In early 2022, New York State entered S.812B/A.2035B into law, which amended the New York State Human Rights Law, N.Y. Executive Law § 296, to require a statewide toll-free, confidential hotline (the “Hotline”) for the lodging of complaints of sexual harassment in the workplace.  On July 19, 2022, Governor Hochul announced the launch of the Hotline (1-800-427-2773 or 1-800-HARASS-3).

The Hotline is operated by the New York State Division of Human Rights (the “Division”).  The Hotline will be staffed during regular business hours and provide any caller with information on how to file a complaint with the Division. In addition, if the caller is interested, the Hotline will provide information regarding pro bono attorneys who may be able to assist and counsel complainants.  These referrals are intended to supplement (not replace) the Division’s normal complaint procedures as the new law expressly forbids attorneys who provide advice on the Hotline from soliciting further representation of any individuals whom they counsel.

Employers should immediately update all sexual harassment materials, including employee handbooks, policies, and other postings provided to employees, to include information about the Hotline.

On April 28, 2022, the New York City Council approved Int. 134-A (the “Bill”) to amend several aspects of the New York City salary disclosure law (Int. 1208-B) (the “Law”), including delaying the original May 15, 2022 effective date to November 1, 2022. The Bill is now before Mayor Eric Adams for his signature, which would enact the Bill into law.

As we previously reported, the Law requires New York City employers with four (4) or more employees to disclose minimum and maximum salary information in job postings, promotions, and transfer opportunities. On March 22, 2022, the New York City Commission on Human Rights (the “Commission”) released guidance regarding employer obligations under the Law. The Bill was introduced just two (2) days after the Commission issued this guidance.

The Bill amends the Law in the following material respects, which in some ways differ from the original version of the Bill that was first introduced:

  • As noted above, the Bill amends the effective date of the Law to November 1, 2022.
  • The Bill contains an explicit carveout to the Law’s disclosure requirements for “[p]ositions that cannot or will not be performed, at least in part, in the city of New York.” As such, the Bill clarifies that the Law does not apply to positions that cannot or will not physically be performed (at least in part) in New York City.” Notably, assuming the Bill is enacted into law and unless further guidance is issued, the Law does apply to advertisements for remote positions that can be performed wherever the employee resides as that position could theoretically be filled by a New York City resident. Therefore, any employer with four (4) or more employees and at least one (1) employee who works remotely in New York City, will need to disclose the salary range for remote positions.
  • The Bill clarifies that the salary range disclosure requirements apply to both salaried and hourly employees.
  • The Bill provides that, “[n]o person shall have a cause of action . . . for an alleged violation of this subdivision, except that an employee may bring such an action against their current employer for an alleged violation . . . in relation to an advertisement by their employer for a job, promotion or transfer opportunity with such employer.” As such, the Bill seemingly limits a private right of action under the Law to current employees and excludes applicants.
  • The Bill provides for a “safe harbor” provision for first-time offenders of the Law, which permits such covered employers to avoid a civil penalty if certain corrective actions are taken. Namely, the Bill states that upon receipt of a complaint from the Commission, covered employers will have thirty (30) days to cure any violation of the Law. Employers will then be required to submit proof that the violation has been cured and, if acceptable to the Commission, the proof “shall be deemed an admission of liability for all purposes.”

Covered employers should continue to stay up-to-date with any developments, including whether Mayor Adams signs the bill in the coming days before the original May 15, 2022 effective date. Assuming the Bill is enacted into law, the Commission indicated that it will be updating its previously issued guidance to conform to the new amendments.

On March 22, 2022, the New York City Commission on Human Rights (the “Commission”) released guidance (the “Guidance”) regarding employer obligations under Int. 1208-B (the “Law”).  As we previously reported, the Law requires New York City employers with four (4) or more employees to disclose minimum and maximum salary information in job postings, promotions, and transfer opportunities.  The Law is currently scheduled to take effect on May 15, 2022.

Two (2) days after the Commission issued the Guidance, a new bill (Int. 134) (the “Bill”) was introduced to the New York City Council on March 24, 2022 that, if passed, would significantly amend the Law, including pushing back the effective date to November 1, 2022.

Covered Employers

As noted above, the Law applies to New York City employers that employ four (4) or more persons, and also any New York City employer that employs one (1) or more domestic workers. For purposes of counting “employees” toward the above threshold, employers must count independent contractors, as well as an individual employer’s parent, spouse, domestic partner, or child working for the employer.  The Guidance clarifies that owners count towards the four (4) person threshold and that all employees, regardless of work location, must be counted.  Therefore, to be a covered employer under the Law, an employer need only have one (1) employee who works in New York City.  Under the Bill, this threshold would be increased to fifteen (15) or more persons.

