New York City Human Rights Law Seeks to Prevent Those With Criminal Convictions From Losing Out on Employment Opportunities
The Fair Chance Act, effective October 27, 2015, amended the New York City Human Rights Law (NYCHRL), to make it an unlawful discriminatory practice to consider a job applicant’s criminal history as part of the hiring process, in the following ways:
- Referencing arrest or conviction history when advertising for open positions;
- Asking job applicants questions about their criminal records or to authorize a background check;
- Running a background check or attempting to discover whether an applicant has a criminal history.
But that doesn’t mean an employer can never consider an applicant’s criminal history. An employer can still review a job applicant’s criminal history after it has made the applicant a conditional offer of employment. At that point in the hiring process, the employer may ask whether the applicant has any criminal conviction history or request that the applicant provide authorization to check the applicant’s criminal record. If through either of these means the employer becomes aware of a conviction, the employer may withdraw its conditional offer of employment after:
1. Providing the applicant with a copy of the background check report or other documents used to review the applicant’s criminal record;
2. Evaluating the applicant under New York Correction Law Article 23-A (Under this law, an employer may only withdraw the conditional offer of employment if there is a direct relationship between the applicant’s criminal record and the prospective job, or if employment of the applicant would create an unreasonable safety risk to individuals or property); and
3. Holding the job open for at least three business days so that the applicant can respond to the employer’s presentation of the applicant’s criminal record.
The Fair Chance Act reflects a public policy favoring an employer’s review of applicants based upon their qualifications without regard to any criminal history.
Exemptions. The law does not apply to the hiring process for positions where a state, federal, or local law requires a background check for employment purposes, or bars employment based on criminal history. But the law does apply when the position requires a license – such as an Uber driver in New York - even if obtaining the license requires submitting to a criminal background check. In that case, the employer can only ask whether the applicant has the required license or whether the applicant can obtain one within an acceptable period of time.
If an applicant believes that a prospective employer has violated the Fair Chance Act, he or she can file an unlawful discriminatory practice complaint with the New York City Commission on Human Rights or in New York State Supreme Court. Reach out to a Spivak Lipton attorney if you believe that you may be the victim of an unlawful discriminatory practice under the Fair Chance Act.
“'New York has taken another step forward in its efforts to remedy the gender pay gap. The salary history ban, along with the recently enacted Women’s Equality Agenda and Achieve Pay Equity Law, will create opportunities for women, and particularly women of color, to earn wages based on their skill level, productivity and market trends rather than past discriminatory pay practices,' says Hope Pordy, a Partner at Spivak Lipton LLP, a New York labor and employment law firm."
As of January 1, 2018, the New York State Paid Family Leave Benefits Law (“Law”) will require employers throughout New York State to provide paid family leave benefits to their employees. The New York State Workers’ Compensation Board finalized its implementing regulations for the Law on July 19, 2017.
Employees can take paid family leave benefits for up to 8 weeks during calendar year 2018, up to 10 weeks during calendar years 2019 and 2020, and, when the Law is fully phased in, up to 12 weeks in 2021 and thereafter. Leave can be used to: 1) care for a new child, including adopted and foster children; 2) assist a family member with a serious health condition; and/or 3) assist when a family member is called to active military duty. Employees cannot take leave for their own serious health conditions, unlike under the Family and Medical Leave Act (“FMLA”). Leave can be taken intermittently, meaning that employees do not have to use all of their available time at once or for the same qualifying event. Employees must provide notice of their intent to take paid family leave 30 days in advance, or as soon as practicable when the leave is unforeseeable.
Private employers must provide paid family leave benefits for their employees. Public employers may opt in to the program, and if their employees are represented by a union, the employer and the union must negotiate the opt-in. Full-time employees who regularly work 20 or more hours per week become eligible for paid family leave benefits after 26 weeks of consecutive work, and part-time workers become eligible on their 175th day of work. The amount of weekly wages that employees will receive while on leave will be phased in over a four year period, beginning in 2018 at 50% of their weekly wages or 50% of the statewide average weekly wage (“SAWW”), whichever is less, and increasing in 2021 and thereafter up to 67% of their wages or 67% of the SAWW, whichever is less. The statewide average weekly wage in the calendar year 2016 was $1,305.92.
