2002 Developments is NY Labor and Employment Law

          There were many developments in New York labor and employment law in 2002. This letter alerts you to some of those issues. This letter provides general information, not legal advice.

Changes to the New York Human Rights Law

         The New York Human Rights Law covers private and public employers of four and more employees and prohibits employment discrimination. In 2002, the statute was amended in two significant ways:

• Sexual orientation is a now protected category under the Human Rights Law. Sexual orientation is defined as "heterosexuality, homosexuality, bisexuality or asexuality, whether actual or perceived." The definition does include conduct otherwise prohibited by law. This change became effective on January 16, 2003.

  Note: Tompkins County employers and employers in New York City have been prohibited from discriminating on the basis of sexual orientation since the early 1990s.  

• An employer's failure to reasonably accommodate an employee's religious beliefs, unless such accommodation creates an undue hardship, is now an unlawful discriminatory practice. This change took effect November 16, 2002.

         Employers subject to the Human Rights Law should also be aware that recent court-created limitations on the definition of "disability" under the federal Americans with Disabilities Act do not affect the broad definition of that term in the New York Human Rights Law.

Displays of the American Flag Protected at Work

         New York public and private employers may not discharge or discriminate against employees who display an American flag on their person or work station. The display of the flag is only protected if it does not "substantially or materially interfere with the employee's job duties." The Commissioner of Labor is authorized to investigate violations and assess penalties from $200 to $2000. An employee also has the right to file a civil lawsuit against the employer for injunctive relief, compensatory damages and attorney's fees. This law took effect September 17, 2002.

Labor Neutrality Law

          Effective December 2002, employers may not use New York State appropriated funds in connection with union organizing activity such as (1) training managers; (2) hiring attorneys and consultants; or (3) hiring or paying employees whose principal duties are to encourage or discourage union organization. The law provides for record keeping for such expenditures and, if the State Attorney General requests it, a review of the financial records concerning the state funding. The employer can be subject to an action in court for injunctive relief, return of the state funds, and penalties.

          A law similar to this one was passed in California and struck down by the federal court. It is anticipated that a similar challenge will be made to this law. However, until that challenge occurs and is resolved, employers receiving state funding must comply.

          If you have any questions about any of the issues discussed here, please feel free to contact Laurie Johnston at 607-273-4200 or lmj@millermayer.com.