New York State's Human Rights Law amended to prohibit employment discrimination because of religious attire or facial hair

On August 9, 2019 New York State's Governor Andrew M. Cuomo signed legislation* prohibiting employment discrimination based on religious attire, clothing or facial hair. The new law amends the New York State Human Rights Law to make clear that employers cannot refuse to hire, attain, promote, or take other discriminatory action against an individual for wearing attire or facial hair in accordance with tenets of their religion. 

 

The legislation makes clear the protections of the New York State Human Rights Law, which also prohibits employers from treating applicants or employees differently because of that person's religious beliefs, and it requires employers to reasonably accommodate an employee's religious practices. The new law reaffirms the Governor's longstanding commitment to religious inclusion and equality.

The Act amends §296.10(a) of the Executive Law, New York State's Human Rights Law, to read as follows:**

                                                                  

(a) It shall be an unlawful discriminatory practice for any employer,  or an employee or agent thereof, to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require such person to violate or forego a sincerely held practice of his or her religion, including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or other holy day in accordance with the requirements of his or her religion or the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion, unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's or prospective employee's sincerely held  religious observance or practice without undue hardship on the conduct of the employer's business. Notwithstanding any other provision of law to the contrary, an employee shall not be entitled to premium wages or premium benefits for work performed during hours to which such premium wages or premium benefits would ordinarily be applicable, if the employee is working during such hours only as an accommodation to his or her sincerely held religious requirements. Nothing in this paragraph or paragraph (b) of this subdivision shall alter or abridge the rights granted to an employee concerning the payment of wages or privileges of seniority accruing to that employee.

The amendment takes effect "on the sixtieth day after it shall have become a law."

* Senate 4037, Assembly 4204

** The text set out in blue and underscored is new.

Judicial proceeding may be stayed pending completion of an arbitration where the determination of issues alleged in the demand for arbitration may also dispose of the nonarbitrable matters

Paragraph 4(b) of the consulting agreement [Agreement] between the Plaintiff and the Defendant addresses Defendant's right to terminate the agreement "for cause" and concludes as follows: "Any dispute between the parties shall be resolved first by submitting same for mediation to AAA, and absent a resolution, then by a 3 member panel Arbitration through AAA."

Following the termination of the Agreement, allegedly "for cause," Plaintiff commenced an action for "breach of contract" after Defendant failed to pay Plaintiff the consulting fee and performance bonus Plaintiff contended were due Plaintiff under the terms of the Agreement.

Defendant, citing the arbitration clause set out above, moved pursuant to CPLR §7503(a) to compel arbitration and to stay Plaintiff's "breach of contract" action pending completion of the arbitration.

Plaintiff opposed Defendant's  motion on the grounds that the clause Defendant was relying upon applied only to disputes relating to termination and not to actions alleging breach of contract. In rebuttal, and without conceding that the scope of the arbitration clause was limited to the resolution of disputes involving termination, Defendant argued it had not paid Plaintiff as the Agreement was "terminated for cause." Supreme Court denied Defendant's motion, and Defendant appealed.

The Appellate Division vacated the lower court's ruling, opining:

1. Defendant's contentions with respect to Plaintiff's termination for cause in response to allegations first made by Plaintiff in opposition to Defendant's motion to compel arbitration were properly raised;

2. It was undisputed that Paragraph 4(b) of the consulting agreement applies, "at minimum, to any dispute regarding the Plaintiff's claims, including objections with respect to the existence, scope or validity of the arbitration agreement";

3. In the event arbitrable and nonarbitrable claims are inextricably interwoven, the proper course is to stay judicial proceedings pending completion of the arbitration, particularly where the determination of issues in arbitration may well dispose of nonarbitrable matters" and

4.  Even assuming, without deciding, that the only arbitrable dispute is whether the Agreement was properly terminated for cause, judicial proceedings should be stayed until that issue is resolved, since that determination may also dispose of Plaintiff's breach of contract cause of action.

