News (All)

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marijuana users in Massachusetts, Connecticut and Rhode Island have won lawsuits in recent years against companies that rescinded job offers or fired workers because of positive tests for pot.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.

By Bernadette Starzee

By Oct. 9, employers throughout New York State must provide anti-sexual harassment training to all of their employees. But as the deadline looms, many companies have not started the training yet.

Many small businesses don’t have counsel, and they might not be cognizant of all of their responsibilities as an employer. But under New York law, all employers who operate in the state were required to have a sexual harassment prevention policy in place by last October. They were given a year after that to complete the training (though all workers in New York City had to be trained by April 1, 2019). The training must be repeated on an annual basis, and new employees must be trained shortly after they are hired.

Many attorneys with a concentration in employment law have been conducting training to help their clients comply with the new requirement.

Campolo, Middleton & McCormick, a law firm based in Ronkonkoma, will offer training sessions for employees of multiple companies in its training room next month.

“A lot of businesses have not complied yet, and there are many companies with just a few employees who don’t want to spend the extra funds to have a private training session,” said Christine Malafi, senior partner and chair of the firm’s corporate department. “This is a more economical way for them to do it.”

New York State also makes online resources available for employers to provide training. But while training can be completed online, in-person training has certain advantages.

In these live sessions, managers and employees are able to hone in on the questions that are relevant to them and address concerns that are uppermost in their minds.

Over the last several months, Malafi has been engaged by several chambers of commerce to provide anti-sexual harassment training to groups made up of their member businesses.

At these sessions, several participants recounted incidents that had happened to them in the workplace and asked if they should report them, Malafi said.

“The sessions made people more aware of what constitutes proper behavior and improper behavior in the workplace,” Malafi said. “In most of the complaints, in my opinion, the employee who is doing the offensive conduct is not aware that it is offensive to the other person, because the two individuals don’t take it the same way.”

The sessions provide a lot of back and forth on issues such as physical contact in the workplace.

“Someone might say, ‘What’s the big deal if I put a hand on someone’s shoulder?’” Malafi said. “I say you shouldn’t do it. You have to be cognizant about how the other person feels, and rather than make a mistake about how they would feel about it, it’s better to just not do it.”

With the diverse pool of people in the workforce – who come from a wide range of backgrounds and generations – different actions can be interpreted in many different ways.

“You might have people ranging in age from 19 to 80 in a workplace, and the age difference can make a gigantic difference in how people act,” Malafi said. “They might not realize how what they’re doing is offending people. With these sessions, there is a dialog back and forth. People feel comfortable because I’m not their supervisor or employer, so they feel more comfortable having an open discussion.”

Campolo, Middleton & McCormick offers two types of training sessions – one for managers and supervisors, and one for non-management employees.

The session for management has an extra component. “New York State does not require separate training for managers, but we feel it is extremely important that they receive extra training because the new law places responsibilities on managers and supervisors that did not exist before,” Malafi said.

Read more here.

Register for our sexual harassment prevention training sessions here.

By Christine Malafi

The Internet has become a necessity for the marketing and promotion of businesses, services, and merchandise. An evolving legal issue is website accessibility for those with disabilities and the applicability of Title III of the Americans with Disabilities Act (“ADA”). Accessibility of public websites and compliance with the ADA in connection with public websites may cause issues for some time to come, especially given the lack of governmental regulations and guidance in this area. Nevertheless, it’s important for businesses to know where the law currently stands, as well as any potential liabilities which may arise from a failure to be in compliance.

The rise in legal cases brought on by allegations of the failure to provide ADA accessibility for websites has risen drastically. So far in 2019, over 350 New York area businesses have been impacted. Additionally, from 2017 to 2018, ADA website lawsuits increased a staggering 177%, rising from 814 in 2017 to 2,258 in 2018. It was New York State that led the nation in this increase, with 1,564 ADA website lawsuits made in New York during 2018.

The purpose of the ADA is to provide equal opportunity to individuals with disabilities, as well as to stimulate business by increasing the purchasing power of those with disabilities. Title III of the ADA specifically prohibits discrimination of individuals with disabilities “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” While the ADA is silent on the specific issue of website accessibility, case law has made it clear that the ADA applies to public websites, and businesses must accommodate individuals with disabilities and make their websites ADA accessible. Yet the extent to which websites must be made accessible has not been definitively determined. In December 2015, the Department of Justice (“DOJ”) announced that it would issue private sector website ADA accessibility regulations during fiscal year 2018. However, a 2018 Presidential Executive Order cut regulatory resources and subsequently froze the DOJ’s public accommodations website rulemaking, leaving many businesses unsure what the regulations will be. Questions remain as to whether all websites fall under the ADA and whether a website must also be tied to a physical location before it falls under the ADA, among others. However, recent Court decisions may help to shed some light on a company’s responsibilities.

In Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (2019), the 9^th Circuit Court of Appeals decided that the ADA applied to Domino’s Pizza’s website, that they had received fair notice they were not in compliance with the ADA, and that due process did not require the DOJ to issue specific guidelines for ADA compliance for Domino’s to be liable for failure to comply. In this specific case, the Plaintiff was unable to order online using the Domino’s website due to inaccessibility for screen readers, although a live person was available by phone to assist in the placement of an order; but, since the website facilitated access to a place of public accommodation, Domino’s was required to follow ADA guidelines. The 9^th Circuit further stated that both websites and mobile applications had to satisfy a business’s obligations under the ADA. This case is significant because the Court considered, but rejected, the defense that the alternate option of a telephone hotline was sufficient to satisfy a company’s obligations under the ADA.

