Phillips & Associates
Phillips & Associates
Phillips & Associates
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The global coronavirus pandemic has had an immense impact on the economy in a very short period of time. Many workers who have not yet shown the symptoms of the disease known as COVID-19 find themselves needing to self-quarantine because of possible exposure. Those who do show symptoms must also quarantine themselves and seek medical treatment. Several new laws offer assistance to workers affected by the pandemic. The federal government passed a bill in March 2020 establishing a temporary system of paid sick leave for many workers. New York State also passed a bill in March providing paid sick leave and expanding access to the state’s Paid Family Leave program.

Overlap of State and Federal Law

The bill passed by the U.S. Congress, entitled the Families First Coronavirus Response Act, creates a temporary system for paid sick leave that expires at the end of 2020, unless Congress acts to renew or modify it. New York State’s new law does not have an expiration date.

The New York law states that if a worker is entitled to paid leave under both state and federal law, then they are only eligible for state benefits under state law to the extent that they exceed the amount of benefits available under federal law. In other words, if federal law requires an employer to pay a particular employee $100 per day, and state law requires them to pay $120 per day, state law only covers the $20 excess amount.

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The global coronavirus pandemic has led to major economic disruptions across the country. As more and more people are urged — or required — to remain at home, and businesses deemed “non-essential” are ordered to reduce or cease operations, many people find themselves out of work or unable to get to their jobs. People who must quarantine themselves also cannot get to work. Both New York State and New York City have taken steps to help people affected by the crisis. The federal government has also acted, passing the Families First Coronavirus Response Act (FFCRA) in mid-March 2020.

Three of the bill’s major sections could offer assistance to workers in New York City:
– Division C, the Emergency Family and Medical Leave Expansion Act, does as its name suggests and temporarily expands the unpaid leave provisions of the Family and Medical Leave Act (FMLA).
– Division D, the Emergency Unemployment Insurance Stabilization and Access Act of 2020, provides additional grants for state unemployment insurance programs.
– Division E, the Emergency Paid Sick Leave Act, creates a temporary federal mandate for paid sick leave for certain employers.

Unemployment Insurance

Each state maintains an insurance fund for unemployment compensation. Employers pay into the fund as part of their payroll taxes. The federal government supplements the funds through grants. The unemployment provisions of the FFCRA authorize greater expenditures on state programs. Some of these extend to the end of fiscal year 2020, or September 30, while others continue to the end of the calendar year.

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Workplace discrimination has been a problem for about as long as workplaces have existed. New York City employment discrimination attorneys have some of the most powerful tools ever devised to fight back against such practices, but it remains a serious problem. Laws like Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of several factors. National origin discrimination has taken the national stage in recent weeks because of the global coronavirus pandemic. Far too many people have channeled their fear of the virus, which might have originated in China, into acts of discrimination and harassment against people whom they perceive to be of Asian descent. In the workplace, this violates Title VII and other statutes.

Title VII, the New York City Human Rights Law (NYCHRL), and the New York State Human Rights Law (NYSHRL) specifically identify national origin as a protected category. Federal regulations interpreting Title VII define “national origin” to include both “an individual’s, or his or her ancestor’s, place of origin” and “the physical, cultural or linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1. The Equal Employment Opportunity Commission (EEOC) considers harassment on the basis of national origin to constitute unlawful employment discrimination when “ethnic slurs and other verbal or physical conduct relating to an individual’s national origin” create a hostile work environment or otherwise impede a person’s ability to do their job. Id. at § 1606.8(b).

Public health officials first noticed the virus, which is officially known as SARS-CoV-2 and commonly known simply as the coronavirus, late last year when a cluster of cases appeared in Wuhan, China. The disease caused by the virus is known simply as “coronavirus disease 2019,” or COVID-19. In 2015, the World Health Organization (WHO) issued best practices for naming new infectious diseases, in which it recommended that the media, governments, and scientists refrain from naming new diseases after geographic locations “to minimize unnecessary negative effects on nations, economies and people.”

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The coronavirus has had a massive impact on people’s lives, and their jobs, in a very short span of time. In order to slow the spread of the virus, and to give the healthcare system more time to adapt and prepare, local and state governments are urging people to practice “social distancing.” Governors and mayors have ordered businesses to cut their hours, or to close down substantial parts of their operations. As many forms of economic activity have slowed, companies have begun laying off employees. This is not, in itself, unlawful, but as New York employment discrimination attorneys are aware, it is not always the layoffs themselves that are legally problematic — it is the way in which employers carry out the layoffs.

