New York State Prohibits Retaliation Against Unpaid Interns
On July 22, 2014, New York enacted a law protecting unpaid interns from discrimination, harassment and retaliation in the workplace. The new law took effect immediately. As a result, an employer is prohibited from discriminating against or retaliating against or harassing an unpaid intern based on age, creed, race, color, sex, sexual orientation, national origin, marital status, disability, military status, domestic violence victim status, arrest record, conviction record and predisposing genetic characteristics. The new law also prohibits employers advertising for an internship and expressing limitations, specifications or discrimination based on a protected category. Employers are further prohibited from compelling pregnant interns to take a leave of absence unless the pregnancy prevents her from performing her duties and responsibilities in a reasonable manner.
Under the new law, an intern is a person who performs work for an employer for the purpose of training and:
- The employer does not commit to hire the individual at the end of the training period;
- The individual and the employer agree that the individual is not entitled to wages for the work performed; and
- The work performed:
- Provides or supplements training that could enhance the individual's employability;
- Provides experience that benefits the individual;
- Does not displace regular employees; and
- Is closely supervised by existing staff.
New York City Prohibits Retaliaton Against Unpaid Interns
As of June 14, 2014, New York City protects unpaid interns from workplace discrimination, harassment and retaliation based on their actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage or citizenship status, or status as a victim of domestic violence, sex offenses or stalking. It also provides interns with the right to sue for alleged violations in court or by filing a complaint with the Commission on Human Rights. The law also requires employers to provide interns with reasonable accommodations under certain circumstances.
Under the new law, an "intern" is defined as an individual who works for an employer on a temporary basis, whether paid or not, and whose work:
- Provides or supplements training given in an educational environment in order to enhance the individual's employability;
- Provides the individual with work experience; and
- Is performed under close supervision of the employer's current staff.
Other Laws Prohibiting Retaliation
Equal Pay Law
Employers are prohibited from retaliating against an employee because:
- That employee has complained to the employer, or to the Labor Commissioner, or to the Attorney General or any other person, that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of the New York Labor Law, or any order issued by the Labor Commissioner
- Such employer or person believes that an employee has made a complaint to his or her employer, or to the Labor Commissioner, or to the Attorney General, or to any other person that the employer has violated any provision of the New York Labor Law, or any order issued by the Labor Commissioner
- An employee has caused to be instituted or is about to institute a proceeding under or related to the New York Labor Law,
- An employee has provided information to the Labor Commissioner or the Attorney General,
- An employee has testified or is about to testify in an investigation or proceeding under this chapter,
- An employee has otherwise exercised rights protected under the New York Labor Law, or
- The employer has received an adverse determination from the Labor Commissioner involving an employee.
An employee may bring a civil action against any employer or persons alleged to have violated the provisions of this section. [LexisNexis: "NY CLS Labor § 215"].
Further, New York's Equal Pay Act provides that an employer shall not discriminate in any way in the rate or method of payment of wages to any employee because of his or her sex. [LexisNexis: "NY CLS Labor § 194"]. An employer may pay different rates of pay when based on a seniority system, merit system, a system which measures earnings by quality or quantity of production, and any factor other than sex. Aggrieved individuals may bring a civil lawsuit or file a complaint with the New York Department of Labor. Employers who violate this law can be liable for back wages and fines. Complaints regarding pay discrimination must be filed within six years of the alleged discrimination. [LexisNexis: "NY CLS Labor § 198"](3). NYSHRL also prohibits compensation discrimination on the basis of age, race, creed, color, national origin, sex, sexual orientation, disability, military status, predisposing genetic characteristics, marital status, or domestic violence victim status. [LexisNexis: "NY CLS Exec § 296"]
Under the Women's Equality Act, New York's equal pay law has been amended and strengthened. The amendments, effective January 19, 2016, clarify the circumstances under which a wage differential is permitted; protect employee wage discussions and address damages in equal pay claims. [LexisNexis: "2015 Bill Text NY S.B. 1"]
Clarifying Wage Differential
A wage differential is permitted if it is based on a seniority system, merit system, system measuring earnings by quantity or quality or a bona fide factor other than sex such as education, training or experience provided such factor: (1) is not based upon or derived from a sex-based differential in compensation; and (2) is job-related with respect to the position in question and consistent with business necessity defined as a factor that bears a manifest relationship to the employment in question. This exception does not apply when the employee demonstrates that an employer uses a particular employment practice that causes a disparate impact based on sex, an alternative employment practice exists that would serve the same business purpose and not produce such differential, and the employer refused to adopt such an alternative practice.
Employees will be deemed to work in the same establishment if the employees work for the same employer at workplaces located in the same geographical region, no larger than a county, taking into account population distribution, economic activity and/or the presence of municipalities.
Employers are banned from prohibiting employees from inquiring about, discussing, or disclosing their wages or the wages of another employee. . This ban does not apply to employees with access to another employee's wage information who as part of their essential job functions disclose the information to an employee who does not have such access unless such disclosure was in response to a complaint or charge, or to further an investigation, proceeding, hearing or employer-conducted investigation. Nothing in in this ban shall require an employee to disclose his or her wages. An employer may also prohibit an employee from disclosing or disclosing the wages of another employee without that employee's permission. The law also does not limit the rights of employees provided under any other law or a collective bargaining agreement.
An employer is permitted to create a written policy and provide it to all employees establishing reasonable workplace and workday limitations on the time, place and manner of inquiries about, discussion of or the disclosure of wages if such standards are consistent with those developed by the state labor commissioner and all other federal and state laws. If an employee fails to follow these limitations on disclosure, an employer will have an affirmative defense to a claim that it violated the law if any adverse action is taken against the employee by the employer related to the employee's failure to follow the limits set forth in the employment policy and not for mere inquiry, discussion or disclosure of wages in accordance with the reasonable limitations set forth in the written policy.
Successful plaintiffs will now be allowed to recover liquidated damages up to 300% of wages due for willful equal pay violations.
New York prohibits employers from retaliating against employees for requesting and/or obtaining a leave of absence to donate blood, bone marrow and/or organs. [LexisNexis: "NY CLS Labor § 202-j"]; [LexisNexis: "NY CLS Labor § 202-a"]; [LexisNexis: "NY CLS Labor § 202-b"].
New York prohibits employers from retaliating against employees because they are subject to military duty.[LexisNexis: "NY CLS Mil § 318"]. New York also prohibits employer retaliation against military spouses due to seeking and/or receiving leaves of absence in certain instances. [LexisNexis: "NY CLS Labor § 202-I"].
Department of Labor Apprenticeship Training Programs
The New York Department of Labor has established policies and procedures promoting equality of opportunity in registered apprenticeship programs, which prohibit retaliation against any person by or with the approval of any apprenticeship program sponsor for having made a complaint regarding a right secured under Title VII of the Civil rights Act of 1964 or having participated in a proceeding under the rules. [LexisNexis: "12 NYCRR 600.16"].
There are no new developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.
[Article:2449 "Employee Management > EEO - Retaliation"]
New York State Division of Human Rights
New York City Commission on Human Rights