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New York Legislature Passes Significant Amendments to the New York Human Rights Law

From Ethan Allen Workforce Solutions, a Council of Industry Associate Member

On June 19, 2019, the New York State Assembly and Senate passed legislation that makes sweeping changes to the New York Human Rights Law. This legislation will have a significant impact on the litigation of discrimination and harassment claims filed with the Division of Human Rights and in court. It is expected that Governor Cuomo will sign the legislation soon. The legislation does not apply retroactively, so only future claims under the Human Rights Law will be affected.

Perhaps most significantly, the legislation broadens the legal definition of “harassment.” Under current law, developed through court decisions, workplace conduct based on a protected characteristic does not constitute actionable harassment unless it is “severe or pervasive.” Under the new legislation, it is an unlawful employment practice for an employer to subject any individual to harassment based on a protected characteristic “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” The new legislation provides that an employer can assert an affirmative defense that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” By eliminating the “severe or pervasive” standard and expanding the definition of harassment to include any type of conduct based on a protected characteristic that rises above the level of “petty slights or trivial inconveniences,” the legislature has lowered the bar considerably for employees alleging workplace harassment. This expanded definition of “harassment” will take effect 60 days after the legislation is signed by Governor Cuomo.

It is important to emphasize that this expanded definition of “harassment” is not limited only to sexual harassment. It applies to harassment based on all protected characteristics: age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status.

The new legislation also weakens an affirmative defense that employers currently have available to them in defending against harassment claims. Under current law, also developed through court decisions, an employer is generally not liable for hostile work environment harassment if the employer can demonstrate that: (1) it took reasonable care to prevent and correct harassing conduct (e.g., by promulgating an anti-harassment policy and complaint procedure, training employees regarding the policy and procedure, promptly investigating complaints, and taking appropriate corrective action); and (2) the employee unreasonably failed to take advantage of the employer’s preventive or corrective opportunities (e.g., by failing to report alleged harassment pursuant to the employer’s procedure). However, the new legislation specifically states: “The fact that such individual did not make a complaint about the harassment to such employer . . . shall not be determinative of whether such employer . . . shall be liable.” This provision will also take effect 60 days after the legislation is signed by Governor Cuomo.

The new legislation also expands the definition of “employer” under the Human Rights Law by eliminating the requirement that an entity have at least four employees in order to be covered by the law. Under the new legislation, all employers are covered by the law regardless of how many employees they have. This expanded definition of “employer” will take effect 180 days after the legislation is signed by Governor Cuomo.

The new legislation also expands certain prohibitions that were previously applicable only to sexual harassment claims. For example, the new legislation makes it unlawful to insert a non-disclosure provision into a settlement agreement in order to resolve any type of employment discrimination or harassment claim, unless the inclusion of the non-disclosure provision is the complainant’s preference. Mandatory arbitration clauses, which were prohibited last year for sexual harassment claims, will also now be prohibited for all types of employment discrimination and harassment claims. It will also now be an unlawful discriminatory practice for an employer to permit any type of discrimination against non-employees in its workplace (contractors, subcontractors, vendors, consultants, or any other individuals providing services pursuant to a contract in the workplace) based on any protected characteristic. These new prohibitions will take effect 60 days after the legislation is signed by Governor Cuomo.

The new legislation also increases the potential financial penalties applicable to employment discrimination claims. Under the amendments, a prevailing complainant in an employment discrimination case against a private employer will be eligible to be awarded punitive damages. In addition, under the new legislation, a prevailing party in an employment discrimination case can recover reasonable attorneys’ fees. Although the assessment of attorneys’ fees against an employer that loses an employment discrimination case appears to be automatic, a prevailing employer can only recover attorneys’ fees from a losing complainant if the employer can show that the action or proceeding filed by the complainant was frivolous. These increased financial penalties will take effect 60 days after the legislation is signed by Governor Cuomo.

Finally, for sexual harassment claims only, the new legislation expands the statute of limitations from one year to three years for filing a complaint with the Division of Human Rights. The statute of limitations for filing employment discrimination or harassment claims directly with a court is currently three years, but complainants will also now be able to take advantage of the administrative complaint process for sexual harassment claims for three years after the alleged harassment occurred. This new statute of limitations for filing administrative complaints of sexual harassment will take effect one year after the legislation is signed by Governor Cuomo.

