Employers Take Notice: Important Issues Regarding New York Employment Laws

All employers, particularly those with employees in New York, should be aware of three important developments in New York employment law: (i) the New York legislature recently amended the New York Human Rights Law to expand the protections available to employees by adding another protected class, victims of domestic violence; (ii) the United States Court of Appeals for the Second Circuit certified to the New York Court of Appeals, the highest New York state court, the issue of whether the Faragher/Ellerth defense to employer liability is available in sexual harassment and retaliation claims under the New York City Human Rights Law; and (iii) the New York legislature established a requirement for employers to provide written pay notices to employees at the time of hiring. Each of these developments are discussed below.

New York Human Rights Law Expanded to Protect Victims of Domestic Violence

New York Governor David A. Patterson recently signed into law an amendment to the New York Human Rights Law, which adds “domestic violence victim” as a protected class, effective immediately. According to the legislature, the amendment was “intended to protect the economic viability of victims of domestic violence and to support their efforts to gain independence from their abusers.” The law already prohibited discrimination because of an employee’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, and marital status.

The law defines a domestic violence victim as “an individual who is a victim of an act which would constitute a family offense” pursuant to New York’s Family Court Act. Family offenses include disorderly conduct, harassment, stalking, criminal mischief, menacing, reckless endangerment, assault, and attempted assault between spouses or former spouses, parent and child, or members of the same family or household.

Employers must take note of this added protection to employees, and should consider alerting managers and supervisors about this modification and revising employment policies to comply with this amendment. Failure to adhere to the New York Human Rights Law may not only result in exposure to employment discrimination claims, but may also subject employers to civil and criminal penalties under the law.

Applicability of the Faragher/Ellerth Defense to the New York City Human Rights Law

The United States Court of Appeals for the Second Circuit, in Zakrzewska v. New School, No. 09-0611-cv, 2009 U.S. App. LEXIS 16597 (2d Cir. July 27, 2009), certified to New York’s highest state court the issue of whether the affirmative defense to employer liability as set forth in Faragher and Ellerth, decided by the United States Supreme Court in 1998, is available in sexual harassment and retaliation claims under the New York City Human Rights Law (“NYCHRL”). The affirmative defense established in those cases, commonly referred to as the “Faragher/Ellerth defense,” protects an employer from liability under Title VII for sexual harassment committed by a supervisory employee if: (1) no “tangible action” (e.g., discharge, demotion, undesirable assignment, etc.) was taken as part of the alleged harassment; (2) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (3) the employee, without reason, failed to take advantage of any preventive or corrective measures offered by the employer or to avoid harm otherwise.

The lower district court in Zakrzewska held that the NYCHRL, which provides for vicarious liability, was inconsistent with the Faragher/Ellerth defense and that the defense was, therefore, not available. The court noted, however, that its “conclusion was not free from doubt,” and certified the question to the Second Circuit. The Second Circuit, in turn, certified the issue to the New York Court of Appeals.

This is but one facet of a broad based effort by plaintiffs, fueled by a 1991 New York City Council enactment called the Local Civil Rights Restoration Act (“1991 Enactment”), to sever the interpretive connection between the NYCHRL and state and federal law. The 1991 Enactment states that the NYCHRL should be more generously read in favor of employees than the parallel state and federal laws. One New York appellate court has already agreed with this proposition.

Availability of the Faragher/Ellerth defense will greatly assist employers in defending harassment claims under the NYCHRL. Regardless of the New York Court of Appeals’ decision, however, employers should continue to maintain up-to-date anti-discrimination and anti-harassment policies containing clear procedures for reporting of employee concerns, as well as take actions to prevent and promptly correct any discriminatory or harassing behavior.

Written Pay and Overtime Rate Notice Requirement

New York Governor Patterson also recently signed into law an amendment to Section 195 of the New York Labor Law, which establishes notice and recordkeeping requirements for employers. The new law requires employers to provide written notifications to employees at the time of hiring of their regular rate of pay, regular pay day, and regular hourly rate and overtime rate (if the employee is non-exempt and eligible for overtime pay). Moreover, employers must obtain written acknowledgements from employees upon their receipt of such notices. The new requirements are effective October 26, 2009 and apply to all employees hired on or after this date.

This law is one of many state and federal laws that establish notice and/or recordkeeping requirements for employers. Additionally, the law serves as a reminder to all employers to correctly classify employees in accordance with overtime laws.