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Campolo, Middleton & McCormick, LLP, a premier law firm with offices in Westbury, Ronkonkoma, and Bridgehampton, is thrilled to announce that that Senior Partner Christine Malafi has been recognized by her peers for the third year in a row to be featured in the 26^th edition of The Best Lawyers in America^© 2019 in the category of Employment Law – Management. With this distinction, Malafi ranks among the top five percent of private practice attorneys nationwide as determined by a rigorous peer-review process.

For over three decades, the legal profession and the public have turned to Best Lawyers^® as one of the most credible measures of legal integrity and distinction in the United States. Inclusion in Best Lawyers is based on more than 7.4 million confidential evaluations by top attorneys. The Best Lawyers’ founding principle forms the basis of this transparent methodology: the best lawyers know who the best lawyers are. No fee or payment to participate is permitted.

Recognition by Best Lawyers symbolizes excellence, which Malafi embodies in her professional and personal pursuits. Malafi chairs the Corporate department at CMM, where she focuses on mergers and acquisitions, corporate governance, and complex transactions, and also maintains a busy Labor & Employment practice, serving in a general counsel role for many of the firm’s internationally based clients. Prior to joining CMM, Malafi earned the distinction of being the first woman and youngest person ever to serve as Suffolk County Attorney, where for eight years she focused on obtaining jury verdicts in favor of the County, enforcing anti-discrimination laws, and protecting children from harm.

In addition to her legal work, Malafi is dedicated to the Long Island community. She serves on the Boards of Directors of Family Service League, the American Red Cross on Long Island, Girl Scouts of Suffolk County, and Natasha’s Justice Project. She also sits on the Board of Governors of Touro Law School and the New York State Pro Bono Scholars Task Force.

By Christine Malafi

On August 12, 2019, Governor Cuomo signed reformations to New York’s sexual harassment laws passed in June by State lawmakers. The 2019 reforms provide additional protection to those who have been subjected to workplace harassment and require that state laws be interpreted and construed “to maximize deterrence of discriminatory conduct,” regardless of federal law.[1] These amendments will likely lead to a more employee-friendly ruling climate. The laws will generally take effect 60 days from August 12, 2019, with some provisions having an effective date of 180 days.

Under the new laws, as of February 8, 2020 the definition of “employer” within the entirety of the New York State Human Rights Law has been expanded to include all employers in the state, including the state and its political subdivisions as well (i.e., counties, towns, and villages)[2] and all employers can be liable for any unlawful discrimination they permit it to occur against non-employees, not just sexual harassment.[3]

Up until these reforms, those claiming workplace harassment under New York State law were required to show that the harassment to which they were subjected was “severe or pervasive” to sustain their claim or legal action. The new laws lower the burden of proof by removing the phrase “severe or pervasive” from the legal standard,[4] making “sporadic” sexual harassment sufficient to support a claim. Employers may be liable for harassment (an unlawful discriminatory practice) when the harassment subjects an individual to inferior terms, conditions, or privileges of employment due to his or her membership in a protected class.[5] Employers have affirmative defenses to liability only where the conduct alleged is considered to be petty slights or trivial inconveniences by a “reasonable victim of discrimination with the same protected characteristic.”[6] Further, the new laws prohibit employers from using a complaining employee’s failure to report the alleged harassment or follow the employer’s internal policies and procedures as an absolute defense to a sexual harassment lawsuit.[7] Given these lesser standards, employers should address all forms of workplace harassment to avoid potential liability.

This new law expands the prohibition against mandatory arbitration clauses to all types of discrimination, not just sexual harassment,[8] and also weakens the effectiveness of non-disclosure agreements by expanding protections against their use to not only sexual harassment claims, but all claims for discrimination.[9] The law further permits those employees who sign non-disclosure agreements to participate in sexual harassment investigations and, as of January 1, 2020, voids any non-disclosure obligations with regard to future claims of discrimination unless the employee is told that he or she can still speak with a reporting agency. Moreover, all non-disclosure agreements must be written in “plain English,” be provided to the complainant in his or her primary language, and be given to the complainant at least 21 days before it needs to be signed. After signing, the complainant has seven days to revoke the document.