Employers must purchase paid family leave insurance through an insurance carrier or become self-insured. Paid family leave benefits are intended to be funded through employee payroll deductions, although the Law leaves open the issue of whether employers may fund the benefits themselves. As of July 1, 2017, employers were permitted – but not required – to begin deducting employee contributions. The maximum amount employers may deduct from employees’ paychecks is based on a maximum annual premium and cannot exceed 0.126% of the annualized SAWW. For calendar year 2018, the annualized SAWW is $67,908, which means the maximum annual premium to be charged to an employee for paid family leave benefits is $85.56.
Employers must provide employees with the option to waive contribution payments when they will not work 26 consecutive weeks or 175 days during a single calendar year. If an employee’s schedule changes and he/she becomes eligible for benefits, the previously signed waiver is deemed revoked within eight weeks, and he/she must begin making contributions and is liable for retroactive payments.
Employers and unions are prohibited from negotiating an absolute waiver of paid family leave benefits within a collective bargaining agreement (“CBA”). However, if a CBA provides paid family leave benefits as favorable as those in the Law, the employer is relieved from providing the exact benefits specified under the Law. Similarly, a CBA may provide different rules related to paid family leave, but absent a different rule the Law’s provisions would apply.
Employers cannot discharge, fail to reinstate, or discriminate against their employees for taking or attempting to take paid family leave. Employers also must continue to provide employees with health insurance while they take leave on the same terms as if they had continued to work. Employers must notify their employees if they plan to concurrently designate paid family leave benefits as FMLA leave. If employers fail to provide the requisite notice, their employees may take paid family leave without concurrently using their available FMLA benefits.
If you have any questions about the New York State Paid Family Leave Benefits Law, please contact Lauren McGlothlin, Esq., at email@example.com.
New York State residents who pay union dues will soon be able to deduct those dues from their New York State income taxes. The deduction will be available for both private and public sector employees, although taxpayers must itemize their federal and New York State taxes to utilize the deduction.
Under current federal law, taxpayers who itemize deductions may only deduct union dues from their income if their expenses on union dues and other miscellaneous deductible items, such as work clothes and supplies, exceed 2% of the taxpayer’s adjusted gross income. The New York State tax deduction will benefit more workers because it does not set a minimum threshold amount that must be exceeded for union dues to be deductible.
The Governor’s Office estimates that the deduction will save 500,000 workers about $70 per year. The new legislation, which Governor Cuomo signed in May as part of the FY 2018 Enacted Budget, will apply to taxable years beginning on or after January 1, 2018.
On August 23, 2016, the National Labor Relations Board published its decision, Columbia University, holding that student assistants at private universities may form unions and are entitled to the rights and protections afforded to employees under the National Labor Relations Act. This decision overruled a previous Board decision from a case arising out of one of Columbia University’s Ivy League rivals: Brown University. The Brown University decision, from 2004, held that despite the fact that student assistants were paid to perform work by private universities, they were not considered to be “employees” as that term is defined under the NLRA. Therefore, the NLRA did not protect the rights of student assistants to form unions to bargain with their employers over the terms and conditions of their employment.
Fast forward to August 23, when the Board voted 3 to 1 and found that where student assistants have an employment relationship with their university, they are considered to be “employees” under the NLRA. This is true even if those student assistants have an educational relationship with their university as well. The Board noted: “Even when such an economic component may seem comparatively slight, relative to other aspects of the relationship between worker and employer, the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship.”
While supporters of the Brown University decision argued that granting student assistants the right to form a union would harm the educational process, the Board cited examples of successful relationships between student assistant unions and university management at various public universities, where student assistant unions have long been recognized. Based on research of these existing student assistant unions, the Board found no support for contentions that unionization of student assistants would harm the faculty-student relationship or diminish academic freedom. It noted that student assistant unions are generally most concerned with the basic terms and conditions of employment.
As we witness (and participate in!) union organizing drives among employees of colleges and universities across the country, the Columbia University decision is a big win for student assistants looking to secure justice in the workplace. Reach out to Spivak Lipton today with any questions about collective bargaining.
The National Labor Relations Board recently cleared a major hurdle to union representation for employees of businesses who staff their operations both directly and with the help of staffing agencies. In Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016) (“Miller”), the Board returned to what had been the law of the land prior to 2004 with respect to collective bargaining in these types of employment relationships. The Board held that employer consent is not necessary for bargaining units that combine jointly employed employees and solely employed employees, so long as those employees share a community of interest. In an economy that has seen a marked increase in the use of staffing agencies in recent years, this ruling will make it much easier for thousands of working people across the country to assert their rights to collectively bargain with their employers, as protected by the National Labor Relations Act.