The impact of these changes will be profound and will almost certainly lead to an increase in the number of workplace harassment complaints that are filed. It is more important than ever that employers comply with their obligation to conduct training sessions for their employees regarding appropriate workplace conduct at least annually.

If you have not, yet, planned for Workplace Harassment Training, please contact Jane Sterling at 845-471-1200.

 

 

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Take Your Manufacturing Company from Mediocre to Championship Performance

3 Simple Steps That Will Transform Attitudes, Behavior, and Performance in Your Workplace

By Skip Weisman, Weisman Success Resources, Inc., www.YourChampionshipCompany.com 

After experiencing my keynote speech on creating championship attitudes, behavior, and performance in the workplace, business leaders often ask me, “How can I get my employees to think less about themselves and more about doing their jobs better?”

The implication in the question is that the strategies they just heard won’t work for them because their industry, company makeup, community, employees (or some other factor) is unique and different and needs a custom approach.

In fact, the current conditions in their work environment are not that unique. Even if they were, the fundamentals of human motivation still pertain.

But I can’t say that.

I do agree with them to a point and explain that it is a complicated question because human beings are so different and the conditions in each work environment that impact team members’ attitudes, behavior and performance can vary.

But, if we can start with the premise that team members want to do a good job and that they want the company to succeed then there is a simple process you can apply that has proven to be transformative for my clients.

All it takes is implementing a simple three step process called “The 3 A’s:” 

Step1: Ask

Ask the magic question, “what’s getting in your way of doing an even better job?

Step2: Absorb

Invest some time to absorb the answers beyond just listening. This means evaluating each for value, validity, and the variance between what you believe to be true about your company’s work environment and the team member’s personal experience.

Step3: Act

Take action by chunking what you absorb into the 4 categories below and respond accordingly to each item on each of the 4 lists.

  • Yes, we can do this and this is when we will do it.
  • We agree it’s a good idea and something we should do, it’s just not the right time. Let’s revisit this in x timeframe (and keep me honest – you have my permission to ask about it again), here are the conditions we have to meet first.
  • Tell me more about this and how you see it working, I need more information to evaluate it (sell me on it!)
  • No, we can’t do it and never will and here’s why (provide a specific business case answer).

This risk of doing this may be:

  1. Hearing things you won’t like, such as “the problem is you.”
  2. People who pass blame and bring nothing constructive to the situation They will externalize and deflect their role and responsibilities in the issue/item they are presenting.
  3. Bringing things to the surface you’d rather keep down.

Counter arguments:

  1. Isn’t it better to know what people think of you and the company than to have hard feelings and grudges be a drag on workplace productivity and company profits?
  2. People blaming and deflecting responsibility gives you insights that can lead to the conversations that need to take place if you want to turn around attitudes, behavior, and performance. This allows you to dig deeper into the comments, learn the source, and then explore the situation through observable behavior and further inquiry.
  3. Do you want your business to be the Titanic and sink because it didn’t know what was below the surface as it was traveling towards its destination?

The upside benefit of doing this is:

  1. You will know exactly what your people think, and what they need and want in order to do an even better job for you.
  2. You are building greater feelings of ownership in your team of employees by giving them a stake in the environment in which they spend at least 25% of their life. Human beings are autonomous creatures and will thrive in environments where they feel a sense of control. Giving them the opportunity to contribute to their environment is refreshing, freeing, and engaging.
  3. People will bring profitable high value ideas to the fore that you and your leadership may not see because you’re not closer to the action.

Four Essential Ingredients to Ensure Success:

  1. CONSISTENCY: The process must be done consistently – probably no less than 2x per year, and quarterly is probably best.
  2. CAPTURE & REPORT PROGRESS: Create a system for capturing and categorizing all ideas, report back on ALL the items you heard and their source, and show which of the 4 stages each is at. Create a newsletter or some other medium to send out to all team members so everyone knows what’s happening and what’s being reported on progress.

The better you do this, the sooner you will build trust in the process so that you can get to the real ideas and be able to mine the real diamonds your team members have that can build your company even stronger.

