On Dec. 19, 2025, Governor Kathy Hochul signed Senate Bill S8338 into law amending the New York State Human Rights Law (NYSHRL) to expressly recognize “disparate impact” claims in employment discrimination claims.
While New York courts had already recognized disparate impact liability, this amendment formally codifies the standard and aligns the NYSHRL with federal law (Title VII) and the New York City Human Rights Law.
What This Means
The amendment imposes liability where a facially neutral policy or practice has discriminatory effect on a protected group—regardless of any discriminatory intent. In other words, employers may face liability even absent a discriminatory motive if a policy disproportionately impacts a protected class. The law applies to conduct occurring on or after Dec. 19, 2025.
Legal Framework
Under the new subdivision of Executive Law §296:
Employee’s Burden: a plaintiff must show that a specific policy or practice has a disparate impact on a protected group, either in fact or predictably.
Employer’s Burden: if a disparate impact is shown, the employer must establish a “legally sufficient justification” by demonstrating that:
the policy is job-related and consistent with a business necessity; and
the business necessity cannot be achieved through a less discriminatory alternative. The justification must be supported by evidence—not speculation.
Employee’s Rebuttal: even if the employer meets this burden, an employee may still prevail by showing that a less discriminatory alternative exists.
Practical Takeaways for Employers
Employers should exercise caution in their increasing use of artificial intelligence (AI) in personnel or business decisions, as algorithmic screening, hiring, firing, promotion, discipline or compensation systems may unintentionally produce statistically disparate outcomes that give rise to disparate impact liability if not validated as job-related, consistent with business necessity and assessed for less discriminatory alternatives.
Policies that appear neutral on their face can still create liability if they disproportionately affect protected groups.
Employers should ensure that key policies (e.g., hiring criteria, background checks, compensation structures, scheduling practices) are tied to legitimate business needs and supported by evidence.
Where possible, employers should evaluate whether less discriminatory alternatives are available.
Documentation supporting the business necessity of policies will be critical in defending potential discrimination claims.
Next Steps
Given the expansion and codification of disparate impact liability, employers should consider proactively reviewing their employment practices, policies and job classifications to identify potential risk areas and ensure compliance with evolving state and local standards.
On Feb. 13, 2026, Governor Kathy Hochul signed an amended version of the Trapped at Work Act (the Act) into law. When signing the Act in December 2025, Governor Hochul flagged ambiguities in the original bill and conditioned her approval on the Legislature making amendments during the current legislative session. The amended Act resolves these ambiguities and places employers on more balanced footing regarding their obligations under the law.
The Act applies to “employment promissory notes,” which the Act defines as any instrument, agreement or contract provision that requires an employee to pay the employer if the employee’s employment relationship with a specific employer terminates before a stated period of time passes. The Act provides that requiring an employment promissory note as a condition of employment is unconscionable, against public policy, unenforceable and null and void. However, if an employment promissory note appears within a larger agreement, the remainder of the agreement remains intact.
Key Changes
Definitions of Employer and Employee
The Act now defines “employee” as any person employed for hire by an employer. This definition significantly limits the scope of the Act, as its initial iteration applied broadly to “workers," which included independent contractors and others.
The amendment revised the definition of “employer” to align with the Labor Law's standard definition (i.e., any person, corporation, limited liability company or association that employs any individual) and expressly includes the state and its political subdivisions.
Additional Exceptions
The amended Act clarifies that certain agreements will not be rendered void and unenforceable, including:
Agreements seeking repayment of tuition, fees and required materials for a “transferable credential” (i.e., widely recognized degrees, licenses, certificates or documented skill credentials that enhance employability across the industry and are not employer-specific requirements), provided the agreement contains the specific language discussed below.
Agreements requiring the repayment of a financial bonus (e.g., sign on bonuses), relocation assistance or other non-educational incentive, payment or benefit that is not tied to specific job performance. However, repayment cannot be required if the employer terminated the employee for any reason other than misconduct or if the employer misrepresented the job’s duties or requirements to the employee.
For employers to seek repayment from employees for tuition and educational materials, for "transferable credentials," an agreement between the employer and employee must satisfy the following requirements:
the agreement is set forth in a written contract that the employer offers separately from any employment contract;
the credential is not a condition of employment;
the agreement specifies the repayment amount before the employee agrees to the contract, and the repayment amount does not exceed the actual cost to the employer;
the agreement provides for prorated repayment over the required employment period that is proportional to the total repayment amount and the length of the required employment period without accelerating repayment if the employee leaves; and
the employer may not require repayment if the employer terminates the employee, unless the employer terminated the employee for misconduct.
Notably, the statute does not define “misconduct.” Employers that contemplate seeking repayment on this basis should apply well defined, consistently enforced standards and carefully document termination decisions.
Additional exceptions include: (1) repayment for any property that the employee voluntarily purchased or leased; (2) agreements tied to sabbatical leave for educational personnel; and (3) agreements entered into pursuant to a collective bargaining agreement.
What Happens if Employers Violate the Act?
