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The novel coronavirus, known more officially as SARS-CoV-2 and less officially as “the coronavirus,” has had a devastating impact on New York City and surrounding areas. While the daily number of new cases in New York is decreasing, the virus shows no sign of slowing down in many other parts of the country, even as most states are in the process of “reopening” their economies. The disease is bad enough by itself, but its supposed origins in China have also led to an unfortunate backlash against people perceived to be of Chinese heritage. In practice, this often means anyone who appears to have Asian ancestry, including in New York City. Discrimination, harassment, and worse have occurred in workplaces and in public. The New York City Commission on Human Rights (CHR), which works to prevent discrimination on the basis of race, national origin, and other factors, created a response team in April to address discrimination and harassment related to the pandemic. If you feel you have suffered from discrimination or harassment while at work based on real or perceived national origin, it is prudent that you speak with a New York City national origin discrimination attorney as soon as possible to go over your rights under the law.

Laws Against Race and National Origin Discrimination in the Workplace

The New York City Human Rights Law (NYCHRL) prohibits workplace discrimination based on a person’s “actual or perceived…race…[or] national origin.” N.Y.C. Admin. Code § 8-107(1)(a). This includes terminating someone’s employment, demoting them, denying them shifts or assignments, and other adverse actions, when the sole or primary purpose is that they are a particular race or have a particular national origin.

The coronavirus pandemic involves multiple forms of employment discrimination. The CHR has adopted guidelines from the Equal Employment Opportunity Commission (EEOC) related to disability discrimination. The EEOC first published the guidelines in October 2009 in response to the H1N1 pandemic, and later adapted them for COVID-19. The CHR created the response team to look into anti-Asian bias.

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Employees who have experienced sexual harassment in the workplace can bring claims for relief under New York City employment discrimination laws. These laws may, at times, seem to conflict with non-disclosure agreements (NDAs), which are becoming an increasingly common feature of employment contracts and severance agreements around the country. Several months ago, the news cycle included reports on the use of NDAs to prevent former employees of a former New York City mayor, who was running for president at the time, from talking about discrimination and sexual harassment claims they had brought against his company. Recent changes to state law in New York limit employers’ ability to use NDAs with regard to discrimination claims, including sexual harassment.

Elements of a Sexual Harassment Claim

In order to prevail in a claim for sexual harassment, a plaintiff must prove that the conduct they experienced was “on the basis of sex.” The remaining elements of a sexual harassment claim depend on the type of conduct alleged:
– A claim for hostile work environment requires evidence that the conduct was unwelcome, and that it was either severe or pervasive.
– If a plaintiff is alleging quid pro quo sexual harassment, they must demonstrate that acquiescence to sexual demands were a condition of employment.
If the alleged perpetrator was not in a supervisory or managerial position over the plaintiff, they must also show that the employer knew or should have known about the harassment, but failed to act.

Use of Non-Disclosure Agreements in Employment

Employers often use NDAs in employment contracts and severance agreements to protect trade secrets and other confidential information. NDAs in severance agreements might also bar employees from disparaging the employer after the termination of the employment relationship. These can be legitimate purposes, particularly regarding the protection of proprietary information. When they prevent a former employee from speaking out about sexual harassment, they can be seen as an impediment to justice.

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New York City employment discrimination law bars employers from making adverse decisions based solely on a job applicant’s current unemployment in most situations. Bias against people with gaps in their employment history, especially recent gaps, is a significant problem all over the country. The City Council passed this law in 2013, in part to give greater opportunities to people who may have had difficulty finding work. This could become substantially more important in the months and years to come. The coronavirus pandemic will almost certainly subside at some point. People who were unable to work during this time, perhaps because their employer laid them off, they could not find work due to quarantine or stay-at-home orders, or they had to recover from COVID-19, could have difficulty finding a new job without help from New York City law.

Unemployment Discrimination in New York City

The New York City Human Rights Law (NYCHRL) defines “unemployed” as “not having a job, being available for work, and seeking employment.” N.Y.C. Admin. Code § 8-102. The law generally prohibits employers from:
– Misinforming someone about a job’s availability because of that person’s unemployment;
– Advertising that current employment is a requirement for a job opening;
– Advertising that applicants who are not currently employed will not be considered; or
– Basing decisions related to “hiring, compensation or the terms, conditions or privileges of employment” on a person’s unemployed status. Id. at § 8-107(21)(a).

Employers may consider current unemployment if they have “a substantially job-related reason for doing so.” Id. at § 8-107(21)(b)(1)(a). They may also ask about how an applicant’s prior employment ended.

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The global coronavirus pandemic has hit New York City particularly hard. Many people have concerns not only about their own health, but the health of family members who require care. New York City employment discrimination laws protected workers with caregiver responsibilities before the coronavirus arrived. Quarantine and isolation have added a new dimension to the concept of a “caregiver.” Laws passed by the federal and state governments to address problems caused by the pandemic may offer additional protections against discrimination and retaliation based on an employee’s caregiving responsibilities.

