The U.S. Supreme Court has just made it easier for employees who are involuntarily transferred to a lateral position, to pursue discrimination claims even when they retain the same pay, benefits, and supervisory status. 

In Muldrow v. CIty of St. Louis, Mo., decided a few days ago, on April 17, 2024, a female police sergeant was transferred from a specialized intelligence division to a new division that required her to work weekends.  She also lost her access to an unmarked vehicle, and her job would now involve more administrative matters than high-visibility matters.  Her pay and rank, however, remained the same.  Notwithstanding that the transfer did not result in any diminished compensation or other tangible benefits, she sued alleging that the transfer was discriminatory. 

The Supreme Court observed that Title VII prohibits employees from discriminating against an employee with respect to the employee’s “terms” and “conditions” of employment because of the employee’s race, color, religion, sex or national origin.  Under these particular circumstances, many lower courts previously required employees to show that a lateral transfer resulted in a “materially significant disadvantage” or had a “significant detrimental effect” or resulted in other material or serious levels of harm to the employee.  The Supreme Court expressed its disagreement with those courts.  In its 9-0 decision, it opined that Title VII only requires an employee to show that they suffered “some harm respecting an identifiable term or condition of employment.” According to the Court,  the phrase to “discriminate against,” just “means treat worse,” and Title VII does not say “anything about how much worse” and nothing suggests that an employee must meet “an elevated threshold of harm” to prove a case of discrimination.

The Bottom Line:  Given the employment law trends across the country, the decision was not unexpected.  So, employers take heed: just because an employee's transfer does not affect pay, rank, seniority or any other "financial" aspect of employment, almost any affect on the employee's conditions of employment, even if slight, may be sufficient to form the basis of a discrimination claim.

Effective Dates for new laws affecting employers and employees in 2024:

• January 1, 2024 – The minimum wage rate in New York will increase to $16/hour in New York City, Nassau, Suffolk, and Westchester Counties and $15/hour in the other counties of the state. Also, the salary threshold for the administrative and executive employee overtime exemption will increase to $1,200/week or $62,400/year in New York City, Nassau, Suffolk, and Westchester Counties, and $1,124.20/week or $58,458.40/year in the other counties of the state.
  
• February 15, 2024 – The statute of limitations for filing administrative claims of unlawful discrimination under the New York State Human Rights Law extends from one year to three years from the date of the alleged unlawful discriminatory practice.
  
• March 12, 2024 – New York employers will be prohibited from requesting or requiring that an employee or applicant disclose any username, password, or other means for accessing a personal account through specified electronic communications devices as a condition of hiring, employment status, or for use in disciplinary actions.  Certain exceptions apply for accounts used for business purposes and devices paid for by the employer.
  
• May 20, 2024 – Businesses engaging independent contractors (freelancers), and compensating them at least $800.00, must provide written agreements that contain certain minimum requirements, including the name and mailing address of both parties, an itemization of services to be provided, the value of the services, the rate and method of compensation, the date on which payment must be made, and the date by which a worker must submit a list of all services rendered to meet any payment processing deadlines.
  

I am often told by clients when settling employment-related discrimination claims to "make sure there is a non-disclosure provision in the agreement!"  Meaning, employers typically do not want the terms of any settlement they reach with an employee to be disclosed publicly.  Well, New York has now recently passed a number of amendments to its non-disclosure law, NY General Obligations Law 5-336, that will affect the way these settlement agreements are drafted. 

First, the law now also covers claims of harassment and retaliation, not just discrimination, and therefore is much broader.  So, no employer in New York can include a nondisclosure provision in a settlement agreement where the employee's claims involved discrimination, harassment or retaliation--unless confidentiality is the employee's preference.

Second, independent contractors, not just employees, are now also protected.  Any agreement entered into after January 1, 2020, may not prohibit the future disclosure of information relating to claims of discrimination unless the nondisclosure agreement (NDA) makes clear that the employee or independent contractor is not prohibited from speaking to law enforcement, the EEOC, the state Human Rights Division, the City Human Rights Commission, the Attorney General, or an attorney.  Because of the retroactive nature of the amendment, employers should review any previously entered-into agreements and amend them accordingly.

