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Tag Archives: Workplace Rights

Do I have to disclose an ACD on my NY job application?

Earlier this year a client asked me, “Do I have to disclose an ACD on my New York job application?” The client was looking for a new job after having been arrested. Understandably, he had a lot of questions about how the arrest and possible conviction were going to impact his future job prospects. Long story short, the criminal matter (for which I did not provide representation, as I am not a criminal defense specialist), was resolved with an adjournment in contemplation of dismissal [“ACD”] – which provides for a full dismissal of the charges following a period of time, usually six months, as long as the defendant does not get arrested again during the adjournment period.

The client then posed the question: “Do I have to disclose the ACD on my job application?”

Excellent question.

Here’s how an ACD is treated in New York State in the context of finding a job. [Please note that New York City has different rules. Call an attorney if you’re not sure how to respond to employment questions about arrests!]

New York Executive Law §296.16 was amended in 2019 to provide that job applicants are not required to disclose information about an arrest that was followed by an ACD. However, an ACD is likely to show up on a pre-employment background check until the terms have been satisfied. If the applicant has exercised their right not to disclose, a prospective employer may assume the applicant is being dishonest and trying to cover up the arrest. Luckily, the New York law prohibits employers from taking an adverse action because of an ACD. Unluckily, employers may not be aware of this prohibition.

In this catch-22 situation, it is a very good idea to contact the New York State Division of Human rights, or a New York workers’ rights attorney, or both. After we talked, my client knew his rights as he went through the application process. I am happy to report that he got the job.

Always contact a workers’ rights attorney in your jurisdiction if you are concerned about how an arrest might affect your employment.

New York Farmworker Fair Labor Practices Act

Información adicional en español aquí y aquí.

Historically, farm workers have few protections under federal labor statutes, making it difficult for them to unionize, earn fair wages, assert workers’ compensation claims, or enjoy adequate rest periods. At the beginning of 2020, the New York State Farm Laborers Fair Labor Practices Act implemented the following provisions to improve working conditions for farm laborers:

  • Farm workers have the right to unionize. Section 701 of the New York Labor Law has been amended to include farmworkers as “employees” and farm owners as “employers,” and other sections of the law have been amended to give farmworkers some of the same unionization rights as other private sector workers.  Note, however, that farmworkers cannot legally strike.
  • Maximum 60-hour workweeks and overtime: NYLL 163-a limits the workweek to 60 hours for farm workers, and requires employers to pay time and a half for overtime hours. Additionally, section 161 now states that farm laborers are allowed 24 consecutive hours of rest per calendar week.
  • Section 225 of the Public Health Law allows code officers to inspect premises inhabited by fewer than five persons, and to enforce sanitary code requirements for living quarters.
  • Workers’ Compensation: Workers’ Compensation coverage has been expanded to more employees, and notices must be posted in both Spanish and English. Supervisors are required to report injuries to the employer, and employers are prohibited from retaliating against workers who file for Workers’ Compensation benefits.
  • Farm Laborers’ Wage Board: A wage board is empowered to make recommendations regarding overtime rates for farm workers to the governor and legislature.
  • Employers must get a permit to operate housing for farm laborers, which improves the chances that living quarters will be safe and sanitary.

Notwithstanding early legal challenges and the pandemic, farmworkers are starting to unionize and assert their rights.  Recently, vineyard workers on Long Island became the first unionized farmworkers in the state, joining Local 338 RWDSU/UFSW.  This is an enormous stride in the long history of farmworker rights, and it is only the beginning.

In January 2022, the New York Farm Laborer’s Wage Board voted require overtime pay for farmworkers after 40 hours of work in a week–but the Wage Board has not adopted the official report, which would trigger the timeline for the New Yok Labor Commissioner to approve or overturn the vote.  Watch this space.

If you have questions about how your rights might be affected by the Farmworker Fair Labor Practices Act, contact a workers’ rights attorney today.

 

New York Law Restricts Employer E-Spying

surveillance camera

New York State recently passed a law requiring employers to give notice to employees if they monitor employees’ telephone, email, and internet activity.

 

Section 52-c of the New York Civil Rights Act requires employers to provide written notice of e-monitoring individually to new employees.  If the employee doesn’t sign an acknowledgement of the notice, the notice is invalid.  Further, the notice must inform the employee of monitoring of telephone, email, internet, or use of any electronic device (including computer, telephone, wire, radio or fax). Notice must also be posted in a conspicuous spot in the workplace.