Employment at Will

New York is an “at will” employment state, meaning that an employer may fire an employee for any reason, or no reason at all, as long as it does not violate contractual obligations, internal policies, or the law. An employer cannot fire someone because of their race, religion, sex, or another protected category, nor can they fire them in a way that creates a hostile work environment on the basis of a protected category.

Harassment and Hostile Work Environment

Antidiscrimination laws at all levels in New York City treat harassment on the basis of sex, race, national origin, and other factors as a form of unlawful discrimination.

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Most U.S. states now allow medical marijuana use to some extent, but marijuana remains strictly controlled under federal law. This creates a dilemma of sorts for employers. Mandatory drug testing is still a feature of many workplaces around the country, but if marijuana use is not always illegal, should it necessarily lead to firing or refusing to hire someone? The New Jersey Supreme Court recently ruled that an individual who was terminated because of lawful medical marijuana use outside of work can bring a disability discrimination claim. New York disability discrimination attorneys have been able to draw on state law to protect their clients since 2014, when the state approved medical marijuana use with express non-discrimination provisions. New York City will soon offer even more protection with a new law banning the use of pre-employment marijuana tests.

Medical Marijuana and Disability Discrimination in New York State

New York State’s Medical Marijuana Program arose from the Compassionate Care Act (CCA), which became law in 2014. The CCA states that “certified patients” have a “disability” for the purposes of state antidiscrimination law. N.Y. Pub. Health L. §§ 3360(3), 3369(2). Under the New York State Human Rights Law (NYSHRL), employers therefore may not discriminate against an employee or job applicant on the basis of lawful use of medical marijuana. N.Y. Exec. L. §§ 292(21), 296(1)(a).

New York City’s Ban on Pre-Employment Testing

In April 2019, the New York City Council passed a local law amending the New York City Human Rights Law (NYCHRL) to prohibit pre-employment testing for marijuana and synthetic tetrahydrocannabinols (THC). See N.Y. Pub. Health L. §§ 3302(21), 3306(d)(21). The new law will become effective on May 10, 2020, one year after it became law.

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Domestic workers make up a significant portion of the workforce in the U.S., but few employment statutes provide protection for them against sexual harassment and other unlawful acts. New York City employment discrimination attorneys can draw on state law, which include provisions specifically covering domestic workers, but there are no nationwide protections. Last summer, members of Congress introduced the National Domestic Workers’ Bill of Rights (NDWBOR). This comprehensive bill would amend the employment discrimination, harassment, and retaliation provisions of Title VII of the Civil Rights Act of 1964. It has yet to receive a hearing in either chamber of Congress.

What Is a Domestic Worker?

New York defines a “domestic worker” as an individual “employed in a home or residence” for certain purposes, including:
– Housekeeping;
– Child care; and
– Companionship for “a sick, convalescing or elderly person.”
N.Y. Lab. L. § 2(16).

The definition does not apply to a person who is related to the employer, or who provides services “on a casual basis.” Id. State law also omits people who provide babysitting or elder care services “on a casual basis,” as described in the Fair Labor Standards Act (FLSA). 29 U.S.C. § 213(a)(15).
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Pregnancy discrimination remains a serious problem throughout the country, despite multiple laws intended to prevent and penalize such practices. New York City pregnancy discrimination attorneys can draw upon federal laws that prohibit discrimination based on pregnancy and childbirth, and municipal laws that require a wide range of accommodations in the workplace. Federal law provides family leave for new parents, although it is unpaid and limited in scope despite its lofty ambitions. New York State makes up some of the difference with a new paid family leave program.

Pregnancy Discrimination vs. Accommodations for Pregnancy

The term “pregnancy discrimination” can encompass both:

1. Adverse actions taken against an employee because of pregnancy, childbirth, or a medical condition associated with either; and
2. Failure to provide reasonable accommodations for pregnant workers and workers who have recently had a child.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, includes discrimination based on “pregnancy, childbirth, or related medical conditions” in its definition of sex discrimination. 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). The New York State Human Rights Law (NYSHRL) prohibits discrimination on the basis of “familial status,” and includes pregnancy, childbirth, and the acquisition of custody of a minor child in its definition of that term. N.Y. Exec. L. §§ 292(26)(a), 296(1)(a). Title VII makes no mention of reasonable accommodations for pregnancy or childbirth.