Further, as of August 12, 2020, the reforms extend the civil limitations period for employees to file discrimination complaints with the State Division of Human Rights from one to three years[10] and the civil and criminal statute of limitations for rape in the second degree to 20 years after the incident, and for rape in the third degree to 10 years after the incident.[11]

The power of the New York State Attorney General’s Office to prosecute discrimination cases has been expanded to all protected classes,[12] and the State Division of Human Rights may award attorneys’ fees in all types of discrimination claims. Moreover, courts may award punitive damages in all types of discrimination claims (involving private employers[13] only); courts no longer have discretion in awarding attorneys’ fees; and the law now provides that the court “shall” award attorneys’ fees to the prevailing party (however, employers who prevail must show that the claim was frivolous to have attorneys’ fees awarded).

A copy of the employer’s sexual harassment prevention policy must be provided to every employee in English and in the primary language of each employee, and must be provided yearly, at the mandatory training sessions under the law.

Finally, the new laws require the State Department of Labor and Division of Human Rights to regularly update the model policies and study the ways in which further progress can be made to prevent sexual harassment in the workplace.[14]

These extensive legal reforms will surely have far-reaching consequences. Businesses are advised to again review their workplace policies as soon as possible to remain in compliance with all New York State sexual harassment laws. If you have any questions or concerns regarding these changes to New York State law, please contact our office.

[1] N.Y. Exec. Law § 300.

[2] Id. § 292(5).

[3] Id. § 296-d.

[4] Id. § 296(h) (effective October 11, 2019).

[5] Id.

[6] Id.

[7]  This defense had been known as the Faragher-Ellerth defense, named after two U.S. Supreme Court cases.

[8] N.Y. Civ. Prac. L & R § 7515(a)(2) & (3) (to extent not inconsistent with federal law; see Latif v. Morgan Stanley & Co., LLC, No. 1:18-cv-11528 (S.D.N.Y. 6/26/19)).

[9] N.Y. Gen. Oblig. Law § 5-336(1)(a)(b) & (2); N.Y. Civ. Prac. L & R § 5003-b.

[10] N.Y. Exec. Law § 297(5).

[11] N.Y. Criminal Procedure Law § 30.10(2)(a-1) & (a-2); N.Y. Civ. Prac. L & R § 213-c.

[12] N.Y. Exec. Law § 63(9) & (10).

[13] Id. § 292(37).

[14] N.Y. Labor Law  201-g  (beginning in 2022 and every four years thereafter).

This article was originally published in Newsday. Read it here.

By Jamie Herzlich

As summer begins to fade away, an Oct. 9 deadline looms on sexual harassment prevention training for all employees.

Late last year, New York employers were given a nine-month extension from an original Jan. 1 state proposed deadline.

Now employers are encouraged to not delay.   All employers regardless of size must train their workers, experts say.

“Don’t put your head in the sand and wake up and it’s Oct. 10 and you’re not in compliance,” says Christine Malafi, a senior partner at Ronkonkoma-based Campolo, Middleton & McCormick LLP, which has been administering training for clients.

She said some firms are scrambling now that the deadline is fast approaching. Smaller firms in particular may not realize the training is required.

Still, it’s not too late to comply with the law, says Malafi, noting, “I think no one’s behind the eight ball yet.”

Among the requirements: The training must be interactive, include examples of conduct that would constitute unlawful sexual harassment, and include information on employees’ rights of redress and all available forums for adjudicating complaints.

State legislation awaiting the governor’s signature lowers the standard on what could be considered unlawful harassment from conduct deemed “severe or pervasive” to conduct rising above the level of “petty slights and trivial inconveniences.” If signed, that law could alter training down the line.

There’s no minimum required number of hours, says Malafi, whose training takes about an hour for employees and double that for managers and supervisors. “The new law makes it clear that managers and supervisors have heightened duties under the law,” she says, noting companies should be proactive in completing the training.

