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SEXUAL HARASSMENT IN THE WORKPLACE- EVERYONE IS VULNERABLE AND EVERYONE CAN DO SOMETHING TO MAKE IT STOP

For over two decades now, my firm has been representing workplace victims of sexual harassment in vindicating their rights both inside and outside the State of New York.

If you work in the United States, you are likely to be fortunate to have rights in the workplace that must be respected by your employer, supervisors, and co-workers.

You are up to date with the news and have probably participated in company trainings or workshops to know that sexual harassment is a form of gender discrimination, it is against the law, and it happens to employees of different genders.

You know that sexual harassment is a violation that can take numerous forms that may or may not involve touching or even being in the same room as the perpetrator. The worst forms of sexual harassment might be sexual assault inside the workplace or even outside the workplace—by a co-worker, manager, or even a client or vendor. Just as damaging can be acts of sexual harassment conducted over text messages, phone calls, voice mails, and emails. Watching pornography in the office, in the presence of others is also not so rare an occurrence of sexual harassment. This list is not exhaustive.

You have probably been told that if you are being sexually harassed, you should immediately report the event to your company’s Human Resources Department or even march right up to the police station to report it.

If your circumstances permit, and you are not in a life-threatening situation, it’s best to consult with an experienced employment lawyer about your situation, before reporting the acts of sexual harassment to Human Resources, or to the police.

Human Resources staff are often well-spoken, and have received extensive training on resolving disputes in the workplace. Though they may behave like advocates for employees, it’s certainly not their job to advocate for employees. The allegiance of Human Resources lies firmly with your employer, who pays their salaries. Their ultimate goal is to avoid potential litigation and protect the company from any legal trouble. They are not paid to represent you or to protect your interests and rights in the workplace.

In many cases, when an employee goes to Human Resources to report sexual harassment, without having obtained legal advice from an experienced employment lawyer, some Human Resources personnel will blame the employee, the victim, for having behavioral or performance problems, and sometimes will cover up the fact that the employee scheduled an appointment to report sexual harassment.

You need an advocate that represents you, and is vested in protecting your interests. This is why you need to consult with an employment lawyer before complaining to your Human Resources Department, if your circumstances permit.

As for going to the police, of course going to the police promptly is the right thing to do, when the conduct is criminal. Still, it’s best to consult counsel first, about the timing of the police complaint, and to be prepared with the appropriate evidence going into the police so that the prosecutor’s office is more likely to evaluate the case seriously. It’s unfortunate that the police sometimes treat the victims with disrespect because they think the victim is trying to build a civil case later, by first reporting criminal conduct. All the more reason not to go unprepared (psychologically or otherwise) before visiting the police station.

Under no circumstances should you remain silent about the problem. Even if you are worried about retaliation or concerned that people will not believe you, you must take action. Attorneys like myself have a great deal of experience fighting difficult sexual harassment cases – and very often we can help you put an end to it.

You might be worried about the fact that you are undocumented, or that you are here legally, but are not a green card holder or a U.S. citizen. You still have rights, and you can be helped. Attorneys that also concentrate in immigration law, like myself, can help you navigate the legal process in a way that is protective of your interests.

Seeing an attorney immediately also means that you are protecting your rights and the rights of others. If your employer knows you are already consulting with an attorney, your employer will be hesitant to threaten you or fire you in response to your coming forward – in other words, retaining an experienced lawyer to assist you in reporting the sexual harassment is like putting on a bullet-proof vest. If you come forward in asserting your rights, the employer will also be more likely to respect the rights of other employees who come forward.

Sexual harassment unfortunately remains a serious problem facing employees in virtually all lines of work today. If you are a victim of this behavior, stand up and act. You will have done your part towards resolving a humanitarian crisis.

THE DIVERSITY IMMIGRANT VISA LOTTERY IS IN PROGRESS TILL NOON ON NOVEMBER 7, 2017

The U.S. Department of State opened the Immigrant Diversity Lottery program on October 3, 2017. It will end on November 7, 2017 at 12 noon Eastern Standard Time.

This lottery program makes 50,000 immigrant visas available to citizens of nations with low rates of immigration to the U.S.
President Donald Trump has indicated his intention to eliminate the Diversity Lottery. For this year though, the program remains intact.