An employee or prospective employee who is aggrieved under the Act may file a complaint with the Commissioner of Labor. The amended version of the Act maintains the same penalty range of $1,000 to $5,000 for each employee violation. However, the amended language now requires the Commissioner to consider the size of the employer, the gravity of the violation, previous violations, and the employer’s good faith basis for believing that the employer's actions were compliant when assessing the penalty. Importantly, each violation constitutes a separate offense, so employers should be aware of the potential financial exposure for repeated violations of the Act.
When is the Amended Law Effective?
The Act, as amended, changes the effective date from “immediately” to one year after the effective date of the 2025 law. Accordingly, the Act becomes effective on Dec.19, 2026.
Next Steps
Although the amended Act is not effective until Dec. 19, 2026, employers should develop a plan to review any potentially affected agreements and policies and make any necessary revisions before the effective date.
Throughout 2025, New York enacted several significant amendments to the state’s labor law, impacting contractors and subcontractors working on covered prevailing wage projects.
Expanding Coverage of Off-Site Custom Fabrication
On Dec. 20, 2025, Governor Hochul signed legislation amending New York’s prevailing wage law to expand coverage of off-site fabrication work.
Prior to this amendment, New York state regulators advised that prevailing wage requirements applied to off-site fabrication only if the work was "usually and customarily performed at the project site." Under this framework, off-site fabricators frequently could be treated appropriately as material suppliers and therefore falling outside the statute's coverage. In recent years, however, there has been a growing number of disputes over the coverage of off-site fabrication on public works projects in New York. The 2025 amendment is expected to put to rest some of these prior issues but may raise other new disputes based on the legislative drafting.
In any event, the new law expressly expands the scope of “public work” to now include certain "custom fabrication" performed off-site, even if that fabrication work takes place in a different state or jurisdiction. This extraterritorial application of the amendment is particularly notable, considering the limited authority and jurisdiction of state regulators in New York.
Nevertheless, under the amendment, workers performing covered off-site fabrication work must be paid the prevailing wage rate and fringe benefits established for the New York county where the project is located. (Note: The amendment appears to exempt projects falling under federal Davis-Bacon prevailing wage requirements.)
The statute defines “custom fabrication” as work that is solely and specifically designed and engineered for a covered public works building or work. Under the new law, covered custom fabrication includes, but is not limited to:
exterior and interior wall panel systems;
woodwork;
electrical systems;
plumbing systems;
heating, cooling, ventilation or exhaust duct systems;
rebar cages; and
mechanical insulation.
To be covered custom fabrication, the work must also constitute a “significant portion of the building or work" as delivered for installation or assembly. Under the new law, a "significant portion of the building or work" means portions or modules of the building or work – as opposed to smaller prefabricated components – that are delivered to the project site with minimal construction work remaining, other than the installation and assembly of such portions or modules.
It remains to be seen how effectively these cross-referenced definitions and (at times somewhat vague) terms can be applied in the real world on a construction project.
The amendment also impose new, extensive certified payroll obligations on contractors and subcontractors performing covered off‑site custom fabrication work. Further, the statute requires municipalities and state entities – the project owners – to report the following information to the Commissioner of the New York State Department of Labor (NYSDOL): (a) the name and address of off-site fabricators; (b) identification of the custom materials and quantities manufactured; (c) estimated and actual costs of fabricated materials; and (d) the number of workers used in fabrication.
The Governor’s Approval Memo noted an agreement with the legislature to clarify the scope of this bill, including exemptions for certain transportation and affordable housing related projects to mitigate costs associated with these essential projects. So, we expect to see further legislation addressing these points.
This new law becomes effective on June 18, 2026 (180 days from Dec. 20, 2025). In preparation for implementation, business entities should assess the impact and increased costs which will be associated with off-site fabrication work, as well as ensure compliance with heightened certified payroll documentation requirements and anticipate closer bid stage and construction phase scrutiny of whether off-site prefabricated work is covered under New York’s prevailing wage law.
Prevailing Wage Coverage for Delivery and Hauling of Concrete and Asphalt in NYC and Certain Other Counties
On Dec. 12, 2025, Governor Hochul signed legislation, requiring payment of prevailing wages and fringe benefits to drivers who are delivering and hauling concrete and asphalt to and from certain public worksites.
The law applies to covered activities in the five boroughs of New York City, as well as the counties of Nassau, Putnam, Suffolk, and Westchester. Covered activities include delivery, hauling, return trips (whether loaded or empty) and time spent loading and unloading.
(This amendment expands on prior recent changes to Section 220(3-a) of the New York labor law, which extended prevailing wage requirements to the hauling of "aggregates," i.e., sand, gravel, stone, crushed stone, dirt, soil, millings and fill to and from project sites. Historically such hauling had only been covered in limited circumstances.)
The 2025 legislation explicitly extends comparable coverage to now also includes concrete and asphalt hauling in the specified jurisdictions. The law took effect immediately on Dec. 12, 2025.
