In 2023, like so many years before, the new year has brought new laws (or amended laws) designed to better protect workers from the “cancer” of employment discrimination. These new developments reflect the reality that workplace discrimination law is ever-evolving in New York. For that reason, among countless others, having a knowledgeable New York employment discrimination lawyer on your side can be invaluable.
In 2019, New York City took the lead in enhancing protections for undocumented workers. A September guidance document made it clear that using terms like “aliens,” “illegal aliens,” and “illegals,” when intended “to demean, humiliate, or offend,” amounts to illegal discrimination in violation of the New York City Human Rights Law.
Late last December, New York State followed New York City’s lead. Governor Hochul signed into law a bill that added citizenship and immigration status to the list of protected classes against which employers may not discriminate.
Before the passage of this new law, an undocumented worker (or one perceived to lack documented status) who suffered discrimination at work had to seek relief through other, more indirect routes, such as pursuing an NYSHRL case based on national origin or ethnicity discrimination. Now, workers harmed by citizenship or immigration status discrimination can pursue their NYSHRL claims head-on.
Protected Leave and ‘No-Fault’ Attendance Policies
A separate bill addressed a more novel issue: the interplay of “occurrence-based” (sometimes called “no-fault”) workplace attendance rules and protected forms of leave.
Under a no-fault attendance policy, the employer assesses a “point” (or “occurrence” or similar language) for each absence, regardless of the reason for that absence, as opposed to granting workers specific categories (and a specific number of hours or days) of, for example, sick leave. After certain point thresholds, employees can face discipline, up to and including termination.
The U.S. Equal Employment Opportunity Commission has, for many years, raised the “red flag” of no-fault policies potentially running afoul of various federal employment laws such as the Americans With Disabilities Act and the Family and Medical Leave Act.
Assessing points because, for example, a worker with a qualifying disability missed work periodically to attend medical treatment sessions could constitute an ADA violation. Alternately, assessing points because a worker (who obtained approved FMLA leave) missed work to take a chronically ill child to medical appointments could violate the FMLA.
The new law makes it clear that assessing points or occurrences because an employee missed work for an ADA or FMLA-protected reason is a violation of the New York Labor Law.
Additionally, employers with no-fault attendance policies can run afoul of the amended Labor Law for other reasons. In 2014, New York City enacted an Earned Sick Leave law. In the city, employers (depending on size) must provide workers with anywhere from 40 hours of unpaid sick leave to 56 hours of paid sick leave each calendar year. In 2020, the governor signed into law a bill creating similar rights at the state level. The New York State law grants workers largely the same amount of minimum sick leave as the New York City requirements.
The law passed late last year (and which goes into effect on February 19 of this year) clarifies that leave taken under the state or city sick leave law is “protected” leave and an employer may not punish or discriminate against a worker for taking such leave, and assessing a point or occurrence under a no-fault attendance policy potentially could constitute a form of impermissible discrimination or punishment. In addition to sick leave laws, other leave laws implicated include: the New York Paid Family Leave, New York Paid COVID-19 Leave, and New York Paid Vaccine Leave, among others.
If your employer commits one of these violations, you could be entitled to various forms of relief. These include a court order forcing your employer to rehire you at your previous or equivalent position (if you were terminated under your employer’s attendance policy,) back pay, front pay, and liquidated damages. The Department of Labor can seek these things, but the law also allows you to seek relief through a private civil action.
Employment law in New York is changing and many of those changes (like the ones discussed here) serve to provide greater protection to workers. Whether you endured immigration status discrimination, illegal retaliation as a result of taking protected leave, or some other form of illegal employment practice, the experienced New York employment discrimination attorneys at Phillips & Associates can help. We are proud to fight for New York workers to help them get justice. Contact us online or at (866) 229-9441 to set up a free and confidential consultation today.