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NYC Commission on Human Rights Issues U and T Visa Certifications, making it the first anti-discrimination agency in a major US city to provide these certifications

 
Congress created both the U and T visas in 2000 as part of the Victims of Trafficking and Violence Protection Act to encourage undocumented immigrants to come forward and report crimes, and to assist law enforcement in investigations and prosecutions of criminal activity. Congress has capped the number of available U visas to 10,000 per fiscal year and T visas to 5,000.

 
The NYC Commission on Human Rights is a civil law enforcement agency that investigates and prosecutes a wide range of offenses under the NYC Human Rights Law. In the course of investigating discrimination complaints, the Commission may discover criminal activity that could qualify victims for a U or T visa, such as sexual harassment in the workplace that involves sexual assault, a landlord harassing a tenant to vacate the building by threatening to report them to the police or an employer exploiting a worker under threat of deportation or other harm. The Commission is a law enforcement agency that has the power to issue U or T visa certifications.

 
Due to their undocumented status, many immigrants do not report crimes such as domestic violence, sexual assault and human trafficking for fear of being deported from the U.S.

 
The U visa allows undocumented immigrant victims of crime to temporarily remain in the U.S. for up to four years while assisting law enforcement in investigations and prosecutions, and provides them with a chance to legally work, integrate into their communities and get on a pathway to lawful permanent residence.

 
The T visa, which applies only to undocumented immigrants who have been trafficked into the U.S. allows victims to remain in the U.S. for up to three years to assist in the investigations or prosecutions of trafficking crimes .

 
According to the United States Citizenship and Immigration Services (USCIS), crimes that qualify for U visa certification include rape, torture, trafficking, incest, stalking, domestic violence, sexual assault, abusive sexual contact, prostitution, extortion and sexual exploitation, among others. The list of qualifying crimes is not exclusive and includes similar criminal activity depending on the jurisdiction. Crimes that qualify for T visa certification are limited to sex trafficking and labor trafficking.

 
Providing New Yorkers with greater access to U and T visa certifications has been one of Mayor de Blasio’s efforts to protect and strengthen New York City’s immigrant communities by encouraging undocumented immigrants to come forward and report crimes that have frequently gone unreported due to fear of deportation from the U.S.

 
In order to obtain a U visa, a petitioner is required to provide USCIS with a certification from a law enforcement agency confirming that a qualifying crime has occurred and that the victim was helpful, is being helpful, or is likely to be helpful in the investigation. To obtain a T visa, victims have the option to submit a law enforcement agency endorsement that the individual was a victim of human trafficking. Certification is not required in the T visa process, but does give significant weight to the victim’s application. Certification of both the U and T visa does not automatically confer visa status. Only USCIS may issue a U or T visa.

 
There is no statute of limitations for when a crime occurred or was reported and the signing of the U or T visa certification, nor does a crime have to be previously reported to qualify for certification.
In addition to the Commission, the New York Police Department, the borough District Attorney’s Offices, the Law Department, the Administration for Children’s Services, HRA’s Adult Protective Services also issue U and T visa certifications.

 
Under the current administration, we do not know if U and T visas will continue to exist, and if so, the number that will be available every fiscal year.

 
We will keep you abreast of developments concerning the U and T visas, if any, right here on this blog.

Travel Ban Update: Ninth Circuit Court Refused Emergency Government Request to Resume Implementation of the Trump Administration Executive Order

 

As many of you know, on February 3, 2017, the United States District Court for the Western District of Washington (Judge Hobart) issued a temporary restraining order impacting the Trump Administration Executive Order issued on January 27, 2017 (Executive Order). The temporary restraining order temporarily stopped the federal government from barring the issuance of visas to, and entry of into the US, individuals based on the fact that they are from the countries of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

The very next day, on February 4, 2017, the Trump Administration filed an emergency motion for administrative stay and motion for stay pending appeal with the United States Court of Appeals for the Ninth Circuit (Ninth Circuit). That same day, the Ninth Circuit denied the Administration’s motion for an immediate administrative stay. Additionally, the Ninth Circuit required filings to be submitted for review by the parties (the States of Washington and Minnesota, and the federal government). Though the stay was temporary, a stay is granted when there’s a likelihood of success on the merits.