Third, a complainant now has up to 21 days to consider a confidentiality or nondisclosure provision. Previously, this 21-day period was non-waivable, meaning the employee was required to wait 21 days before effectively accepting this provision, and then had a 7-day period in which acceptance could be revoked.  The 21-day period is now waivable and the employee therefore need not wait out the period.  However, the 7-day revocation period remains.  This change will certainly speed-up the settlement process for those individuals who do not have an issue with confidentiality.  It should be noted, however, that this amendment only applies to agreements entered into before litigation is commenced.

Lastly, releasing a claim involving discrimination, harassment or retaliation, is now unenforceable where:  (a)  the complainant is required to pay liquidated damages for violating a Nondisclosure Agreement or non-disparagement clause;  (b)  the complainant is required to forfeit all or part of the consideration for the agreement for violating the NDA or non-disparagement; or (c)  the release contains or requires an affirmative statement or disclaimer by the complainant that he or she was not in fact subject to unlawful discrimination, harassment or retaliation.

The Bottom Line: It is time to re-think nondisclosure and confidentiality provisions in settlement agreements, and recognize New York's increasing trend toward greater employee protections.

The New York City Commissioner of Health has recently ordered that employers ensure that by December 27, 2021 they receive proof of vaccination against COVID-19 from all of their in-person workers (whether part-time or full-time).  This means that employers must obtain documentation that at least two weeks have passed since a worker received a vaccination of one dose in a single-dose series or the second dose in a two-dose series.  The new Order does not require workers to receive booster shots--for now.  

A workplace is defined as “any place where work is performed in the presence of another worker, or a member of the public.” And self-employed individuals are also covered by the law if they interact with the public in the course of their work.   Workers who have only received one shot in a two-dose series have 45 days from December 27 to provide proof of having received a second dose, after which employers must exclude them from the workplace until proof of a second dose has been furnished.  Employers must affirm compliance with the Order by December 27, 2021 by signing a one-page Department of Health and Mental Hygiene attestation notice and posting it in a conspicuous location at their workplace.   Employers must also maintain a record of each worker’s proof of vaccination by: (a) keeping a copy of their proof of vaccination, or (b) creating their own paper or electronic record that includes each worker’s name, vaccination status, and if a worker submitted proof of only one dose of a two-dose vaccine, the date that the second dose (which must be within 45 days after proof of first dose) will be provided.

If the employer grants any worker a reasonable religious or medical accommodation, the employer must maintain a record of:

• All workers who were granted a reasonable accommodation
• The date of the accommodation,
• The basis for granting the accommodation, and
• Any supporting documentation the worker provided when requesting the accommodation.

If an employer hires a non–employee worker, for example, a contractor, it must keep a record indicating that it requested and received confirmation from the contractor’s employer verifying the contractor’s vaccination status.

It is highly recommended that employers comply with the Order as inspectors from various New York City agencies will begin enforcing the order on December 27, 2021. A failure to comply can subject an employer to an initial penalty of $1,000, with increasing penalties thereafter.

Some unique work-related issues are developing in the age of Covid-19--or, if not unique, are certainly taking up more focused attention. Here are just three:
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(1) Now that many employees are working remotely, are they all-of-a-sudden entitled to overtime pay because they are working at 10:00 P.M. from home?

Paying certain employees overtime probably was never on your mind before the business shutdown, but now that many workers may still be working from home, it may be time to reassess whether or not they are entitled to overtime pay even if they were not receiving overtime before. The Department of Labor does not take kindly to misclassifying employees, so, pull out those job descriptions and see if your exempt workers can still be considered exempt, or whether they should be reclassified as hourly employees. Then, your options are: (a) you can change their job descriptions to retain their exempt status, or (b) you can tighten-up their remote working rules so that they cannot claim to be working overtime.