Contractors, subcontractors and hauling providers engaged in public works in the covered regions must comply with these new requirements. And they should anticipate potential cost impacts, bid adjustments and heightened scrutiny of certified payrolls and hauling arrangements from New York regulators. Among other things, businesses working in this area should consider:
Updating procurement and contracting workflows to appropriately incorporate the new prevailing wage obligations for concrete and asphalt hauling in the covered jurisdictions;
Ensuring certified payroll processes capture loading and unloading time and return hauls;
Reviewing subcontractor and trucking agreements to require prevailing wage compliance and adequate recordkeeping; and
Revisiting bid pricing, project budgets and schedules to account for the expanded coverage.
New Apprenticeship Requirements for Covered Renewable Energy Systems
Another new law - which took effect immediately upon Governor Hochul’s signature on Sept. 5, 2025 - imposes new apprenticeship requirements on all contractors and subcontractors performing construction work on “covered renewable energy systems,” which include:
Renewable energy systems (including solar and photovoltaic installations) of 1 MW or greater that receive renewable energy credits;
Offshore wind supply chain projects receiving funding from the New York State Energy Research & Development Authority (NYSERDA);
Certain “thermal energy networks”; and
Major utility transmission facilities.
This legislation extends the apprenticeship requirement – previously applicable only to thermal energy networks – to a broader renewable energy sector. For thermal energy networks specifically, the new law additionally requires the use of pre-apprenticeship direct entry providers registered with NYSDOL.
All covered contractors and subcontractors must use apprenticeship agreements as defined under Article 23 of the New York Labor Law. Among other things, such apprenticeship programs and agreements are subject to review and approval from NYSDOL.
This is a significant requirement for many contractors and subcontractors who have limited access to apprentices and approved apprenticeship programs in New York.
The Governor's Approval Memo acknowledged that the immediate effective date "poses challenges" and indicated that the state Legislature agreed to enact subsequent amendments to provide flexibility where apprentice availability may be insufficient. We intend to report on this issue.
Owners, developers and contractors engaged in covered renewable energy projects should verify that all contractors and subcontractors hold compliant apprenticeship agreements for construction work as necessary. For thermal energy network projects, these entities must additionally confirm the use of NYSDOL registered pre-apprenticeship direct entry providers.
We expect further changes to New York’s prevailing wage law in the future. Impacted businesses should work with legal counsel to assess their potential compliance obligations arising under the above amendments. If you have questions about the legislation discussed above, please also feel free to contact Andy Bobrek or Rebecca J. LaPoint.
On January 5, 2026, the United States Department of Labor (DOL) issued an opinion letter (FMLA2026-2) clarifying whether time spent traveling to and from medical appointments may qualify as protected leave under the Family and Medical Leave Act (FMLA). The DOL concluded that employees may use FMLA leave not only for the medical appointment itself, but also for travel time reasonably necessary to obtain treatment for a qualifying serious health condition.
The FMLA entitles eligible employees up to 12 weeks of leave during any 12-month period for the treatment of “serious health conditions” and to care for certain family members with a serious health condition. A “serious health condition” generally involves overnight hospitalization, inpatient care and continuing treatment from a medical provider, as defined by the statute and implementing regulations. Examples of qualifying serious health conditions may include cancer, diabetes, Alzheimer’s disease, pregnancy and certain mental health conditions. Time spent attending medical appointments to diagnose or treat a qualifying serious medical condition is a recognized and permissible use of FMLA leave.
The FMLA also permits eligible employees to take leave to care for a qualifying family member—defined as a spouse, child or parent—with a serious health condition. This caregiving leave may include accompanying a qualifying family member to medical appointments related to the diagnosis or treatment of the serious health condition.
The DOL’s Opinion on Travel Time under the FMLA
The January 5, 2026 DOL opinion letter reasoned that travel to and from a health care provider is essential for obtaining care and continuing treatment. As a result, the DOL concluded that FMLA leave may be used “not only for the actual appointment, but also the time traveling to and from the appointment.” The DOL further explained that the same principle applies when an employee travels to and from a qualifying family member’s medical appointment when treating a serious medical condition. Importantly, only travel time directly related to obtaining or providing covered medical care qualifies for FMLA protection and will be considered an appropriate use of leave time.
The DOL cautioned, however, that FMLA protection does not extend to travel time that contains travel or stops for “unrelated activities.” By way of example, if an employee requests three hours of leave time for an appointment but spends one of those hours shopping or engaging in other personal errands, only the time reasonably related to the medical appointment would qualify as protected FMLA leave time.
The DOL opinion letter also addressed whether medical certifications must account for an employee’s travel time. The opinion letter explains that neither the FMLA nor its implementing regulations require a health care provider to include information regarding an employee’s travel time when completing a medical certification. To that end, the FMLA allows an employer to request “medical facts within the knowledge of the health care provider regarding the [employee’s] condition”. Because an employee’s travel time is not within the knowledge of the health care provider, the DOL states that a medical certification need not include information on travel time to be considered valid.
Recommendations
Employers should review and, where appropriate, update their leave policies and internal procedures to reflect that travel time to or from an appointment related to an employee’s serious health condition or to a qualifying family member’s serious health condition is appropriate leave under the FMLA. Employers should also ensure that human resources personnel and leave administrators understand that an employee’s medical provider is not required to document or quantify travel time in a medical certification and that the absence of such information does not render leave related to the travel time as invalid.