The Guidance provides that employment agencies are covered by the Law, regardless of size.  That being said, the Law does not apply to temporary help firms seeking applicants to join their pool of available workers.  Notably, employers who work with temporary help firms must abide by the Law.

Covered Job Postings

The requirement to disclose the salary range applies to any “advertisement” for a job, promotion, or transfer opportunity (including internal postings).  An “advertisement” is defined in the Guidance as “a written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applications.”  This includes, but is not limited to, postings on internal bulletin boards, internet advertisements, printed flyers distributed at job fairs, and newspaper advertisements.

The Guidance states that the Law applies to any opportunity that “can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home.” Therefore, a covered employer should post the required salary information for any position that could be performed, in whole or in part, remotely by a New York City resident, which has broad implications given that more and more employees are working remotely since the beginning of the COVID-19 pandemic. If passed, the Bill would limit the Law to expressly exclude “[p]ositions that are not required to be performed, at least in part, in the city of New York.”  In other words, if a job could be performed entirely remotely from any location, then the Bill would not require covered employers to provide salary ranges in the job advertisement.

Required Salary Information

The Law requires employers to post the minimum and maximum “salary” that the employer in “good faith” believes it would pay for any advertised position.  The Guidance explicitly provides that a salary range cannot be open ended.  For example, an advertisement that provides for a salary of a “maximum of $50,000 per year” would not comply with the Law.  The Guidance also recognizes that the minimum and maximum salary may be identical where an employer does not have any flexibility in the salary it is willing to offer for the opportunity.

The Guidance states that “salary” includes “the base wage or rate of pay, regardless of the frequency of payment” and does not include other forms of compensation or benefits, such as: health insurance, paid time off, availability of or contributions towards retirement funds, severance pay, overtime pay, commissions, tips, bonuses, and stock or equity awards.  Further, “good faith” means “the salary range the employer honestly believes at the time they are listing the job advertisement that they are willing to pay the successful applicant(s).”

Enforcement of the Law

The Law allows any applicant or employee to enforce their rights in the same way other violations of the New York City Human Rights Law are addressed by filing a complaint with the Commission or in court.  The Guidance notes that the Commission will investigate complaints of violations of the Law, but will also have the power to initiate its own investigations “based on testing, tips, and other sources of information.”  Additionally, the Guidance provides that employers and employment agencies that violate the Law may have to pay monetary damages to affected employees and civil penalties of up to $250,000, as well as amend advertisements, create or revise policies, conduct training, and provide notices of rights to employees or applicants.

Overall, covered employers should carefully review the Guidance and speak with counsel to prepare to comply with the Law as of the May 15, 2022 effective date.  Further, employers should consider the effect that the disclosures will have on current employees as the disclosures may provide employees with new pay transparency information that could cause an uptick in employee complaints and negatively impact employee retention rates.  New York City employers should also stay up-to-date with the potential passage of the Bill and any other developments.

On March 14, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a new technical assistance document (the “Guidance”) addressing the interplay between existing federal employment discrimination principles involving caregivers to situations specifically related to the COVID-19 pandemic, which has presented unique challenges for employees juggling competing job and caregiving demands.  The Guidance supplements earlier EEOC enforcement guidance, fact sheets, and best practices documents for employers, all of which address caregiver discrimination under a wide variety of circumstances.

The Guidance, which takes the form of FAQs providing numerous examples of unlawful discrimination and harassment arising from caregiver obligations, explains that caregiver status is not itself a protected class under federal employment laws.  However, employment decisions against employees who are caregivers may constitute unlawful discrimination when they are made based on the employee’s protected characteristics, such as sex (including pregnancy, sexual orientation, and gender identity), race, color, religion, national origin, age, or disability, or based on the employee’s association with an individual with a disability (within the meaning of the Americans with Disabilities Act (“ADA”)).  The Guidance further confirms that caregiver discrimination violates federal law when it is based on intersections among several protected characteristics – e.g., discrimination against Black female caregivers based on racial and gender stereotypes.

As the Guidance only addresses employees’ rights under the ADA, Title VII of the Civil Rights Act (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”), employers should also consider whether there are any broader protections available to employees under state and local laws.

Caregiver Discrimination Based on Sex, Sexual Orientation, and Pregnancy

The Guidance explains that unlawful discrimination against male and female caregivers based on gender-based stereotypes and pregnancy may arise in a variety of circumstances.  Such examples include:

  • refusing to hire or promote a female applicant or employee based on “assumptions that, because she was female, she would (or should) focus primarily on caring for her young children…or on caring for her parents or other adult relatives”;
  • refusing to assign female caregivers projects that require extra hours or travel based on the employer’s assumptions that “female caregivers cannot or would not prefer to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19”;
  • denying male employees leave or a flexible work schedule to care for family members with COVID-19 or to handle other pandemic-related caregiving responsibilities, if the employer grants these accommodations to similarly situated female employees;
  • refusing to hire or promote pregnant applicants or employees based on assumptions that they “will or should be primarily focused on ensuring safe and health pregnancies”;
  • allowing employees to harass pregnant co-workers for taking precautions in the workplace to avoid COVID-19 exposure; and
  • treating employees who are temporarily unable to perform job duties due to pregnancy, childbirth, or related medical conditions, differently from other employees who are temporarily unable to perform job duties because of COVID-19 or some other illness.