The lottery registration and application process is conducted online, and the eligibility requirements are few.
There is no fee to register for the lottery. Random selection of qualified lottery applications will begin on May 1, 2018.

Eligible individuals must have:

• At least a high school education or its equivalent; or
• Two years of work experience within the past five years in an occupation that requires at least two years of training or experience to perform.

Individuals cannot apply if they were born in the following nations, because more than 50,000 natives from these countries have immigrated to the U.S. in the past five years.

• Bangladesh
• Brazil
• Canada
• China, mainland-born (those born in Hong Kong SAR, Macau SAR, and Taiwan are eligible)
• Colombia
• Dominican Republic
• El Salvador
• Haiti
• India
• Jamaica
• Mexico
• Nigeria
• Pakistan
• Peru
• Philippines
• South Korea
• United Kingdom (except Northern Ireland) and its dependent territories
• Vietnam

If you were not born in a qualifying country, you might still be eligible to register for the lottery, if:

• Your spouse was born in an eligible country.
• Neither of your parents was born or legally resident in the country of your birth at the time of your birth, in which case you could claim eligibility based upon one of your parents’ countries of birth.

WHEN BAD NEWS BEFALLS YOU IN THE (ACADEMIC) WORKPLACE- WHAT YOU DO (NOT!) DO NEXT

Scenario 1:

You work in the administration of an academic institution, as a Vice President of a department, and are in a meeting with the Provost or President. Out of nowhere, you receive devastating news that is going to impact your standing at the institution- you are being demoted and will be forced to report to someone you cannot stand.

Scenario 2:

You work in the administration of an academic institution, as a Dean or the equivalent, and you are also a tenured professor. You are suddenly told during a meeting with the Provost or President that you will be removed from your role as a Dean, and you know that you will find it unbearable to just go back to teaching and nothing more, and you will be politically powerless as well.

Having counseled clients who have experienced both scenarios, the most important thing that should happen next is what the clients MUST NOT do, if they are to protect their interests.

They must not:

• Insult the decisionmaker;
• Have an outburst or curse;
• Storm out of the room;
• Abruptly resign;
• Sign any documents;
• Start negotiating their separation package.

Individuals in both scenarios should listen very carefully to the bad news. If it’s possible to maintain composure, they should engage the decision maker to learn about the institution’s justification for the employment action.

Once the meeting is over, it would be an excellent idea to contact an experienced employment lawyer about what happened and schedule a consultation promptly. The employment lawyer will probably want to see any handbooks, rules, executive plans, or contracts that may govern the terms and conditions of your employment along with your reviews, and any documents that can shed light on why you are currently in the position that you are in.

If the individuals insult the decision maker or have an outburst or storm out of the room, the decision maker will confirm to them, that said conduct is precisely why they took a particular action, i.e. the employees lack fitness for the role they have been in.

If the individuals abruptly resign, from an employment law perspective (with rare exceptions), resignations are excellent for employers, because the employers will owe the employees nothing. Even if institutions pay out severance monies to those who have resigned, based on formulas set forth within their policies and procedures, you can be sure that the payouts are not as high. Of greater significance, if there’s a claim of discrimination that the employee could have brought, that claim will be weakened substantially.

Why not sign documents? During a meeting when emotions are most likely running high, most employees cannot read and clearly understand the document that they are being asked to sign. A danger is that signing what is in front of them, may kill any protections that may be present in documents they signed earlier, when they began their employment. If handed a document to sign, it is best to tell the decision maker that it needs to be reviewed outside the presence of the decision maker first.

As far as negotiating a separation package, employees usually do not fare well when they start negotiating on their own, because they don’t understand how negotiations in the employment arena work. They make a demand that is too low, or not reasonable, or does not ask for items that they need to be amicably able to separate. They may make concessions they should not make. They may not properly employ their negotiating leverage, if they don’t even know what it is.

If the employees sit tight and contact an employment lawyer, the lawyer has more options to present to the employee to arrive at the destination that the employee would be better off at, including but not limited to:

• Filling the demoted role, and filing a charge of discrimination and/or a lawsuit, if the demotion was an act of discrimination;
• Negotiating a transfer before the demotion takes effect—at the same or higher title and salary;
• Negotiating an extension on the Deanship followed by a sabbatical and then a transition into teaching;
• Negotiating a separation package for the Dean based on the amount of time left on the contract term, in addition to other items of value, for the employee.