 

The employer does not have to inform employees about computer system maintenance and protection such as spam filters and volume controls.

 

Realistically speaking, this means an extra form for New York employees to sign during the hiring process.  If a new hire refuses to sign, in all probability the employer could refuse to keep the person on the job.  Additionally, there is no private right of action, meaning employees can’t individually sue employers for violations of this law.  But employees can report employers to the New York State Attorney General, who can impose monetary penalties. Repeat offenders will be assessed increasingly stiff penalties.

 

The law goes into effect on May 7, 2022.  If you are concerned about how your employer is monitoring you, it’s not a bad idea to call the attorney general or speak with a workers’ rights attorney in your jurisdiction.

Expanded Protection For New York Whistleblowers

 

Whistleblower law in New York was abysmal.  The only people who seemed to be protected were folks who warned the public that a nuclear power plant was about to blow up. Anything less than a “substantial and specific” public safety threat was not covered; thus, employees who reported their employers for misconduct such as cooking the books did not get job protection, even when the boss went to jail.[1]

Enter the amended NY Labor Law Section 740, which takes effect on January 1, 2022. Here’s what the amendments do:

 

  • There is no longer a requirement that the reported violation constitute a substantial specific public safety threat – although reporting such a threat is still a protected activity.
  • Employees are protected from retaliation if they report conduct that they reasonably believe constitutes a violation of a law, rule, or regulation. What constitutes a “reasonable belief” remains to be seen, so it’s wise to make sure you have a good understanding of the violation you’re reporting before making the complaint.
  • Employees must make a good faith effort to notify the employer of the violation, giving the employer the chance to fix the problem. But that notification requirement is eased in situations where there is imminent or serious danger to public safety, the employee reasonably believes that the employer would take steps to conceal the activity (such as shredding incriminating evidence), the report would result in physical harm or result in endangerment of a minor, or the employee reasonably believes that the employer is already aware of the violation and will not correct it.
  • The amendments extend the statute of limitations to two years from the date of the violation, and entitle the parties to a jury trial.
  • Particularly bad conduct can result in an award of punitive damages.
  • Employers are required to post a notice of employees’ whistleblower rights in a conspicuous spot in the workplace.

 

Fair warning:  Employees who bring frivolous claims may be ordered to pay the employer’s attorneys’ fees and costs – which often amount to six figures.  So before you file a big court claim, it’s a good idea to speak to a workers’ rights attorney in your jurisdiction.

 

 

[1] Healthcare workers had slightly better protections under NYLL 741.

New York State Minimum Wage Increasing 12/31/21

Money changing hands

Hello, fellow Upstaters!  You probably know by now that New York State private sector minimum wages are going up on December 31, 2021. This is pursuant to amendments to New York State minimum wage orders, which since 2016 have set a goal that the rate, eventually, will reach $15.00/hour for private sector workers statewide. As of December 31, 2021, minimum wage for private sector, non-hospitality or building trade employees in Upstate New York will increase to $13.20/hour.

 

But be careful before you take this opportunity to go on a shopping spree.  First, you might not be in a sector governed by the minimum wage orders (sorry, public employees).  Second, if you’re in New York City, the rules are different for you.  Third, hello food service workers!  You have to deal with stuff like tip credits, tip pooling, and other complications (hint: your wages are still far below everyone else’s because, allegedly, tips are supposed to make up the rest.)

 

Luckily, the New York State Department of Labor has created a wage calculator that will help you figure out whether, and how much, you benefit from this new increase. (Go try it out, it’s fun!)  Additionally, there’s a handy flyer that can give you some background information on where the strive for $15 has taken us so far.

 

As always, if you have questions about your wages, contact a workers’ rights attorney today!

Most New York Employers Can No Longer Drug Test Employees For Cannabis

Most New York Employers Can No Longer Drug Test Employees For Cannabis

On July 1, 2021, I blogged about the intersection of legalization of recreational cannabis use and an employee’s workplace rights in New York. At that time, the New York State Department of Labor [“NYS DOL”] had not yet weighed in on whether employers may continue to test employees for cannabis now that recreational use is legal in New York or addressed other issues created by cannabis legalization.  On October 8, 2021, however, NYS DOL released guidance clarifying workplace rights in the post legalization era.  Adult Use Cannabis And The Workplace – New York Labor Law 201-D (October 8, 2021).

