WORKER JUSTICE

Despite his attorney’s unjustified protestations, Harvey Weinstein was recently sentenced to 23 years in prison for the rape of one woman and the sexual assault of another. As one of many powerful men whose conduct motivated the irrepressible #MeToo, Weinstein’s sentencing confirms the movement’s efficacy in forcing accountability. Finally, predators with deep pockets who for too long have bought silence and protection from criminal prosecution are being held accountable.
The #MeToo movement triggered, not only criminal prosecutions, but new state laws. In reaction to the public outrage surrounding the many high profile cases the movement exposed, state legislatures responded with new protections. New York is one of the states to lead the way by now requiring mandatory sexual harassment training, eliminating the difficult “severe and pervasive” standard of proof and banning nondisclosure agreements unless agreed to by the victim. The law expands protections for workplace harassment and independent contractors.
By eliminating the “severe and pervasive” burden of proof, there is, at last, a recognition that even a single instance of harassment can unreasonably interfere with a victim’s workplace or create an uncomfortable working environment. In the past, all too often many cases of harassment would be dismissed because a judge would determine the challenged conduct was not “severe or pervasive.” The standard was not uniformly applied and offered too many judges deciding sexual harassment cases the discretion to dismiss them despite the injury to the victim.
In New York City, local law now requires all employers with 15 or more employees or independent contractors to provided annual, interactive, anti-sexual harassment training to all such individuals. While mandatory training will not necessarily deter powerful men, and historically has not deterred offensive conduct in many organizations which required training, it does represent, at last, the need for more awareness about these issues. It has yet to be decided whether the training requirements will eliminate workplace harassment.
The new laws combined with the complex nature of these claims offer new challenges for victims. These challenges are best addressed by experienced #MeToo attorneys. If you or a loved one has been the victim of sexual harassment, you may be entitled to monetary compensation. Although no amount of money will undo the harm caused, it can bring a sense of justice and closure for victims.

For more information or to consult with an experienced NYC workplace sexual harassment attorney, please contact Colleen M. Meenan at Meenan & Associates, LLC.

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Effective May 10, 2020, it will be an unlawful discriminatory practice in New York City for most employers to conduct pre-employment testing for marijuana and tetrahydrocannabinol (THC), an active ingredient in marijuana.  The law applies to both public and private employers in NYC, including companies whose headquarters are elsewhere, labor organizations and employment agencies. The ban, known as “Local Law 91,” is the first of its kind in the nation. Prior to the effective date, the New York City Commission on Human Rights is expected to formulate rules to guide the implementation of the law, which amends the New York City Human Rights Law.

The passage of this law is at long last some recognition that the “war on drugs,” begun with legislation in the 1970’s to combat illegal drug use by increasing penalties, enforcement and incarceration for drug offenders, was woefully ineffective.  Since its inception, the “war on drugs” has consistently been an expensive and ineffective public policy. In addition, its selective enforcement has resulted in the incarceration of thousands of individuals of color for non-violent offenses. The resulting incarceration of thousands of mostly non-violent illegal drug users, driven by the media and opportunistic legislators, was racist in its enforcement and effect.

The new law recognizes the changing policies in NYC and New York State toward how pot is viewed and policed. Since August 2019, for example, smoking marijuana in NYS is punishable as a violation and only by a fine, instead of with jail time. Along with the decriminalization of marijuana use, NYS also instituted a process for people with low-level criminal records of possession of marijuana to have those records automatically expunged of crimes.  Along these lines, Local Law 91 recognizes that the fact that a job applicant took marijuana at some point in time before being hired is not indicative of that applicant’s ability to perform the job.

However, the new law does provide numerous exceptions, allowing for pre-employment testing of candidates applying for public safety jobs, many construction jobs, positions involving the care and supervision of children, vulnerable persons or medical patients, and positions which significantly impact the health or safety of others. The law does not apply when testing is required by city, state or federal transportation regulations, federal contracts or grants requiring testing as a condition of procurement, or collective bargaining agreements that address pre-employment drug testing of applicants.

