New York City Human Rights Law (NYCHRL) Amendment For Reasonable Accommodations

As of October 15, 2018, all New York City employers are now required to engage in a “cooperative dialogue” when an employee requests a reasonable accommodation, whether for disability-related, religious or any other reason covered under the Americans With Disabilities Act (ADA). The employer will be required to document the process.

Under the NYCHRL, reasonable accommodations, such as workplace rule changes and unpaid leave, must generally be provided to employees for any ADA covered reasons. The recent amendment expands upon this existing requirement, and requires employers to engage in a “cooperative dialogue” with an employee who requests a reasonable accommodation: (1) for religious needs; (2) due to a disability; (3) as a result of pregnancy, childbirth or a related medical condition; or (4) as a result of domestic violence, sex offenses or stalking. This is similar to already existing “interactive process” requirements commonly applied to disability accommodations.

The new amendment now explicitly requires such dialogues by law for all covered reasons found within the NYCHRL. Employers are specifically required to engage in a good faith written or oral conversation with the employee regarding the employee’s accommodation needs, potential accommodations (including alternatives to the accommodation proposed by the employee), and any difficulties that the proposed accommodations could pose for the employer. At the conclusion of this cooperative dialogue, the employer must provide the employee with a written final determination identifying any accommodation that was granted or denied.

That last part, involving required written determinations, is likely to be the most difficult issue from an administrative standpoint. While documenting accommodation requests is already a best practice, this amendment makes such documentation mandatory. Now, failure to provide a written determination will potentially constitute grounds for an unlawful discrimination finding. Moreover, it is unclear if this written determination requirement would apply to all accommodations, including the littlest and most mundane of accommodations granted in the workplace. For example, would a written determination be required for a request to attend a doctor’s appointment, to leave early for a migraine, or to take a religious holiday? Most likely the answer is “yes” as of now, and any failure to provide a determination could result in liability under the law. Employers should update their employee handbooks and leave policies accordingly, and begin training managers and human resources professionals to comply with these newest legal requirements in New York City.

New York State Mandatory Sexual Harassment Policy and Annual Anti-Sexual Harassment Training

Employers in New York State are now required to maintain a written sexual harassment policy, and to provide annual training to employees, pursuant to a new provision, New York Labor Law § 201-g. The policy went into effect October 9, 2018.

The model sexual harassment prevention policy must:

  • state that sexual harassment is prohibited;
  • provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  • contain information regarding federal and state law concerning sexual harassment and remedies available to victims of sexual harassment;
  • include a statement that there may be applicable local  laws on sexual harassment;
  • contain a complaint form;
  • include a procedure for the investigation of complaints;
  • state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow sexual harassment to  continue; and
  • state that retaliation against those who complain of sexual harassment or who testify or assist in any proceeding is unlawful.

Employers are required to either adopt the model sexual harassment prevention policy or establish a policy that equals or exceeds the minimum standards provided by the model policy. The policy must be provided in writing to all employees.

NOTE: New York Labor Law §296-d expands sexual harassment protections to non-employees. Employers may be liable to contractors, subcontractors, vendors, consultants, or other non-employees providing services to the employer with respect to sexual harassment. Such liability will be available when (i) the employer, its agents, or supervisors knew (or should have known) that a non-employee was subjected to sexual harassment in the workplace, and (ii) the employer failed to take immediate and appropriate corrective action. This provision took effect on April 12, 2018.

When Does Attorney Client Privilege Apply in the Corporate Setting?

1) Does the privilege apply only to an employee of the corporation or can it apply to an independent contractor.

The court in Blake v. Batmasian, 2018 WL 3829803 (S.D. Fla. Aug. 9, 2018), in concluding that the privilege could apply to either an employee or to an independent contractor, quoted In re Bieter Co., 16 F.3d 929 (8th Cir. 1994) stating that the privilege applies in situations where the company’s attorney needs to be able to confer confidentially with both employees and “nonemployees who, due to their relationship to the client, possess the very sort of information that the privilege envisions flowing most freely.” Id. at 938. The instant case involved an employee, who was CFO/controller for the employer Defendants, and so he was within the scope of the attorney-client privilege.

 

2)  Was the attorney-client privilege waived when the CFO/controller disclosed, during his deposition, one of the privileged documents that he had stolen by placing it on a thumb drive?

James Baker, the former CFO/controller of Defendants, misappropriated the document in question, DE 314-1, in 2013 and placed it on a thumb drive along with thousands of pages of other documents of the employer Defendants. Defendants only learned that Baker was in possession of their documents when he first attempted to disclose them to a litigation adversary of the Defendants. Defendants promptly sent demand letters to Baker demanding return of the documents, and when Baker refused, Defendants sued Baker and one Joseph Falso for misappropriation of confidential documents and conspiracy in the case of Batmasian et al. v. Baker and Falso, Case No. 2014CA008186AI.

The court in the instant case held that the limited dissemination of document DE 314-1 did not waive the attorney-client privilege by Defendants as they promptly demanded Baker return the document. Further, the court found that the Magistrate’s conclusion that there had been no waiver of the privilege was properly based on Defendants’ prompt demand for its return.

The Magistrate found that Defendants “are not going to adduce any evidence or testimony about any advice of counsel Defendants received,” and they “are not attempting in any way to rely on attorney-client privileged communications to support any defense in this case.” The court affirmed the United States Magistrate Judge’s Reports and Recommendations.