Carmine Inserra, CEO of ProSysCon Computer Technologies Inc. consultants in East Setauket, agrees.

He and his employees were trained in May by Malafi in a group session organized by the Three Village Chamber of Commerce. “First and foremost,” he says, “I want to promote a safe work environment regardless of the law.”

By Christine Malafi

On July 10, 2019, Governor Cuomo signed into law two new bills amending New York’s labor and employment requirements. These two new laws will affect all New York employers statewide. They are a continuing trend and an expansion on the RISE Act (see The
RISE Act: Suffolk County Bans Inquiring About Salary History), which banned inquiries into salary history throughout Suffolk County effective as of June 2019, as well as a similar ban passed in New York City in 2017.

The first new law amends the equal pay provisions of the New York Labor Law to include all protected classes under the New York State Human Rights Law.[1] Currently, this law applies only to equal pay regardless of sex. Employees who fall within these expanded protected classes are now entitled by law to receive equal pay to colleagues who do not fall within these categories for doing the same or substantially similar work. The standard has also been relaxed from “equal to” to “substantially similar to.” The law does not alter existing exceptions to the Labor Law which allow for differences in pay based on a seniority system, merit system, production-based system or a bona fide reason such as education, training or experience which is job-related and consistent with business necessity. This amended law is scheduled to take effect as of October 8, 2019.

The second new law amends the New York Labor Law by prohibiting employers from requesting, inquiring, and/or relying on a job applicant’s or employee’s salary and wage history as a factor when determining whether to hire the candidate or what salary to offer them. The law further prohibits an employer from: using an employee’s or job applicant’s salary history (current or former) for any other reason; refusing to hire or promote an employee who does not provide their salary history; or otherwise retaliating against an applicant or employee based upon their salary history or their refusal to provide such information. Employers can consider current employee salaries in hiring decisions, such as promotions.

Applicants or current employees are not prohibited from voluntarily disclosing their salary history, including for purposes of negotiating compensation, and employers are permitted, after hiring or promoting an applicant, to obtain confirmation of that person’s salary history to confirm the truthfulness of the past salary and wage claimed.

Nor does the law supersede any currently existing federal, state, or local law which requires the disclosure or verification of an employee’s salary history for employment or compensation purposes. This amended law is scheduled to take effect as of January 6, 2020.

What should employers be ready for with these new laws? New York employers should expect an increase in claims brought to court under the new amended Equal Pay Law, as it has lowered the standard for plaintiffs to prove their case. Furthermore, the expanded protected classes under which an individual can claim discrimination under the Equal Pay Law, as well as a statute of limitations which is six years long, means that employers may expect an increase in claims and should be aware of the greater potential damages any failure to properly comply with the law would bring.   

What should employers do to prepare? Given the new federal reporting requirements and to enable employers to potentially avoid costly litigation, all New York employers should consider conducting pay audits and should take the opportunity to review their company’s job application procedures and forms to remove references to salary history, as well as train personnel to avoid any salary history inquiries. Please contact our office with any questions you may have, as well as to discuss your specific business situation.

[1] Protected classes also include but are not limited to age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, and domestic violence-victim status.

In a long-awaited turn of events, Bill No. A07636, known as the “New York City Public Works Investment Act,” was delivered and subsequently passed by the New York State Assembly on June 19, 2019.  The Bill is now before the New York State Senate awaiting a final vote.[1]  The reception the current design-build legislation has received in the New York State Legislature is its most positive yet.  It has been on the Assembly/Senate floor two times previously, in both the 2015-16 and 2017-18 Legislative sessions, both times being stalled and subsequently not passed.  The current Bill, unlike its predecessors, has received overwhelming support in both the Cities Committee and Rules Committee (14-1 in favor and 25-0 in favor, respectively).  While the proposed legislation has not been officially passed by the Senate and approved by the Governor, it is highly encouraging to see it moved through the New York State Legislature with such swiftness and support.

