New York Employer Alert: Haynes and Boone Offers Insights on Recent Legal Developments

Author: Beth P. Zoller, XpertHR Legal Editor

August 8, 2014

New York lawmakers' passage of many new laws at both the state and local level present new challenges for HR and employers this year. Jason Habinsky, a member of the labor and employment department at Haynes and Boone, LLP, shared his legal and professional insights with XpertHR into the recent changes in workplace law and other key developments affecting New York employers.

What is the biggest challenge facing HR in New York today?

Habinsky advises that it is critical for New York employers to keep abreast of the plethora of different employment laws and regulations. In addition to the wide range of existing and evolving federal laws and regulations, he explains that there are constant rapid-fire developments at the state and local level in New York that HR departments must follow. Habinsky warns New York employers to stay current because "if you blink, you may already have violated a new law or precedent."

Have there been any notable new New York laws or high court rulings in the last nine months that will have a big impact on the workplace?

Legalized Medical Marijuana

Habinsky advises that New York recently joined a host of other states in permitting the use of medical marijuana. The Compassionate Care Act, signed by Governor Cuomo on July 5, 2014, provides that patients qualifying for the use of medical marijuana will be deemed "disabled" under the New York State Human Rights Law. Employers are prohibited from discriminating against employees on the basis of disability, and should be careful when taking adverse actions against employees who use medical marijuana. However, the law does not prevent employers from enforcing policies that prohibit employees from performing their duties while impaired by a controlled substance.

Unpaid Interns

Habinsky tells XpertHR that both New York State and New York City recently enacted laws that prohibit employers from discriminating against unpaid interns and that permit unpaid interns to bring discrimination claims against their employers. The New York City law took effect on June 14, 2014, while the New York State law was signed and took effect on July 22, 2014.

Both laws were passed in response to a federal court decision in Wang v. Phoenix Satellite Television US, which held that the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) do not apply to unpaid interns because they received no compensation and, consequently, were not covered employees under those laws.

Habinsky tells XpertHR that New York City's Earned Sick Time Act (effective April 1, 2014) requires New York City employers:

  • With five or more employees to provide paid sick leave to their employees; and
  • With fewer than five employees to provide unpaid sick leave.

The paid sick leave requirement only applies to employees who work at least 80 hours in a calendar year. Notably, the requirements do not apply to employers who already provide employees with paid leave (such as vacation days, personal days or sick days) that an employee may use for the same purposes as required by the law.

Pregnancy Discrimination and Accommodations

As of January 30, 2014, New York City requires employers with four or more employees or independent contractors to provide reasonable accommodations that will allow an employee to perform the "essential requisites of the job." Habinsky advises that reasonable accommodations include:

  • Bathroom breaks;
  • Leave for a period of disability arising from childbirth;
  • Breaks to facilitate increased water intake;
  • Periodic rest for those who stand for long periods of time; and
  • Assistance with manual labor.

Employers must provide all employees with written notice of the law's provisions.

Habinsky explains that with the Supreme Court taking up the issue of whether employers should provide pregnant workers with reasonable accommodations, the topic of pregnancy discrimination is trending.

Electronic Cigarettes

Habinsky advises employers that an amendment to New York City's Smoke-Free Air Act that took effect on April 29, 2014 prohibits the use of electronic cigarettes in places where smoking is prohibited, including:

  • Bars;
  • Restaurants;
  • Offices;
  • Parks; and
  • Beaches.

This means that New York City employees are now banned from using electronic cigarettes in the workplace.

Are there any bills and/or proposed rules currently pending in New York (or in Congress) likely to pass that would have a big effect on HR?

Habinsky views "ban the box" laws as a growing trend in proposed legislation. "Ban the box" laws prohibit questions about individuals' past criminal convictions on job applications and aim to give applicants with a criminal history a fair chance at employment. The New York City Council introduced the Fair Chance Act (a version of a "ban the box" law) at the end of April 2014. The proposed legislation would prevent all employers from asking questions about past convictions until after the employer has made a job offer to a prospective employee. With 10 states already adopting "ban the box" laws, New York City will likely limit an employer's use of past criminal convictions as well.

Some New York municipalities have already enacted "ban the box" measures. As of January 1, 2014, Buffalo law prevents the city, its vendors and any private employer located in Buffalo with 15 or more employees from asking questions relating to an applicant's past criminal convictions on an initial job application, but permits employers to still ask criminal history questions during job interviews. Similarly, effective November 18, 2014, the City of Rochester will prohibit both public and private employers with four or more employees from asking about a candidate's criminal history during the application process.

Finally, New York lawmakers have introduced legislation that would affect employers' access to employees' social media accounts. Specifically, the proposed legislation would increase the privacy of employees' personal accounts and prohibit employers from requesting employees' usernames and passwords.

Are there any employment and labor enforcement trends to watch in New York?

According to Habinsky, one significant trend relates to the crackdown on the misclassification of employees as independent contractors. In November of last year, New York became the fifteenth state to partner with the US Department of Labor to fight worker misclassification. The partnership allows federal and state regulators to coordinate enforcement efforts regarding improperly classified workers.

New York further expanded its efforts to protect misclassified workers this year when it enacted the New York Commercial Goods Transportation Industry Fair Play Act, making it more difficult for employers that use drivers to deliver commercial goods to classify the drivers as independent contractors. In fact, the law establishes a presumption that these workers are not independent contractors and requires that a worker meet specific criteria for independent contractor status or be otherwise considered a separate business entity.

Habinsky advises that, due to these misclassification initiatives, an employer should be careful to periodically evaluate worker classifications to ensure compliance with federal and state labor laws.

What is the number one mistake employers are making?

According to Habinsky, employers usually either are unaware of the existing and developing labor laws regarding employee misclassification or are willing to take the risk that the misclassification of an independent contractor will go unnoticed. Many employers mistakenly assume that simply having an "independent contractor agreement" will save the day. However, Habinsky warns that this can be dangerous, especially in the current climate of intense employer scrutiny.