New York Labor and Employment Law Report

The Fair Chance Act (FCA), which was added to the New York City Human Rights Law (NYCHRL) on Oct. 27, 2015, provides “fair chance” protections to workers with criminal convictions and limits when and to what extent employers can consider an individual’s criminal history in making employment decisions. On July 15, 2021, the New York City Commission on Human Rights (NYCCHR) issued new guidance¹ interpreting key amendments to the FCA that go into effect on July 29, 2021. 

Read More >> NYC Amends Fair Chance Act

In a decision of interest to New York State employers subject to federal safety regulations, the Second Circuit Court of Appeals recently answered that question in the negative. In Bey v. City of New York¹, the Court concluded that where a federal safety regulation expressly prohibits a requested medical accommodation, that regulation trumps the requirements imposed by the Americans with Disabilities Act (the ADA) and Title VII and shields the employer from liability under those statutes. 

Read More >> Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

Following in the footsteps of more than a dozen other states, on March 31, 2021, New York passed legislation legalizing the recreational use of marijuana for individuals over the age of 21.

The Marijuana Regulation and Taxation Act (the Act) legalizes the licensed cultivation and distribution, as well as the use and possession, of recreational marijuana in New York State. Though medical marijuana has been legal in New York since the Compassionate Care Act was passed in 2014, the Act significantly expands the lawful use of marijuana in the state. 

Read More >> What the Legalization of Recreational Marijuana Means for New York Employers

On Jan. 28, the New York State Appellate Division, First Department, issued a decision with potentially significant implications for employers confronted with their employees’ use of medical marijuana. 

Read More >> Employer Discrimination Against Certified Medical Marijuana Users

On Wednesday, December 16, the Equal Employment Opportunity Commission (EEOC) released new guidance (the Guidance) for employers regarding COVID-19 vaccinations. While the Guidance offers some insight for employers who are considering offering vaccinations to employees or requiring that employees get the COVID-19 vaccination, a number of questions still remain unanswered. The following are some key takeaways from the Guidance.

Read More >> EEOC Issues COVID-19 Vaccination Guidance

Employers issuing notices pursuant to the New York State Worker Adjustment and Retraining Act (NY WARN) are now subject to additional requirements due to a statutory amendment that Gov. Cuomo signed into law on November 11, 2020. This amendment, which is effective immediately, expands the list of entities whom covered employers must notify prior to implementing a plant closing or mass layoff. The list now includes: (1) the chief elected official of the unit(s) of local government and the school district(s) in which the plant closing or mass layoff will occur; and (2) each locality which provides police, firefighting, emergency medical or ambulance services or other emergency services to the site of employment subject to the plant closing or mass layoff.

Read More >> Governor Cuomo Signs Amendment to the New York State Worker Adjustment and Retraining Act

On July 8, 2020, the Supreme Court analyzed the ministerial exception for employees who allege employment discrimination claims for the first time in nearly a decade when it issued its decision in Our Lady of Guadalupe School v. Morrissey-Berru. The decision, which was issued in two combined cases on appeal before the Court, confirms the general principle under the First Amendment to the U.S. Constitution that religious institutions must retain the right to select, supervise, and, if necessary, remove an employee who qualifies as a "minister" without interference by secular authorities. The Court construed the definition of “minister” broadly in holding that the ministerial exception applied to two teachers at religious schools who had filed employment discrimination claims pursuant to the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA) respectively.

Read More >> Supreme Court Applies "Ministerial Exception" to Teachers at Religious Schools

On June 15, 2020, the Supreme Court held in a monumental decision that an employer who discriminates against an employee or applicant based on that individual’s gender identity or sexual orientation violates Title VII of the Civil Rights Act.

Read More >> Landmark Supreme Court Decision Protects LGBTQIA+ Employees Under Title VII of the Civil Rights Act

On August 12, 2019, Governor Cuomo signed the legislation that was passed by the New York State Assembly and Senate on June 19, 2019, making sweeping changes to the New York Human Rights Law. We previously posted a summary of the significant amendments to the Human Rights Law and the potential impact that these amendments could have on the litigation of discrimination and harassment claims filed with the Division of Human Rights and in court. The legislation does not apply retroactively, so only future claims under the Human Rights Law will be affected.

Read More >> Governor Cuomo Signs Bill Amending the Human Rights Law

If you’ve had occasion to converse with a management-side employment lawyer (and somehow survived it), it seems the edict of documenting performance issues is tattooed on his/her forehead. I must confess in my own supervisor training I have warned that, in essence, “if it’s not in writing, it did not happen” (at least for purposes of trying to get a case dismissed on a motion for summary judgment). I still believe that documentation is always the safest course, but can an employer still fire an employee for a series of undocumented incidents and avoid having to go to trial when the employee disputes them? The Seventh Circuit has answered this question in the affirmative.

Read More >> The Sound of Silence: Seventh Circuit Holds That Undocumented Misconduct is Still Misconduct

On July 12, Governor Cuomo signed a bill amending the New York Human Rights Law to prohibit employment discrimination based on "traits historically associated with race, including, but not limited to, hair texture and protective hairstyles."  The term "protective hairstyles" includes, but is not limited to, "such hairstyles as braids, locks, and twists."  This amendment took effect immediately upon the Governor's signature.

Read More >> New York Amends the Human Rights Law to Prohibit Discrimination Based on Traits Historically Associated With Race (Such As Hair Texture and Protective Hairstyles)

In 2018, Governor Cuomo signed a State Budget bill that included various provisions addressing sexual harassment in the workplace.  Among those provisions was a prohibition on including in any written contract a clause requiring the submission of sexual harassment claims to arbitration, except where inconsistent with federal law.  On June 26, 2019, the U.S. District Court for the Southern District of New York held, in Latif v. Morgan Stanley & Co. LLC, that this New York law prohibiting mandatory arbitration of sexual harassment claims is inconsistent with the Federal Arbitration Act and is therefore invalid.

Read More >> Federal Court Holds That New York Law Prohibiting Mandatory Arbitration of Sexual Harassment Claims Is Invalid