  1. PATIENCE: Be patient with the process, as people will be skeptical at first and will only feel safe sharing things they’re comfortable with. It will take time for people to trust that you’re serious about this. Doing it just one or two times will make it a flavor of the month and good ideas will fall into a black hole, thus setting this process up for failure and rendering any future initiative dead on arrival.
  2. REWARDS: Your team members must be able to participate in the value they bring to the company with their specific ideas. If ideas save money or generate revenue, employees should receive bonuses and rewards related to their specific ideas and contributions.

As your company grows. and profits and income increase, you have to share the wealth to those who have made it possible in ways you never could without their input. Create a bonus system based on increased profitability from the time the program began.

Make the investment with this process and I guarantee you will have the most engaged workforce in your industry and community, and your employees will begin to lose the “us” vs. “them” mindset and you will both feel like you’re actually working together.

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Manufacturing Alliance to Focus on Workforce and Taxes this Legislative Session

 

The New York State Manufacturing Alliance, of which the Council of Industry is a founding partner, is focusing on two issues of vital importance to manufacturing businesses across the Hudson Valley and the State – Workforce Development and Taxes.

On the Workforce development front, we are advocating for continued support of the P-TECH program, Career and Technical Education programs, and community colleges. Of particular importance to the Alliance is the expansion of the hugely successful Manufacturers Intermediary Apprenticeship Program (MIAP).

Manufacturers Intermediary Apprenticeship Program

In 2016, New York State provided funding for MIAP program in Central New York.  This program was met with great interest by both manufacturers and their employees.  Since 2016, this program has grown from Central New York where there are over 30 companies formally participating in Registered Apprenticeship and 115 apprentices in seven unique occupations plus another 50 anticipated in 2019.

In 2017, the program rolled out to the Hudson Valley (Council of Industry) and the Rochester Region (through Rochester Tooling & Machine Association).  In these 2 regions there are now more than, 75 apprentices at 30 companies, in 10 different trades.

Manufacturers in the Western Southern Tier are now also beginning to participate in the program, and in the Albany region manufacturers are working with the Center for Economic Growth (CEG).  This momentum has motivated the New York City and Long Island areas to also request help in establishing themselves as intermediaries, proving the model is not only effective but expanding, therefore positively impacting the sector and our state’s business and workforce development as a whole.   In fact, we recently enrolled the first company on Long Island, Estee Lauder.

This model with its use of trusted associations as “intermediaries” and its collaborative partnering is a unique model of apprenticeship and is working for small and mid-sized manufacturers.  In traditional training programs, students are trained and seek employment when they are done – in an apprenticeship, a job comes first and training is supplied by an employer.  Industry participants see an increase in productivity, reduced turnover, and increased employee retention. Ultimately, we see it as a technique for improved recruitment and candidate selection. As employers struggle to fill open positions, apprenticeships are an important tool in addressing workforce development needs. MIAP helps manufacturers build effective apprentice programs.

 Given the tremendous success to date, we feel MIAP is a critical tool for continuing to build a skilled workforce throughout New York State.  This program is an essential component of a workforce development strategy to grow a stronger New York State economy through advanced manufacturing.

We are seeking $1.25 million to expand the program across the state.

A 0% Income Tax Rate for All New York Manufactures

The Manufacturers Alliance has also put forward and is seeking support for a 0% income tax rate for all manufacturers to be included in the 2019-2020 State Budget.

In 2014, we were successful in getting included in the final State Budget a reduction in the tax rate for manufacturers incorporated as C-corps.  This single action propelled New York from the bottom ten to the top 10 states for manufacturing and sent a message to large manufacturers, that New York was the place to invest.  It was a proven and effective tool to retain and grow manufacturing jobs across New York State.

However, the vast majority of manufacturers in the Hudson Valley and across New York State are small to medium-sized manufacturers organized as S corps, proprietorships, LLCs and partnerships (pass-through entities).  These small to medium size manufacturers do not currently benefit from the existing zero percent rate and actually pay the 2nd highest income tax rate in the United States.   They are constantly being enticed by other states with friendlier tax climates to move operations and invest there.  These manufacturers are looking to their home state, New York, to demonstrate that they should stay in New York and continue to grow and invest here.