As a result of that stay:

 
• The US Department of State confirmed that all provisionally revoked visas (60,000 of them!) as a result of the Executive Order have been reversed and are valid for travel.

• Individuals from the seven affected countries may enter the U.S. while we await a ruling from the Court.

• Customs and Border Protection has also confirmed to the American Immigration Lawyers Association (AILA) that individuals whose visas were physically cancelled last week in response to the Executive Order will not need to apply for a new visa, provided there were no other eligibility issues, and will be asked to complete Form I-193 (Waiver of Visa or Passport Requirement) on application for admission.

Meanwhile, the Trump Administration has itself revised the Executive Order, explaining:

 
• Green Card holders are not covered by the Executive Order.
• Dual Citizens with a passport from an affected country and non-affected country will be treated as citizens of the non-affected country.
• Iraqis with Special Immigrant Visas are no longer covered by the Executive Order.

 
And then on February 9, 2017, a three-judge panel of the Ninth Circuit ruled that Judge Hobart’s earlier restraining order should remain in effect. The three judges, two Democratic appointees and one appointed by a Republican, unanimously said the administration had not shown an urgent need to have the order go into effect immediately.

By contrast, the panel said that the two states that had challenged the ban had shown that some of their residents would be harmed by having their right to travel cut off.

 
The court faulted the federal government for failing to present evidence that the ban was needed for national security, opining, “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”

 
The court also stated that the states were likely to succeed in their due process claim, noting that the due process protections provided under the Constitution apply not only to citizens, but to all ‘aliens’ in the country, as well as ‘certain aliens attempting to re-enter the United States after traveling abroad.’
We’ll keep you posted about further developments right on this blog.

Transgender and Gender Non-Conforming Communities in Housing, Employment and Public Spaces enjoy strong protections in New York City

 
The New York City Commission on Human Rights has issued guidance that sets forth what constitutes gender identity and gender expression discrimination pursuant to the New York City Human Rights Law.

 
As per the Commission, examples of violations of the New York City Human Rights Law on the basis of gender identity and expression include:
–“Intentionally failing to use an individual’s preferred name, pronoun or title. For example, repeatedly calling a transgender woman “him” or “Mr.” when she has made it clear that she prefers female pronouns and a female title.

 
–Refusing to allow individuals to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs, consistent with their gender identity. For example, barring a transgender woman from a women’s restroom out of concern that she will make others uncomfortable.

 
–Enforcing dress codes, uniforms, and grooming standards that impose different requirements based on sex or gender. For example, enforcing a policy that requires men to wear ties or women to wear skirts.

 

–Failing to providing employee health benefits that cover gender-affirming care or failing to provide reasonable accommodations for individuals undergoing gender transition, including medical appointments and recovery, where such reasonable accommodations are provided to other employees. (Federal and New York laws already require certain types of insurance to cover medically-necessary transition-related care.)”

 
http://www.nyc.gov/html/cchr/downloads/pdf/publications/GenderID_InterpretiveGuide_2015.pdf/

 
The New York City Human Rights Law is considered one of the strongest in the United States in protecting the rights of transgender and gender non-conforming individuals. The impact of this development will be significant and positive, since according to the Commission, roughly 25,200 transgender and gender non-conforming people call New York City home.

 
The Commission can impose civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct.

 
That is the law as it stands now.

24 MONTH OPTIONAL PRACTICE TRAINING (OPT) EXTENSION

Did you know that on March 11, 2016, the Department of Homeland Security published a final rule allowing certain F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees, and who meet other specified requirements, to apply for a 24-month extension of their post-completion Optional Practical Training (OPT)?

The 24-month extension will replace the 17-month STEM OPT extension previously available to STEM students Eligible students may now apply for a 24-month STEM OPT extension.