Employees should avoid making hasty decisions because a wrong move can ruin one’s ability to get another job within a specific university system (for non-tenured administrative employees). For tenured employees, hastily leaving a university altogether, because of political issues, can make it difficult to obtain a similar job at another university, because employed professors are always more attractive than unemployed ones.

Pausing rather than reacting upon receiving terrible news, can be protective, career-saving— and ultimately increase the probability that your employment lawyer can help you negotiate a solution that is in your best interests, even if it might take a little time.

PRESIDENT TRUMP’S NATION-SPECIFIC TRAVEL BAN

President Trump just issued a proclamation titled, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry in to the United States by Terrorist or Other Public-Safety Threats.” You may review it in full, here: https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attempted-entry

Five of the eight countries were included in the previous travel ban.

The new restrictions were issued on September 24, 2017, just as the old 90-day travel ban expired. The new restrictions will go into effect on October 18, 2017.

Until then, by virtue of the proclamation, the “old” travel ban will continue to be in effect, for those countries still on the list, who do not have a bona fide relationship with a U.S. person or entity.

The restrictions are based on a review of the identity management practices and information sharing on national security and public threats practices of countries worldwide and tailored to match them.

Syria and North Korea

-Entry as immigrants or nonimmigrants is suspended.

Venezuela

-Entry in tourist or business visitor status is suspended for officials of certain government agencies involved in screening and vetting practices and their immediate family members.

Somalia

-Entry as immigrants is suspended and decisions regarding entry as nonimmigrants will be subject to additional scrutiny.

Chad

-Entry as immigrants and nonimmigrants in business and tourist status is suspended.

Libya

-Entry as immigrants and nonimmigrants in business and tourist status is suspended.

Yemen

-Entry as immigrants and nonimmigrants in business and tourist status is suspended

Iran

-Entry as immigrants and nonimmigrants is suspended, except for those in valid student (F and M) or exchange visitor (J) status.

Although Iraq is not technically covered by the new restrictions, the proclamation states that Iraqi nationals will be subject to additional scrutiny.

It is now clear how long these restrictions will be implemented. Countries may be removed or added to the list depending upon further review of the effectiveness of their security practices. Waivers will be available on “undue hardship” grounds if a Consulate determines the entry would not pose a threat to national security and the admission would be in the national interest. This could include individuals who have already been admitted to the U.S. for extended periods of time.

The new restrictions will not be enforced against:

• Current lawful permanent residents
• Current visa holders
• Dual nationals travelling on a passport from an unaffected country
• Asylees
• Refugees already admitted to the U.S.
• Individuals granted protection under the Convention Against Torture

The United States Supreme Court was scheduled to hear the travel ban case on October 10, 2017. The Justices have cancelled that hearing and asked the parties to submit new briefs by October 5, 2017 on the effect of the new proclamation on the old travel ban.

MORE PROTECTIONS FOR NEW YORK CITY’S INDEPENDENT CONTRACTORS

On this page, we have previously blogged about New York City’s Freelance Isn’t Free Act (FIFA) (Local Law 140 of 2016) that went into effect on May 15, 2017. In a nutshell, FIFA protects freelancers in that they have the right to a written contract, and they have a right to be paid on time and in full. In addition, FIFA bars wage theft and retaliation against freelancers, and provides for the imposition of penalties on businesses that are found not to comply with its requirements.

As part of FIFA’s implementation, the New York Department of Consumer Affairs (which is the agency that enforces FIFA), has issued rules clarifying FIFA’s provisions, as follows:

• Clarify that FIFA applies without regard to the immigration status of freelancers.

• Define “adverse action,” for purposes of the FIFA’s anti-retaliation clause, broadly to mean any action by a hiring party that would constitute a threat, intimidation, discipline, harassment, denial of a work opportunity, or discrimination, or any other act that penalizes or is reasonably likely to deter a freelancer from exercising any right guaranteed FIFA.

