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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.

 

 

INTERNS HAVE RIGHTS- RESPECT THOSE RIGHTS, OR PAY DEARLY

As of June 2014, the fortunes of New York City interns changed, thanks to Mayor de Blasio signing into law, an amendment to the Administrative Code of New York City, in relation to the discrimination against interns- whether or not the interns are paid. This is a huge sign of progress for interns, who often were exploited, and had no recourse. New York State has now followed in the footsteps of New York City; Governor Cuomo signed into law, a bill that provides interns (unpaid or not) rights in the workplace.

The current development is thanks to the courage of an unpaid intern, who brought a lawsuit against a news agency, because she was allegedly sexually harassed by her supervisor. (The case was initially thrown out by a federal judge, on the grounds that the intern had no standing to sue under the human rights statutes, on account of the failure to qualify as an employee.)

Ultimately, thanks to this courageous and tenacious intern, interns in New York City and State may enjoy rights similar to those of employees, even if they are unpaid.

Employers should be mindful of the rights of interns, and have anti-discrimination training sessions in the workplace, on a regular basis. An employee handbook should clearly lay out the procedure for lodging a complaint of discrimination/harassment/retaliation. Employers should treat the interns equitably, i.e., employers should respect their legal rights. In other words, treat interns as if they are employees!

Interns should be aware that they have rights in the workplace, and any employer that makes them feel that they have to put up with unlawful treatment in order to receive a recommendation, or receive credit, is engaging in wrongdoing and the interns must seek legal advice to put an end to this conduct.

There’s never been a better time to be an intern in the Empire State and the Big Apple!

Your Bump Need Not Bump Up Against Legal Obstacles

New York City may just have become one of the best places to be pregnant while employed; and it’s not only because maternity fashions in the city are some of the best!

Thanks to former Mayor Michael Bloomberg, who signed into law, an amendment to the NYC Human Rights Law that requires employers with four or more employees to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions.  Accommodations must be provided, unless the employer can prove that the accommodation would cause an undue hardship.

This wonderful law has been in effect since January 30, 2014. 

The NYC Human Rights Law is more protective of employees who are disabled, than is the federal law, or the state law.

If a pregnant employee needs more frequent bathroom breaks, more flexibility in scheduling to attend medical appointments, breaks to hydrate, rest periods for employees who are on their feet a lot, and help with lifting and moving, then the employer must accommodate said employee, i.e. the employee is entitled to the reasonable accommodation, so that she can perform the essential requisites of the job.  It’s illegal for an employer to refuse to grant such a reasonable accommodation when the employee’s pregnancy, or related medical condition is known, or should have been known, by the employer, unless the employer can prove that the accommodation would cause an “undue hardship in the conduct of the [employer’s] business.”

Additionally, if the employer believes that the employee could not with reasonable accommodation “satisfy the essential requisites of the job,” the employer must raise and prove this as an affirmative defense to a claim of discrimination.

In interpreting the NYC Human Rights Law, courts have held that there are NO accommodations that are unreasonable under the NYC Human Rights Law, if they do not cause undue hardship to the employer.    What that means is, whatever accommodations a pregnant employee now requests in New York City must be granted unless the employer can establish that doing so would be an undue hardship.

The NYC Human Rights Law also requires the New York City’s Human Rights Commission to create a written notice of employees’ rights under the NYC Human Rights Law pregnancy accommodation amendment, which must be provided to new employees upon hire and to existing employees.  The notice may also be “conspicuously posted” at an employer’s place of business in areas accessible to employees.

The NYC Human Rights Law is on the books; still, employees must be educated on how to assert their rights under the law.    Pregnant women should obtain legal advice as to when to disclose their pregnancy to the employer, and if they need accommodations, have counsel advise them on how to request them, help prepare documentation that needs to be submitted in support of the accommodation, if any, and be advised on how and when to abide by the record-keeping requirements concerning the accommodation, as required by the employer.

Another reason to retain counsel (even if your employer never finds out you have sought legal advice) is that an employer’s behavior during the process of the pregnant employee requesting an accommodation can be highly stressful to the pregnant employee and cause unnecessary health problems, if the employer does not know or understand the law.   A lawyer’s assistance can be a godsend, and can help educate the employer as well, so the accommodation process goes smoothly for all parties involved.