What Is Caregiver Discrimination?

The New York City Human Rights Law (NYCHRL) prohibits discrimination by employers on the basis of “caregiver status.” It defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” The term “care recipient” can refer to anyone living in the caregiver’s home; or a “covered relative” like a parent, spouse, sibling, child, grandchild, or grandparent, whether or not they live with the caregiver. In either case, the care recipient must need the caregiver’s assistance with “medical care or to meet the needs of daily living.” Id.

The NYCHRL does not define the term “direct and ongoing care,” and it does not appear that any court has ruled on its specific meaning. A plain-language interpretation suggests that it means care that requires a substantial amount of the caregiver’s time and attention. This could therefore include:
– The caregiver’s minor child, who resides with the caregiver;
– The caregiver’s minor child who resides elsewhere, but needs regular care from the caregiver;
– A person who lives with the caregiver, regardless of whether they are related; or
– A relative who does not reside with the caregiver.

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As the coronavirus and COVID-19 has ravaged New York City and many other parts of the world, many workplaces have quickly adapted by allowing employees to work from home. The use of videoconferencing software is growing at astonishing rates. According to some sources, downloads of one popular videoconferencing app increased from 56,000 per day to over 2.1 million per day between January and March. Widespread use of remote-working technologies brings other problems, though. Workplace sexual harassment has always had an online, virtual component, as harassers make use of email and text messaging. With vastly more people working remotely, and fewer people physically occupying workplaces, New York sexual harassment attorneys could see more claims arising from virtual spaces.

From a legal standpoint, sexual harassment in two general scenarios constitutes sex discrimination under laws like Title VII of the Civil Rights Act of 1964. Quid pro quo sexual harassment occurs when an employee must accede to some sort of sexual demand as a condition of employment. A hostile work environment occurs when pervasive and unwelcome sexual conduct in the workplace renders an employee unable to perform their job duties. This usually involves multiple acts occurring over a span of time, ranging from inappropriate jokes to more overt sexual acts. A single incident could support a hostile work environment claim, however, if it is particularly heinous or severe.

Neither type of sexual harassment has to occur in-person for it to violate antidiscrimination statutes. Online harassment is as old as the internet itself. A supervisor or manager could, for example, commit quid pro quo sexual harassment by refusing to provide favorable work assignments to an employee unless that employee engages in explicit online interactions or sends explicit photos. A workplace that tolerates lewd jokes or other sexual banter does not become any less hostile if it moves entirely to online spaces. An employee who is threatened or discomfited by this behavior in an in-person staff meeting could be just as distressed by the same behavior in a video conference call.

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Congress enacted the first federal paid sick leave law in the nation’s history in March in response to the global COVID-19 pandemic. The Families First Coronavirus Response Act (FFCRA) creates a new system of paid sick leave and expands unpaid leave under the Family and Medical Leave Act (FMLA). For a New York City employment attorney, of course, one of the first questions about any new law is how to enforce it. The FFCRA relies on existing laws’ enforcement mechanisms, and new regulations from the Department of Labor (DOL) leave some holes in workers’ ability to enforce their rights.

Paid Sick Leave and Expanded Family and Medical Leave

Two divisions of the FFCRA address leave for employees during the pandemic: The Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The benefits offered by these laws are restricted, however, based on an employer’s number of employees. Employers with five hundred or more employees are not included in either law’s definition of “employer.” Employers with fewer than fifty employees can claim an exemption from both paid sick leave and expanded family and medical leave if they can show that providing leave would threaten the economic viability of their business.

Enforcing the EPSLA

The EPSLA uses the enforcement mechanisms of the Fair Labor Standards Act (FLSA). Covered employers who fail to provide paid sick leave as required by the EPSLA commit a minimum wage violation under the FLSA. Aggrieved employees may recover their unpaid wages as damages, plus “an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). They may also obtain equitable relief, including injunctions against further violations. See id. at § 217.

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The Families First Coronavirus Response Act (FFCRA), which became law on March 18, 2020, creates a temporary system of paid sick leave for workers in New York City and around the country. It also temporarily expands the unpaid leave provisions of the Family and Medical Leave Act (FMLA). The purpose of these measures is to provide support for workers affected by the COVID-19 pandemic. The law makes multiple exceptions, however, for both large and small employers. Businesses with five hundred or more employees, which comprise a sizable plurality of employers in the country, are not covered by these provisions at all. Employers with fewer than fifty employees may have an exemption under the FFCRA. A new temporary rule published by the U.S. Department of Labor (DOL) explains how small employers can claim this exemption.

Paid Sick Leave and Expanded Family and Medical Leave

Division C of the FFCRA, the Emergency Family and Medical Leave Expansion Act (EFMLEA), provides an expansion of the right to unpaid leave under the FMLA. Division E, the Emergency Paid Sick Leave Act (EPSLA), provides paid sick leave at the national level. These two sections provide combinations of paid and unpaid leave with job protection for eligible employees. The provisions will remain in effect until December 31, 2020.

