This month’s General Counsel Update examines the recent court decision that tosses out New York State’s prohibition of mandatory arbitration for sexual harassment claims and New Jersey’s New Wage Theft Law and lists compliance deadlines for September, October and November. 

Compliance Update Highlights:

Decision Issued: The Federal Arbitration Act (FAA) trumps New York State’s prohibition of mandatory arbitration for sexual harassment claims
The federal District Court for the Southern District of New York ruled in Latif v. Morgan Stanley Co. on June 26 that the Federal Arbitration Act preempts New York’s 2018 arbitration clause prohibition. “Employers in New York who currently have mandatory arbitration agreements in place, and questioned whether they could enforce those agreements in light of NYS law prohibiting mandatory arbitration of sexual harassment claims, can continue to rely on such agreements under this decision.” (Source: Proskauer.) 

NJ Enacts Wage Theft Law

On August 6, 2019, New Jersey enacted a new law that heightens penalties for failure to pay wages, benefits, and overtime owed to workers, extends the statute of limitations from two years to six for all wage claims, including failure to pay minimum wage and overtime. Employees now are eligible to receive treble damages for unpaid wages. The law also includes protections against retaliation, increases potential fines, and imposes jail time for repeat offenders. Additionally, the law allows for the recovery of attorneys’ fees and costs. (Source: Epstein Becker & Green.)

Important Upcoming Deadlines:

September:

• September 30^th, 2019: EEO-1 filers to submit Component 2 data
  • The Equal Employment Opportunity Commission (EEOC) required EEO-1 filers to submit Component 2 data for calendar years 2017 and 2018, by September 30, 2019. This data must list employees’ hours worked and pay information from their W‑2 forms, broken down into the Component 1 categories: job category, race, ethnicity and sex. (Source: Ogletree Deakins.)

October:

• October 4^th, 2019: FMLA: Comments on Proposed Changes to Forms Due by 10/4/19 (Source: US DOL.)
• October 8^th, 2019: New York State’s law prohibiting religious discrimination based on appearance takes effect
  • Employers in New York are urged to review their current dress code and grooming policies to ensure compliance with the new requirements. More information on these requirements can be found here.  
• October 9^th, 2019: Sexual Harassment Training Requirements
  • The  New York State deadline for training employees on preventing sexual harassment and discrimination is less than one month away. Regardless of the size of your NY workforce, Employers are required to train all New York employees by October 9, 2019. Employees based outside of New York who spend a “portion of their time” in the State must also be trained. Additionally, New York City employers must comply with the City’s training requirements, which applies only to employers with 15 or more employees. Both laws require employees to be trained at time of hire, and on an annual basis.  To better understand the overlap in the training requirements, consider referring to this blog. 
  • At trainings, employees are to be provided with a notice that includes the employer’s sexual harassment prevention policy and more specifically, “the information presented at the employer’s training program.”  This notice must be provided in writing in English and in the language identified by an employee as their primary language. Read more here.  

November:

• November 18th, 2019: New York State to Require Reasonable Accommodation for Victims of Domestic Violence
  • Discrimination against victims of domestic violence has been prohibited by the New York State Human Rights Law for some time now and recently, NY Governor Andrew Cuomo signed into law NYSHRL amendments, which expand protections for employees who are victims of domestic violence. Employers are not allowed to (i) refuse to hire or terminate someone because they are a victim of domestic violence; (ii) discriminate against a victim of domestic violence with respect to compensation or other terms, conditions, or privileges of employment; or (iii) circulate or utilize a job posting, employment application, or other publication expressing any limitation, specification, or discrimination in hiring or employment based on domestic violence victim status. (Source: Proskauer.)