In addition, the Guidance reiterates that it is unlawful for employers to discriminate against LGBTQI+ applicants and employees with caregiving responsibilities based on their sexual orientation or gender identity.  Examples of this unlawful discrimination include:

  • requiring LGBTQI+ employees who make caregiver-related requests to follow more burdensome procedures, such as requiring proof of a marital relationship with the individual needing care, if this is not required of similarly situated employees; and
  • denying caregiver leave to an employee with a same-sex partner based on the employee’s or the partner’s sexual orientation or gender identity.

Discrimination Against Employees Responsible for Care of Individuals with Disabilities

As to employees or applicants associated with an individual with a disability (as defined under the ADA), the Guidance explains that these employees are protected from discrimination based on their associations with the recipient of care, which may include some individuals with active COVID-19 illness or lingering symptoms (i.e., “long COVID”).  For example, it would be unlawful discrimination under the ADA for an employer to:

  • refuse an employee’s request for unpaid leave to care for a family member with “long COVID”, if other employees’ requests for unpaid leave to handle other personal responsibilities have been permitted;
  • refuse to promote an employee who has primary caregiving responsibilities for a child with a mental health disability that was exacerbated by the pandemic; and
  • refuse to hire an applicant because their spouse has a disability that puts the spouse at higher risk of severe COVID-19 illness and the employer fears that its health insurance costs will increase if the spouse is added to its healthcare plan.

Race and National Origin Caregiver Discrimination

Discrimination arising from race- or ethnicity-based stereotypes or generalities related to the COVID-19 pandemic is also unlawful.  The Guidance provides the following examples, among others, of this kind of unlawful discrimination:

  • requesting additional proof of an Asian employee’s COVID-19 vaccination status simply because COVID-19 was first identified in an Asian country;
  • using different standards or requiring different procedures for COVID-19-related caregiving requests based on an employee’s or care recipient’s race or national origin; and
  • denying an employee’s request for leave to care for a family member from another country who was recently diagnosed with COVID-19 because a COVID-19 variant was first identified in the family member’s country of origin.

Workplace Accommodations for Older Employees

The Guidance further confirms that the ADEA does not give older employees a right to reasonable accommodations for caregiving or any other purpose.  However, the ADEA does prohibit employers from discriminating against older employees based on their age or age-related stereotypes.  For example, an employer may violate the law by requiring an older employee to accept a reduced schedule out of concern that, because of the employee’s age, “the worker lacks the stamina to perform full-time job duties effectively” while also caring for a young grandchild whose parents are recovering from COVID-19.  Moreover, the Guidance highlights that employers may, at their discretion, grant older employees’ requests for leave, flexible schedules, and remote working arrangements to allow them to perform pandemic-related caregiving duties.

Poor Performance by Employees with Pandemic-Related Caregiving Responsibilities

The Guidance clarifies that employers are not required under federal law to excuse poor workplace performance resulting from an employee’s caregiving duties.  For example, an employer who typically issues written warnings to employees who are consistently late to work may issue the same warnings to employees who are late due to pandemic-related caregiving obligations.  An employer may not, however, inconsistently apply penalties to employees based on an employee’s protected characteristics.

Unlawful Workplace Harassment and Retaliation Related to Pandemic-Related Caregiving Responsibilities

In addition to the above examples of unlawful discrimination, the Guidance also provides examples of unlawful harassment and retaliation related to employees’ pandemic caregiving responsibilities, which can occur both on-site and in the remote workplace.  Examples of this prohibited conduct include:

  • ridiculing female employees for focusing on their careers instead of their families during the pandemic or accusing them of being preoccupied with keeping their families safe from COVID-19 and thus “insufficiently committed to their jobs”;
  • criticizing male employees for performing pandemic-related caregiving duties based on gender stereotypes;
  • making offensive comments about or asking personal questions of LGBTQI+ employees after they request leave to care for a same-sex partner who has COVID-19 symptoms;
  • insulting Asian employees caring for family members with COVID-19 simply because COVID-19 was first discovered in an Asian country;
  • mocking employees caring for individuals with disabilities who are at a higher risk of severe COVID-19 illness for taking precautionary measures to avoid infection and questioning, without justification, their professional dedication;
  • criticizing older employees who care for their grandchildren based on the assumption that these employees “should be receiving care, not providing it, given the employees’ age”;
  • changing the schedule of an employee with young children to conflict with school drop-off and pick-up times because the employee participated in a discrimination investigation; and
  • transferring a manager who is the primary caregiver to an older relative living locally to a distant office for refusing to obey a discriminatory order.