The law also does not restrict employers from screening applicants for other types of drugs and does not address cannabidiol (CBD), another active ingredient in marijuana. Since the law applies only to pre-employment testing, employers will still be able to lawfully test existing and new employees for marijuana and THC, and to take adverse action against them.

For more information or to consult with an experienced NYC employment discrimination attorney, please contact Colleen M. Meenan at Meenan & Associates, LLC.

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The U.S. Equal Employment Opportunity Commission (EEOC) has expressed that coded references to age, such as “college student,” “recent college graduate” or “young blood,” can violate the Age Discrimination in Employment Act, a federal law that prohibits discrimination on the basis of age against employees and job applicants age 40 and over.  NYC and NYS human rights laws are even more expansive than the federal law, and are not limited to employees under age 40.

It was reported that, in 2007, Facebook founder Mark Zuckerberg said: “Young people are just smarter.” (This statement is actually belied by the fact that baby boomers are the fastest growing group of entrepreneurs.) But employers who harbor stereotypes and biases against older workers are often more subtle and creative in their statements about older employees. “High energy level,” “high-potential,” “fresh,” or “dynamic,” for example, are often euphemisms used by employers for “young.”

AARP reports that, according to a survey that it conducted, almost two-thirds of workers between the ages of fifty-five and sixty-four believe that their age negatively affected their ability to get a job. According to AARP, phrases such as “recent college graduate,” “super fun work environment,” and “digital native” are designed to discourage applications from older candidates. Advertisements for job openings seeking candidates with a certain, limited number of years of experience or high GPAs appear similarly geared to recent college graduates. A job description that specifies a minimum of years of experience, rather than setting a cut off for years of experience, avoids this issue. And employers who have targeted certain age demographic with their job recruiting ads on social media have faced lawsuits challenging the practice as age discrimination.

Other euphemisms that can result in claims of age discrimination include words relating to familiarity with technology, such as “tech savvy.”  Conversely, statements about an older employee’s lack of technological skills, slowness or inability to adapt, be flexible, or be open to change, i.e., set in his or her ways, could be evidence of animus or bias toward older workers. Similarly, relying on hiring criteria of “cultural fit” could be used by employers to screen out older employees.

Ultimately, at the heart of every age discrimination case, is an employer’s less favorable treatment of a qualified applicant or employee because of that person’s age.  An employer’s use of “code words” to attempt to perpetuate age discrimination while claiming a non-discriminatory purpose does not provide an absolute shield against age discrimination claims.  Attorneys representing employees in such circumstances, for example, can show the court that the “code words” are merely pretexts for discrimination.  

For more information or to consult with an experienced NYC employment discrimination attorney, please contact Colleen M. Meenan at Meenan & Associates, LLC.

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A prominent New York newspaper recently headlined that Dr. Philip Ozuah, the current CEO of the Montefiore Health System, a not-for-profit hospital organization serving some of the poorest communities in the country, was paid over $13 million dollars in 2018; that year he earned $2.8 million in salary, a bonus of $1.6 million and a $9 million payout for early retirement. However, he did not retire, he merely transitioned from a role as President to CEO of the Montefiore system, the umbrella organization for the organization’s 11 hospitals and the Albert Einstein College of Medicine.  Dr. Ozuah replaced Dr. Steven Safer who retired in 2018 with an equally lucrative $8 million-dollar payout, including an early retirement package of $3.4 million.

This is the same hospital system where, on January 10, 2019, nurses employed within the organization issued a strike notice over salaries and staffing as the New York State Nurses Association (NYSNA) continued contract negotiations. In opposing salary increases for nurses, the New York City Hospital Alliance, the bargaining group representing Montefiore during the negotiations, publicly contended that increased costs would result in potential layoffs.

It is hard to imagine that the same cost saving considerations prevailed in the negotiations which determined the earnings to be taken by Drs. Ozuah and Safer. Rather, the fact that such exorbitant payouts are acceptable within this hospital system calls into question any justification the organization could offer to explain why nurse practitioners are not compensated for missed lunch hours and overtime hours. And why the organization will not comply with appropriate nurse-staffing ratios requiring more nurses to be hired to provide for safe patient care. Most of the workers affected by these disparities in pay and working conditions are women.   

