Employers' Advisor

New York State Governor’s Executive Order Regarding Transgender Restrooms

Posted in Employment Law, Employment Policies & Practices, Labor Law

Set of gender symbols with stylized silhouettes: male, female and unisex or transgender. Isolated vector illustration.

In New York State, sex discrimination protections extend to transgender persons, and “gender dysphoria” is a protected “disability” under the Human Rights Law.  Employers may not discriminate against individuals because of sex, including gender identity and transgender status.  Accordingly, we have given advice to employers regarding how to make restrooms available for employees who identify as transgender.

On March 28, 2016, Governor Cuomo signed Executive Order No. 155 prohibiting state funded or state sponsored travel to North Carolina.  The ban follows North Carolina’s enactment of a law banning transgender individuals from using restrooms appropriate to their gender identity.  The Executive Order shall be in place “so long as there is law in effect there that creates the grounds for discrimination against LGBT citizens…”  Link to Executive Order

This follows a similar ban against Indiana by the Governor in 2015 when the state passed a controversial religious freedom measure that did not prohibit discrimination against the LGBT community.  That law was later amended.

Governor Cuomo stated “In New York, we believe that all people – regardless of their gender identity or sexual orientation – deserve the same rights and protections under the law.”

The Governor’s move should remind employers of the importance of ensuring that their workplace has adequate restroom facilities to accommodate transgender employees.  For additional information about proposed legislation related to transgender employees, please see my recent blog entry, Link “Anti-Discrimination, Anti-Harassment, Anti-Retaliation Policies:  Best Practices,” dated November 20, 2015, and the Client Alert from our practice group Link “New York Proposes Regulations Protecting Transgender Individuals from Discrimination and Harassment in Employment,” issued November 10, 2015.

President Obama Nominates Merrick Garland For Supreme Court Vacancy

Posted in Uncategorized

On March 16, 2016, President Obama announced his nomination of Merrick Garland, Chief Judge of the District of Columbia Court of Appeals, to replace the late Justice Scalia on the U.S. Supreme Court.  Chief Judge Garland’s nomination is the third nomination President Obama has advanced since taking office in 2009.  He has previously nominated Justice Sonia Sotomayor and Justice Elena Kagan, both of whom were confirmed and are presently sitting justices.

supreme court

The announcement came amidst political posturing on both sides of the aisle and has been made a key issue in the ongoing Presidential campaign.  Senate Republicans have maintained that they will refuse to hold any confirmation hearings before the Judiciary Committee or advance any candidate President Obama nominates to a floor vote.  In his nominating speech, the President noted that Chief Judge Garland has received support from Republicans in the past and urged them to consider his nomination.

Chief Judge Garland is viewed as a “centrist” judge and as a candidate whose nomination may appeal to both Republicans and Democrats. His judgment has been praised by Chief Justice John Roberts, who once stated that “anytime Judge Garland disagrees, you know you’re in a difficult area.”  He was nominated as a federal appeals judge by President Clinton in 1995 and again in 1997; both times, his nomination was stalled by Senators who claimed that the court had enough judges.  Chief Judge Garland was confirmed as a federal appeals judge in 1997 by a vote of 76 to 23.

Chief Judge Garland’s nomination has been praised by certain unions, and his record in deciding employment law cases, while moderate, contains precedent that is negative for employers as well as some precedent that is positive.  Political commentators expect that Chief Judge Garland, if confirmed, would generally vote with the Justices viewed as more liberal; however, he is still viewed as a consensus candidate and a more moderate judge than others the President could have selected.

The legal community is watching the nomination and confirmation process with interest, and we will report any further developments as they occur.

Sexual-Orientation Discrimination: The Lessons for Most Employers Will Be Clear Even if Federal Law Remains Unsettled

Posted in Employment Litigation, Employment Policies & Practices

LGBT flagAttitudes toward same sex relationships have experienced enormous change in recent years. Perhaps the most dramatic manifestation of this shift is the Supreme Court’s decision this June in Obergefell v. Hodges striking down state laws banning same sex marriages.

Federal anti-discrimination law, however, is still not settled concerning sexual- orientation. Only this July, in the wake of Obergefell, did the U.S. Equal Employment Opportunity Commission issue a ruling that Title VII prohibits discrimination based on sexual orientation.* Before then, federal courts had consistently concluded that Title VII’s prohibitions against sex discrimination did not extend to sexual orientation.

So far courts have not rushed to embrace the EEOC’s position.

For example, on December 16, 2015, the Second Circuit upheld the dismissal of Title VII claims based on perceived sexual-orientation discrimination without so much as mentioning the EEOC’s ruling.** Continue Reading

EEOC Releases New Documents Concerning Workplace Discrimination Against Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern

Posted in Employment Law, Employment Policies & Practices

On December 23, 2015, the Equal Employment Opportunity Commission (EEOC) chair, Jenny Yang, released a statement and two “question and answer” guidance documents concerning workplace discrimination against individuals who are, or are perceived to be, Muslim or Middle Eastern. In releasing the guidance, Chair Yang announced that the “tragic events at home and abroad” have necessitated the issuance of information to prevent harassment, intimidation, or discrimination in the workplace “against vulnerable communities.”