• Clarify that retaliation under FIFA may be established by showing the freelancer’s attempt to exercise his/her rights under FIFA was a “motivating factor” for a subsequent adverse action, even if other factors also motivated the adverse action. This means that a “but for” causation standard, which typically applies to federal law retaliation claims, does not apply under FIFA.

• Prevent employers from requesting that freelancers sign collective/class action waivers in their contracts.

• Prevent employers from incorporating clauses in contracts with freelancers that attempt to waive or limit procedural rights afforded to a party in a civil or administrative action.

THE DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) HAS BEEN RESCINDED

Some of you may recall that the DACA program was implemented in 2012 by an executive order signed by President Barack Obama. Under the DACA program, certain people who entered the U.S. as children were eligible for DACA protection and corresponding employment authorization. Around 800,000 individuals have been granted deferred action under the program.

On September 5, 2017, Attorney General Jeff Sessions announced that DACA is being rescinded.

So far, the Department of Homeland Security has issued some guidance describing how DACA matters will be addressed by the government:

• Initial and renewal DACA petitions filed and accepted as of September 5, 2017, including applications for Employment Authorization Documents (EADs) pending review will be adjudicated on a case by case basis.

• Applications filed no later than October 5, 2017, from current beneficiaries whose DACA status will expire before March 5, 2018, will be adjudicated on a case by case basis.

• The government will not terminate grants of previously issued deferred action, nor will the government revoke EADS only based on the rescission directives, for the remainder of their validity periods.

• The government will not end grants previously issued deferred action or revoke EADs solely based on the rescission directives for the remaining duration of their validity periods.

• The government will reject all new DACA initial requests and new associated applications for EADs.

• No new Form I-131 applications for advance parole (travel authorizations) will be granted approval, under standards associated with the DACA program.

• All currently pending Form I-131 applications for advance parole filed under the DACA program will be administratively closed, and all associated fees paid, will be refunded.

Employees in DACA status should carefully consider and review travel plans. Although the government has stated “it will generally honor the validity period for previously approved applications for advance parole,” admitting officers at the port of entry have broad discretion to deny admission back into the U.S.

Employers need to be aware that if they have employees who hold work authorizations based on the DACA program, these employees will continue to be authorized to work based on a valid EAD.

Employers who are considering sponsoring DACA/EAD holders for employment-based residency should take action right away, noting that employees with prior unlawful presence, might require a waiver of inadmissibility.

DEVELOPMENTS IN THE US EMBASSY AND US CONSULATES IN RUSSIA

The US Embassy and US Consulates in Russia have decided that as a result of the Russian government’s personnel cap on the U.S. Mission, all non-immigrant visa operations across Russia will be suspended starting August 23, 2017.

This development is attributed to the reports of possible Russian involvement in the U.S. presidential elections.
In response, Russia ordered the withdrawal of 755 U.S. diplomatic personnel from Russia.

Generally, the announcement means:

• If you are a U.S. citizen in Russia, the U.S. Embassy in Moscow and the three consulates in St. Petersburg, Yekaterinburg, and Vladivostok will continue to provide emergency and routine services to U.S. citizens, although hours of those emergency and routine services may change.

• The U.S. Mission has begun cancelling current nonimmigrant visa appointments all over Russia.

• Starting September 1, 2017, nonimmigrant visa interviews will be conducted only at the U.S. Embassy in Moscow.

• Non-immigrant visa applicants whose appointments were cancelled can reschedule for a later date in Moscow.

• A block of visa appointments will be offered for students in early September 2017.

• The US Embassy in Moscow will continue to process non-immigrant visa applications without an interview, for those who qualify.

Stay tuned for additional developments.

RETAIL EMPLOYEES IN NEW YORK CITY WILL HAVE MORE PROTECTIONS

On May 30, 2017, Mayor de Blasio signed a bill into law that is protective of New York City’s workers who work for “retail employers.” The law goes into effect on November 26, 2017.

A retail employer is one that employs 20 or more employees at a business “that is engaged primarily in the sale of consumer goods at one or more stores” within New York City.

The goal of this legislation is to create more predictable work schedules for retail workers. This law will prohibit the practice of “on-call scheduling,” or requiring the employee to be available to work, and to contact the employer or wait to be contacted by the employer to determine whether the employee must report to work.

