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August 12, 2019

New York State Governor Andrew M. Cuomo signs legislation enacting sweeping new workplace harassment protections


On August 12, 2019Governor Andrew M. Cuomo signed legislation (S.6577/A.8421) to enact sweeping new workplace harassment protections, fulfilling a key component of Governor Cuomo's 2019 Women's Justice Agenda by:

1. Eliminating restriction that harassment be "severe or pervasive" in order for it to be legally actionable;

2. Mandates that all employment contract non-disclosure agreements [NDAs] include language allowing employees to file a complaint of harassment or discrimination; and

3. Extends statute of limitations for employment sexual harassment claims filed from one year to three years.

To further protect workers and hold abusers accountable, this legislation:

Lowers the high bar set for employees to hold employers accountable for sexual harassment by amending under the New York Human Rights Law to make clear that conduct need not be  "severe or pervasive" to constitute actionable conduct;

Protects employees' rights to pursue complaints by mandating that all non-disclosure agreements in employment contracts include language stating that employees may still file a complaint of harassment or discrimination with a state or local agency and testify or participate in a government investigation;

Extends the statute of limitations for employment sexual harassment claims filed with the Division of Human Rights from one year to three years;

Requires employers to provide their employees with notice about the employer's sexual harassment prevention policy in English as well as the employee's primary language;

Expands the coverage of the Human Rights Law to all employers in the state;

Extends protections against all forms of discrimination in the workplace to all contractors, subcontractors, vendors, consultants, or others providing services; and against all forms of discriminatory harassment to domestic workers;

Requires courts to interpret the Human Rights Law liberally regardless of the federal rollback of rights;

Prohibits mandatory arbitration to resolve cases of discrimination and harassment in the workplace;

Updates the power of the Attorney General to enforce the Human Rights Law; and

Requires a study on how best to build on recent sexual harassment prevention laws to combat all types of discrimination in the workplace and a review of sexual harassment policies every four years.

A copy of the text of this measure is available from NYPPL as an attachment to an e-mail. Send your request to publications@nycap.rr.com with "workplace harassment protections" as the subject.

Imposing different penalties on employees involved in a physical confrontation alleged to constitute discriminatory disciplinary action


If two workers get involved in a physical confrontation, must the employer mete out the same disciplinary penalty to each?

A technician [Technician] and her superior, a Team Leader, [Leader] were pointing their fingers at each other, presumably to emphasize points that they were making. When Leader grabbed Technician 's finger, Technician responded by slapping Leader.

The Employer dismissed the Technician. Technician sued, complaining that her termination constituted "discriminatory disciplinary action" because Leader had not been terminated as well.

The Circuit Court rejected Technician 's theory, commenting that Employer was not required to treat each "escalation" of the confrontation - finger pointing to finger grabbing to slapping - the same. In addition, the Court said another factor was that the two employees did not hold positions of similar rank. The decision by the Eighth Circuit U.S. Court of Appeals also indicates that while Leader "had a spotless disciplinary record, Technician had a record of disciplinary problems."

The court upheld Technician's dismissal, commenting that the respective actions by Leader and Technician "are clearly differentiated because the incident involved two separate levels of escalation" ranging from the mutual pointing of fingers to a slap in retaliation for the grabbing of the finger.

The decision is posted on the Internet at:


August 09, 2019

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:

August 08, 2019

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.”

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