On Dec. 19, 2025, Governor Kathy Hochul signed Senate Bill S03072 (the Amendment) into law, amending the New York State Fair Credit Reporting Act to restrict the use of consumer credit history for employment purposes. With this amendment, New York joins ten other states and several major cities, including New York City, which have comparable laws currently in place. The Amendment will go into effect on April 18, 2026.
Restrictions on the Collection and Use of Consumer Credit History
Under the Amendment, employers, labor organizations and employment agencies are prohibited from requesting or using an applicant’s or employee’s consumer credit history for employment purposes or discriminating against an applicant or employee in any way related to their employment based on their consumer credit history.
Consumer credit history is defined as “an individual’s credit worthiness, credit standing, credit capacity or payment history as indicated by: (1) a consumer credit report, (2) credit score or (3) information an employer obtains directly from the individual regarding (i) details about credit accounts, including the individuals number of credit accounts, late or missed payments, charged-off debts, items in collections, credit limit or prior credit report inquiries or (ii) bankruptcy judgments or liens.”
The Amendment also defines a consumer credit report to include “any written or other communication of any information by a consumer reporting agency that bears on a consumer’s credit worthiness, credit standing, credit capacity or credit history.”
Exemptions under the Amendment
While the Amendment’s definitions and prohibitions regarding the use of consumer credit history are broad, there are limited exemptions for certain employers and positions, including:
An employer that is required by state or federal law, or a self-regulatory organization to use an individual’s consumer credit history for employment purposes;
Positions such as peace officers or police officers or positions with law enforcement or in an investigative function with a law enforcement agency;
Persons in a position with a high degree of public trust subject to background investigation by a state agency;
Persons in a position that requires security clearance under state or federal law;
Persons in a position that requires the employee to be bonded under state or federal law;
Persons in non-clerical positions that have regular access to trade secrets, intelligence information or national security information;
Persons in positions that have signatory authority over third party funds or assets valued at $10,000 or more or that involve a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer; and
Persons in positions with regular duties that allow the employee to modify digital security systems established to prevent the unauthorized use of the employer’s or client’s networks or databases.
However, employers should be aware that these exemptions are narrow and most only apply to specific positions, not to the employer or industry as a whole.
Impact on Local Laws
The Amendment also specifically states that it does not alter or exempt any employer, labor organization or employment agency duty to comply with any local law, ordinance or regulation regarding the use of consumer credit history where such laws provide greater protection for employees than those laid out in the Amendment.
This is particularly relevant for New York City employers because New York City’s Stop Credit Discrimination in Employment Act (SCDEA), which has been in effect since 2015, already places stringent restrictions on employers regarding the acquisition and use of consumer credit history for employment purposes. While the Amendment and SCDEA largely mirror each other, there are some differences. For example, SCDEA contains certain reporting requirements for exemptions that are not included in the Amendment. Therefore, New York City employers should be aware of both laws and be prepared to comply with whichever law offers the greatest protection to employees.
Restrictions on Consumer Credit Reporting Agencies
Aside from restrictions on employers, the Amendment also places limits on what kind of information consumer credit reporting agencies may provide under the New York State Fair Credit Reporting Act. Under the Amendment, reporting agencies are prohibited from providing consumer credit history in a consumer report for employment purposes unless one of the statutory exemptions listed above applies to the employer or position for which the information was requested.
Restrictions on State and Municipal Agencies
Lastly, under the Amendment, state and municipal agencies may not request or use the consumer credit history of an applicant, licensee or permittee for licensing or permitting purposes unless the agency is required to do so by law. However, the Amendment does not limit an agency’s ability to consider other information for licensing or permitting purposes such as an applicant’s, licensee’s, registrant’s or permittee’s failure to pay any tax, fine, penalty or fee that the person has admitted liability for, or for which a judgment has been entered by court or administrative tribunal, or any tax that a government agency has issued a warrant, lien, or levy on property.
While the Amendment does not take effect until April 18, 2026, employers should consider what steps they need to take to comply with these new restrictions. This includes reviewing current consumer credit history practices and identifying the applicability of any exemptions. As always, if you have any questions or would like any additional information, please contact Adam Mastroleo, Gavin Gretsky or any attorney in Bond’s labor and employment practice.
On Dec. 19, 2025, Governor Kathy Hochul signed the Trapped at Work Act (the Act) into law. This legislation, effective immediately, impacts agreements and policies that require employees to reimburse certain payments if they leave before the passage of a stated period of time.
What Does This Mean?
As a result of the Act, employers can no longer require employees or job candidates to sign an “employment promissory note” (i.e., an instrument, agreement or contract provision that requires a worker to pay the employer a sum of money if the worker leaves such employment before the passage of a stated period of time), as a condition of employment.
This change to New York’s labor law is expansive. The statute is clear that any future employment agreements demanding these types of payments as a condition of employment are unenforceable. In addition, according to the legislative history accompanying the bill, any existing agreements with “stay or pay provisions” are also unenforceable.
Who Does This Affect?