But why would employees or a union ever need consent from an employer to bargain collectively? Under Board law, employer consent is required when employees attempt to form a multi-employer bargaining unit. Multi-employer bargaining units (common in the construction industry, for example) occur when employees of various employers come together to bargain with their employers, and the employers agree to such an arrangement for a variety of reasons including the convenience of group bargaining, matching union strength, and avoiding competitive disadvantages resulting from nonuniform contractual terms. Since the Board’s Oakwood decision in 2004, Board law had categorized bargaining units made up of jointly employed and solely employed employees as multi-employer bargaining units, and required such bargaining units to get the consent of all parties.
Not anymore. In Miller, the Board ruled that such bargaining units are not multi-employer units, and may be approved and certified without the employers’ consent upon a showing of community of interest amongst the employees. In contrast to multi-employer units, the Board recognized that in bargaining units made up of jointly and solely employed employees, “all work is performed for the user employer and all employees are employed, either solely, or jointly by the user employer.” As such, the Board noted that these units are clearly of a different type from typical multi-employer bargaining units, therefore necessitating a different test for unit appropriateness. The result, of course, is that such employees will more easily be able to form unions and collectively bargain with their employers.
Spivak Lipton represents unions and employees looking to form unions. If you are an employee who is interested in forming a union, or a representative of a union and have a question about collective bargaining or labor relations, contact a Spivak Lipton attorney today.
The Supreme Court’s decision in Burwell v. Hobby Lobby, Inc., decided on June 30, 2014, this July will impact the rights of certain employees to obtain contraception through their employers’ health plans and may have even broader effects if the Court’s decision is applied to other statutes. Read decision: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf
The Affordable Care Act generally requires employers with 50 or more full time employees to offer a certain minimum level of health insurance coverage to their employees. Such insurance coverage includes coverage for FDA-approved contraception. Employers that fail to meet the requirements of the Affordable Care Act may face heavy fines.
The plaintiffs in Burwell v. Hobby Lobby are family-owned companies who objected to the fact that providing the insurance coverage required by the Affordable Care Act meant providing coverage for contraceptives that the companies’ owners believe might result in the termination of a pregnancy after conception. The owners had religious objections to such contraceptive methods.
The Supreme Court agreed with the owners and decided that the federal government could not require companies to provide insurance coverage for certain contraceptives if providing such coverage violates the “sincerely held religious beliefs” of the companies’ owners.
Although the immediate consequence of the Hobby Lobby decision is that it may become more difficult for certain employees to obtain contraceptives, it remains to be seen of greater concern is whether the Supreme Court’s decision will enable other employers to seek exceptions under other federal laws upon the assertion that compliance with companies to avoid complying with other types of laws – such as laws that prohibit discrimination – on the basis that implementing those laws will violate owners’ “sincerely heldthe religious beliefs.” of the companies’ owners We will have to wait and see.
Spivak Lipton attorneys represent employees on a range of employment related matters, including employee benefits and discrimination. If you have experienced discrimination or a health insurance-related issue in your workplace, contact a Spivak Lipton attorney today.
LGBT workers often face discrimination and harassment in the workplace with very few legal protections. In New York State and New York City, anti-discrimination laws ban discrimination against LGBT workers, but this is not the case in many other parts of the country. More than four in ten lesbian, gay, and bisexual people have experienced some form of employment discrimination based on their sexual orientation, and 90% of transgender employees have experienced harassment, mistreatment or discrimination on the job, the White House stated in a recent Fact Sheet.
A recent Executive Order, signed into law by President Obama in July 2014, seeks to improve the workplace for LGBT workers. The Executive Order prohibits discrimination against LGBT federal employees and employees of federal contractors by making two important changes to previous Executive Orders that banned other forms of discrimination, like race and gender discrimination. The new Order is effective immediately.
First, the Executive Order bans employment discrimination against federal government employees or job applicants based on gender identity, which will help protect federal workers or applicants who are transgender.
Second, the Executive Order prohibits employers that receive federal contracts from discriminating against workers based on gender identity and sexual orientation.
The Equal Employment Opportunity Commission, the federal agency responsible for investigating employment discrimination claims, has interpreted Title VII of the Civil Rights Act, a federal statute prohibiting discrimination in the workplace, to protect LGBT workers. President Obama’s Executive Order makes this protection explicit.
Spivak Lipton attorneys represent employees on a range of employment related matters, including discrimination. If you have experienced discrimination because of your actual or perceived gender identity or sexual orientation, contact a Spivak Lipton attorney today. It is important that you contact an experienced attorney immediately as specific time limits may control how much time you have to file a complaint.