The Guidance explains that employers can help prevent this kind of harassment by, among other things, periodically distributing harassment policies and procedures to all employees and training employees on these policies and procedures.  As to unlawful retaliation, the Guidance reminds employers that they should, among other things, train all employees with managerial responsibilities about their non-retaliation obligations under the law and notify complainants and other employees involved in discrimination investigations about their right not to be subject to retaliation and the procedures for reporting the same.

In sum, employers should carefully review the Guidance, particularly given that the EEOC has signaled that such claims will be an enforcement priority, and make any necessary revisions to their policies and procedures.

On March 28, 2019, New Jersey Governor Phil Murphy signed A-4134, the New Jersey Secure Choice Savings Program Act, also called the NJ Auto-IRA Act (the “Act”), “for the purpose of promoting greater retirement savings for private sector employees in convenient, low cost, and portable manner.”  The implementation date of the Act was postponed to March 28, 2022 due to the COVID-19 pandemic.  The Act establishes a state-sponsored “retirement savings program” and requires certain employers that do not offer a traditional retirement savings option to its employees to either start doing so or participate in the State-sponsored program.

As provided by the State’s Secure Choice Program website, the Secure Choice Savings Board (the “Board”) is in the process of implementing the program, which is expected to be completed by the March 28, 2022 deadline.  Once the Board notifies the State Treasury that the program has been implemented, employers will have 9 months to comply with the Act’s requirements.

Which Employers are Covered under the Act?

Covered employers under the Act are both profit and non-profit New Jersey employers that: (1) employed at least 25 workers during the previous calendar year; (2) have been in business for at least 2 years; and (3) have not offered a “qualified retirement plan” (i.e., a 401(k) or 403(b) plan) to their employees.  Significantly, employees who are co-employed by an employee leasing company or professional employer organization shall be treated as employed by the covered employer (i.e., not by the leasing company or professional employer organization) for purposes of the Act.

Therefore, covered employers must either enroll in the State-sponsored program or offer employees the ability to participate in a qualified retirement plan as defined by the Act.  Both full-time and part-time employees must be offered the ability to participate in the applicable retirement savings plan.

Employers with fewer than 25 employees may arrange for their employees to participate in the State-sponsored program, but are not required to do so.

How does the State-Sponsored Program Work?

Employers that decide to participate in the State-sponsored program must “establish a payroll deposit retirement savings arrangement to allow each employee to participate in the program.”  The employer then must “automatically enroll in the program each of their employees who has not opted out of participation in the program” at a 3% pre-tax contribution rate, unless the employee requests a different rate.  The funds collected must then be deposited into the program on the employee’s behalf.

Further, after the initial implementation, at least once every year, “participating employers shall designate an open enrollment period during which employees who previously opted out of the program may enroll in the program.”  Notably, employers “retain the option at all times to set up or provide coverage under any type of employer-sponsored retirement plan.”

Overall, participating in the State-sponsored program imposes no financial costs to employers, but does impose various administrative burdens.

What Happens if a Covered Employer Fails to Comply with the Act?

Unless an alternative qualified retirement plan is offered to employees in accordance with the Act, any covered employer who fails to enroll any employee who has not opted out of participation in the State-sponsored program without reasonable cause shall be subject to:

  • For the first calendar year during which at any point a violation occurs, a written warning by the department;
  • For the second calendar year during which at any point a violation occurs, a fine of $100 (which appears from the Act’s statutory language to be the total fine that could be assessed against the covered employer, although this is not fully clear);
  • For the third and fourth calendar year during which at any point a violation occurs, a fine of $250 for each employee who was neither enrolled in nor opted out of participation in the State-sponsored program; and
  • For the fifth and any subsequent calendar year during which at any point a violation occurs, a fine of $500 for each employee who was neither enrolled in nor opted out of participation in the State-sponsored program.

Moreover, any employer “who collects employee contributions but fails to remit any portion of the contributions to the fund shall be subject to a penalty of $2,500 for a first offense, and $5,000 for the second and each subsequent offense.”  Covered employers will be required to report information regarding compliance with the Act on their income tax returns.

What to do Now?

Covered employers should consult the Secure Choice Program’s website noted above for further updates.  Once more information is available from the State, employers should speak with counsel and weigh the pros and cons of establishing their own qualified retirement plans versus participating in the State-sponsored plan.