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.
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.
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.
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.
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.
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.
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.
On June 19, 2019, the New York State Assembly and Senate passed legislation that makes sweeping changes to the New York Human Rights Law. This legislation will have a significant impact on the litigation of discrimination and harassment claims filed with the Division of Human Rights and in court. It is expected that Governor Cuomo will sign the legislation soon. The legislation does not apply retroactively, so only future claims under the Human Rights Law will be affected.
On June 3, 2019, the United States Supreme Court unanimously ruled in the case of Fort Bend County, Texas v. Davis that the requirement under Title VII of the Civil Rights Act ("Title VII") to file an administrative charge with the Equal Employment Opportunity Commission ("EEOC") is a non-jurisdictional claim-processing rule. In other words, the Court held that a plaintiff's failure to file an EEOC charge does not automatically preclude a federal court from exercising jurisdiction over the complaint; instead, an employer must "promptly" raise the defense that the plaintiff failed to satisfy the procedural requirement of filing an EEOC charge. An employer's failure to raise such a defense promptly could result in forfeiture of the defense, and a federal court may exercise jurisdiction over the complaint despite the plaintiff's failure to file an EEOC charge.
On January 15, 2019, the New York legislature passed the Gender Expression Non-Discrimination Act (“GENDA”). GENDA, which faced more than a decade of impasse in the State Senate, was signed by Governor Cuomo on January 25, 2019.
In 1980, the New York Court of Appeals (the highest court in New York) held that the prohibition against "marital status" discrimination contained in the New York State Human Rights Law includes only discrimination based on the status of being married or not married, and does not prevent an employer from taking an adverse employment action against an employee based on the identity or occupation of a person's spouse. In that case, Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board, the Court upheld the employer's decision to discharge the plaintiff because her husband was employed as her supervisor in violation of the employer's anti-nepotism policy. In a recent decision, however, the First Department Appellate Division adopted a more expanded definition of marital status discrimination under the New York City Human Rights Law.
Out-of-state entities with the power to dictate a New York employer's hiring and retention policies take notice: you can be subject to liability under the New York Human Rights Law ("NYHRL") if you "aid and abet" discrimination against individuals who have a prior criminal conviction, even if you are not the direct employer of those individuals. In Griffin v. Sirva, Inc., the New York Court of Appeals held that while liability under Section 296(15) of the NYHRL (which prohibits employment discrimination based on prior criminal convictions) is limited to an aggrieved party's employer, liability can extend beyond a direct employer under Section 296(6) of the NYHRL "to an out-of-state non-employer who aids or abets employment discrimination against individuals with a prior criminal conviction."
In Griffin, the plaintiffs were employees of Astro, a New York moving company. The plaintiffs had prior criminal convictions for sexual offenses against children. After the plaintiffs were hired, Astro entered into a moving services contract with Allied, a nationwide moving company based on Illinois. As a result of that contract, a large majority of Astro's work was thereafter performed on behalf of Allied.
The contract required Astro to adhere to Allied's Certified Labor Program guidelines, one of which required that employees who perform work in a customer's home or place of business pass a criminal background check. Under Allied's guidelines, employees with prior sexual offense convictions automatically failed the screening. Pursuant to the contract with Allied, Astro would have been subject to escalating penalties if it used unscreened labor. Accordingly, the plaintiffs were screened and when their convictions were identified, Astro fired them.
The plaintiffs filed suit in the U.S. District Court for the Eastern District of New York against both Astro and Allied, alleging that their terminations based upon their prior criminal convictions violated the NYHRL. Allied, which was not the plaintiffs' direct employer, moved for summary judgment on the NYHRL claims. The District Court granted its motion, holding that: (1) Section 296(15) of the NYHRL applies only to employers and that Allied was not the plaintiffs' employer; and (2) Section 296(6) of the NYHRL (the "aiding and abetting" provision) could not be used to impose liability on Allied because Allied did not participate in firing the plaintiffs.
The plaintiffs appealed the District Court's decision to the Second Circuit Court of Appeals, which posed the following three questions to the New York Court of Appeals regarding the interpretation of Section 296(15) and 296(6) of the NYHRL: (1) Does Section 296(15) of the NYHRL, prohibiting discrimination in employment on the basis of a criminal conviction, limit liability to an aggrieved party's "employer"? (2) If liability under Section 296(15) is limited to an aggrieved party's employer, what is the scope of the term "employer" for purposes of that provision? (3) Does Section 296(6) of the NYHRL extend liability to an out-of-state non-employer who aids or abets employment discrimination against individuals with a prior criminal conviction? The Court answered the first question by holding that liability under Section 296(15) is limited to an aggrieved party's employer. The Court answered the second question by holding that common law principles of an employment relationship should be applied, "with greatest emphasis placed on the alleged employer's power to 'to order and control' the employee in the performance of his or her work." The Court answered the final question by holding that an out-of-state non-employer who engages in conduct that aids or abets employment discrimination against individuals with a prior criminal conviction -- for example, by imposing contractual terms on a New York employer prohibiting the use of employees with certain types of criminal convictions from performing work under the contract -- can be held liable under Section 296(6) of the NYHRL if the employer is determined to have violated Section 296(15) of the NYHRL by complying with the terms of the contract.
While the plaintiffs' appeal to the Second Circuit regarding the dismissal of their claims against Allied was pending, their claims against Astro (their direct employer) proceeded to a jury trial. The jury found that Astro did not violate the NYHRL by firing the plaintiffs due to their prior criminal convictions. Therefore, in this particular case, it does not appear that Allied will be subject to liability. However, the interpretation of Section 296(6) of the NYHRL set forth by the New York Court of Appeals can certainly be used in future cases to impose liability on an out-of-state non-employer who imposes contractual terms on a New York employer that cause the New York employer to violate Section 296(15) of the NYHRL.