New York Labor and Employment Law Report
May 8, 2024
On April 29, 2024, the Equal Employment Opportunity Commission (“EEOC”) published Enforcement Guidance on Harassment in the Workplace (the “Guidance”). The Guidance took effect immediately and supersedes the EEOC’s previously published guidance from the 1980s and 1990s
Read More >> EEOC Publishes New Guidance on Workplace Harassment for the First Time in Twenty Years
April 18, 2024
New York has long protected its residents from discrimination in the job hiring process with the New York State Human Rights Law (NYSHRL), which was originally passed in 1945. New York City also has its own Human Rights Law (NYCHRL) that further covers discrimination in job hiring.
December 11, 2023
Effective Nov. 17, 2023, New York General Obligations Law 5-336 was amended to further restrict employers’ use of non-disclosure or confidentiality provisions in settlement agreements when the factual foundation involves discrimination, harassment or retaliation. Since its enactment, the law has broadly prohibited non-disclosure provisions in agreements to settle discrimination claims “unless the condition of confidentiality is the complainant’s preference.”[1]
November 30, 2023
On Nov. 16, 2023, New York State Gov. Kathy Hochul signed legislation, also known as the Clean Slate Act, to automatically seal from public access criminal records for most individuals convicted of a crime.
The Act takes effect in one year, on Nov. 16, 2024, and its key intent is to increase employment opportunities for individuals with criminal histories who have no recent criminal convictions. The law amends New York’s criminal procedure law, the executive law, the correction law, the judiciary law and the civil rights law with respect to the automatic sealing of select convictions. New York follows several other states, such as California, Connecticut, Colorado, Pennsylvania, Oklahoma and Utah, who have also enacted similar laws.
To be eligible for automatic sealing of their records, individuals must complete their sentences (including probation or parole time) and do not reoffend within a stipulated period of time. This statutory period ranges from three years for misdemeanors to eight years for eligible felonies. The clock restarts if parole or probation is revoked or if there is a new conviction. All records of sex crimes, and Class A felonies (such as first or second-degree murder, first degree kidnapping), except those related to drug possession, are ineligible for sealing.
The law provides for several exceptions where sealed records could still be accessed and used for law enforcement, in criminal proceedings under certain circumstances, and other necessary purposes such as determining suitability for various licenses, and for employment and other activities where federal or state law requires or authorizes a criminal background check to be performed prior to granting licenses to or employing individuals in certain jobs.
Busting Myths
Myth: The law will erase all criminal records.
Fact Check: The law automatically seals certain criminal records but does not expunge them. Notably, the Clean Slate Act would only seal convictions under New York's penal law. The Act would not seal criminal convictions under federal law or the criminal law of any state other than New York. Sealing is not automatic when the convicted individual has a criminal charge pending or is on probation or under parole supervision when the statutory time period for automatic sealing elapses.
Myth: Law enforcement will not have access to criminal records.
Fact Check: Records automatically sealed under this Act could still be accessed and used by law enforcement for permissible purposes including to assess the employment of law enforcement officers, or when conducting investigations.
Myth: Background checks for vulnerable populations, such as children, the disabled and the elderly, are now compromised because employers can hire individuals with criminal records.
Fact Check: Entities, including those that work with children, the elderly or vulnerable adults, that are required or authorized by law to conduct a fingerprint-based background check, are not impacted by the Clean Slate Act. Under the Act, such background checks are considered relevant and necessary prior to the employment of individuals working with these vulnerable populations and will include criminal records which have been sealed under this Act. The Act will also not seal the records of individuals who are required to register as a sex offender.
Myth: Gun licenses will be issued without a proper background check.
Fact Check: The law does not apply when licensing officers are processing a firearm license application. In this instance, the criminal records will not be sealed.
Myth: Individuals who have a criminal record may get preferential treatment for a job over an individual with no criminal record.
Fact Check: New York state law prohibits discrimination against an individual because of their criminal conviction status. The Clean Slate Act does not impact this protected status. This means that New York employers cannot make employment decisions such as terminating a current employee or refusing to hire an applicant because of their pre-employment criminal conviction record. Article 23-A of the New York State Correction Law provides an exception to this rule, where an employer may still deny employment based on a criminal conviction record if the employer can establish a direct relationship between one or more of the previous criminal offenses and the specific employment sought; or where there is an unreasonable risk to the property or to the safety or welfare of specific individuals or the general public. Employers must consider several factors when making the above determination. New York City employers must also consider the intersection of the Fair Chance Act, which prescribes additional requirements for inquiring about or making decisions based on an individual’s criminal record. Once the Clean Slate Act is in effect, employers should be aware of their additional obligations under New York state law. For example, employers should not consider sealed criminal records in employment decisions. Further, employers that receive unsealed criminal records in response to a request for criminal conviction history should provide the employee or applicant with a copy of the criminal records received, a copy of Article-23 of the New York State Correction Law and notice to the employee or applicant of their right to correct any incorrect information pursuant to the regulations and procedures established by the Division of Criminal Justice Services. Legal counsel is recommended when considering criminal conviction history in employment decisions.
Myth: Sealed conviction records can later be used against an employer as evidence of employer negligence.
Fact Check: The Clean Slate Act provides that a conviction record that was sealed pursuant to the Act and was not provided to an employer upon request for conviction record history cannot be introduced as evidence of negligence against the employer.