To qualify for the 24 month OPT extension, in addition to being within the valid period of OPT, you must have earned a bachelor’s, master’s or doctoral degree from an accredited school and certified by the Student Visitor and Exchange program.

If your current OPT is based on a non-STEM degree, you may be able to use a prior STEM degree earned from a US institution of higher education to apply for a STEM OPT extension, provided your practical training opportunity is also directly related to the previously obtained STEM degree.

NEW YORK CITY HUMAN RIGHTS LAW OFFERS NEW PROTECTIONS—FOR CAREGIVERS

If you work or intern full-time or part-time, with or without pay, within the five boroughs of New York City, for an employer with four or more employees, and have caregiving responsibilities at home, such as caring for kids (including adopted or foster kids) under the age of 18, caring for parents, siblings, spouses, grandparents, or grandchildren with a disability, then you are protected from workplace discrimination against caregivers based on a May 14, 2016 amendment to the New York City Human Rights Law.

According to the New York City Commission on Human Rights, employees without work authorization documents, job applicants and most independent contractors are also protected from caregiver discrimination.

Based on this amendment, employers cannot refuse to hire fire, or otherwise discriminate against job applicants or employees in the terms, conditions, or privileges of employment because of their caregiving responsibilities.   Still, employers don’t have to accommodate caregivers’ responsibilities and obligations, by changing a shift, or allowing the caregiver to leave work early on account of caregiving responsibilities, unless these accommodations and benefits are provided to other employees.

This amendment is positively impacting individuals in New York City who take care of “1.8 million children under the age of 18, 1 million people aged 65 or order, and roughly 900,000 people with disabilities” by providing them recourse to file workplace discrimination claims if their rights are violated.

As Mayor de Blasio stated, “Caregivers are the people who keep families together.  It is critical that New York City protects them so they can continue to provide essential care to the children, elderly people, and individuals with disabilities who rely on them to lead happy and healthy lives. No one deserves to be treated differently or denied opportunities in the workplace because of their status as a caregiver. [Today], these unsung heroes receive direct protection under the law.”

LEGISLATION PROPOSED TO ADDRESS WAGE INEQUALITY

It’s not news that there is a wage gap between men and women.

The New York City Public Advocate’s office released a wage equity report earlier this year, that shows just how wide this gap is.

  • New York City women earn 5.8 billion dollars less in wages than men each year and face a large wage gap in every industrial sector.
  • Even among women with a college or post-graduate degree in New York City, the gender wage gap persists at 16 percent and 20 percent, respectively.
  • Wage disparities for women of color in New York City are worse than the national average.

On August 16, 2016, based on the above findings, Letitia James, New York City’s Public Adovcate, introduced a bill to amend the New York City Human Rights Law, “in relation to prohibiting employers from inquiring about or relying on a prospective employee’s salary history.”

As the summary of the bill states, “This bill would prohibit employers from inquiring about a prospective employee’s salary history during all stages of the employment process.  In the event that an employer is already aware of a prospective employee’s salary history, this bill would prohibit reliance on that information in the determination of salary.  When employers rely on salary histories to determine compensation, they perpetuate the gender wage gap.  Adopting measures like this bill can reduce the likelihood that women will be prejudiced by prior salary levels and help break the cycle of gender pay inequity.”

The proposed amendment would not apply to any actions taken by an employer in accordance with any federal, state, or local law that authorizes the disclosure or verification of salary history for employment purposes.

This bill has been referred to the City Council’s Committee on Civil Rights for further consideration.

THE CITY OF NEW YORK WANTS TO PROTECT THE RIGHTS OF THOSE BRAVE HUMAN BEINGS WHO HAVE SERVED TO PROTECT US

On August 23, 2016, legislation was introduced proposing to amend the New York City Human Rights Law, to make veterans a protected class.

If the amendment becomes law, veterans (includes all uniformed service members- retired or active) may assert claims of discrimination if they think they are not being awarded equal treatment under the law.

New York City’s Mayor Bill de Blasio has stated,

“Veterans across the country routinely face obstacles in employment, housing and public accommodat­ions.  We don’t tolerate that in New York City. These brave men and women put their lives on the line for our country and they deserve respect and dignity.”