If enacted, the new law will allow certain New York City agencies[2] to use the design-build procurement model for their infrastructure projects.  Design-build is a method of project delivery in which the owner retains a single contractor to provide turnkey design and construction services for the project. The design-build model has been used successfully in the private sector and more recently at the State agency level to complete projects on time and on budget. Having a single point of contact saves both time and money and permits the design and construction teams to work more efficiently.

Part of the reason why the implementation of the design-build system on New York State and City public works projects has been so vexing is the “Wicks Law,” which requires the award of separate prime contracts for mechanical, electrical and plumbing work on municipal projects over certain dollar thresholds.  By requiring the municipal agencies to directly retain four separate contractors for each of the primary subdivisions of work, the Wicks Law precluded the single contractor design-build delivery system on projects of any significant dollar amount.  Further, the agencies have interpreted the NYS Education Law as preventing non-licensed contractors from offering professional design services. Even though the design services would continue to be signed and sealed by appropriately licensed design professionals as subcontractors to the design-builder, the restrictive interpretation of the Education Law handcuffed the agencies from reaping the benefits of the design-build delivery system. 

The impasse was finally broken through the passage of the New York State Infrastructure Investment Act, which permitted a select few state agencies to engage in design-build contracts in recent years notwithstanding the prohibitions of the Wicks Law and Education Law. The results were immediate and overwhelming. Specifically, the design-build delivery system enabled the NYS Thruway Authority to complete the Tappan Zee Bridge replacement project in August 2017 – more than a year ahead of schedule and approximately $1 billion less than what the State projected.  The success of the Tappan Zee Bridge Project has opened the door to more than 30 other public works projects where the design-build project delivery method is being utilized, such as the Kosciuszko Bridge Replacement Project, the Rehabilitation of Atlantic Avenue Viaduct Project, and the reconstruction of the BQE. 

While the State agencies have been reaping the benefits of design-build projects, the City agencies have not. The hope is that is about to change. The NYC Public Works Investment Bill that is making its way through the NYS Legislature mimics the NYS Infrastructure Investment Act and will allow NYC agencies to utilize the design-build delivery system on the City’s infrastructure projects.  Under the applicable provisions of the pending legislation, the “design-build contractor” may be a team comprised of separate entities, thus eliminating the separate prime contractors required by the Wicks Law. The Bill also proposes that the design-build project must be subject to a Project Labor Agreement.

Further, the Bill resolves the NYS Education Law impediment by enabling the design-builder to provide the professional services regulated by Articles 145, 147 and 148 of the Education Law through the appropriately licensed design firms that are retained by the design-build contractor. 

In effect, the NYC Public Works Investment Act would codify the New York Court of Appeals’ decision in Charlebois v. J.M. Weller Associates, Inc., 72 N.Y.2d 587 (1988), which elicits the principle that a contract, which includes an express requirement for a separately retained licensed professional to perform the design function of a project, does not violate the licensing protections of the Education Law when the professional services are provided through a subcontractor.  As the Court of Appeals held over 30 years ago, when the design-builder places in writing its duty to find the appropriate individual/entity that possesses the proper professional licenses to engage in the specified “design” services aspect of a project, the design-builder does not run afoul of the Education Law. 

The Bill, having passed the New York State Assembly, now only waits to be passed in the NYS Senate.  If the Bill passes the Senate and is signed into law, it would take effect immediately.  The Bill also has a sunset provision, through which the law will expire and be deemed repealed three years after enactment, unless extended by the State. 

CMM will continue to monitor the status of this Bill and keep our clients informed.

Thank you to Brendan Mahon for his research and drafting assistance with this article.

[1] While the Bill is not guaranteed to pass, it appears more likely than prior attempts. In 2015, similar legislation was stalled in the Cities Committee and Rules Committee of the Assembly and Senate.

[2] The authorized NYC agencies are: Department of Design and Construction, Department of Environmental Protection, Department of Transportation, Parks and Recreation, Health and Hospitals Corporation, School Construction Authority, and NYC Housing Authority.

Do you know any good lawyer jokes?  Yes?  Ok, ok I get it.  You don’t need to keep going.  I get the joke.