The Act broadly defines "employer" to include individuals, partnerships, associations, corporations, limited liability companies, trusts, the government and any organized group that hires or contracts with a worker for employment purposes. The term “employer” also includes any subsidiary or entity that is associated with an employer that provides training to workers.
“Worker” is also broadly defined to include an individual who is permitted to work for or on behalf of an employer, including employees, independent contractors, externs, interns, volunteers, apprentices and even sole proprietors who provide services on behalf of an employer.
What Are The Exceptions?
Under the Act, the prohibition on employment promissory notes or agreements specifically allows for the following types of employer reimbursements:
Repayment of payroll advances unrelated to training.
Payment for employer‑provided property sold or leased to the worker.
Agreements tied to sabbatical leave for educational personnel.
Programs agreed to under a collective bargaining agreement.
What are the potential consequences for violations?
Employers that do not comply with the Act can face civil penalties from the New York State Department of Labor, ranging from $1,000 to $5,000 for each violation. Additionally, attorneys’ fees may be awarded to employees who successfully defend against an employer’s attempt to enforce a prohibited agreement in court. Importantly, employers should be aware that if these prohibited promissory notes are a part of a larger employment agreement, only the promissory note portion is invalid. This means that the remainder of an otherwise enforceable employment agreement will not be affected.
What’s Happening Now?
Upon approving the Act, Governor Hochul flagged ambiguities in the original bill and conditioned her approval on legislative amendments in the next session. On Jan. 6, 2026, the legislature introduced amendments that, if approved by the Governor, would permit the following:
Create a pathway for employers to seek repayment of tuition, fees and required materials for a “transferable credential” (i.e., widely recognized degrees, licenses, certificates or documented skill credentials that enhance employability across the industry and are not employer-specific)
Permit repayment of certain nonperformance incentive payments, such as sign on bonuses or relocation assistance, subject to carveouts favoring employees who are terminated for reasons other than misconduct or who were misled about job duties.
This means that, if adopted, employers would be permitted to seek repayment from employees for “transferable credentials” under the amended Act as long as:
the agreement is memorialized in a separate document;
the credential is not a condition of employment;
there is a strict cap on the recoverable amount;
the agreement provides for prorated amount that will not be accelerated upon separation; and
no repayment is owed if the employee is terminated, unless they were fired for misconduct.
The amended version of the Act maintains the same penalty range for potential violations of $1,000 to $5,000 for each employee violation. However, the amended language would require that the Commissioner consider the size of the employer, the gravity of the violation, previous violations and the employer’s good faith basis to believe that their actions were compliant when assessing the penalty.
Next Steps
Although the amended legislation is pending, it is crucial that employers remember that the current iteration of the Trapped at Work Act as signed by Governor Hochul on Dec. 19, 2025, is currently effective. Employers should review their existing agreements and practices to ensure compliance to avoid legal exposure. If you have questions about the Trapped at Work Act, please contact Robert Manfredo, Rebecca J. LaPoint, Joseph Vogt, any attorney in Bond’s labor and employment practice or the attorney at the firm with whom you are regularly in contact.
The U.S. Court of Appeals for the Second Circuit recently clarified how courts must evaluate an employee’s claimed religious beliefs when assessing requests for religious accommodations. In Gardner-Alfred v. Federal Reserve Bank of New York, 143 F.4th 51 (2d Cir. 2025), the court provided guidance on the evidentiary standards governing claims arising from COVID-19 vaccination mandates and related religious accommodation requests and/or exemptions. The decision emphasizes that disputes over the sincerity of an employee’s religious beliefs are typically fact-intensive and should not be resolved by courts at summary judgment where genuine credibility issues exist.
Factual Background
The Federal Reserve Bank of New York (the Bank) implemented a policy requiring all employees to be fully vaccinated against COVID-19, subject to medical and/or religious exemptions. Both named plaintiffs, Diaz and Gardner-Alfred, sought religious exemptions, which the Bank denied, and they were terminated thereafter.
Both plaintiffs sued under the Religious Freedom Restoration Act (RFRA), the Free Exercise Clause of the First Amendment, and Title VII, each of which requires proof that their objections stemmed from “sincerely held religious beliefs,” and that the Bank’s vaccination policy burdened or conflicted with those beliefs. The district court granted summary judgment in favor of the Bank on all claims, concluding that neither plaintiff had submitted sufficient evidence to establish the sincerity of their beliefs.
The District Court’s Ruling
As to Plaintiff Gardner-Alfred, the district court found that her claimed 20-year membership in the Temple of the Healing Spirit was unsupported by any meaningful details. She could not identify any other members, any events she attended or otherwise verify her involvement. The court also pointed to evidence that she had purchased a generic vaccine-exemption package available online. Based on the record, the court concluded that no reasonable jury could find her beliefs sincere.
The district court reached a similar conclusion with respect to Plaintiff Diaz, emphasizing evidence of secular motivations for avoiding vaccination, inconsistent conduct with her stated beliefs and the fact that her pastor declined to support her exemption request. In the alternative, the district court ruled that no substantial religious conflict existed because the Pfizer and Moderna mRNA vaccines do not contain, and are not manufactured with, aborted fetal cells.