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Pregnancy discrimination is against the law in New York City. Employment discrimination attorneys can bring claims under the laws of New York City, New York State, or the United States. It is unlawful for an employer to refuse to hire someone, or to rescind an offer of employment, because the person is pregnant or has recently given birth. Other unlawful acts include terminating a person ‘s employment, forcing them to take unpaid leave, or cutting their shifts because of pregnancy or childbirth. Identifying when this sort of discrimination has occurred can be difficult, since employers rarely state outright that this is the reason for the adverse action. Proving New York pregnancy discrimination under city, state, or federal law therefore often requires evidence showing that the action was out of the ordinary.

The Law Prohibits Pregnancy Discrimination

At the federal level, the Pregnancy Discrimination Act (PDA) of 1978 prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions,” including this in its definition of sex discrimination. 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). This covers adverse actions taken against an employee, but does not require employers to make accommodations for pregnant employees and those who have given birth recently. Some medical conditions associated with pregnancy and childbirth might qualify as a “disability” under the federal Americans with Disabilities Act, which requires reasonable accommodations.

The New York City Human Rights Law (NYCHRL) implicitly includes the sort of pregnancy discrimination described by the PDA in its prohibition of gender discrimination. See N.Y.C. Admin. Code § 8-107(22)(c). The statute explicitly requires employers to provide reasonable accommodations based on “pregnancy, childbirth, or related medical condition[s],” and to provide adequate facilities for lactating employees who need to express breast milk. Id. at §§ 8-107(22)(a), (b).

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As of early 2020, the unemployment rate in the U.S. is continuing a downward trend that began several years ago. These numbers, however, usually only show the percentage of the population that is able to work and actively seeking work. It does not include people who are under-employed, can only find part-time or temporary work, or have given up on finding a job. The longer a person goes without a job, the more difficult it can be for them to find one. The New York City unemployment discrimination law is one of the few in the nation to protect against automatic dismissal of job applicants who have been out of work. This type of discrimination can not only perpetuate unemployment, it can also overlap with other types of unlawful discrimination.

Unemployment Discrimination Under New York City Law

The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of an individual’s unemployment. N.Y.C. Admin. Code § 8-107(21). It defines unemployment as being out of work despite being able to start working and actively looking for a job. Id. at § 8-102.

Employers in New York City may not advertise that a job is only open to individuals who are not currently unemployed, or that they will not consider unemployed applicants. They may not base employment decisions, including hiring, rate of pay, and other matters, on an applicant’s unemployment. They may, however, inquire about why an applicant has been out of work. They may consider unemployment as a factor in their decision-making if they have “a substantially job-related reason for doing so.” Id. at § 8-107(21)(b)(1).

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Employment statutes that prohibit discrimination on the basis of sex and other factors require employers to take reasonable actions to prevent discrimination and harassment in the workplace, and to remedy the situation when they know (or should know) that discrimination or harassment has allegedly occurred. New York sexual harassment attorneys can allege an employer’s failure to remedy a known situation as a distinct unlawful employment practice in violation of city, state, or federal law. A lawsuit filed in early 2020 by a New York City resident claims that her employer failed to act after its own investigation substantiated her allegation of assault by a co-worker. She is asserting causes of action for sexual harassment, sex discrimination, and retaliation.

Sexual harassment is a form of unlawful discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964, as well as New York City and State law. The Equal Employment Opportunity Commission (EEOC), which investigates alleged violations of Title VII, states that “petty slights” and “annoyances” typically do not “rise to the level of illegality.” It also maintains that “isolated incidents” do not constitute unlawful harassment “unless extremely serious.”

Employers are vicariously liable for many unlawful acts perpetrated by supervisors and managers against employees. If the alleged harassment is carried out by someone who is not in a supervisory position over a plaintiff, such as a co-worker or customer, the plaintiff must demonstrate that the employer knew or should have known about the harassment, and that they failed to make prompt and reasonable efforts to remedy the situation.

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