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Dear Clients, Colleagues and Friends,
Summer is here and we hope you are all enjoying some well-deserved R&R!
Here at M&B, we are plugging away and staying on top of all of the new legal developments so you can relax and take it easy. As always, feel free to contact us with any questions by emailing [email protected].
Wishing all of you a healthy and enjoyable summer!
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NEW YORK CIVIL COURTS TO BEGIN PRESUMPTIVE MEDIATION
Those of us who litigate employment discrimination and wage & hour cases in federal cases in NY are used to cases being sent to mediation very soon after the lawsuit is filed.
Now it appears that the NY state courts want to get in the act and try early intervention to resolve cases. By the end of this year, the New York State Unified Court System will begin rolling out a "presumptive" alternative dispute resolution ("ADR") program in the state court system
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Under the new program, parties in civil cases will be referred to either mediation or some other form of ADR (such as arbitration) as an initial step for most lawsuits filed in New York State courts. The "presumptive" ADR program will apply to a broad range of civil cases, including commercial disputes. Uniform rules governing the program are currently being developed, including when parties would be able to opt out of presumptive mediation.
Other courts have tried such a program with mixed results. From July 2014 through February 2016, the New York County Commercial Division adopted a pilot program, subsequently suspended, where every fifth Commercial Division case was referred to mediation. New Jersey has had success with its automatic, presumptive mediation program for more than ten years.
The New York program, like its New Jersey counterpart, is designed to facilitate the early and cost-efficient disposition of cases, and to reduce backlogs in the judiciary. Stay tuned for details as this initiative is implemented.
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NYS LEGAL STANDARD FOR SEXUAL HARASSMENT RELAXED
On the last day of this year's legislative session, NYS lawmakers overwhelmingly passed sweeping reforms of the state's laws on sexual harassment. Except as noted, the changes will be effective 60 days from enactment. These reforms will make it easier for victims of sexual harassment and other forms of discrimination outside of NYC to report complaints and prevail on their claims against employers. All of the changes to NY State law have already been in place in NYC for some time.
The new state law will lower the standard at which victims of sexual harassment can bring claims either in court or through an administrative agency. Previously, to give rise to a valid claim, the complained of behavior had to be "severe and pervasive." Now, it need only subject an individual to "inferior terms, conditions or privileges of employment" because of their membership in one or more of a long list of protected categories. "Petty slights or trivial inconveniences" will not qualify as harassing conduct.
Further, the law provides that employees do not have to rigidly follow their employer's policy or standards for addressing harassment when bringing claims of inappropriate behavior. Previously, if the victim did not appropriately report the harassment, their employer could assert a defense to the claim.
Additionally, effective one year from signature by Governor Cuomo, victims of sexual harassment will have three years to report claims to the NYS Division of Human Rights, rather than the one year that they have now. That is the same amount of time they would have to bring a claim in court.
Discriminatory practices against non-employees in the workplace-contractors, vendors or consultants, for example-may also result in liability of the employer where it knew or should have known of those unlawful practices and failed to take immediate and appropriate corrective action.
Among the new obligations imposed on NY employers, they must provide all employees, in writing in English and their primary language, at the time of hiring and at every annual sexual harassment training, a notice containing the employer's sexual harassment prevention policy and the information presented at the required harassment prevention training program.
Should you have questions about bringing your business into compliance with this new law, or about bringing a claim for sexual harassment in the workplace, please contact Chaim Book at [email protected].
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NYS ADOPTS LAWS COMBATING SALARY INEQUALITY AND RACE DISCRIMINATION
Following NYC's lead, the NYS Legislature has passed three bills that, respectively, will (1) bar employers from inquiring about applicants' past salary history, (2) prohibit wage differentials based on protected class status, and (3) ban race discrimination based on an employee's hair or hair style.
The first new law regarding salary history will apply both to prospective employees and current employees seeking a new position at their company. (The NYC law applies only to applicants, not current employees.) It will preclude employers from requesting or relying on the wage or salary history of an applicant in determining whether to offer employment or the amount of pay to be offered. An applicant may volunteer to provide this information but may not be pushed to do so. Further, an employer cannot refuse to consider, or retaliate against, an applicant who refuses to provide his or her salary history. Notably, unlike its NYC counterpart, the new State law does not prohibit employers from "conduct[ing] a search of publicly available records or reports for the purpose of obtaining an applicant's salary history."
The second new law will require equal pay for "substantially similar work," not just "equal" work, the previous required showing. Pay differentials will be permitted when they are based on a seniority system, a methodology measuring earnings by quantity or quality, or a bona fide reason other than the individual's membership in a protected class including age, race, sexual orientation, etc. The pay differential must be job-related and due to business necessity, such as geography, education, or experience. Treble damages are possible under New York Labor Law ยง 198 for violations of this law, which will take effect 90 days after being signed by the Governor.
Finally, following guidance issued this winter by the NYC Commission on Human Rights, "race" in the NY Executive and Education laws will be amended to include "traits historically associated with race, including, but not limited to, hair texture and protective hairstyles." "Protective hairstyles" include braids, locks and twists. The law is designed to prevent racial discrimination based on natural, treated or untreated hair.
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