Review of NYS DOL guidance tells us the following:

  • Drug testing for cannabis is now permitted only when federal, or state, law requires drug testing or makes it a mandatory requirement of the position. For example, when federal or state law mandates drug testing for drivers of commercial vehicles or other safety sensitive positions, cannabis drug screening, be it pre-employment, randomized, or in response to an accident or injury, is permissible.
  • To impose discipline against an employee suspected of being under the influence of cannabis at work, an employer must show that the employee manifests “specific articulable symptoms of impairment” that decrease the performance of their duties or interfere with an employer’s obligation to provide a safe workplace as required by state and federal occupational safety and health laws.

So, what exactly are “articulable symptoms of impairment?” The guidance does not provide a list of specific symptoms but explains that the symptoms must be “objectively observable indications that the employee’s performance of the duties of the position are decreased or lessened.” This appears to mean that neither a positive drug test for cannabis nor the smell of cannabis on one’s clothing can serve as the sole basis for an employer’s conclusion that an employee was impaired by marijuana at work and therefore subject to discipline.

Keep in mind that cannabis legalization does not prevent an employer from prohibiting cannabis use during “work hours,” which includes unpaid breaks and mealtimes, even if the employee leaves the worksite. Employers can also prohibit the use of cannabis during periods when an employee is “on call.” In addition, employers can also prohibit cannabis possession while at work and prohibit cannabis use, and possession, in company vehicles or on company property, even after regular business hours or shifts.  When a remote employee works from the confines of a private residence, however, an employer cannot prohibit possession of cannabis at the remote location because the term “worksite” does not include a remote employee’s private residence. N.Y. Lab L. §201-D. As such, an employer can only impose discipline of a remote employee if s/he exhibited articulable symptoms of impairment during work hours, not for possession of cannabis.

If you believe you have been improperly disciplined by your employer for legal use of cannabis, contact a workers’ rights attorney.

Paid Voting Leave

Need To Take Time Off From Work To Vote on November 2, 2021? 

On Tuesday, November 2, 2021, polls in New York will be open from 6:00 am to 9:00 pm.

Employees in New York are eligible for up to two hours of paid time off to vote in certain circumstances. 

Specifically, if you don’t have “sufficient time to vote” during your workday, NYS Election law gives you up to two hours paid time off to vote. Election Law §3-110. By contrast, you are deemed to have “sufficient time to vote” if you have four consecutive hours to vote either from the opening of the polls to the beginning of your shift, or four consecutive hours between the end of your shift and the closing of the polls. Id. 

Here’s an example.  If you must work from 9:00 am to 5:00 pm on Tuesday, November 2, 2021, the election law deems you as having “sufficient time to vote” and therefore not eligible to paid voting leave.  This is because the polls are open until 9:00 pm – which is four consecutive hours after the end of your shift at 5:00 pm.  If, however, you work from 9:00 am to 6:00 pm on Tuesday, November 2, 2021, you can get paid voting leave because the polls are open for only three consecutive hours after the end of your shift. The total amount of paid time off you are entitled to depends on several factors, including travel time from your workplace to your polling place, waiting time at your polling place, traffic, among other things. The maximum paid time off to vote is capped at two hours. 

Please note the following: 

  • You are required to give your employer at least two working days prior notice of your intention to take paid time off to vote, but not more than ten working days’ notice. The term “working days” is defined as any day that your employer is open for business. 
  • Your employer cannot require you to use personal time off or any other form of earned leave time to vote. 
  • Regardless of your vaccination status, masks are required for all individuals entering polling locations. 

If, you believe your employer is impermissibly denying you paid time off for voting, contact a workers’ rights attorney or the New York State Department of Labor.  

UPDATE:  The COVID-19 Vaccination and Your Workplace.  Know Your Rights!

This article is an update of our January 27, 2021 blog post

As more and more employers implement mandatory vaccination policies for employees, it’s important for employees to understand why the requirement is legal, and what their options are.

Legal challenges to vaccine mandates have not, so far, been successful.  Applications for injunctive relief have been denied, and a federal court in Texas has rejected wrongful termination and public policy arguments.  New York City Municipal Labor Committee, et al. v. City of New York, et. al, Index No. 158368/2021 (New York Co. September 22, 2021); Bridges, et al v. Houston Methodist Hospital, et al., H-21-1774 (SD Tex. June 12, 2021).