Me, I wasn’t truly aware of the public’s negative perception of lawyers until I started law school.  When informed of this apparent fact at orientation, I nodded along with the crowd, but I never really understood it.  I always thought that lawyers were there to help people, prevent problems, fix problems, and do good.  That day I was given the most important piece of advice that I received in all three years of law school: that the only people who could change the public perception of lawyers, are lawyers themselves.

Perhaps no lawyer is the butt of more jokes than the personal injury plaintiff’s lawyer.  The plaintiff is the person or entity bringing a lawsuit.  The plaintiff’s lawyer, especially in personal injury or negligence cases, is only paid if the client gets paid and, therefore, usually fronts all legal costs. This is called a contingency fee and is intended to allow for legal representation for those who can’t afford to pay upfront. Still, these lawyers (let’s call them plaintiff’s lawyers) make for the best lawyer jokes, and are the cream of the crop of lawyers that people love to hate.

Critics of these lawyers argue that their lawsuits increase the cost of products and services, insurance rates, and taxes, and that they invite false lawsuits and malingering clients. Such claims feed into the prevailing image of all lawyers as untrustworthy and unscrupulous. As you might guess, I disagree. I got my start as a plaintiff’s personal injury lawyer before I transitioned to a broader litigation practice, and that has given me a unique perspective which benefits all of my clients. 

Despite the perception and jokes, plaintiff’s lawyers are often on the foreground of positive change in the legal community, and the public as a whole. Idealistic or not, their livelihood depends on it. To be successful, plaintiff’s lawyers must often maintain a difficult balance of being forceful and polite, dynamic and dignified, knowing when and where to push. Plaintiff’s lawyers seek to fix problems, make changes, and can’t take no for an answer. Many plaintiff’s lawyers work with each other, and with other lawyers, to pass legislation that improves the litigation process for everyone.

Recently, as part of the usual sudden bustle of activity which concluded the end of the Legislative Session, the New York State Senate and Assembly passed several bills relevant to civil litigation – one of which, if signed by the Governor, will permit a plaintiff to recover directly from a third-party defendant found to be liable to the direct defendant through contribution or indemnity.

The intent is to close a loophole that had previously allowed certain defendants held liable by judge or jury to evade payment on a judgment. It is expected to promote settlement of cases, thereby reducing judicial waste and unnecessary post-judgment proceeding, allowing the courts to focus on matters not otherwise resolved.

Fortunately, I truly believe that most of us lawyers want to better the public perception that we live with. This bill presents one example of a group of lawyers who saw a problem and took action to better the system, better the legal profession as a whole, and thus, better the public perception of lawyers.

By Christine Malafi

Many companies employ independent contractors to supplement their workforce. By using independent contractors, businesses can minimize expenses from health insurance to payroll taxes to pension plans. These savings can provide much needed relief when the budget is balanced at the end of the year. Yet the distinction between independent contractors and employees can be vague and misleading, and a misclassification of workers could prove to be a costly mistake for employers.

The determination of whether a worker is an employee or an independent contractor is both a federal and state issue. Per the Federal Fair Labor Standards Act, an employment relationship must be differentiated from a strictly contractual one and, additionally, a U.S. Department of Labor (DOL) audit could uncover mistakes made in classification. Persons hired as independent contractors can dispute such classification and file for unemployment insurance if terminated or file for worker’s compensation if injured, triggering an audit. The DOL views misclassification as denying access to critical benefits and protections to employees, to which they are entitled by law. Employee misclassification also reduces taxes paid to federal and state governments, and lowers contributions to state unemployment insurance and workers’ compensation funds.

If a business is discovered to have improperly treated an employee as an independent contractor, the business will be held accountable for employment taxes for that worker, as well as unemployment insurance and workers’ compensation contributions, with associated fines and penalties.

