Monthly Archives: January 2016

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Job Seekers with A Criminal Record Get a Second Chance At Employment with “The Fair Chance Act”

New York City “Bans The Box”

NYC Mayor De Blasio signs into law the “The Fair Chance Act” which prohibits employers from asking potential candidates about their criminal record prior to making the job offer.

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In June 2015, New York City Mayor Bill De Blasio signed into law legislation making discrimination prohibited against an individual seeking employment due to his or her criminal record. “The Fair Chance Act” prohibits employers from asking potential candidates about their criminal record prior to making a job offer. This means that employers during the advertisement of the job position, on the job application, or in the interview cannot ask potential candidates about their criminal record.

Once, the initial round of interview is completed, and the employer gives the candidate a conditional job offer, only then can the employer inquire about the candidate’s criminal record. The Fair Chance Act is intended to even the playing field by allowing the applicants to be evaluated on their qualifications first, before their criminal background can be evaluated in the hiring process. If, the employer does inquire about the candidate’s criminal record after offering conditional employment, then the candidate
must disclose all criminal convictions (excluding any arrests not convicted of or seal convictions). Further, at this stage, the employer can require the candidate to authorize a background check (refusal to consent is valid grounds to revoke the job offer).

Afterwards, and before the final employment decision, the employer must: (1) provide a copy of any background check conducted; (2) evaluate the candidate by considering specific factors (must be considered by an employer prior to deciding not to hire a candidate) and give the candidate a copy of the written evaluation; (3) hold the job open for at least three business days after communicating its decision to afford you a chance to respond. The employer in deciding to rescind the conditional job offer must show the specific factors existed that would make the candidate unsuitable for the position, and not just because he or she has a criminal record.

New York State Gets Tough on Sexual Harassment with Expansion of Law Allowing Law Suits to Proceed against Companies of Any Size

New York Governor signs amendments to New York Human Rights Law to allow sexual harassment suits against employer regardless of the number of employees employed by the company.

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Governor Andrew Cuomo on October 21, 2015 signed an amendment to the New York State Human Rights Law, which went into effect January 19. 2016 expanding the ability for employees to bring sexual harassment suits against their employers. This amendment 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. Before this amendment, employers with fewer than four employees were excluded from the definition of “employer” and thus could not be liable to a sexual harassment suite by their employees.

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This new amendment will help those employees working for small companies who have been subjected to sexual harassment in their workplace find redress, where they previously could not. Employees of any company, no matter how big or small, should not be subjected to sexual harassment and if they are, then employers should be held accountable and liable to sexual harassment suits and now thanks to this new amendment, employees of smaller companies are afforded these protections that their counterparts in larger companies have enjoyed for so long.

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Pay Equality for Women is a Top Priority in New York State with New Amendments to New York Equal Pay Laws

NYS Governor signs amendments to New York Equal Pay Laws to help achieve pay equality between men and women.womansday_march_equal_pay

On October 21, 2015, NY Governor Andrew Cuomo signed legislation, which amended the New York State’s Human Rights Law and New York Labor Law to expand protections available to employees. These amendments became effective January 19, 2016.

New York’s equal pay law (N.Y. Lab. Law §§ 194, 198), which before January 19, 2016 allowed 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. The new amendment removes the “any other factor other than sex,” exception and replaces 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.” The new amendment’s “bona fide factor” must be “job-related with respect to the position in question” and consistent with business necessity. The new amendment also bans employers from retaliating against employees for discussing their wages with one another.

However, employers may, establish reasonable time, place and manner prohibitions on such discussions. Further this amendment provides for additional “liquidated” damages of up to 300% (as opposed to 100% prior to amendment) of the wages due in cases where an employer is unable to prove that it acted in good faith when violating the law.

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Caregivers are Protected from Discrimination Under New 2016 Law in NYC

Mayor Bill de Blasio expands New York City Human Rights Law to include Caregivers as a protected category against employment discrimination.

On January 5, 2016, Mayor Bill de Blasio signed into law expanding The New York City Human Rights Law (“NYCHRL”) to include adding “caregiver status” as an additional protected category for which employment discrimination is prohibited. This change in the NYCHRL will go into effect beginning May 4, 2016 and prohibits employment discrimination against employees caring for a minor child or an individual with a disability.

NYCHRL prohibits employment discrimination on the basis of a number of protected characteristics, such as race, creed, color, national origin, gender, age, disability, marital status, partnership status, sexual orientation, alienage, and citizenship status. The NYCHRL applies to employers with four or more employees. With this new amendment, to the NYCHRL, has defined “caregiver” is defined as “a person who provides direct and ongoing care for a minor child or care recipient.” The “Care recipient” is defined as “a person with a disability who: (i) is a covered relative, or a person who resides in the caregiver’s household; and (ii) relies on the caregiver for medical care or to meet the needs of daily living.” New York City Commission on Human Rights (“NYCCHR”) has defined “Covered relatives” under the amendment to include spouses, domestic partners, parents, siblings, grandchildren, grandparents, biological, adopted and foster children or parents of the caregiver’s spouse or domestic partner, or any individuals in a familial relationship with the caregiver. This broad definition of “covered relatives” have not been interpreted by the NYCCHR therefore it is possible that a covered relative could include almost every member of the employee’s family.

The NYCCHR is expressly authorized to adopt rules to implement the amendment’s provisions and a violation of the NYCHRL is a civil penalty of a maximum of $50,000, with additional penalties of up to $100 per day for each day that the violation continues.

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