The Second Circuit’s Split Decision
On appeal, the Second Circuit affirmed summary judgment against Plaintiff Gardner-Alfred but vacated and remanded as to Plaintiff Diaz’s claims.
For Plaintiff Gardner-Alfred, the court described the case as one of the “rare circumstance[s]” in which a plaintiff’s testimony was so contradictory, incomplete and unsupported that it raised “only a sham issue of fact,” and no reasonable jury could find that her beliefs were sincere.
Plaintiff Diaz’s case was different. The Second Circuit held that while the evidence could raise doubts about her sincerity, the evidence did not compel a single conclusion. Instead, the record permitted competing reasonable inferences, which must be resolved by a jury—not a court.
In reaching that conclusion, the Second Circuit emphasized several key principles:
Mixed motives do not defeat sincerity. A jury could find that Plaintiff Diaz had both secular and religious objections to the vaccine yet still acted based on a sincerely held religious belief.
Inconsistent conduct is not dispositive. The court emphasized that “even the most sincere practitioner may stray from time to time.”
Clergy disagreement is not determinative. Plaintiff Diaz’s pastor refused to sign her exemption letter, but the court held that sincerity turns on the employee’s own beliefs – not the views of her religious leaders.
Use of a third-party religious organization’s letterhead does not automatically undermine sincerity. A jury could view Plaintiff Diaz’s persistence after her pastor’s refusal as evidence supporting sincerity.
Because reasonable jurors could reach different conclusions, the Second Circuit held that the question of Plaintiff Diaz’s sincerity must be decided by a jury at trial, rather than by the court on summary judgment.
Practical Takeaways for Employers
The Second Circuit’s opinion provides several signals and lessons for employers evaluating religious accommodation requests:
Summary judgment on sincerity will remain rare. Courts will only resolve sincerity as a matter of law in exceptional cases with overwhelming evidence of insincerity.
Inconsistent behavior alone is insufficient. Employers should not assume that deviations from religious practices defeat a claim.
Mixed motives do not negate religious beliefs. The presence of mixed motives does not eliminate legal protection.
Employers should document but not overreach. Employers should ask appropriate clarifying questions and carefully document the interactive process, while avoiding any attempt to assess the validity or correctness of an employee’s religious doctrine. Courts will closely scrutinize employer conduct that appears to cross the line from evaluating sincerity into acting as a theological gatekeeper.
Effective Dec. 5, 2025, the New York State Human Rights Law (NYSHRL) was amended to expressly prohibit retaliation against employees who request a reasonable accommodation.
Under the Americans with Disabilities Act (ADA), New York City Human Rights Law (NYCHRL), and the NYSHRL, employers are prohibited from retaliating against employees for engaging in a protected activity. Retaliation can include actions such as termination, demotion, reduction in hours, or any other adverse employment action taken in response to engagement in a protected activity.
To establish a prima facie case of retaliation under these statutes, a plaintiff must show that: (1) they engaged in “protected activity;” (2) their employer was aware that they participated in such activity; (3) they suffered an adverse employment action based upon their protected activity; and (4) there is a causal connection between the protected activity and the adverse action.
Courts have disagreed on whether a request for reasonable accommodation qualifies as protected activity to satisfy the first element of a retaliation claim:
ADA: Courts have long recognized that requesting a workplace accommodation constitutes protected activity.
NYCHRL: Following a November 11, 2019 amendment, the statute explicitly provides that a reasonable accommodation request is protected activity.
NYSHRL (prior to the 2025 amendment): Courts held that such requests did not qualify as protected activity. See, e.g., Jordan v. City of New York, 2024 U.S. Dist. LEXIS 214421 (S.D.N.Y Nov. 22, 2024); D’Amico v. City of New York, 159 A.D.3d 558, 558-59 (1st Dept. 2018); McKenzie v. Meridian Capital Group, LLC, 35 A.D.3d 676, 677-78 (2d Dept. 2006).
The 2025 amendment to the NYSHRL overturns that precedent. The statute now explicitly provides that requesting a reasonable accommodation is protected activity for purposes of retaliation claims. Consequently, any retaliatory action taken in response to such a request constitutes an unlawful discriminatory practice under the NYSHRL, bringing the statute into alignment with the ADA and NYCHRL.
Under New York Labor Law (NYLL) Section 191, employers are required to pay “manual workers” on a weekly basis. As we previously reported here, there is currently a split among courts as to whether manual workers have a private right of action to pursue pay frequency violations.
NYLL Section 198 was amended in May 2025 to eliminate liquidated damages as a remedy available to employees for an employer’s first violation of NYLL Section 191, as long as the employer paid employees on a regular schedule and at least semi-monthly (for more information, please see here). For first-time weekly pay violations, the penalty is now limited to lost interest based on delayed payment, regardless of whether the violation occurred before or after the amendment.
