On August 20th, New York Governor Andrew Cuomo signed a new law that will substantially expand employment discrimination protections for victims of domestic violence. These protections will take effect on November 18, 2019.
New York State Human Rights Law (“NYSHRL”) now defines “victim of domestic violence” the same as Section 812 of the Family Court Act, meaning any person over the age of 16 who is a victim of a crime committed by another family or household member that resulted in actual physical or emotional injury to the victim or created a substantial risk of such injury. This new 2019 legislation makes key changes to previous legislation in the area, including defining new actions taken by employers that will be considered unlawful discriminatory practices, increased requirements for reasonable accommodations for victims of domestic violence, and increased notice requirements.
The new law lists a variety of situations in which an employer must be more aware of and compassionate towards victims of domestic violence. Employers may not: (1) refuse employment because the applicant is a victim of domestic abuse, (2) advertise that they will not hire victims of domestic abuse, (3) use any employment application to discriminate against victims of domestic violence, (4) discriminate against a victim employee in some sort of manner (e.g., through wages, failure to promote, reduced privileges, etc.), or (5) terminate the victim upon learning he or she has suffered from domestic abuse.
Additionally, employers will now be required to provide reasonable accommodations to employees who are victims of domestic violence (and have made this known to their employer) in regard to taking time off of work. Consistent with other laws, no accommodation need be made, however, if doing so would cause the employer an “undue hardship.” Employees that are domestic abuse victims must be allowed reasonable time off to: (1) receive medical attention for him/herself or a child that received injuries from an instance of domestic abuse, (2) receive help from a crises center, program or shelter specializing in abuse or rape, (3) participate in safety planning, (4) receive therapy or counseling because of domestic abuse, and (5) meet with legal counsel or other legal services, or appear in court because of domestic abuse related claims.
Employees are required to provide their employers with reasonable advanced notice of any time required off if it is possible for them to do so. If advance notice cannot be given, according to this law, the employee must provide the employer with certification if requested. This certification may be in the form of a police report, court order, documentation from a doctor or other medical professional or counselor, or “other evidence from the court or prosecuting attorney that the employee appeared in court.” The employer must take care to maintain the confidentiality of “any information regarding an employee’s status as a victim of domestic violence.”
Failure to abide by this new provision in the NYSHRL can subject employers to an array of damages, including, but not limited to economic damages, compensatory damages, uncapped punitive damages, and reasonable attorney fees. The latter two penalties will become effective on October 11, 2019 as part of recent amendments to the NYSHRL.
BLG has had meaningful experience in attempting to assist clients with issues of this type, and are pleased to see a legislative initiative which offers some guidance in these difficult situations where personal challenges can complicate the work environment.