This said, employees who are afflicted with disabilities that make it dangerous for them to be vaccinated, as well as employees with sincerely-held religious beliefs, may be able to seek a reasonable accommodation. Each employer has its own process for requesting those accommodations, and determining whether there is a reasonable accommodation available involves an interactive process that requires the cooperation of both employer and employee. Below, we recap several FAQs from our previous vaccination article.

Can my employer demand that I receive the COVID-19 vaccine as a condition of employment?

Yes. Requiring the vaccine is not a medical exam, nor does it seek information about your current health status or impairments. A vaccine mandate does not in itself violate discrimination laws if the mandate allows a case-by-case assessment of whether there a reasonable accommodation could be provided for those who need it.

What if I do not want to be vaccinated because of my disability or because of my sincerely-held religious beliefs?

If your disability or religious beliefs prevent you from being vaccinated, you may request an accommodation from your employer.  When you request an accommodation, your employer needs to determine if you, as an unvaccinated employee, pose a “direct threat” to the health and safety of yourself or others, and whether the threat can be eliminated or reduced by a reasonable accommodation.

If the  assessment results in a finding of direct threat, your employer will try to determine if there is a reasonable accommodation that would allow you to continue to work. This interactive process includes getting information from you and your doctor or religious leader. It is important for employees to cooperate in the interactive process; failure to do so can result in termination. Keep in mind that your employer does not have to provide the specific accommodation that you request. Also, if your employer genuinely cannot come up with a reasonable accommodation, you may be terminated.

Can my employer ask for proof that I have received the COVID-19 vaccine?

Yes. Simply requesting proof of a COVID-19 vaccine is not likely to elicit information about a disability and, as such, is not a disability-related inquiry that would trigger ADA or other health information privacy protections. However, if you have not been vaccinated due to a medical condition, you’ll need to be prepared to request an accommodation, which will require you to provide  medical information to allow the employer to determine what kind of accommodation can be provided.

Do I have ADA protection if my employer administers the COVID-19 vaccine ? 

Yes. The pre-vaccination medical screening questions are likely to elicit information about your health. When these questions are asked by your employer (this might happen in the healthcare context), they meet the ADA definition of a “disability-related” inquiry, and, as a result, you are entitled to ADA protection. The ADA requires that the disability-related screening questions be “job related and consistent with business necessity.” If you are concerned that your employer’s mandatory vaccination program does not meet this threshold, contact an attorney for advice.

Five Things You Need To Know About Marital Status Discrimination In New York

 

Discrimination on the basis of an employee’s marital status is prohibited under Section 296 of the New York State Human Rights Law and under Section 8-107(a) of the New York City Administrative Code. However, “marital status discrimination” might not be what you think it is – and the definition is different depending on whether you are looking at the State statute or the New York City statute.

  1. Under New York State Law, Marital Status Discrimination Is Not…

The decision to be aware of here is Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board, 51 N.Y. 2d 506 (1980), which went like this: Notwithstanding an employer’s anti-nepotism rule, an employee had worked under the supervision of her husband for approximately four years. When a new manager took over, he terminated the wife’s employment pursuant to the anti-nepotism rule. The New York State Court of Appeals concluded that the employer’s action was not marital status discrimination. How is this possible? Because, reasoned the Court, marital status is a question of whether the employee is married, single, widowed, separated, or divorced. Marital status has nothing to do with whom the employee is married to. The employee in Manhattan Pizza Hut was not fired because she was married, but because she was married to her supervisor.

The Manhattan Pizza Hut logic has carried into situations where a company refused to hire an applicant because her husband was already employed there (Matter of Campbell Plastics v. New York State Human Rights Appeal Board, 81 A.D. 2d 1991 (3rd Dept. 1981)) and to a denial of health insurance to an employee who has comparable coverage under a spouse’s insurance benefit (Police Ass’n v. NYS PERB, 126 A.D. 2d 824 (3rd Dept. 1987)). A corrections officer who married an inmate was discharged, not because of her status as “married,” but because she broke a rule against having a relationship with an inmate. Vega v. Dept. of Correctional Services, 186 A.D. 2d 340 (3rd Dept. 1992). In Cramer v. Newburgh Molded Products, 228 A.D. 2d 541 (2d Dept. 1996) an allegation that a plaintiff was terminated “because she was married to Joseph Cramer” did not survive a motion to dismiss because the termination was based on her being married “to Joseph Cramer” rather than simply on her being married. In McGrath v. Nassau Health Care Corp. , 217 F. Supp. 2d 319 (EDNY 2002), an employee who was sexually harassed did not additionally have a marital status discrimination claim even though her harasser made comments to the effect that she would be “stupid” to marry her fiancé, refused to give her time off to plan her wedding, told her she should not be sleeping with her husband, and tried to dissuade her from going through with the marriage during the wedding.