According to the City, veterans and active service members are vulnerable to differential treatment from employers who believe they may be deployed at any time or unfairly believe they may have mental health trauma due to experiences during their service.

Nearly 14,000 veterans in New York State are currently unemployed, according to the Bureau of Labor Statistics.

Public Advocate Letitia James announced, “By guaranteeing our veterans safeguards under the City’s Human Rights Law, we will ensure that all uniformed service members, retired and active, are protected from discrimination. New York is a city that will always stand by those who have served to protect us.”

NEW YORK CITY’S “STOP CREDIT DISCRIMINATION IN EMPLOYMENT ACT”

The Stop Credit Discrimination in Employment Act (“SCDEA”) amended the New York City Human Rights Law by making it an unlawful discriminatory practice for employers, labor organizations, and employment agencies to request or use the consumer credit history of an applicant or employee for the purpose of making any employment decisions, including hiring, compensation, and other terms and conditions of employment.   The SCDEA also makes it an unlawful discriminatory practice for a City agency to request or use, for licensing or permitting purposes, information contained in the consumer credit history of an applicant, licensee or permittee.

It is New York City’s position that consumer credit history is rarely relevant to employment decisions, and consumer reports should not be requested for individuals seeking most positions in New York City.    In enacting the SCDEA, the City Council intended for it to “be the strongest bill of its type in the country prohibiting discriminatory employment credit checks.”

According to the New York City Commission on Human Rights,

“The SCDEA is intended to stop employers from using consumer credit history when making employment decisions—a practice that has a disproportionately negative effect on unemployed people, low income communities, communities of color, women, domestic violence survivors, families with children, divorced individuals, and those with student loans and/or medical bills. The City Council noted that multiple studies have failed to demonstrate any correlation between individuals’ credit history and their job performance.

There are positions exempted from the SCDEA’s anti-discrimination positions, such as:

-Licensed mortgage loan originators (and other positions required by state or federal law or regulations, or by a self-regulatory organization to use an individual’s consumer credit history for employment purposes);

-Police officers, peace officers, or positions with a law enforcement or investigative function at the Department of Investigation;

-Positions subjected to a Department of Investigation background investigation;

-Positions requiring security clearance under state or federal law;

-Non-clerical positions having regular access to trade secrets, intelligence information, or national security information;

-Positions requiring bonding under federal, state, or City law or regulation;

-Positions involving responsibility for funds or assets worth $10,000 or more; and

– Positions involving digital security systems

      The SCDEA is relatively new, and individuals or employers who need legal advice on asserting it, or implementing it, should seek legal advice promptly.

VICTIMS OR SURVIVORS OF DOMESTIC VIOLENCE IN NEW YORK CITY HAVE RIGHTS

Pursuant to the New York City Human Rights Law, it is unlawful for an employer to discriminate against, fire, or refuse to hire an employee because he or she is a victim of domestic violence, sex offenses, or stalking.

An employer is entitled to ask for proof of domestic violence status.  Such proof includes a sworn statement from a professional helping the employee address the violence, such as a shelter or victims’ services agency, doctor, lawyer, or member of the clergy; a police record; a temporary or permanent restraining order; or “other corroborating evidence.”

If the abuser harasses the victim or survivor at work, either remotely or in person, it is prohibited by law to punish or fire the victim or survivor because of the abuser’s conduct.

Employers must work with the victim or survivor to provide reasonable accommodations that would allow him or her to do the job- for example, changing a phone number at work so the abuser cannot call, is such an accommodation.  Also, an employee may ask for time off to find safe housing, receive counseling, or take other steps to address the violence as a “reasonable accommodation.”  A requested accommodation must be provided unless it would pose an undue hardship on the business.

Employers must not engage in retribution against employees for taking time off to go to court or to otherwise address the domestic violence.   However, an employer does not need to pay an employee for the time that he or she is absent on account of addressing the domestic violence.

