Updates in Employment Law in the Greater New York Area

Jonathan A. Wexler, Esq., and Kaitlyn Fallon, Esq.
Published Date:
Nov 1, 2014

New York City and New Jersey have recently enacted several statutes that impose various obligations on employers who do business in those jurisdictions. These provisions include additional employment protection for pregnant employees or those affected by pregnancy, protection for victims of domestic or sexual violence, and protection for job applicants with a criminal history.

Pregnancy Accommodations under New York City Human Rights Law

In an amendment to the Human Rights Law, New York City recently joined the ranks of other U.S. cities and states in the U.S. that have passed laws providing more protection for pregnant employees. The New York City law now requires employers with four or more employees that knows or should have known of an employee’s pregnancy, childbirth, and related medical conditions to provide reasonable accommodations for those conditions. Employers are also required to provide both a notice of rights to its employees upon hire and to display a poster explaining the law.

Reasonable accommodations under this amendment include bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, assistance with manual labor, and unpaid medical leave. Notably, the only basis an employer has for declining to extend a reasonable accommodation under this amendment is if the accommodation poses an undue hardship to the company. Whether a proposal accommodation constitutes an undue hardship is a case-by-case factual inquiry that requires consideration of such factors as cost, the size of the employers, and the impact on the employer’s operations.

Pregnancy Accommodations under New Jersey Law

On January 21, 2014, New Jersey implemented a similar provision to New York City’s Human Rights amendment: the Pregnant Worker’s Fairness Act (PWFA), a law that prohibits discrimination based on pregnancy, childbirth, and childbirth recovery. It applies to all New Jersey employers, with the exception of federal employers, and requires those covered employers that know or should have known that an employee is pregnant or affected by pregnancy to make reasonable workplace accommodations for those employees who request accommodations based upon the advice of their doctors. Such accommodations include bathroom breaks, modified work schedules, assistance with manual labor, temporary transfers to positions requiring less strenuous or less hazardous work.

Under the PWFA, an employer is not required to provide the employee's requested accommodation if doing so would pose an undue hardship to the employer; however, companies should be diligent in their evaluation of requests for pregnancy accommodations, in view of the fact that the PWFA (similar to the New York City Human Rights Law) creates a private right of action for failure to make a reasonable accommodation.

New Jersey Safe Act

New Jersey recently implemented the Safe Act, which provides a new layer of protection to employees who have been victims of domestic or sexual violence, or whose child, parent, spouse, domestic partner, or civil-union partner was the victim of such an act. Now, New Jersey requires employers to provide up to 20 days of unpaid leave during any 12-month period to eligible employees; however, the employer may require an employee to use accrued paid leave during any this time and may also require that employees use leave under the Family and Medical Leave Act (FMLA) concurrently with Safe Act leave, assuming that the employee is eligible for FMLA leave and assuming that the reason for the Safe Act leave would also qualify to leave under the FMLA (e.g., an employee's serious health condition). Employers must also display a poster (available on the website of the New Jersey Department of Labor and Workforce Development) that explains employees’ rights under the Safe Act.

In order to qualify for Safe Act leave, an employee must have worked for an employer for at least 12 months and at least 1,000 hours in the 12-month period immediately preceding the leave. Furthermore, the employee must use the time off within one year of the underlying event or incident. Finally, the employee must provide the employer with as much advance notice of the need for the leave of absence is possible under the circumstances.

The New Jersey Safe Act provides that any unpaid leave time taken as a result of this act may be used for the purposes of seeking medical attention for physical or psychological injuries; obtaining services from a victim services organization or to pursue psychological or other counselling; participation in safety planning for temporary or permanent relocation; seeking legal assistance to ensure the health and safety of the employee or the employee’s relative; or attending, participating in, or preparing for a criminal or civil court proceeding relating to an incident of domestic or sexual violence. 

In addition to providing victims of domestic violence with unpaid leave, the SAFE Act also prohibits an employer from discriminating or retaliating against an employee who requested or took leave under the act.

New Jersey "Ban the Box" Law

New Jersey recently passed the Opportunity to Compete Act, which is one of several “ban-the-box” laws that have been enacted by various municipalities in the United States. (The “box” in question is found on many employment applications and asks applications to state whether they have been convincted of a crime.) Under this law, which goes into effect on Mar. 1, 2015, employers in New Jersey with 15 or more employees over 20 calendar weeks are prohibited from asking applicants about their criminal record during the “initial employment application process,” defined as beginning with the initial contact between an employer and an applicant about a job vacancy and ending with the completion of a first interview. (This law does not apply to law enforcement, corrections, judiciary, homeland security, and emergency management employers.) If a prospective applicant voluntarily discloses a criminal record, the employer is permitted to make inquiries about it.

This law strives to find a balance between enhancing the employment opportunities of individuals with a criminal background and an employer’s ability to hire applicants as it wishes. Though this new law prohibits employers from inquiring about an applicant’s criminal record during the early screening process, employers may ask applicants about their criminal record following an initial interview. In addition, it is important to note that this law does not change an employer’s right to refuse to hire an applicant because of a criminal record, provided that information was requested only after the completion of the initial employment application process and provided that such refusal does not conflict with other relevant federal and state laws.

Jonathan A. Wexler, Esq.Jonathan A. Wexler, Esq., is a shareholder at Vedder Price and a member's of the firm's labor and employment practice area in the New York office. He represents private-sector, not-for-profit, and public-sector clients in litigation matters in federal and state courts and before certain administrative agencies. He counsels clients on labor and employment law matters, including wage and hour matters and employee benefit issues. Mr. Wexler is a member of the Labor and Employment Section of the New York State Bar Association and he was selected for inclusion from 2009 to 2014 in New York Super Lawyers. He can be reached at jwexler@vedderprice.com or 212-407-7732.

Kaitlyn Fallon, Esq., is a first-year associate at Vedder Price.

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