The constitutionality of the amendment is now being challenged in a Southern District of New York case, Bryant v. Buffalo Exchange. In this case, plaintiffs claimed that Buffalo Exchange violated NYLL Section 191 by paying them on a biweekly basis. Consistent with the law in place when the alleged violation took place and when plaintiffs filed the complaint, they sought liquidated damages in the amount of wages that were not timely paid. After the law was amended, Buffalo Exchange filed its second motion for a partial judgment on the pleadings to dismiss plaintiffs’ claim for liquidated damages under NYLL Section 191 based on the amendment to NYLL Section 198(1-a). Plaintiffs opposed the motion on the basis that NYLL Section 198(1-a) is unconstitutional for two reasons: (1) it exceeds the limitations on executive budgeting in the New York Constitution; and (2) it violates the Due Process Clause of the New York Constitution to the extent it applies retroactively to a liquidated damages claim that was filed prior to its enactment.
Plaintiffs’ first argument challenges the amendment on the basis that it was improperly introduced by Governor Hochul during the budget process. They assert that the governor cannot introduce non-budget-related legislation during the budget process, and that the amendment is non-budget-related legislation because it does not specifically relate to any appropriations in the budget. In their second argument, Plaintiffs assert that the amendment violates the Due Process Clause because there is no rational basis to justify its retroactive application.
On Nov. 14, 2025, the Court certified the question of NYLL Section 198(1-a)’s constitutionality to the New York State Attorney General, who will have 60 days to weigh in. If NYLL Section 198(1-a) is found unconstitutional, employers who paid manual workers on a less-than weekly basis could once again be faced with claims by employees seeking liquidated damages for delayed payments.
On Nov. 26, 2025, the U.S. District Court for the Eastern District of New York issued a preliminary injunction barring New York State from enforcing the recent legislative amendment that gave the New York Public Employment Relations Board (“PERB”) jurisdiction over private sector labor relations matters in New York. The Court found that federal law preempted the State’s action and gave exclusive jurisdiction to the National Labor Relations Board (“NLRB”).
As we previously reported (here and here), earlier this year Section 715 of the New York Labor Law was amended to provide coverage for private employees that are traditionally covered by the National Labor Relations Act (“NLRA”) by granting authority to PERB to oversee labor disputes in the private sector unless the NLRB had affirmatively obtained a court order establishing jurisdiction. The legislation enabled PERB to certify new union representatives without elections, adjudicate unfair labor practices, and exercise authority over new and previously negotiated collective bargaining agreements.
Two lawsuits to challenge the legislation were quickly filed. The NLRB sued New York to protect its jurisdiction. That matter remains pending. At about the same time, Amazon.Com Services, LLC (“Amazon”) filed suit to enjoin the prosecution and investigation of an unfair labor practice charge filed with PERB under the new law.
In granting the injunction, the federal court recognized that the Supremacy Clause of the U.S. Constitution establishes federal law as the “supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,” which means that when federal and state law conflict, federal law prevails and state law is preempted. In the context of private sector labor relations, the U.S. Supreme Court has long held that when an activity is arguably subject to regulation under the NLRA, the States must defer to the exclusive competence of the NLRB and, as such, States are prohibited from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA and from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the NLRA. The Court in the Amazon matter rejected all of New York State’s arguments to create an exception to these established principles and defend the legislative amendment. Given that Amazon faced an immediate risk of parallel and potentially inconsistent proceedings from the state and federal regulatory schemes, the Court found there was irreparable harm justifying an immediate injunction.
While an appeal is expected, the current result is very good news. In the NLRB’s action, PERB had already agreed to stay any proceedings initiated against private sector employers. It is now enjoined from enforcing the New York law against private sector employers. This action, however, does not impact employers already subject to PERB’s jurisdiction, including public employers and agricultural employers.
As a result, it is far less likely that unions will file representation petitions or unfair labor practice charges with PERB, and instead address complaints through the NLRB. Currently, the NLRB remains without a quorum; however, the NLRB’s Regional offices and General Counsel’s office are active again following the government shutdown and have restarted conducting elections, issuing complaints, investigating charges, holding hearings and issuing interim ALJ decisions.
If you have any questions regarding these developments, please contact Tom Eron, Sam Wiles, or the Bond attorney representing you or your organization.
The recently proposed Delivery Protection Act has now been sponsored by a supermajority of New York City Council members. While the bill has not yet been voted on, the broad support makes passage highly likely. The proposed law would introduce significant new requirements for package-delivery warehouses, which include facilities where companies such as Amazon and other delivery services receive goods and distribute them for final delivery to NYC consumers. The legislation is designed to enhance safety, improve working conditions, and increase oversight of the growing “last-mile” delivery industry.
What Types of Facilities Are Covered?
The law applies to “last-mile delivery facilities”—which are defined as:
Warehouses or storage sites that receive goods and then ship them to customers in NYC.
The law would not apply to retail stores where most of the space is devoted to in-person sales.
Key Changes Businesses Need to Know
1. Facilities Must Now Get a City License
To operate in NYC, these warehouses will need a license from the Department of Consumer and Worker Protection.
When applying, a facility must report any past violations related to:
Workplace safety
Road or traffic safety
Environmental rules
Deceptive business practices
Worker-protection laws
The license would cost $500 per year and will be valid for two years.