If an employee quits or leaves his or her job because of the violence, that should not bar him or her from receiving unemployment insurance benefits. Circumstances related to domestic violence may be “good cause” for voluntarily quitting a job. Also, some judges have held that “misconduct” related to the violence (such as absenteeism or tardiness) may not bar an employee from collecting unemployment benefits.

CAN YOU RECEIVE UNEMPLOYMENT BENEFITS WHILE RECEIVING SEVERANCE PAY IN NEW YORK?

In January 2014, the New York Unemployment Insurance Law was amended.

Under the amended law, an unemployed individual is disqualified from collecting unemployment insurance benefits for any week in which his or her severance pay exceeds $420.00 per week.

Once the severance pay runs out, and the individual is still unemployed, he or she may still be eligible to receive a full 26 weeks of unemployment benefits after the weekly severance money is paid out.

If an individual wants to prevent disqualification under the amended law, he or she can negotiate that the first severance payment or lump sum severance payment is issued by the former employer more than 30 days after the individual’s last day of employment.

If the unemployed individual receives the first severance payment or lump sum severance payment more than 30 days after the last day of employment, then he or she can collect unemployment benefits immediately after the initial or lump sum severance payment is disbursed.

BREAKING GOOD NEWS FOR NEW YORK STATE’S PREGNANT AND POSTPARTUM WOMEN

Last week, New York State Governor Andrew Cuomo announced that the Department of Financial Services (DFS) has issued guidance to ensure insurers do not unfairly discriminate against pregnant and postpartum women.

This new directive follows guidance issued on April 25, 2016 by DFS requiring insurers offering group or individual health coverage to provide, with no copayment, coinsurance or deductible, preventative services such as depression screenings for pregnant and postpartum women.

Insurers have a responsibility to properly underwrite life insurance and disability income insurance policies that do not unfairly discriminate against women diagnosed with maternal depression.   Under New York Insurance Law, insurers cannot refuse to issue, renew, or cancel any insurance policy because of any past treatment for a mental disability, including maternal depression. Insurers are also prohibited from limiting the amount, type of coverage, or charging a different rate for the same coverage solely because of a previous diagnosis of depression.

See:https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/MaternalDepressionUnderwritingFinal71116.pdf

“Insurance companies are on notice that we will have zero tolerance for those who seek to unfairly discriminate against and deny services to New Yorkers struggling with maternal depression,” said Governor Cuomo.   “With this action, we are helping ensure pregnant and postpartum women across the state have access to the treatment they need to help build healthier lives for themselves and their families.”

ASSOCIATIONAL DISCRIMINATION IS PROHIBITED IN THE STATE OF NEW YORK

The New York State Division of Human Rights recently promulgated a regulation prohibiting discrimination against employees who have a known relationship or association with a member of members of a category protected by the New York State Human Rights Law.

Pursuant to these regulations, an employee may support a claim before the Division on the grounds that he or she was subjected to differential treatment because of the characteristics, activities, or beliefs of friends or family members.

In order to prove a claim of ‘associational’ discrimination under the new regulation, an individual must demonstrate he or she was subjected to an adverse employment action based on the individuals known relationship or association with a member of a protected class, including discrimination against any individual based on “age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status.”

In a press release announcing the new regulation, the Division provided one example of conduct that would be prohibited: “Job seekers may not be denied employment because of the gender identity, transgender status, or other protected characteristics of their spouses.”

This new regulation applies to all areas of the New York State Human Rights Law, including public accommodations, employment, purchase or rental of housing or commercial property, access to educational institutions, and credit.

NEW YORK’S PAY EQUITY ACT

Employees and employers in the State of New York- are you aware of New York’s efforts to promote pay equity?

In January 2016, an amendment to New York Law Section 194 (“The Pay Equity Act”) went into effect.  This amendment prohibits pay differentials based on gender in jobs requiring “equal skill, effort, and responsibility,” which are “performed under similar working conditions.”