The 9^th Circuit took a stricter position on the application of ADA guidelines to a website or mobile app, which is tied to a physical location, than the more expansive positions taken by Courts in Massachusetts, New York, and Vermont, holding that as a “place of public accommodation,” the alleged inaccessibility of Domino’s website and mobile app unlawfully prevented customers from accessing goods and/or services at their physical locations. This decision reversed the district court’s dismissal of the lawsuit and, although considered an outlier among similar Court decisions, could set precedent in determining similar lawsuits in the future.

Therefore, in the continued absence of DOJ regulations, and in light of the 9^th Circuit’s decision, what should businesses do? Many settlements approved by the DOJ have implemented the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (WCAG) on how to make a website more accessible. At the most basic level, an ADA accessible website should provide these (and other) types of features:

• Text alternatives for any
  non-text content;
• Alternatives for time-based
  media;
• Content that can be presented
  in different ways (for example simpler layout) without losing information
  or structure;
• Be easy to see and hear,
  including separating foreground from background;
• Permit all functionality from a
  keyboard if needed (as opposed to a cursor);
• Permit sufficient time to read
  and use content;
• Not be designed in a way that
  is known to cause seizures or physical reactions;
• Include ways to help users
  navigate, find content, and determine where they are;
• Allow users to operate
  functionality through various inputs beyond the keyboard;
• Provide text content that is
  readable and understandable;
• Have web pages operate and
  appear in predictable ways;
• Help users avoid and correct
  mistakes; and
• Maximize compatibility with
  current and future user agents, including assistive web technologies.

The best option for business owners to not fall victim to a successful Title III suit is to comply with these WCAG guidelines.

However, it may not always be deemed “reasonable” for businesses to create a fully ADA compliant website. As is stated in the ADA: “A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. “ 28 C.F.R. § 36.302 (2012).

If making your website fully compliant with the WCAG is too costly for your company, other options may be available. Although New York courts have yet to address this specific issue, others have. In National Federation of the Blind v. Target Corp., Target was sued because its website did not enable visually impaired persons to directly purchase products, redeem gift cards, or find stores.  The court ruled against Target, as Target failed to show that the information on its website was available in another reasonable format. The court acknowledged ADA defines discrimination to include a failure to take such steps “as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the goods, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C.S. § 12182(b)(2)(A)(iii). The court specifically noted the following examples of accessibility: “if a menu cannot be read by a blind person, the restaurant need not make the menu available in Braille; the restaurant could ensure that waiters are available to explain the menu”; and “while a bookstore must ensure that it communicates with its customers in formats which accommodate the disabled, a bookstore is not required to stock books in Braille.” Courts therefore recognize that there may be significant limitations on the possibility of making a website completely or fully ADA accessible.

The Court in Robles v. Domino’s Pizza, LLC, held that an alternative means of access to a website has to be proven sufficient and effective in assisting customers who are disabled. This could prove to be a costlier endeavor than making the website itself accessible, and businesses should take this into consideration when they are deciding how best to make their websites compliant with ADA guidelines.

Absent further guidance, businesses and individuals with public business websites are urged to ensure accessibility. At CMM, we are available to assist and guide you on this issue.

Suffolk County employers, take note: effective June 30, 2019, employers in the county will be barred from asking about a job applicant’s salary history during the hiring process or relying on any such information to determine compensation.

The change is the result of the Restricting Information on Salaries and Earnings (“RISE”) Act, which amends the Suffolk County Human Rights Law and applies to employers with four or more employees (read more here). Under the new legislation, inquiring about a candidate’s salary history (including compensation and benefits), whether orally, in writing, on an application, or otherwise, or conducting research into the candidate’s salary history, is prohibited. The law also bars employers from relying on a candidate’s salary history in determining his or her compensation at the new company at any stage of the hiring process – including at the offer or contract stage.

Penalties for violating this law will include compensatory damages to the individual as well as payments to Suffolk County, up to $50,000. Fines could reach $100,000 if the violation is found to be willful, wanton, or malicious.

The intended purpose of the legislation is to help eliminate the gender wage gap, as well as wage inequity for employees from minority groups. In other words, the law is intended to give employees coming from lower paying jobs an opportunity to not be weighed down at their new positions.  The belief is that employers will focus more on the local job market to determine the appropriate wages.

While a salary history ban has not been implemented statewide, Suffolk County joins a number of areas in the state, including Westchester County, Albany, and New York City, that have already passed such legislation. (Please contact us for additional guidance if your business operates in any of these regions.) A statewide bill may go to the State Senate for a vote during 2019.

Employers should update their employment practices as soon as possible to comply with the new law, which takes effect at the end of this month. Removing any references to salary history on your application forms is a critical first step. All employees who conduct interviews and participate in the hiring process should also be trained in compliance with the new policy.

This law comes on the heels of the new sexual harassment laws passed in New York State during 2018. This updated legislation now requires employers to have both a sexual harassment prevention policy, as well as annual sexual harassment training for all employees which starts no later than October 9, 2019.

If you have questions about the RISE Act, or about your sexual harassment policy and training, please contact us.

Thank you to Michelle Toscano for her assistance with this article.