In response to the pleas from our small to medium-size manufacturers, the Manufacturing Research Institute of New York State, commissioned a study to analyze the impact of extending the zero percent corporate franchise tax rate to these small and medium manufacturers.  According to a study by the Beacon Institute in September 2018, “the elimination of the PIT for pass-through manufacturers would increase private sector jobs by 4,660 in the first full-year and by 5,850 in 2023.   It would cause investment to rise by $118 million in 2019 and by $147 million in 2023. The increase in employment and investment would boost real disposable income by $345 million in 2019 and $503 million in 2022”.

Extending a 0% tax rate to small and medium-sized manufacturers would send a strong signal to manufacturers that New York State is not only open for business but making a solid investment in their economic future.

We are working hard, meeting with legislators and administration officials, to get this change included in the 2019-20 State Budget.

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Cybersecurity Precautions Anyone Can Implement

 

October is cybersecurity month so it’s the perfect time to discuss some simple precautions all companies should take to reduce the likelihood of a data breach. Manufacturing companies that deal with the United States DOD have certain cybersecurity requirements to protect their data but all companies, no matter the size or industry, should follow several cybersecurity best practices.

Multi-factor authentication is an easy to use tool that companies can implement to keep passwords safe from hackers. Multi-factor authentication requires multiple forms of identification before granting users access. This can include codes sent to your cell phone, fingerprints, or even facial scans. Hackers that steal your password are unable to access your accounts without this second form of identification, making it much more difficult.

Making each new password unique can difficult and challenging to remember. Password managers are another tool that can be used to generate passwords and save them in encrypted lists that cannot be accessed. Finding a trusted password manager can eliminate the need for memorizing or reusing passwords.

Software updates can be annoying but its important that we stay up to date on them to reduce our vulnerability to hackers. Hackers have the ability to detect these vulnerabilities and release malware on our devices and applications. The time spent updating is much less inconvenient than a data breach.

Adobe Flash Player is one of the most popular methods of streaming media online, but its poor security has experts suspicious. The software has been hacked thousands of times and many electronic companies recommend turning it off. Requiring that company devices disable Adobe Flash Player is a simple way to protect company data.

The use of Hyper Text Transfer Protocol Secure (HTTPS) ensures that you use an encrypted connection on all possible websites, and notifies you when one isn’t available. “Just a few years ago, most websites used unencrypted connections, which meant anything you typed into a form on that site would be sent in plain text and could be intercepted with little effort.” HTTPS is easy to install and facilitates safer connections.

These are five simple steps to improving your cybersecurity. For more information read the full article here.

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2018 Manufacturing Employment Trends

 

As the younger generations continue to enter the workforce at a rapid pace, employers are forced to adjust how they operate. There were several employment trends throughout 2018 that affected the manufacturing industry specifically.

The most prominent trend is the increased emphasis on training and development. As the economy continues to improve, and the manufacturing industry grows, companies are investing more in the training of their employees. This workforce development will be essential in the retention and improvement of young employees. The manufacturing skills gap has been an ongoing issue and that will only be resolved through training and development, and manufacturing companies began to make that adjustment in 2018.

The aging workforce has also continued to cause problems. It’s estimated that “about three in every four Americans plan to work past retirement age, with almost two-thirds projected to work part-time.” This means that fewer jobs and opportunities are available for younger employees. “The population of seniors in the U.S. is expected to more than double from 41 to 86 million between now and 2050.” This lack of opportunity for younger employees is also leading to high turnover rates.

Advancements in technology and artificial intelligence are also making an obvious impact on the workplace. This trend began in 2017 and continues to accelerate with time. Warehouses are using automated order pickers, and algorithms are being used to make the supply chain process more efficient. This technology has made significant improvements in manufacturing, including the level of accuracy and overall productivity. Experts are predicting that these advancements will be even more impactful in the years to come.

Other trends include an increased focus on employee mental health, changes in the reference checking process and an increase in employee interactions. Each of these trends have had significant implications, both positive and negative. It will be interesting to see which of these trends will continue into 2019 and what new trends will arise.

For the full article and list of 2018 employment trends click here.

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