GET UP STAND UP, STAND UP FOR (OTHERS’) RIGHTS- IN THE WORKPLACE

Dig if you will this scenario- you have personal knowledge that a colleague in the workplace is being subjected to some form of unlawful treatment (ranging from sexual harassment to gender discrimination, or any other form of prohibited conduct.)
You decide to go ahead and report said conduct to Human Resources and/or upper management, because your conscience tells you that it’s the right thing to do. In other words, you decide to aid or encourage your colleague in the exercise of, or enjoyment of, any right granted or protected by the law.

 
In the five boroughs of New York City, what you are doing is considered a ‘protected activity.’

 
For example, Section 8-107(19) of the NYC Human Rights Law, sets forth:

 

Interference with protected rights. It shall be an unlawful discriminatory practice for any person to coerce, intimidate, threaten or interfere with, or attempt to coerce, intimidate, threaten or interfere with, any person in the exercise or enjoyment of, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected pursuant to this section.

 

Therefore, if you decide to go ahead and report the unlawful conduct on behalf of your colleague, the law is supposed to protect you from retribution of any kind, in the workplace, as you are aiding another employee in the exercise or enjoyment of his or her rights.

There are laws in other geographic areas that may also be protective of a person who engages in this type of protected activity- consult with an experienced employment lawyer, to learn more about your rights in this regard.

The law provides protections for individuals (employees and former employees) who come forward on behalf of other employees who are subjected to unlawful conduct. Many employers nowadays (thanks to extensive equal employment opportunity training and education from their own lawyers), respect the law and the rights of these individuals.

What if you are an employee in Human Resources? Can you still aid employees in the exercise or enjoyment of their rights? Some courts have held that Human Resources employees are deemed to have stepped outside their role of representing the company by reporting acts of discrimination to upper management, and as a result, should be protected from retribution.

If you do get up, stand up, for the rights of another, and you experience retribution from your employer, or former employer, consult with an experienced employment lawyer, right away, to protect your interests.

If you got up, stood up—for another employee- the law should protect you.

Telling The Truth Need Not Be A Punitive Experience

By Denise K. Bonnaig, Esq., Member, Bonnaig & Associates

Sometimes employees are fortunate NOT to be subjected to discrimination on the basis of race, pregnancy, color, gender, religion, or any other protected category.  Perhaps you’re one of those employees that has always been treated fairly, equitably, and increases in your salary and rank have always been based on merit.    If this is your situation, that’s wonderful, because that’s how it should be.

Your colleagues may not be that fortunate.  Some of them may have been subjected to acts of sexual harassment or other form of differential treatment IN YOUR PRESENCE.

This means that you are a WITNESS to unlawful treatment in the workplace.

If your colleague reports the unlawful treatment to the company (as it is in their best interest to do so) and names you as a witness, or if your colleague starts litigation and names you as a witness, you may be called into Human Resources and/or subpoenaed for testimony under oath.

Do you feel filled with fear immediately, that telling the truth about what you witnessed, will jeopardize your job and impair your ability to support yourself and/or your family and/or your aging parents?   That’s understandable.  However, know that the employment laws in place today protect individuals who are witnesses to unlawful conduct in the workplace, such as differential treatment based on the following, including:

•  Age (actual or perceived)
•  Race
•  Pregnancy
•  Creed
•  Color
•  National origin
•  Gender (actual or perceived)
•  Disability (actual or perceived)
•  Marital Status
•  Sexual Orientation (actual or perceived)
•  Alienage
•  Citizenship status
•  Genetic predisposition or carrier status
•  Religion
•  Victim of Domestic Violence (actual or perceived)

If you serve as a witness, the law states that you should not be subjected to any retaliation. Well, what if you are subjected to retaliation?    If you are, and you can prove that the acts of retaliation are causally related to you serving as a witness, you may be able to bring your own legal action against your employer.

Having said that, prevention is better than litigation—and cheaper too.

Employees who are witnesses are best served when they obtain legal advice from an experienced employment lawyer the minute they know they may be called as a witness.   That way, the potential witness can receive a thorough education about how to protect their rights in the workplace, given that they are a witness, and how to report acts of retribution, if they occur.

In some cases, the lawyer may (with your permission) alert the company that you have a lawyer that will be representing you and, in my experience, this provides an additional layer of protection for you, while you tell the truth.   This lawyer may (if appropriate) appear at meetings at which you’re interviewed, defend you at deposition, or prepare you for your trial testimony.

Your goal is to avoid retribution for telling the truth, and the law is here to protect you!

Our next blog will discuss employees who decide to report acts of discrimination on behalf of the victim of discrimination.

Stay tuned, and keep visiting our blog.