribution to a non-for-profit of their choice, and employers are required to remit such amounts.
- Int. 1387-2016 – Bans “on-call scheduling” for retail employees, and prohibits providing retail employees with less than 20 hours of work during any 14-day work period (not counting time the employee voluntarily takes off).
In our July 6, 2015 Blog, New York City Mayor De Blasio Signs Ban-the-Box Legislation, we wrote about New York City’s enactment of the Fair Chance Act (FCA), which amends the New York City Human Rights Law (NYCHRL) to prohibit most New York City employers from inquiring into or otherwise considering an applicant’s criminal history prior to making a conditional offer of employment. Last week, on November 5, 2015, the New York City Commission on Human Rights (NYCCHR) published its Interpretative Enforcement Guidance on the FCA, which purports to clarify the Act’s requirements and prohibitions. In addition, the NYCCHR has prepared forms and notices for use by employers in complying with the FCA’s mandates.
The Interpretative Enforcement Guidance reaffirms that the FCA does not prevent employers from inquiring into an applicant’s criminal history where state, federal or local law requires criminal background checks for a position. It also clarifies the meaning of “conditional offer of employment.” For example, a conditional offer of employment for temporary/help firms is “the offer to be placed in a pool of applicants from which the applicant may be sent to temporary positions.”
Importantly, the Interpretative Enforcement Guidance sets forth a list of separate per se violations of the FCA:
In recent years, employers have scrutinized employee or prospective employee postings on social media sites like Facebook, Twitter, Instagram, and other sites, as part of their screening process for employment, promotion or termination decisions. This may come to an end if The Password Protection Act of 2013 (H.R. 2077) becomes law. The Password Protection Act would amend federal law to make it unlawful if an employer
‘(A) for the purposes of employing, promoting, or terminating employment, compels or coerces any person to authorize access, such as by providing a password or similar information through which a computer may be accessed, to a protected computer that is not the employer’s protected computer, and thereby obtains information from such protected computer; or
‘(B) discharges, disciplines, discriminates against in any manner, or threatens to take any such action against, any person–
‘(I) for failing to authorize access described in subparagraph (A) to a protected computer that is not the employer’s protected computer; or
‘(ii) who has filed any complaint or instituted or caused to be instituted any proceeding under or related to this paragraph, or has testified or is about to testify in any such proceeding;’.
The bill contains certain exceptions, which would permit courts to require the disclosure of such passwords if there are reasonable grounds to believe that the information sought “is relevant and material to protecting the intellectual property, a trade secret, or confidential business information” of the employer.
The U.S. Equal Employment Opportunity Commission (EEOC) has scheduled a meeting for May 8, 2013 at its main headquarters in Washington, D.C., to address whether employer wellness programs may implicate, among other things, the confidentiality and permissible inquiry provisions of the Americans with Disabilities Act (ADA), the Genetic Nondiscrimination Act (GENDA), and other statutes enforced by the EEOC.
On May 12, 2010, the New York State Senate passed S1823b, a bill to amend the labor law to prohibit abusive work environments. If the bill were to pass scrutiny in the State Assembly, and be signed into law by the Governor, employees in the State of New York would have expansive protections beyond just the anti-discrimination statutes. In effect, the bill would transform the employment-at-will landscape, requiring that employers make sure that employees are not being subjected to bullying, while also making it more difficult for employers to terminate employees who complain of such.
The United States Supreme Court recently ruled that a union could contract away a union member’s rights to pursue a statutory discrimination claim in court. In 14 Penn Plaza L.L.C. v. Pyett, the Supreme Court considered whether a union member with an age discrimination claim under the Age Discrimination Employment Act (“ADEA”) could be required to privately arbitrate the claim rather then pursue it in court. Surprisingly, a divided Supreme Court concluded that a union member could be mandated by a collective bargaining agreement (“CBA”) to arbitrate a statutory discrimination claim.
Last year, New York State Governor Spitzer signed into effect an amendment to the New York Labor Law by adding section 206-c, the Rights of Nursing Mothers to Express Breast Milk. Applicable to all New York State employers, regardless of size, this law requires that employers make reasonable efforts to allow employees to express breast milk for their nursing children.