  1. Marital Status Discrimination Might Be…

In Kipper v. Doron Precision Systems, 194 A.D. 2d 855 (3rd Dept. 1993), an employee’s marital discrimination suit survived dismissal[1] because there was evidence his supervisor told him he was chosen for layoff because he would not experience financial hardships as severe as his married co-workers. The Kipper plaintiff was not laid off because of his involvement or non-involvement with anyone in particular, but because the employer considered him less vulnerable to financial hardship because he was single.[2]

  1. Meanwhile, in New York City…

Contrary to State Law, New York City’s marital status discrimination prohibition is given a “broader meaning than simply married or not married.” Morse v. Fidessa Corp., 165 A.D. 3d 61 (1st Dept. 2018). In direct contrast to the State Court of Appeals’ analysis of State Human Rights Law, the First Department has concluded that the “plain meaning” of marital status includes who the person is married to. In Fidessa, the First Department rejected the Manhattan Pizza Hut definition of “marital status” and specifically found that, under New York City Code, it also encompasses who is married (or not married) to whom.

Likewise, very recently, where a University rescinded its invitation to be part of a new institute following a professor’s divorce from another professor, the NYC marital discrimination suit survived summary judgment.[3] Karayiorgou v. Trustees of Columbia University, 2021 N.Y.  Slip. Op. 31044(U) (NY Co. January 14, 2021). Although factual issues of Karayiorgou remain to be determined, the Court noted strong evidence that the professor had been invited on the strength of her significant contributions to the scientific community, and that un-inviting her based on her ending her relationship with another professor not only constituted marital discrimination, but also smacked of gender bias in that the University’s arguments tried to downplay the plaintiff’s credentials and accomplishments.

  1. What About Other States?

Unfortunately, for the vast majority of employees,[4] federal discrimination law does not specifically prohibit discrimination on the basis of marital status. A survey of the 50 states’ laws on marital discrimination is beyond the scope of this article, so as always we strongly encourage you to consult with a qualified employment attorney in your jurisdiction.

  1. Wait, am I protected or not?

Short answer: Employees in New York City have relatively strong protections against marital status discrimination. Employees in New York State have protections that have been significantly limited by decisional law. Protections in other states depend on state and local laws and regulations. Bottom line, if you believe you have been discriminated against due to your marital status, the first thing you should do is contact an employment lawyer in your jurisdiction to see what kind of protections you might have, and what if anything can be done to protect your rights.

[1] Surviving a motion to dismiss just means that the case isn’t thrown out of court. It doesn’t mean he won.

[2] Notice anything about the breakdown between plaintiffs’ genders in Item #1 versus Item #2? Don’t try to hang your legal hat on it, but it may say something about what these decisions are trying to accomplish.

[3] Like a motion to dismiss, surviving summary judgment just means that the case isn’t thrown out of court. It doesn’t mean she won.

[4] Employees in the Federal Civil Service do have some protections under the Civil Service Reform Act of 1978, which includes marital status as a protected status.

Yes, Your Employer Has To Pay For Vaccination Time

 

On March 12 New York passed a law [link here] entitling New York workers to up to four hours of paid leave for COVID-19 vaccinations.  That is four hours per injection, which means if you get the Moderna or Pfizer injection, you get a total of two four-hour chunks of leave to get the shots.

Employers have to provide this leave in addition to other leave, which means they can’t make you use sick leave or New York State Paid Leave to cover your vaccine leave.

The leave must be paid at your regular rate.  Retaliation against employees who take vaccination leave is illegal.

The law amends New York Civil Service Law to add Section 159-c, which applies to public employees, and New York Labor Law to add 196-c, which applies to pretty much everyone else.

The law expires on December 31, 2022.

Get out there and get your “Fauci Ouchi!”

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