(2) If an employee has used up all of her paid sick leave, vacation time, and other paid leave time, is she still entitled to more leave time this year as a result of having to quarantine because of Covid-related symptoms?

Best to make sure you are familiar with the Families First Coronavirus Response Act (FFCRA) provisions before saying, "no." Under the FFCRA, specifically the provisions for Emergency Paid Sick Leave, most employers are required to provide paid sick leave up to 80 hours to any full time employee (regardless of days of employment) for reasons associated with COVID-19. This is in addition to any other leave time that the employee is or was entitled to. 

(3) If employees become involved in altercations at work over politics or wearing a mask, can they be fired?

Tensions are high in the workplace, as everywhere, as a result of the pandemic, the elections, the state of the City, you name it. And many employees are very vocal about their anxieties and their opinions, which often creates clashes. Employers should know that political speech is not a First Amendment right in the workplace. They have the right to limit such discussions and to limit what employee's wear, be it "Make America Great Again" hats or "Black Lives Matter" pins. The trick is to do it consistently and even-handedly. It may be a good time to check your employee handbook to address employee conduct in the workplace in this new Age.

The Bottom Line: Business owners, as always, need to be vigilant about new laws, but also about what new situations create possible new issues.

Confusion over the terms "employee" and "independent contractor" is a frequent topic of mine. That is because the definitions keep changing!  And they changed again--at least as far as the U.S. Department of Labor is concerned.

Under a proposed new rule by the DOL, how workers interact with employers is of paramount importance in making the determination whether to categorize a worker as an employee or independent contractor.

Instead of the traditional 6-factor test, the DOL is now proposing 5 factors to determine the extent of an employer's "control" over a worker. The more the employer "controls" the worker or her work, the greater the likelihood that the worker will be deemed an employee. These are the factors:

• The nature and degree of the worker's control over his or her own work
• The worker's opportunity for profit or loss from his or her own work

 

• The amount of skill required for the work
• The degree of permanence of the working relationship between employer and worker
• Whether the work is part of an integrated unit of production, that is, whether the work is a component of the employer's integrated process for producing a good or service

The first two factors are the core of the analysis. After analyzing the first two factors, if it is still unclear whether the worker is an employee, then we can look to the next three factors as additional guideposts.

The New York State Labor Department takes a seemingly more simplified approach by merely looking at whether the worker is free from any supervision, direction or control over the performance of his or her duties. But the analysis is deceptively simple because we are still left with the questions: what constitutes supervision, direction or control?

The Bottom Line: As much as the Labor Departments attempt to simplify the definitions, the analysis remains complicated. So, a word of caution: if you think your worker is an independent contractor, think again, seek advice, and confirm.

Time for New York City employers to review their drug testing policies and practices.

Effective May 10, 2020, covered employers are not permitted to test job applicants for marijuana or tetrahydrocannabinois (THC) as a condition of employment.  They can, of course, continue to drug-test current employees and to have rules governing drug-use in the workplace. 

However, like every rule, there are exceptions.  Employers may require tests for job applicants applying for specific types of jobs, for example:
Police officers
Peace officers
Law enforcement or investigative positions at the NYC Department of Investigation
Positions requiring a commercial driver’s license
Positions supervising or caring for children
Positions supervising medical patients

The NYC Human Rights Commission is finalizing rules that will expand the list of exceptions to include. among others, the following positions:
Positions that regularly work on active construction sites
Positions that regularly operate heavy machinery
Positions that regularly work on or near power or gas lines
Positions that drive motor vehicles on most work shifts
Positions where drug impairment would pose an immediate risk of death or serious physical harm to the employee or to other people

The Bottom Line:  Given the current climate, and the NYC Human Rights Commission's proclivity to give liberal reading to these employee protection laws, even if one of the excepted positions does not apply to an employer's business, it may be a good idea for the employer to refrain from testing for marijuana as a pre-condition of hiring.