Likely beneficiaries of this legislation are parents of small children, and those workers who juggle multiple jobs.
As of November 26, 2017, retail employers will no longer be permitted to:

(a) schedule an employee for any on-call shift;
(b) cancel any regular shift for a retail employee within 72 hours of the scheduled start of such shift,
(c) require a retail employee to work with fewer than 72 hours’ notice, unless the employee consents in writing; and
(d) require a retail employee to contact a retail employer to confirm whether or not the employee should report for a
regular shift fewer than 72 hours before the start of such shift.

Notwithstanding these new restrictions, a retail employer will still be able to (i) grant employees days off, if an employee requests them, (ii) allow an employee to exchange shifts with another employee; and (iii) make changes to employees’ work schedules with less than 72 hours’ notice if the employer’s operations cannot begin or continue due to: (a) threats to the retail employees or the retail employer’s property, (b) a failure of public utilities or the shutdown of public transportation, (c) a fire, flood or other natural disaster, or (d) a state of emergency declared by the president of the United States, governor of the state of New York or mayor of the city.

The law will also require retail employers to provide employees with written schedules no later than 72 hours before the first shift on the work schedule and to conspicuously post the schedule at least 72 hours before the beginning of the scheduled hours of work. They will be required to update the schedule and directly notify affected employees after making changes to the work schedule, and also transmit the work schedule by electronic means, if such means are regularly used to communicate scheduling information.

Upon request, a retail employer will also have to provide an employee with (i) his or her work schedule, in writing, for any week the employee worked within the prior three years, and (ii) the most current version of the work schedule for all retail employees at that work location, whether or not changes to the work schedule have been posted.

EMPLOYERS- TAKE NOTE OF AND COMPLY WITH THE REVISED I-9

In July 2017, the USCIS announced the release of a revised Form I-9, Employment Eligibility Verification. See https://www.uscis.gov/i-9/

The revisions to the Form are as follows:

• The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been changed. Its new name is Immigrant and Employee Rights Section (IER).

• The instructions on Section 2 have been slightly changed to read: “Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee’s first day of employment.”

• The Consular Report of Birth Abroad (Form FS-240) was added as a List C document and all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined.

• The List C documents have been renumbered, except for the Social Security card, which remains #1 on the list.

The revised I-9 must be used no later than September 18, 2017.

Employers must abide by existing storage and retention rules for previously completed I-9 forms. (Store them at an on or off-site facility, in a combination of formats -paper, microfilm or microfiche, or electronic- and note that they must be available for inspection by government officials within 3 days notice.)

THIS FALL, MORE PREDICTABLE SCHEDULES AND PAYCHECKS FOR NEW YORK CITY’S FAST FOOD INDUSTRY WORKERS

Employees who work at fast-food joints suffer many difficulties- including not being allowed to work the shifts requested, being requested to come in at the last minute (when they are not scheduled) or risk losing their jobs, or being stuck with what is called the ‘clopening’ shift, which is the fast-food industry’s term for closing the store, and then returning promptly to open it again.

The term “fast food establishment” is defined as “any establishment: (i) that has as its primary purpose serving food or drink items; (ii) where patrons order or select items and pay before eating and such items may be consumed on the premises, taken out or delivered to the customer’s location; (iii) that offers limited service; (iv) that is part of a chain; and (v) that is one of 30 or more establishments nationally.”

For purposes of the laws governing work schedules and shifts at fast food establishments, the definition of “fast food employee” excludes salaried employees. For purposes of the law permitting pay deductions for not-for-profit organizations, the definition of “fast food employee” does not exclude salaried employees.

On November 26, 2017, the bills Mayor de Blasio RECENTLY signed into law amending the New York City Human Rights Law, to provide more predictable schedules and paychecks New York City’s 65,000 fast-food employees, will go into effect.
Starting November 26, 2017:

• Fast-food employers must offer employees their work schedules at least 14 days in advance. Changes inside of two weeks are still possible, but each change will incur a penalty of $10 to $75, depending on the situation, paid to the worker.

• Fast-food employees must receive at least 11 hours off in between shifts. Of course, employers can ask an employee to clock back in sooner, but they’ll have to give that person an extra $100.