2. Workers Cannot Be Hired Through Staffing Agencies
A major change under the proposed law is the prohibition on hiring warehouse workers through staffing agencies or subcontractors for core operational roles. If a business ends a contract with a staffing agency, it must offer jobs to the affected workers before hiring additional personnel.
3. Mandatory Training for All Warehouse Employees
The proposed law will require that all warehouse workers receive “last-mile facility training” within their first 92 days of employment and once a year thereafter.
The training will cover, among other topics:
Worker rights
Employer responsibilities
Safe driving and delivery practices
Safety around new technology, including automated or robotic vehicles
What This Means for Businesses
Staffing must shift to direct hiring: if a warehouse relies on contractors, the business will need to adjust its staffing practices
Increased compliance obligations: licenses, disclosures and required training mean new administrative tasks
Elevated safety expectation: annual training will become a key part of compliance.
Bond will continue to monitor relevant updates regarding this legislation and provide additional updates as appropriate. If you have any questions or would like any additional information regarding this legislation, employer updates or other legal developments, please contact Sam Dobre, Jason Kaufman or any attorney in Bond’s labor and employment practice.
*Special thanks to associate trainee Timothy Bouffard for his assistance in the preparation of this memo. Timothy is not yet admitted to practice law.
As part of this year’s budget, New York State added Section 139-m to the State Finance Law, which requires bidders on competitive state procurements to certify that they have a written policy addressing gender-based violence and the workplace and that such policy meets certain requirements. The law went into effect on Nov. 5, 2025.
The statute requires competitive bids to contain the following statement:
“By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing gender-based violence and the workplace and has provided such policy to all of its employees, directors and board members. Such policy shall, at a minimum, meet the requirements of subdivision 11 of section five hundred seventy-five of the executive law.”
Applicable New York State procurement guidelines define a “bidder” as “any individual, business, vendor or other legal entity, or any employee, agent, consultant or person acting on behalf thereof, that submits a bid in response to a solicitation.”
While this certification is mandatory for all bids that are legally required to be competitive, it may also be required for bids on noncompetitive contracts at the discretion of the public entity awarding the contract. Accordingly, employers who contract with New York State agencies should review new or renewed contracts for any new requirements or obligations, including the new requirements under State Finance Law Section 139-m.
A bid that fails to comply with the new requirements will not be considered or be awarded the contract. The law also states that if a bidder cannot make the required certification of compliance with the new requirements, the bidder shall state so and provide a signed statement detailing the reasons for noncompliance with the submitted bid.
The New York State Office for the Prevention of Domestic Violence (“OPDV”) published guidance, including what gender-based violence and the workplace policies must contain, which specifically include, at a minimum, the following provisions:
Share Information: Employers must provide information regarding gender-based violence where employees can see and access it. This includes displaying the NYS Domestic and Sexual Violence Hotline information and a gender-based violence and the workplace poster. When possible, materials should be available in an employee’s primary language.
Refer Employee Survivors to Services: The policy must require that the employer refer employees who disclose current or past victim status to the NYS Domestic and Sexual Violence Hotline and/or a local service provider. For bidders outside of New York State, referrals should be made to a local provider or statewide hotline. While referrals are required to be provided by the employer, it is not required for the employee to access services.
Prohibit Retaliation: The policy must include a clear statement that discrimination or retaliation against employees who identify as victims or survivors of gender-based violence is prohibited.
Comply with Laws: The policy must follow state law. As a reminder for employers based in New York State, this means that the policy and employers must follow the SAFE Leave Act, which is more commonly referred to by employers as the NYS Paid Sick Leave Law, which includes qualifying reasons and protections for employees seeking to use accrued leave time for reasons related to domestic violence. The policy and employers must also follow the New York State Human Rights Law, which includes protections against sexual harassment as well as protections for victims of domestic violence (including the obligation to provide reasonable accommodations to victims of domestic violence for reasons related to the domestic violence). Employers should also follow any other relevant laws and regulations that may apply.
Offer Implementation Support: The guidance also reminds employers that OPDV is able to assist employers in developing and implementing this policy. Per the guidance, employers must provide information to supervisors and human resources about this technical assistance from OPDV.
The OPDV guidance states that covered employers should distribute the gender-based violence and the workplace policies to all employees, board members and directors upon hire and annually.
Employers that bid on competitive contracts with New York State should develop and implement a compliant gender-based violence and the workplace policy, consistent with the guidance from OPDV. Employers that contract or may contract with New York State agencies should also review any new or renewed contracts with such agencies, or other updated information from said agencies for any changes in expectations, including adoption and incorporation of this provision mandating development and implementation of a gender-based violence and the workplace policy.
OPDV has published a model policy, but we encourage employers to carefully review and customize any policy to fit their workplace.
While neither the law nor the guidance currently requires employers to provide training on this topic, employers should nevertheless consider training supervisors, human resources personnel and others who will interface with employees so that they understand the protections afforded to victims of domestic violence and comply with the employer’s relevant policies.
If you have any questions regarding compliance or would like assistance drafting your gender-based violence and the workplace policy, please contact Stephanie Hoppe Fedorka, Colin Smith or the Bond attorney with whom you are regularly in contact.