Exemptions from the EPSLA and the EFMLEA

Both laws give the DOL authority to exempt employers with fewer than fifty employees from these requirements if they “would jeopardize the viability of the business as a going concern.” See Pub. L. 116-127 §§ 3102(b), 5111(2). In its discussion of the new rule, the DOL notes that, according to the U.S. Census Bureau’s 2017 Statistics of U.S. Businesses, only 221,454 private businesses, those with fifty or more but fewer than five hundred employees, would not have been eligible for the “viability” exemption. This comprises about four percent of all private employers covered by the EPSLA and EFMLEA.

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As of mid-April 2020, the coronavirus pandemic has caused the loss of approximately 22 million jobs in the United States, based on the number of unemployment claims around the country since early March. With layoffs becoming increasingly common, New York City employment attorneys are seeing that more and more workers are being asked to sign severance agreements as they are shown the door. State and federal law regulate certain aspects of typical severance agreements, so New York City workers should consider seeking a legal opinion before signing anything.

What Is a Severance Agreement?

The term “severance agreement” can refer to any document that purports to show an agreement between an employer and an employee at the end of the employment relationship. A severance agreement is usually part of a “severance package,” which might include additional compensation besides wages or salary already owed to an employee. This could be a cash payment, stock options, or contributions to a retirement account.

Waivers of Rights in Severance Agreements

The employer, of course, expects something in return. In exchange for the additional compensation in a severance package, a severance agreement might contain a clause waiving the employee’s right to bring claims for wrongful termination, discrimination, harassment, or retaliation. The only way for a waiver of these rights to be enforceable is if the employer gives something in return. This is where severance agreements can be dangerous for workers.

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The global coronavirus pandemic has caused an abrupt shock to the economy, forcing employers to adopt “social distancing” measures intended to slow the spread of the virus, which causes a respiratory illness known as COVID-19. The governor has issued a series of executive orders (EOs) ordering businesses to allow remote working wherever possible, to reduce the number of people at offices and worksites, or to close down entirely. Certain businesses deemed “essential” may continue operations, but they are directed to follow public health officials’ recommendations for protecting their workers. As New York City employment attorneys, we must consider what rights employees have should an employer fail to follow the EOs or the public health guidance. This question has no clear answer, since this is truly an unprecedented event in modern history. State and federal law offer some ideas, though.

Non-Essential Business Closures

The governor issued EO 202 on March 7, 2020, which declared a disaster throughout the state of New York. This gave him the authority to suspend certain state and local laws and issue directives to businesses and individuals. On March 18, he issued an EO that ordered all “non-essential” businesses to “reduce the in-person workforce at any work locations by 50% no later than March 20.” The EO excludes “essential” businesses like health care facilities, telecommunications and utility providers, grocery stores, pharmacies, garbage collection, and banks. Businesses may request to be deemed “essential” by applying to the Empire State Development Corporation (ESDC).

Two subsequent EOs, issued on March 19 and 20, increased the in-person workforce reduction to 75%, and then 100%, respectively. An EO issued on April 7 extends business closures and restrictions until at least April 29.

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Laws at the city, state, and federal levels in New York City prohibit discrimination by employers on the basis of sex, and they all include sexual harassment in their definitions of sex discrimination. This can involve harassment by a member of any sex against a member of the same or any other sex. That said, most New York City sexual harassment attorneys would probably tell you that the type of case they still most commonly encounter involves a male supervisor or manager harassing a female employee. A lawsuit that is currently pending in a New York City federal court presents this sort of scenario. The plaintiff is alleging causes of action under laws at all of the three levels we mentioned above. The defendants include the City of New York, the police department, and multiple public officials. As a result, the lawsuit also asserts a cause of action for civil rights violations.

Sexual harassment constitutes sex discrimination in two general circumstances:
1. Quid pro quo sexual harassment: Agreeing or submitting to sexual advances or demands is a condition of getting a job, keeping a job, or other terms or conditions of employment. For example, a movie producer refuses to cast someone unless they agree to sexual activity in some form, or a restaurant manager gives the best shift assignments to servers who meet the manager’s sexual demands.
2. Hostile work environment: Pervasive and unwelcome sexual behavior renders the workplace unreasonably hostile and impedes a person’s ability to do their job. For example, an employee is repeatedly subjected to unwanted sexual comments or touching, or management refuses to address a work environment laden with inappropriate and offensive jokes.

The plaintiff in the lawsuit described earlier states in her complaint that she began working for the NYPD as an officer in 2012. She alleges that in 2015, her direct supervisor began subjecting her to a hostile work environment in the form of “unwanted physical contact” and “highly inappropriate sexual comments.” She further alleges that, after she informed the supervisor that his conduct was not welcome, her superiors reassigned her to a position she did not request, and which she states was generally “considered undesirable.” This, she claims, was retaliation for her “unwillingness to engage in sexual and promiscuous activities with male officers.”

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