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Dear Clients, Friends and Colleagues, the world of employment law is moving so fast, it is difficult to keep up with changes in the law. New York City and New York State have aggressively responded to the #MeToo movement by passing new, strong measures to help prevent sexual harassment, which, among other things, will require many employers to provide annual anti-sexual harassment training to their employees. As predicted following the November elections that New Jersey will follow the progressive policies of New York State and New York City, sure enough, it has passed a law requiring all employers to provide employees with five paid sick days. As always, we at Moskowitz & Book, LLP are here to offer help with these issues, as well as all employment law issues.
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NEW YORK CITY AND STATE IMPLEMENT
NEW ANTI-HARASSMENT MEASURES
Both New York City and State recently adopted new legislation which expands anti-harassment requirements for employers, including by requiring employers to implement sexual harassment training. Both pieces of legislation are expected to be signed into law and will likely take effect later this year.
New York State
The state anti-harassment legislation was included in the state's 2018-2019 budget, which Gov. Cuomo has signed into law. The key provisions are as follows:
- Mandatory Sexual Harassment Training: the new legislation amends the New York Labor Laws to require that employers of all size provide annual anti-sexual harassment training and distribute to employees a written sexual harassment policy. The State Department of Labor, in consultation with the State Division of Human Rights, will develop a model policy as well as a model training program. This provision will take effect on October 9, 2018.
- Protection for Non-Employees: currently, only employees are protected by workplace harassment laws. The new legislation imposes liability on employers for sexual harassment of non-employees, including contractors, subcontractors, vendors, and consultants, where the employer knows or should know that harassment is occurring and fails to take immediate and appropriate corrective action. This provision will take effect immediately.
- Arbitration Clauses: for employers that have mandatory arbitration policies requiring all employees to arbitrate claims arising out of their employment, these policies will not apply to sexual harassment claims. This provision will take effect on July 9, 2018.
- Non-Disclosure Agreements: the new legislation prohibits non-disclosure agreements within any written resolution of a sexual harassment claim, unless it is the "preference" of the employee to include this agreement. An employee can only express this preference after being provided with a 21-day waiting period as well as a seven-day revocation period. This provision will take effect on July 9, 2018.
New York City
The New York City Council passed several bills relating to sexual harassment, which are expected to be signed into law by Mayor de Blasio. The key provisions are as follows:
- Mandatory Sexual Harassment Training: employers with 15 or more employees will be required to conduct annual anti-sexual harassment training. In addition, new employees must be trained within 90 days of initial hire. The New York City Commission on Human rights will develop publicly available training modules for employers to use. This requirement will take effect on April 1, 2018.
- Notice Requirements: employers will be required to display an anti-sexual harassment rights and responsibilities poster in a conspicuous place in the workplace and to distribute an information sheet on sexual harassment to new hires. This requirement will take effect 120 days after enactment of the law.
- Expansion of Anti-Discrimination Protections under the NYCHRL: the New York City Human Rights Law, which prohibits gender-based discrimination and harassment, currently only applies to employers with four or more employees. The new measures amend it to apply to employers of all sizes. They also extend the statute of limitations for filing harassment claims from one year to three years after the alleged conduct occurs. This requirement will take effect immediately upon enactment of the law.
Practical Advice for Employers
In order to ensure compliance with these new laws, employers should take the following measures:
- Obtain the required posters and post them somewhere visible in the workplace, such as by the timeclock or in an employee break room.
- Make sure employee handbooks are up-to-date and contain an anti-harassment policy.
- Promptly schedule an anti-harassment training session.
M&B is available to assist employers with updating handbooks and providing anti-harassment training. Please contact Chaim Book at
[email protected] or Brita Zacek at [email protected] to learn more about the services we offer.
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NEW JERSEY IMPLEMENTS PAID SICK LEAVE
At the beginning of this month, New Jersey Governor Phil Murphy signed the state's paid sick leave bill into law. The new law will take effect on October 29, 2018. All private businesses that employ individuals in New Jersey are covered by this law, and there is no minimum number of hours an employee must be work to be eligible for sick leave.
Leave Requirements
Under the law, employees will receive up to 40 hours of paid sick leave per year. Employers can either allow employees to accrue this leave at a rate of one hour for every 30 hours worked, or they front-load the leave by offering 40 hours at the beginning of each benefit year. With either method, employees are eligible to begin using their leave 120 days after employment begins, though employers can allow them to use it earlier.
Employers must permit up to 40 hours of unused leave to be carried over to the next year. Unused accrued sick leave is not required to be paid out at the end of each year unless the employer chooses the front-loading method.
Use of Sick Leave
Sick leave may be used for the following reasons:
- Diagnosis, care, treatment, recovery, or preventive care of a mental or physical illness;
- Time taken off if an employee or family member is a victim of domestic or sexual violence, including for counseling, relocation, legal services, or medical attention;
- Closure of the employee's place of business or a child's place of care due to public health emergency;
- If a public health authority determines the employee's or a family member's presence in public may jeopardize others' health; and
- To attend a school-conference, meeting, or any event requested or required by a child's educator, or to attend a meeting regarding a child's health or disability.
The law defines "family member" as children, grandchildren, siblings, spouses, domestic partners, civil union partners, parents, and grandparents, as well as any individual "whose close association with the employee is the equivalent of a family relationship."
Employers may require employees to provide up to seven days advance notice of the need to use sick leave where the leave is foreseeable. If leave is unforeseeable, notice must be provided as soon as practicable. For absences of three or more consecutive days, employers may require documentation from a health care professional or the appropriate care giver or professional.
Employers cannot require employees to find a replacement worker to cover for them while they are out on leave. Employers also may not retaliate or discriminate against employees who request or use leave, file a complaint alleging a violation of the law, or inform others of their rights under this law.
Notice and Recordkeeping Requirements
Employers must display a poster informing employees of their rights under the law and must provide a notice of the law to all employees within 30 days of the notice being issued by the N.J. Department of Labor and Workforce Development and to all new employees at the time of hiring. Employers must also maintain records of hours worked and leave taken for a period of five years.
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