Accordingly, the Appellate Division ruled that Supreme Court should have granted Defendant's motion to compel arbitration of the matter.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06073.htm

Anastasia Titarchuk named Chief Investment Officer of the New York State Common Retirement Fund

New York State Comptroller Thomas P. DiNapoli today announced his appointment of Anastasia Titarchuk as Chief Investment Officer [CIO] of the New York State Common Retirement Fund. Titarchuk has served as the Fund’s interim CIO since July 2018.

Titarchuk was born in Moscow and moved to the U.S. as a teenager. She graduated Summa Cum Laude from Yale University with a B.S. in Applied Mathematics. Over the course of two decades she worked in a variety of roles on Wall Street, including emerging markets, interest rates trading and equity derivatives marketing. She joined DiNapoli’s office in 2011 as part of the Fund’s ARS team and served as Deputy CIO under then-CIO Vicki Fuller. She was appointed interim-CIO in July 2018.

The New York State Common Retirement Fund is the third largest public pension fund in the United States, with an audited value of $210.5 billion as of March 31, 2019. The Fund holds and invests the assets of the New York State and Local Retirement System on behalf of more than one million state and local government employees and retirees and their beneficiaries. 

The Fund has a diversified portfolio of public and private equities, fixed income, real estate and alternative instruments and has consistently been ranked as one of the best managed and best funded plans in the nation. "Through prudent management, the Fund has maintained its status as one of the nation’s strongest and best funded and I know that Anastasia will continue to uphold high standards for the pension system’s 1.1 million members, retirees and their beneficiaries.”

Summaries of recent findings and recommendations of New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judges.

N.B. For information concerning the disposition of the matter by the relevant appointing authority, please telephone OATH's Calendar Unit at 1-212-933-3097.

                  

Former Deputy Commissioner classified certain agency employees improperly

A former Deputy Commissioner and staff analyst [Respondent] was charged with inaccurately designating 30 agency employees as performing exclusively Medicaid work. The improper designation resulted in the reimbursement of over $7 million from the State which had to be refunded. The analyst testified that he was aware that Medicaid-funded staff had to perform exclusively Medicaid duties, and conceded that between 2015 and 2017, most of the employees were improperly classified.

Administrative Law Judged [ALJ] John B. Spooner found the charges were not time-barred because the conduct charged would constitute a crime and thus fell under the crimes exception to limitations provision of §75(4) of the Civil Service Law.

Finding that the analyst’s motive for maintaining the falsehood was to protect his division from losing staff, ALJ Spooner sustained the charges and recommended termination of Respondent’s employment.

The full text of the decision, OATH Index No. 1236/19, is posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1236.pdf

Employee found guilty of submitting a misleading report

A special officer [Respondent] employed at a men’s shelter was charged with using excessive force to unlawfully restrain a shelter client and with submitting a false statement about the incident.

Video footage showed the client engaging in a prolonged verbal dispute with another special officer. Without justification, that second officer approached and shoved the client backwards. The client pushed back and a struggle ensued between the client, the second officer, and a third officer who had joined in to try to force the client to the ground. As the client was resisting attempts to wrestle him to the ground, Petitioner grabbed his leg. The client fell to the ground with the other two officers on top of him. Respondent let go of the client’s leg and did not physically touch him again except to help handcuff his hands behind his back.

ALJ Faye Lewis found that even though the initial force by the second officer was not justified, once the client began to resist, the Appointing Authority failed to establish that Respondent assisting in handcuffing him. This was limited force appropriate under the circumstances.

However, ALJ Lewis sustained the false statement charge. Respondent submitted a report in which she stated that the house manager requested that the client be detained as an emotionally disturbed person. Respondent admitted at trial that she did not hear the house manager say this, but relied upon information provided to her by another officer. By signing the report, she represented that the report contained her observations. Because this was not true, Respondent’s report was misleading. For the proven false statement charge, ALJ Lewis recommended a ten-day suspension with credit for time served. 