The Pay Equity Act requires that employers show a “bona fide factor such as education, training or experience” that supports a difference in pay. In addition, the factor relied upon by the employer to support a differential in pay, must be job-related and consistent with business necessity. Even if the employer has met this burden, the Pay Equity Act allows the employee to prevail if he or she can prove three things: First, that the employer’s practice causes a disparate impact on the basis of gender. Second, that a viable alternative practice exists that would both remove the wage differential and serve the same business necessity, and third that the employer refused to adopt the alternative practice.

The Pay Equity Act gives employees the right to openly inquire about, disclose and discuss their wages.  Employers may not forbid these conversations.  Rather, the employer may only establish and distribute a written policy containing “reasonable workplace and workday limitations on the time, place and manner” for pay discussions.  The law states that an example of a reasonable limitation would be a rule that an employee may not disclose a co-worker’s pay without the co-worker’s permission.  The law contains some recognition that certain employees must still maintain confidentiality of pay information:  an employer may prohibit an employee with access to other employees’ pay information as part of their job from disseminating that information to others who do not have the same access.

INDIVIDUALS EMPLOYED WITHIN NEW YORK STATE CAN ASSERT CLAIMS FOR SEXUAL HARASSMENT, REGARDLESS OF THE SIZE OF THEIR EMPLOYER

For a long time, the New York State Human Rights law only applied to employers with four or more employees.

Fortunately, for employees being subjected to sexual harassment in the workplace, they can now take legal action under the New York State Human Rights Law, regardless of the size of their employers, thanks to bill S. 2/A 5360, which was signed into law by Governor Cuomo, to cover all employers in New York State.

As set forth by the Governor’s office:

This bill (S. 2 / A. 5360) protects all employees from sexual harassment in the workplace regardless of the size of the employer…..This new law expands the definition of “employer” to cover all employers within New York in sexual harassment cases so that an employee of any business can file a workplace sexual harassment complaint.

INTERNSHIPS CAN BE REWARDING AND COMPENSATED

 

The number of interns that have flooded New York for years and years, were a boon to numerous individuals and employers.

Internships provided terrific avenues for individuals to explore a new field, and make valuable connections.   Sometimes the experience gained from an internship was so rich, that it did not matter that the internship was unpaid.    Employers had valuable opportunities to provide mentorship, develop a pool of promising candidates from which to recruit from in the future, without having to pay salaries.

As the writer Elizabeth Wurtzel famously said, “There is nothing more expensive than free.”  In February 2012, two Fair Labor Standards Act collective actions were filed by former unpaid interns for the Hearst Corporation and Fox Searchlight Pictures.  These interns claimed that they should have been paid for work performed for about 20 magazines and for work done towards the production of the 2010 film “Black Swan.”   It’s anticipated that more cases will be filed, pursuant to the Fair Labor Standards Act, and the New York Labor Law.

Do all interns have to be compensated?  If the employer is receiving benefits from the internship, then most likely, the intern should receive compensation.   If the internship is part of a larger educational program, it’s possible that the organization is exempt from compensating intern.  New York is, is an “intern-friendly” state.     The New York State Department of Labor has set forth criteria so employers may evaluate whether an intern must be paid.  Of course, it’s also crucial for employers to stay on top of court cases that decide when and if interns should be paid.

It’s advisable for employers to consult with an employment lawyers to ensure that all appropriate labor laws are being complied with, as to the interns.   That means having a good time-keeping system, keeping pay-roll records, keeping solid personnel files (so there’s no doubt as to whether the internship benefits the employer or is part of a larger educational program), and having interns sign paperwork that they understand the nature and requirements of the internship.  Mindfulness about what the law requires can go a long way.

Interns- if you’re not sure whether you should be paid or not, seek a legal consultation with an experienced employment lawyer.  The employer that you’re doing an internship need not know about your efforts to seek legal counsel.    In the event it turns out that you will have to assert your right to be paid, it’s best that you create a record of all the hours worked, and the work performed.  Your attorney can best advise you on what evidence is required to assert your rights under the labor laws.  Very often, employers are amenable to resolving these matters in a friendly way, and without litigation.

Enjoy your summer internships.