Welcome back to Ballard Spahr’s New York Minute.  Below are some of the latest developments impacting employers in the fast-paced and ever-evolving New York market.  Please contact us with questions regarding the topics below or for any other guidance related employment laws covering New York employers.

Electronic Employee Monitoring Law Effective May 7, 2022

Beginning May 7, 2022, New York employers that electronically monitor phones, emails, and/or internet usage (among other sources) will be required to give written notice of that monitoring to new employees upon hiring, and must also post a notice of those monitoring efforts in the workplace.

Pay Transparency Law Update – Guidance and Pending Amendments that May Push the Law’s Effective Date

New York City has introduced guidance regarding its pay transparency law – currently set to become effective May 15, 2022 – which requires employers employing four or more workers to include a good faith salary range (i.e., the minimum and maximum salary for any position) in any advertisements for a job, promotion, or transfer opportunity performed in NYC.  The new guidance issued by the New York City Commission on Human Rights, provides further insights into what job listings are covered by the new law (including certain remote positions performed, in whole or in part, in New York City) and what information must be included with job advertisements.

The City has also introduced amendments to the pay transparency law, currently pending, which if passed would, among other things, increase the threshold of the law’s applicability to employers that employ fifteen or more employees and would delay the law’s effective date until November 1, 2022.

EEOC Releases Guidance on Caregiver Discrimination

• Keeping in mind that New York City law already expressly prohibits discrimination based on “caregiver” status, and that New York State law prohibits discrimination based on “familial status,” New York employers can now also refer to recent guidance from the EEOC entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law” and its updated COVID-19 “What You Should Know” document, both of which explain how discrimination against individuals with caregiving responsibilities may trigger liability under federal anti-discrimination statutes.  The EEOC’s guidance provides pandemic-specific examples of discrimination against caregivers that might trigger such liability – g., it would be unlawful for an employer to refuse to hire a female applicant based on the assumption that she would be charged with child care duties during any quarantine, illness or remote schooling because of her sex.
• In addition, the EEOC’s “What You Should Know” updates contain new guidance (in question and answer format) regarding types of caregiver discrimination that would violate laws enforced by the EEOC and also include guidance on equitably enforcing policies regarding modified and telework schedules.

Release of Personnel Files as Retaliation Under the New York State Human Rights Law (“NYSHRL”)

• Effective immediately, employers in New York are prohibited from disclosing the personnel file of an employee who opposed unlawful discrimination under the NYSHRL, filed a complaint alleging violations of the NYSHRL, or participated in a legal proceeding involving the NYSHRL, to an unauthorized third party for any reason.  The amendment to the NYSHRL does not define “personnel file,” but it includes documents such as performance evaluations, complaints from guests or co-workers, disciplinary forms, attendance records, forms that relate to transfers and promotions or demotions, and termination forms.  The amendment also clarifies that it is not retaliation for an employer to release personnel records where it is necessary to respond to a complaint or administrative proceeding.

Pending Amendments in the New York State Legislature Would Expand Employee Protections

• No Rehire Clauses in Settlement Agreements
  • The New York State Senate via Senate Bill S766 has passed legislation that would make any release of a claim by an employee against an employer unenforceable if that employee, as part of that release, is prohibited from applying for or accepting future employment with that employer.
• Let Survivors Speak Act
  • Senate Bill S738 would prohibit settlement agreements involving sexual harassment or any form of discrimination prohibited by law that require employees to pay liquidated damages for violations of non-disclosure provisions included in such agreements.
• Increased Statute of Limitations for Discrimination Claims
  • Senate Bill 566A would extend the statute of limitations of the NYSHRL for filing complaints about alleged discriminatory practices to the New York State Division of Human Rights from one year to three years, consistent with the current statute of limitations for complaints alleging sexual harassment.
  • Senate Bill 849A would amend the New York Civil Practice Law and Rules to extend the statute of limitations for civil actions alleging unlawful discrimination from three years to six years.  The legislature reasoned that victims of workplace harassment may not come forward for some time, and that by extending the amount of time they have to file a claim, the bill will better protect victims of workplace discrimination.

Federal Court Rules in Favor of Testing for Marijuana Usage Under New York City Human Rights Law Exception

On April 12, 2022, in Thomas v. Amazon.com Inc.,  1:21-cv-01325, the United States District Court for the Eastern District of New York dismissed a proposed class action lawsuit against Amazon.com, Inc. that was brought against the company pursuant to the New York City Human Rights Law (“NYCHRL”), which prohibits employers from testing most workers for marijuana as a condition of employment.   Several individuals who had their offers to work pulled following positive tests for marijuana during a pre-employment drug screening sued the company, alleging that its policy of screening potential new hires for marijuana violates the NYCHRL’s prohibition.

The Court dismissed the lawsuit because the position of the prospective employees in the case was that of “sortation associate,” which the Court found to be within the exception to the NYCHRL’s prohibition for jobs involving the operation of heavy machinery.  Because the sortation associate position required the use of industrial conveyors and monitoring the flow of object traffic, the Court found that “there are a multitude of ways a marijuana-impaired employee could cause accidents,” such that the exception applied.

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