***The above penalties will not be imposed on the fast-food employers if the employees requests the changes to shifts, in writing or trade shifts with another employee; if the employer is required to pay overtime for the shift; or if an event occurs which prohibits the employer’s ability to operate.***

• Employers of fast-food chains must offer shifts to existing employees before hiring new workers.

• Fast-food employees may deduct part of their salary and donate it to a nonprofit, and the employers have to disburse these donations on behalf of the employees.

New York City’s Office of Labor Policy and Standards (OLPS), part of the Department of Consumer Affairs (DCA), will be responsible for enforcement. Employees may also file a private civil action within two years of an alleged violation, for damages and attorneys’ fees.

USCIS HAS REINSTATED PREMIUM PROCESSING FOR CAP-EXEMPT PETITIONERS

On July 24, 2017, the United States Citizenship and Immigration Services (USCIS) made an announcement that it is reinstating premium processing service for H-1B petitioners filed by specific cap-exempt petitioners, which include:

• Petitioners who seek to hire physicians who are recipients of Conrad 30 waivers [The Conrad 30 Waiver program allows J-1 medical doctors to apply for a waiver for the 2-year residence requirement upon completion of the J-1 exchange visitor program. See section 214(l) of the Immigration Nationality Act (INA). The program addresses the shortage of qualified doctors in medically underserved areas]

• Institutions of higher education

• Not-for-profit organizations affiliated or associated with institutions of higher education

• Not-for-profit research or governmental research organizations.

Additionally, USCIS has indicated that that premium processing will resume for H-1B petitions that may be exempt, if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.

EMPLOYERS IN NEW YORK CITY SHOULD BE CAUTIOUS DURING INTERVIEWS AND NOT ASK QUESTIONS THAT MIGHT BE CONSTRUED AS DISCRIMINATORY

Most ‘no-no’s during the interview process are situation-specific, and nuanced. What follow are general prohibitions to be mindful of.

• Don’t ask for a job candidate’s salary history or what salary they earned at prior jobs.

To address pay inequality, New York City has passed legislation that prohibits inquiry into salary history. Employers are allowed, however, to ask what the employees’ salary expectations are, and of course, employees can voluntarily disclose their salary histories to their prospective employers.

• Be careful when enquiring into criminal history of a job candidate.

Generally, employers (in New York City and State) may not not enquire
about criminal history until after the job offer is made. As per the guidance set forth by the New York City Commission on Human Rights:

“After a conditional offer, an employer may ask an applicant if s/he has any history of convictions. An employer may also ask about the circumstances that led to any conviction, including the arrest leading to the conviction and original charges, to determine how serious the applicant’s conduct was. However, an employer may never ask about arrests that did not lead to convictions; convictions that were sealed, expunged, or reversed on appeal; convictions for violations, infractions, or other petty offenses such as “disorderly conduct;” resulted in a youthful offender or juvenile delinquency finding; or convictions that were withdrawn after completion of a court program. The following is an example of a permissible question after a conditional offer:

Have you ever been convicted of a misdemeanor or felony? Answer “NO” if (a) you have never been convicted of a misdemeanor or felony; (b) the misdemeanor or felony was sealed, expunged, or reversed on appeal; (c) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (d) resulted in a youthful offender or juvenile delinquency finding; or (e) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.”

Are there positions for which employers may enquire about criminal history before a job offer is made? Yes–

• If employers hiring for positions where federal, state, or local law requires criminal background checks or bars employment based on certain criminal convictions.

• If the job candidate has applied for positions involved in working with vulnerable people at the state Department of Health, state Office of Mental Health, and state Office of People with Developmental Disabilities.

• If employers in the financial services industry are complying with industry-specific rules and regulations promulgated by a self-regulatory organization.

• If the job candidate is applying for a job with the following New York City agencies: the New York City Police Department, Fire Department, Department of Correction, Department of Investigation, Department of Probation, the Division of Youth and Community Development, the Business Integrity Commission, and the District Attorneys’ offices in each borough.

• If the job candidate is applying for New York City positions designated by the Department of Citywide Administrative Services as involving law enforcement, is susceptible to bribery or other corruption; or entails the provision of services to, or the safeguarding of, people vulnerable to abuse.