The full text of the decision, OATH Index No. 587/19, is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-587.pdf

Using the agency’s mail system for personal correspondence

An associate contract specialist [Respondent] was charged with committing an act relating to her office which constitutes an unauthorized exercise of her official function, engaging in non-Department business during working hours and mailing personal correspondence using the Department’s mail system.

The charges arose from allegations that Respondentused her job with the Department and Department resources to secure summer jobs for her foster son and his friend.

A Department official responsible for overseeing youth employment programs testified that Respondent called her, identified herself as a Department employee, and asked to discuss her foster son’s status. The official testified that Respondent’s foster son had already been accepted to the program, and the official testified that she did not take any additional action on his behalf as a result of Respondent’s call.

Respondent later called a youth employer on behalf of her foster son’s friend, identified herself as a Department employee, and implied that she was calling on behalf of the Department. For several months, Respondentwas in contact via her work email and phone with the youth employer to correct issues with the friend’s time sheets. The employer testified that they would not have offered a job to the friend if the Respondent had not made the initial call.

ALJ Joycelyn McGeachy-Kuls recommended dismissal of the first charge, finding the Appointing Authority failed to prove respondent committed an act relating to her office which constituted an unauthorized exercise of her job function, because youth employment was not part of her job. She also recommended dismissal of the second charge because the Appointing Authority did not prove that Respondent made the phone calls or the emails during work hours.

ALJ McGeachy-Kuls, however, sustained the charge that Respondent used the agency’s mail system for personal correspondence, and she recommended a five day suspension in light of the fact that Respondent had no prior disciplinary record. 

The full text of the decision, OATH Index No. 1995/18, is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1995.pdf

A vested right to retirement benefit to be provided by a New York State public retirement system may neither be diminished nor impaired "retroactively"

A 1957 decision of the New York State Comptroller provided for the inclusion of cash payments for accumulated vacation credits* in determining a member's "final average salary" for the purpose of computing the member's retirement benefits. In 1971 the Retirement and Social Security Law [RSSL] was amended** and eliminated the inclusion of cash payments for accumulated vacation credits in determining a member's retirement allowance.

When the Comptroller thereafter applied RSSL §431.1, as amended, to certain retiring members [Plaintiffs] of the retirement system who joined the system prior to the effective of the amendment, they challenged to "retroactive application" of the amendment with respect to the calculation of their retirement allowances, contending that such action constituted a violation of §7(a) of Article V of the New York State Constitution if retroactively applied to the Plaintiffs and others similarly situated.

The Court of Appeals agreed,*** opining that the Comptroller's 1957 decision constituted "a valid contract between the State Employees' Retirement System and its members" and if retroactively applied to the Plaintiffs and others similarly situated would constitute a violation of Article V, §7(a)**** of the State Constitution. In other words, pre-amendment members of the retirement system acquired a vested right to the benefit flowing from the 1957 decision by the Comptroller and "that benefit may not now be constitutionally impaired."

In contrast, insofar as members joining the Retirement System on or after the effective of the 1971 amendment to the RSSL are concerned, the Court of Appeals noted that such new entrants "acquired contractual rights subject to any statutes then outstanding, whether or not by the terms of the statutes they applied to current or future events."

In the words of the court,  "subdivision 1 of section 431 of the Retirement and Social Security Law ... which eliminates inclusion of cash payments for accumulated vacation credits, violates section 7 of article V of our State Constitution if retroactively applied to the plaintiff and others similarly situated." In other words, the change could only be applied to individuals becoming members of the retirement system on or after the effective date of the change.

* Such payments, said the court, represented "compensation for services actually rendered and are, therefore, properly includable in the computation of a member's final average salary."

** Chapter 503 of the Law of 1971 amended §431.1 of the Retirement and Social Security Law.

*** Kranker v Levitt, 30 NY2d 574.

**** Article V §7(a) provides that "After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired."

The decision is posted on the Internet at:

https://www.leagle.com/decision/197260430ny2d5741493