For example, nurse practitioners are required to work through assigned lunch time and work considerable amounts of overtime without compensation. While nurse practitioners are covered employees by the collective bargaining agreement between the hospital system and NYSNA, that contract specifically exempts nurse practitioners from earning overtime.  The result is that these crucial workers are knowingly exploited while the leaders within this very same system can take millions in earnings, a disparity impossible to justify.

In addition, many units are inadequately staffed because the organization will not hire an appropriate number of nurses to provide safe patient care to an ever-increasing patient population.  This disproportionate nurse to patient ratio results in inadequate patient care and impossible working conditions for the nurses assigned to the effected units.

The above described disparities between workers and leaders is not unique to this hospital system and, unfortunately, it is playing out in many other workplaces throughout America today. According to a study by economists Emmanuel Saez and Thomas Piketty, in 2012, the top 10 percent of earners took home 50 percent of all income. That is the highest percentage in the last 100 years. The top 1 percent took home 20 percent of income. By 2015, America’s top 10 percent averaged more than nine times as much income as the bottom 90 percent.  These disparities do not develop in a vacuum.  The corporate greed that makes it acceptable for a CEO within the Montefiore Hospital System to earn millions of dollars annually while that same system will not hire an adequate number of nurses to provide care nor pay nurse practitioners for hours worked is, in part, responsible for these stark income disparities.

In sum, the rich are getting richer faster while workers are watching their piece of the pie shrink.  As a result, economic mobility is worsening for the American worker, especially for working women.  Unless and until the American worker is willing to unite and confront the evident greed within the American workplace these forces will continue to operate unchecked. The economy is simply not working for all Americans and by pretending otherwise the American worker is complicit in their own exploitation.

For more information or to consult with an experienced NYC employment law attorney, please contact Colleen M. Meenan at Meenan & Associates, LLC.

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A 2018 report, prepared by Victoria A. Lipnic then Acting Chair of the U.S. Equal Employment Opportunity Commission, highlighted the agency’s view that protecting the rights of older workers is more important than ever before given the number of older workers in the work force, the prevalence of age discrimination and the harm that such bias causes to workers and their families.  As the federal agency charged by Congress with enforcing laws protecting workers, the views and recommendations of the U.S. Equal Employment Opportunity Commission are based upon complaints filed by older workers and assessments as to cause and effect.

Notably, the report makes clear that older workers are healthier, more educated, and working and living longer than previous generations. The Baby Boomer Generation ranges in age from 54-72, many with inadequate savings for retirement. This cohort of older workers is followed closely by the leading edge of Generation X, now in their early 50’s.  And, as of 2016, Millennials surpassed the Baby Boomers as the largest segment of today’s work force.  As these generations continue to age, the need to put to rest outdated assumptions about older workers and meaningfully address their loss of employment as they age drastically increases.

The report indicates that older workers although more experienced are more likely to lose a job.  Those who lose a job have much more difficulty finding a new job as compared to younger workers. Further, many of today’s older workers cannot financially afford to retire so the need to work and earn a living wage is critical.  However, age discrimination, based primarily on unfounded and outdated assumptions about abilities, persists causing significant hard and costs to older workers and their families.

In 1967, Congress created the Age Discrimination in Employment Act (ADEA) to address the then existent and pervasive misconceptions about the abilities of older workers.  Despite the passage of this statute, much has not changed for older workers, rather, the most dramatic change has been the increase in the number of older workers still working or re-entering the workforce. Increased participation by older women in the labor force is a significant factor in the growth of the older workforce.  According to a 2017 Bureau of Labor report, women age 55 and older are projected to make up over 25 percent of the women’s labor force by 2024.

Meaningful protections are needed to address both the ineffectiveness of the ADEA and the continuing financial harm caused to older workers and their families.

On January 15, the Protecting Older Workers Against Discrimination Act (POWADA) passed in the house and is a meaningful effort to amend the ADEA and its failure to address the problem of age discrimination. It is an important piece of legislation needed to protect older workers and their families. The Senate has yet to decide the bill.

For more information or to consult with an experienced NYC employment discrimination attorney, please contact Colleen M. Meenan at Meenan & Associates, LLC.