Of course, regardless of the above exemptions, an employer can deny an applicant employ if there’s a direct relationship between the criminal record and the prospective job, or the employer can show that hiring the applicant would involve an unreasonable risk to property or to the safety or welfare of specific individuals, or the general public.

• Refrain from questioning job candidates about payment history or credit worthiness, credit standing, or credit capacity. That includes credit card debt, child support, student loans, a foreclosure, missed or late payments, bankruptcies, judgments, and liens.

Are there exceptions to this rule? Yes, you may make such inquiries when interviewing for positions in which credit checks are required by law, police and peace officers, and high-level positions involving trade secrets, financial authority, and information technology.

• Avoid questions about pregnancy, about plans to have children, about whether or not the spouse is employed, and child-care responsibilities.

Questions in this category can place the employer at risk of gender discrimination, pregnancy discrimination, disability discrimination, and caregiver discrimination. That does not mean the employer cannot be up front about the requirements and demands of the job, so that those who are not a good fit for the position, can take themselves out of the running.

• Refrain from asking about a job candidate’s religion and how that would impact their ability to work specific days of the week, or times of the day.

Employers are prohibited from discriminating against individuals on the basis of religion. In New York City, employers must accommodate employees’ religious beliefs (such as attending religious services) unless it causes the employers an undue hardship.

• Don’t ask about a job candidate’s recreational activities.

The Off Duty Conduct Law prohibits employers from refusing to hire a candidate because of that individual’s outside recreational activities, if those activities: are pursued off the employer’s premises; fall outside work hours; are pursued without the employer’s equipment; and are lawful. This is not to say that employers are prohibited from asking candidates what they do for fun or what their interests are. These are certainly appropriate interview topics. But employers should be wary about openly reacting in a negative manner, to the candidate’s lawful recreational activities, and then basing a decision not to hire on the same.

• Don’t ask about a candidate’s age, or when he or she graduated from high school.

Discrimination is prohibited on the basis of age, and younger workers are protected from age discrimination as well, so avoid questions during the interview that would cause a job applicant to reveal his or her age.

Some jobs may have minimum age requirements, however—to comply with a law or for insurance purposes. In that case, you may ask whether the applicant meets the minimum age requirements.

PREMIUM PROCESSING FOR H-1B PETITIONS

On June 23, 2017, the United States Citizenship and Immigration Services (USCIS) announced on that it will reintroduce Premium Processing for H-1B petitions.

Earlier this year, on April 3, 2017, USCIS had suspended this program for all H-1B petitions.

The reintroduction will be done in stages, beginning with H-1Bs filed under the Conrad 30 Waiver program for medical doctors working in underserved areas. [The Conrad 30 Waiver program allows J-1 medical doctors to apply for a waiver for the 2-year residence requirement upon completion of the J-1 exchange visitor program. See section 214(l) of the Immigration Nationality Act (INA). The program addresses the shortage of qualified doctors in medically underserved areas.]

As the USCIS assesses its workload, it will announce when other H-1B petitions can be filed under (or, if already pending, upgraded to) Premium Processing.

PAID FAMILY LEAVE HAS COME TO NEW YORK STATE – AND PAYROLL DEDUCTIONS TO FINANCE THIS LEAVE HAVE BEGUN

On January 1, 2018, less than a year from now, New York State’s Paid Family Leave will take effect, making New York the fifth state to mandate paid leave.

Employees in New York will be able to take up to 12 weeks off, to bond with a new child (including adopted and foster children); care for a seriously ill child, parent, parent-in-law, spouse, domestic partner, grandchild, or grandparent; or address military family needs.

Paid family leave benefits will be available for employees in New York who work 26 or more consecutive weeks for an employer, full-time, or 175 days part-time. If they are eligible for paid family leave, they may receive job protection and continuation of health insurance benefits. However, employees availing themselves of paid family leave are not entitled to accrue seniority or other benefits during their leave.

The cost of the coverage will be funded through employee payroll deductions, which began on July 1, 2017. Since employers are responsible for collecting the appropriate Paid Family Leave contributions to cover the cost of the program, it is recommended that payroll providers for the employers assist the employers in having these deductions made from employees’ paychecks.