In general, an independent contractor is an individual engaged in a business of his or her own, while an employee is dependent on the business he or she serves. The DOL’s Wage and Hour Division applies a six-factor balancing test, based on Supreme Court precedent, to determine a worker’s classification. These include: (1) the nature and degree of the potential employer’s control; (2) the permanency of the worker’s relationship with the potential employer; (3) the amount of the worker’s investment in facilities, equipment, or helpers; (4) the amount of skill, initiative, judgment, or foresight required for the worker’s services; (5) the worker’s opportunities for profit or loss; and (6) the extent of integration of the worker’s services into the potential employer’s business.

According to the New York State Department of Labor, independent contractors must be free from supervision, direction, and control in the performance of their duties. Furthermore, New York State is more stringent in determining whether an employer-employee relationship exists. An employer-employee relationship may exist (rather than an independent contractor relationship), if the employer: (1) chooses when, where, and how workers perform services; (2) provides facilities, equipment, tools, and supplies; (3) directly supervises the services; (4) sets the hours of work; (5) requires exclusive services; (6) sets the rate of pay; (7) requires attendance at meetings and/or training sessions; (8) asks for oral or written reports; (9) reserves the right to review and approve the work product; (10) evaluates job performance; (11) requires prior permission for absences; and (12) has the right to hire and fire.

All of these guidelines should be taken into consideration when businesses based in, or hiring from, New York State consider how to classify their workers.

The debate between contractors vs. employees has become extremely relevant in our modern economy where, in a study conducted by Intuit, more than 40% of American workers are predicted to be independent contractors by 2020. In a letter dated April 29, 2019, the DOL discussed this growing trend and concluded that workers who provide services through a specific company’s virtual marketplace platform should be classified as independent contractors. The DOL explained that the company in question only provided a platform through which to connect service providers with customers, and that they reject any employment relationship with the service providers. The DOL noted that service providers were obligated to provide their own certification of experience and qualifications before being allowed to use the platform, that the company did not provide any training, or even a required onboarding process, and allowed service providers immediate access to the platform. Thus, the DOL assessed that the service providers in this instance fell under the category of independent contractors, not employees.

Businesses that use independent contractors should conduct an internal audit every year or so, depending on the size of their business and how many independent contractors they claim, to make sure that all workers are properly classified. Please contact our office to discuss your specific business situation.

An issue that comes up frequently at the outset of litigation is how to obtain jurisdiction over a foreign corporation. If the litigation involves a contractual dispute, chances are the contract contains a jurisdiction provision which resolves the issue quickly. However, as with most litigation matters, it is usually not that easy. Typically, it will come down to establishing sufficient contacts of the foreign business in New York to bring the company under the jurisdiction of New York courts.

In a ruling earlier this year by the Appellate Division Second Department, Aybar v. Aybar, 2019 N.Y. Slip Op. 00412 (2d Dep’t January 23, 2019), the Court assessed the precedent regarding how jurisdiction is obtained in New York when foreign corporate entities cross state lines. For many years, such questions appeared to be controlled by Pennoyer v. Neff, 95 U.S. 714 (1878), which held that a court’s jurisdiction was limited to its geographic boundaries.

This strict territorial approach became more flexible when the Court of Appeals, in Bagdon v. Philadelphia & Reading Coal & Iron Co., 217 N.Y. 432 (1916), held that when businesses register to do business within a state, an agent within that state is authorized to accept service of a summons on their behalf should litigation matters arise. Furthermore, the Court of Appeals, in Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 265 (1917), held that unregistered foreign corporations were considered under New York’s legal jurisdiction if they conducted “continuous” and “systematic and regular” business therein. This issue was clarified further by the U.S. Supreme Court in Int’l Shoe Co. v. Wash., 326 U.S. 310 (1945), which held that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice,’” Milliken v. Meyer, 311 U.S. 457. 463 (1940),otherwise known as long-arm jurisdiction.

Thus, based on this prior precedent, the general rule was that ‘certain minimum contacts’ with, and conducting ‘continuous,’ ‘systematic and regular’ business within, the geographic boundaries of New York State was enough for a foreign corporate party to be considered as ‘doing business’ in New York and therefore subject to its jurisdiction.