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On August 20, 2019, New York State amended its Human Right Law to enhance protections for workers who are survivors of domestic violence. (The law refers to “victims of domestic violence.”) The new law went into effect in NY on November 18, 2019.

The new law now makes it unlawful discrimination for employers to refuse to hire, fire, or discriminate against workers based on their status as domestic violence survivors. Nor may employers print or disseminate any publication – including job postings or employment applications – that expresses any limitation, specification or discrimination in hiring or in employment based on status as a survivor of domestic violence. 

In addition, employers are now required to grant workers known to be domestic violence survivors a “reasonable accommodation” in the form of a leave absence from work for a reasonable period of time for specific purposes. The purposes for leave now expressly specified in the law include the affected individual (or in some cases, their child) obtaining medical and mental health treatment, supportive services, and legal services.  Legal services can include assisting in the prosecution of an offense and appearing in court for incidents involving domestic violence. In addition, employers must grant survivors leave in order to pursue safety planning, relocation or other preventive measures to enhance their safety. Employers also must maintain the confidentiality of a worker’s status as a survivor of domestic violence to the full extent of the law.  In addition, workers on leave due to domestic violence have the right to continue their health care coverage.

The law exempts employers who can demonstrate that granting such leave will cause them “undue hardship.” The factors considered in determining whether employers can demonstrate “undue hardship” include the size and nature of the employer.   In addition, employers may require their workers to use existing paid time off if it is available. Where paid leave is not available to the worker, employers are not required to provide paid leave and the leave granted may be treated as unpaid. The amendment further entitles employers to be provided with reasonable advance notice of the leave when it is feasible, or if it is not feasible, to request documentation from the worker in support of the leave. Documentation can include police reports, documentation of court appearances or documentation of medical or mental health treatment.

Violations of this new requirement constitute unlawful discrimination and the employer can be fined up to $50,000.00.  Where the employer is found to have acted willfully, wantonly or maliciously, the fines and penalties imposed can reach up to $100,000.00. In addition, damages awarded to a domestic violence survivor whose rights under this amendment are found to have been violated can include back wages and other damages.

For more information or to consult with an experienced NYC employment law attorney, please contact Colleen M. Meenan at Meenan & Associates, LLC.

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On January 11, 2020, legislation went into effect to extend New York City’s protections against discrimination, harassment and retaliation to independent contractors and freelance workers. In 2014, the New York City Humans Rights Law (NYCHRL) had been expanded to include protections for interns. Under the recent expansion, freelancers and independent contractors whose rights are violated now have the same rights as employees and interns to file claims with the NYC Commission on Human Rights.

In NYC, one-third of the workforce is estimated to be freelancers or independent contractors, and three-quarters of incidents of harassment or discrimination against freelancers are unreported. With the upsurge in the freelance economy, these recent changes to NYC law are vitally needed to ensure that freelancers are afforded the same protections as traditional employees.

The NYC Commission on Human Rights (“Commission”) has issued guidance indicating independent contractors are now required to be included in the sexual harassment prevention training required by employers with 15 or more workers. 

To be eligible for protection under the statute, independent contractors must work for the employer more than 80 hours per year and for 90 days or more.  Previously, training for these workers was recommended but not required.

The Commission also has issued guidance that independent contractors and freelancers are eligible for the same “reasonable accommodations” under the law as employees. “Reasonable accommodations” are now available to employees, freelancers and independent contractors who require them due to, among other reasons, disability, pregnancy and domestic violence victim status.  In addition, the prohibition against an employer conducting criminal background checks and making inquiries regarding salary history for job applicants has been extended to independent contractors and freelancers.

On January 11, 2020, legislation went into effect to extend New York City’s protections against discrimination, harassment and retaliation to independent contractors and freelance workers. In 2014, the New York City Humans Rights Law (NYCHRL) had been expanded to include protections for interns. Under the recent expansion, freelancers and independent contractors whose rights are violated now have the same rights as employees and interns to file claims with the NYC Commission on Human Rights.

In NYC, one-third of the workforce is estimated to be freelancers or independent contractors, and three-quarters of incidents of harassment or discrimination against freelancers are unreported. With the upsurge in the freelance economy, these recent changes to NYC law are vitally needed to ensure that freelancers are afforded the same protections as traditional employees.