Considerations for Healthcare and Human Services Employers
For healthcare and human services employers, the Clean Slate Act broadly preserves access to criminal records where federal and state statutes have previously required such employers to screen potential employees in the interest of protecting patients or service recipient safety. Depending on their specific regulatory requirements, employers may be required to perform various background checks such as a Criminal History Record Check, a Staff Exclusion List (SEL) clearance through the New York State Justice Center, and the Statewide Central Register (SCR) database check through the New York State Office of Children and Family Services. As part of these checks, employers will be able to access permissible criminal records, including records that were automatically sealed under the Clean Slate Act.
As detailed above, the existing provisions of Corrections Law Article 23-A, continues to apply to any employer using such records in its employment decisions, including the requirement that there be a nexus between the prior criminal conduct and the reason an employer chooses not to employ a particular person.
Next Steps
Employers should review and update policies specifically related to hiring, background screening, use of conviction records and nondiscrimination policies. Once the law is effective, it is recommended that employers consult with legal counsel prior to taking an employment action in New York State based upon an individual's criminal history.
If you have any questions about the information presented in this information memo, please contact Natalie Vogel, Roger Bearden, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.
November 27, 2023
On Nov. 17, 2023, Gov. Kathy Hochul signed Senate Bill S.3255, which amends Section 297 of the New York Executive Law by extending the statute of limitations for filing complaints of unlawful discrimination with the Division of Human Rights (DHR) to three years.
November 21, 2023
As reported in our previous blog post, on May 26, 2023, New York City Mayor Adams signed a bill into law prohibiting height and weight discrimination within employment, housing and public accommodations under the New York City Human Rights Law. That law will go into effect tomorrow, November 22, 2023. Although these prohibitions are accompanied by a few exemptions, employers should note that such exemptions are narrow and dependent on allowances contained within either federal, state, or local laws or regulations, or as expressly permitted by the Commission on Human Rights.
Read More >> Bill Prohibiting Height and Weight Discrimination Update
August 22, 2023
In a recent decision, the U.S. Second Circuit Court of Appeals, the federal appeals court covering New York and adjacent states, sought to clarify the federal law standard for evaluating retaliation claims under the principal anti-discrimination statutes including, Title VII, the ADEA and the Reconstruction Era Civil Rights Act. Significantly, the court found that such retaliation claims are evaluated under a separate, more expansive standard than substantive discrimination (including hostile work environment) claims.
Read More >> Second Circuit Clarifies Federal Law on Employment Retaliation Claims
August 10, 2023
Today, an employee shares joyous news and says, “I’m expecting and due in 20 weeks!” You respond with congratulations, but then start thinking about all the new pregnancy-related legal protections you must comply with. Look no further, here are some highlights on what to expect when your employee is expecting…and beyond.
Read More >> What to Expect When Your Employee is Expecting…and Beyond!
July 6, 2023
As an avid, albeit misguided, reader of breaking news alerts, I am increasingly feeling like the narrator in the old Tom Petty song, “Jammin Me.” If you are like me and are feeling truly exhausted from the daily bombardment of bad news on all fronts, any distraction can be of welcome relief, particularly when that distraction involves “man’s best friend” – dogs.
Now, before we go any further, a couple of disclaimers are in order: I have had dogs as pets my whole life, I view dogs as family members, I enjoy quoting one of my daughter’s theology professors who is keen to point out what the word dog spelled backwards reveals, and I will almost invariably take the side of a dog in a litigated controversy.
This brings us to the June 23, 2023 decision in the case of Meyer v. City of Chehalis, Case No. 3:22 -cv-05008 (W.D. Washington). In Meyers, a firefighter brought a lawsuit under the Americans with Disabilities Act (ADA) and the Washington Law Against Discrimination alleging that he was denied a reasonable accommodation in the form of a service dog to help him with his post-traumatic stress disorder.
Read More >> A Case Worthy of Ushering in the Dog Days of Summer
May 23, 2023
May 30, 2023 – UPDATE: On May 26, NYC Mayor Adams signed this bill into law, and it will go into effect 180 days later, on Nov. 22, 2023. Please feel free to reach out for steps your organization can take now to begin preparing.
On May 11, 2023, the New York City Council passed a bill which would prohibit height and weight discrimination within employment, housing and public accommodations under the New York City Human Rights Law (NYCHRL). As of this writing, the bill has been sent to Mayor Eric Adams for signature, who has 30 days to either sign the bill, take no action or veto it. If the mayor signs or takes no action, the bill becomes law and would take effect 180 days thereafter. In the event of a veto, the bill is sent back to the Council, which can override the veto with a two-thirds vote.
Read More >> NYC Council Passes Bill to Prohibit Height, Weight Discrimination
May 1, 2023
The Office of Federal Contract Compliance Programs (OFCCP) approved the use of a revised voluntary self-identification of disability form (Form CC-305) on April 25, 2023.
The recently released form includes updated language and additional examples of disabilities. Federal contractors and subcontractors have until July 25, 2023 to implement the new form into their applicant and employee systems and processes. Contractors are required to use this form in order to be in compliance with Section 503 of the Rehabilitation Act of 1973 and its implementing regulations.
Read More >> OFCCP Issues Updated Voluntary Self-Identification of Disability Form
January 31, 2023
On Jan. 13, 2023, Onondaga County Supreme Court Justice, Hon. Gerard J. Neri, struck down a regulation adopted by the New York State Department of Health (NYSDOH) – 10 N.Y.C.R.R. § 2.61 (the Regulation) – requiring covered healthcare entities to ensure that their “personnel” are “fully vaccinated” against COVID-19.[1] Judge Neri invalidated the Regulation on several grounds, holding that the NYSDOH exceeded its authority in implementing the Regulation and that the Regulation lacked a rational basis given the NYSDOH’s acknowledgement that the mandate does not prevent transmission.[2]
Read More >> Update Regarding New York’s Healthcare Vaccine Mandate