Then came Daimler AG v. Bauman, 571 U.S. 117 (2014), which significantly limited previously accepted jurisdictional boundaries. In Daimler, the U.S. Supreme Court held that general jurisdiction was maintained over corporations only where a corporation was incorporated; where it had its principal place of business; and where a corporation’s pursuit of business was substantial enough that it could be considered “at home” in that state.

Now, in Aybar, the Appellate Division has once again narrowed the grounds for establishing personal jurisdiction over foreign corporate defendants. The Court in Aybar held that a foreign corporation has not consented to general jurisdiction by simply registering to do business in New York State under New York’s current Business Corporation Law § 1301. In fact, the Appellate Division stated that to conclude such a thing was “unacceptably grasping” under Daimler. In this case, defendants Ford Motor Company and Goodyear Tire & Rubber Company were incorporated and had their principal places of business outside of New York State, yet they were registered to do business in New York. They were brought to Court in a personal injury litigation; however, the Appellate Division held that neither company had contacts with New York sufficient to establish that they were “at home” in the state. Such a decision once more renders uncertain how jurisdiction is decided for foreign corporations, especially considering that many corporations now do a majority of their business remotely in another state through online means that impact New York.

Based on this decision in Aybar, it is important to remember that the procedure for establishing a corporate party “at home” in New York no longer relies merely on whether it conducts in-state business, has registered to do business in New York, or appointed an agent for receipt of service. Furthermore, it is important for businesses entering into an agreement with a corporation legally defined as “foreign” in New York State, to include jurisdiction consent provisions to avoid any jurisdictional dispute at the outset of litigation. Please contact us to discuss your particular situation.

By Bernadette Starzee

A new law in New York City will prohibit most employers who operate there from conducting pre-employment drug testing for marijuana.

The law was passed last month and will go into effect May 10, 2020.

Certain positions, such as police officers, construction workers, commercial drivers, and workers caring for children or medical patients, among others, were excluded from the law.

About 2.8 percent of workers and job applicants tested positive for marijuana in 2018, according to Quest Diagnostics statistics.

Supporters of the New York City law said it would knock down a barrier that blocks people from employment based on private behavior and not ability to do the job. They also pointed out that marijuana can remain in the system for extended periods of time.

“If you ingest weed in whatever manner a month ago, I’m not sure how that prevents you from doing a job now,” Public Advocate Jumaane Williams, a Democrat who sponsored the proposal, told the New York City Council.

But not everyone agrees. “Private businesses should have the power to determine their own hiring practices – not just in deciding what skills and experience are relevant to certain positions, but also whether the use of a specific drug could have an adverse impact on a perspective employee’s ability to perform,” Council Republican Leader Steven Matteo said in a statement.

While recreational marijuana use is now legal in many states, it is still illegal in New York. But the city’s employment laws are among the nation’s most protective of workers.

With the passage of the new law, companies with operations in New York City that have drug testing policies “need to use this grace period before the law takes effect to change their policy or procedure,” said an expert.

He is advising clients with offices in New York City to stop testing for marijuana now, rather than waiting for the deadline to take effect. He said it is also likely that similar laws will pop up elsewhere across the state.

Though recreational marijuana use is illegal in New York, the state has a legal medicinal marijuana program, as do most states. Medical marijuana users in Massachusetts, Connecticut and Rhode Island have won lawsuits in recent years against companies that rescinded job offers or fired workers because of positive tests for pot. A number of businesses around the country have simply stopped testing job applicants for marijuana.  

“Over the past few years, a number of laws have been passed that require companies to be more careful about what they ask before offering prospects a job,” said Christine Malafi, senior partner and chair of the corporate department at Ronkonkoma-based Campolo, Middleton & McCormick. For instance, laws limiting the use of criminal background checks and prohibiting companies from asking about salary history have gone into effect in various jurisdictions.

“In this environment where unemployment is pretty low and where marijuana is becoming ever more socially acceptable…employers are either philosophically or practically having to take a long, hard look at whether they’re even going to screen for pot,” said Michael Clarkson.

The Associated Press contributed to this article. Read the full article here.