The NYC Commission on Human Rights (“Commission”) has issued guidance indicating independent contractors are now required to be included in the sexual harassment prevention training required by employers with 15 or more workers. 

To be eligible for protection under the statute, independent contractors must work for the employer more than 80 hours per year and for 90 days or more.  Previously, training for these workers was recommended but not required.

The Commission also has issued guidance that independent contractors and freelancers are eligible for the same “reasonable accommodations” under the law as employees. “Reasonable accommodations” are now available to employees, freelancers and independent contractors who require them due to, among other reasons, disability, pregnancy and domestic violence victim status.  In addition, the prohibition against an employer conducting criminal background checks and making inquiries regarding salary history for job applicants has been extended to independent contractors and freelancers.

Finally, the Commission clarified how it is determined whether an employer was subject to the protections provided to workers under the NYCHRL.  Previously, the NYCHRL excluded as “covered employers” those who employed fewer than four persons.  The new law clarifies that, to be excluded from coverage, employers must have had fewer than four employees from the time period beginning twelve months prior to the beginning of an unlawful discriminatory practice and continuing through the end of such practice.  However, the four-employee rule does not apply to gender-based harassment claims. Under the NYCHRL, all employers are covered by the anti-sexual harassment provisions. The recent changes also clarify that an employer’s spouse, domestic partner and children who work for the employer, as well as independent contractors who work “in furtherance of an employer’s business enterprise,” are counted in determining the four-person threshold. 

For more information or to consult with an experienced NYC employment law attorney, please contact Colleen M. Meenan at Meenan & Associates, LLC.

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There have been several recent changes to New York State law to increase protections for workers’ rights, including changes scheduled to take effect later in 2020. This post summarizes and highlights these important legislative changes.

As of October 11, 2019, several changes were made to the New York State Human Rights Law to make it easier for complainants of discrimination to file and prosecute their claims. The relevant changes are:

• An employer is required to provide employees, in writing or electronically, a notice of its anti-sexual harassment policy, as well as copies of all information presented at the employer’s anti-sexual harassment training. This requirement extends to both the time of hiring and at each annual training
• Any settlement agreements resolving discrimination claims against an employer may not include a confidentiality provision unless the claimant is given 21 days to decide whether to agree to such provision, prefers such a provision and is given 7 days to change their mind about agreeing to such a provision.
• The evidentiary standard for harassment claims under New York state Human Rights Law is now more equitable, making it less burdensome for individuals who have been the victims of harassment to prove their cases. Previously, individuals claiming harassment had to show that the conduct was “severe or pervasive,” which made it difficult for plaintiffs to prove such claims. Under the new standard, plaintiffs need only show that the conduct complained of subjected them to inferior terms of employment because of their membership in a protected class. The exception to the new standard is if the conduct alleged is merely “petty slights or trivial inconveniences.”
• Non-employees, including independent contractors and temporary workers, may now bring discrimination claims under state law.

In December 2019, the hourly minimum wage was increased to $11.80.

Effective January 6, 2020, employers are prohibited from inquiring of job applicants about salary history and from relying on any such information they may receive in the making of hiring decisions. Specifically, employers may not:

1. Request or require a job applicant provide his salary history; or
2. Use an applicant’s salary history to decide whether to offer him a job, or to decide his salary; or
3. Refuse to hire or promote, or retaliate against, an applicant or employee based on salary history, failure to provide same, or because of the filing of a complaint alleging a violation of this law.

Effective February 8, 2020, all employers, regardless of the number of employees, are subject to the New York State Human Rights Law. The law currently only applies to New York employers with four or more employees.

Effective August 12, 2020, the statute of limitations for the filing of sexual harassment claims in the New York State Division of Human Rights will be expanded to three years, which is the statute of limitations for such claims under New York City Law. Currently, the law provides for merely a one-year statute of limitations for such claims. This change applies only to sexual harassment claims, and other discrimination and harassment claims will continue to be governed by a one-year statute of limitations.

For more information or to consult with an experienced NYC employment law attorney, please contact Colleen M. Meenan at Meenan & Associates, LLC.

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