The paid leave program will be slowly phased in as follows:

(i) On or after January 1, 2018, employees may receive up to eight (8) weeks of paid benefits in any 52-week period at 50% of their average weekly wage, but in an amount not to exceed 50% of the New York State average weekly wage.

(ii) On or after January 1, 2019, employees may receive up to 10 weeks of paid benefits in any 52-week period at 55% of the employee’s average weekly wage, but not to exceed 55% of the New York State average weekly wage.

(iii) On or after January 1, 2020, employees may receive up to 10 weeks of paid benefits in any 52-week period at 60% of the employee’s average weekly wage not to exceed 60% of the New York State average weekly wage.

(iv) On or after January 1, 2021, and for each year thereafter, employees may receive up to 12 weeks in any 52-week period at 67% of the New York State average weekly wage.

Note that the Superintendent of Financial Services may delay the scheduled increases in the paid leave benefits based upon several factors, including the current cost to employees of the paid leave benefits (because the benefits are financed by deductions from their pay), the availability of insurance policies providing paid leave benefits, and the impact of the benefit increase on employers’ businesses.

It is estimated that this law, once it goes into effect, will provide some financial security to 6.4 people in the State of New York, who do not have access to paid family leave.

THIS FALL, THE U.S. SUPREME COURT WILL DECIDE WHETHER TO GRANT OR DENY NEW FREEDOMS TO BUSINESSES TO DISCRIMINATE AGAINST GAYS AND LESBIANS (AND POSSIBLY OTHERS)

The case involves the Christian owner of a Colorado bakery who refused to make a wedding cake for a same-sex couple’s wedding. Colorado is one of the states whose laws protect gay couples, and the owner of the Masterpiece Cakeshop in Lakewood, Colorado, was charged with violating it.

In 2012, he did not agree to make a wedding cake for Charles Craig and David Mullins, who had planned to marry in Massachusetts but then have a reception in their home state of Colorado. They lodged a complaint with the Colorado Civil Commission. An administrative law judge at the Commission ruled in favor of Messrs. Craig and Mullins. The Commission upheld the administrative law judge’s decision ruling that Phillips’ refusal to make the wedding cake violated the provision in the state’s anti-discrimination law that says businesses open to the public may not deny service to customers based on their race, religion, gender or sexual orientation.

Phillips filed an appeal with the Colorado Court of Appeals. The Court of Appeals affirmed the Commission’s decision, and you can access that decision here: http://www.scotusblog.com/wp-content/uploads/2016/08/16-111-op-bel-colo-app.pdf/
Phillips appealed to the Supreme Court of the United States, arguing he deserved a religious exemption based on the 1st Amendment’s guarantee of freedom of speech and free exercise of religion.

Lawyers for the state commission and the American Civil Liberties Union urged the court to turn down the appeal in Masterpiece Cakeshop vs. Colorado Civil Rights Commission. They said it could open a “gaping hole” in civil rights laws if business owners could cite their religious beliefs as a valid basis for denying service to certain customers.
Phillips’ application to the Supreme Court of the United States, to hear his case, has been pending since January 2017. It takes the votes of only 4 Supreme Court justices to agree to hear the case, and on the last day before the summer recess, the justices announced they would hear the issue during the fall.

The way the Supreme Court rules on this issue will determine whether business owners all over the United States are allowed to cite their religious views as a reason for refusing to serve gay and lesbian couples.
It could have even broader implications, opening a religious exemption to civil rights laws that could allow discrimination against other groups.

Presently, no federal law requires businesses to serve all customers without regard to their sexual orientation, but 21 states have “public accommodations” laws that prohibit discrimination against gays and lesbians.
States with such anti-discrimination laws are mostly in the West, East Coast and upper Midwest. No state in the South or on the Great Plains has such a law.

New York State’s public accommodation laws prohibit discrimination on the basis of sexual orientation, race, color, gender, sex, ancestry, national origin, religion, creed, and marital status. The situation that arose in Colorado would very likely, not have arisen in New York state.

Clearly, this legal issue is no piece of cake outside the West, East Coast, and Upper Midwest!

Stay tuned for further developments on this issue.