Collectively, the EEOC’s guidance documents reinforce Title VII’s prohibitions on workplace discrimination based on religion, ethnicity, country of origin, race, or color. The “Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern” document outlines various measures that employers can take to ensure their workplace is free of discrimination based on religion, national origin, or race: Continue Reading

Health Care and the ACA: IRS Formalizes Position on Opt-Out Payments

Posted in Employee Benefits

stethoscopeOn December 16, 2015, the IRS, the Department of Health and Human Services, and Department of Labor issued Notice 2015-87, which provides guidance on the application of various provisions of the Affordable Care Act (ACA) to employer-provided health coverage. The guidance can be found here.

Part III of the notice clarifies certain aspects of the employer shared responsibility provisions of Internal Revenue Code §4980H (the so-called “play-or-pay” penalty provisions). Question and answer nine provides much anticipated guidance on the relationship between medical plan opt-out payments and the 9.5 percent affordability threshold under the play-or-pay affordability safe harbors.

The IRS Position on Opt-Out Payments

Before Notice 2015-87 was issued, IRS representatives had informally expressed the view that taxable opt-out payments to employees who waive coverage should be added to the employee’s premium share for purposes of determining affordability under the ACA’s play-or-pay penalty provisions. Continue Reading

Wage and Hour Issues in Inclement Weather Business Closures and Reductions in Hours

Posted in Wage & Hour Law

Winter stormWith winter weather fast approaching and potentially forcing businesses to reduce or cease operations, employers are reexamining their federal and state wage and hour obligations to employees affected by weather-related office closures and reductions in work hours. We recently send an alert to our clients that summarizes the key wage and hour rules implicated in such situations.

Read the full alert on our website.

Anti-Discrimination, Anti-Harassment, Anti-Retaliation Policies: Best Practices

Posted in Employment Policies & Practices

Reviewing workplace policiesEspecially after New York Governor Cuomo’s expansion of the protection of women in the workplace through his Women’s Equality Agenda and his directive to the New York State Division of Human Rights to draft regulations to extend employment protections to transgender individuals, it is an important time to be reviewing your anti-discrimination, anti-harassment, anti-retaliation policies and the implementation of those policies. Consider the following:

Update Your Policy: Be sure your company’s anti-discrimination, anti-harassment, anti-retaliation policy has a clear expectation that employees will report any discrimination or harassment and that the policy has more than one avenue for complaint. Also remember that there are rules pursuant to the changes at the National Labor Relations Board (NLRB) that prohibit a blanket confidentiality requirement for complainants and/or witnesses. Accordingly, review the language about confidentiality.

NOTE: If your company has fewer than four employees, you may not have an anti-discrimination, anti-harassment, anti-retaliation policy. Now, pursuant to the revisions to the New York State Human Rights Law, an employer may be liable for claims of sexual harassment regardless of the number of employees. If you are a small employer who has avoided jurisdiction of the New York State Division of Human Rights because of your size, you need to reconsider implementing a policy to protect against claims of sexual harassment. Continue Reading

U.S. Supreme Court’s October 2015 Term Promises Slew of Significant Labor and Employment Cases

Posted in Employment Litigation

October leavesEach year, the U.S. Supreme Court begins its term on the first Monday in October. Although known as the “October Term,” the term in fact continues, alternating between two-week “sittings” and “recesses,” until late June or early July – when the court’s annual cycle repeats.

Most terms, the court decides at least four or five significant labor or employment cases. This year promises to be no different. The court has already agreed to hear numerous cases of significance for employers, one of which — Friedrichs v. California Teachers Association — could fundamentally alter the public employment arena. Below is a sampling of what lies ahead on the court’s calendar. Continue Reading

New York City “Bans the Box”

Posted in Employment Law, Employment Policies & Practices

Earlier this month, we issued a client alert on New York City’s “Ban the Box” legislation. The law prohibits employers from making any inquiry of, or statement to, an applicant for the purpose of eliciting information regarding his or her pending arrest or criminal conviction record. The law also prohibits employers from performing any search of publicly available records or consumer reports for the purpose of obtaining such information. Finally, the law prohibits job advertisements which contain any limitation or specification in employment based on a person’s arrest or criminal conviction.

The law takes effect October 27, 2015, and there are a number of implications for covered employers. Check out our client alert on hodgsonruss.com for details.

New York City Passes the Stop Credit Discrimination in Employment Act

Posted in Employment Law, Employment Policies & Practices

Effective September 2, 2015, the Stop Credit Discrimination in Employment Act (the Act) will prohibit New York City employers with four or more employees from requesting or using an applicant’s or employee’s consumer credit history for employment purposes, and from discriminating against an applicant or employee on the basis of his or her consumer credit history.

Read more about the Act and our recommendations to employers in our recent client alert.