Update for New York City Employers on New and Pending Legislation

Paula Lopez, March 11, 2016.

New York City’s Council has been active in passing legislation that impacts the workplace and imposes new legal obligations on New York City employers.  This week, we discuss the recently enacted New York City Commuter Benefits Law and the Caregiver Discrimination Act, and highlight employment related legislation currently pending before the New York City’s Council.

New York City’s Commuter Benefits Law (NYCCBL) went into effect on January 1, 2016. NYCCBL requires employers with 20 or more full-time employees working in New York City to offer employees the opportunity to purchase certain pre-tax transportation benefits. Full-time employees are those who work an average of 30 or more hours per week in the most recent four week period. For chain businesses, the number of full-time employees at all of its New York City locations will be counted towards determining the number of full-time employees of the employer.

Covered employers who already offer full-time employees the opportunity to use pre-tax income to purchase qualified transportation fringe benefits up to the full amount permitted under Federal law will be deemed in compliance with NYCCBL. Federal law permits employees to use up to $255/month of their pre-tax income to pay for qualified transportation benefits. Qualified pre-tax transportation benefits covered by NYCCBL include, inter alia, MTA subway and bus, Long Island Railroad, New Jersey Transit, Metro North, Amtrak, eligible ferries, van pooling, etc.

A covered employer without an existing commuter benefits program must implement a commuter benefits program and provide full-time employees with proper notice of the program. An employer can comply with NYCCBL in any of the following ways: (1) deducting from payroll the pre-tax amount to be used to pay for transportation benefits and establishing an employer administered benefits program; (2) deducting from payroll the pre-tax amount and retaining a third-party provider to administer the commuter benefits program; or (3) providing employees with a tax-free cash reimbursement for transportation up to the maximum amount of $255/month.

Employers are required to provide covered employees with a written offer to use pre-tax income to purchase qualified transportation benefits by January 1, 2016 or within four weeks after the employee begins full-time employment.  NYCCBL also imposes record-keeping obligations on employers to maintain records showing that they offered their employees, in writing, the opportunity to use pre-tax income for transportation benefits, as well as the responses received from their employees.

Covered employers have until July 1, 2016 to come into compliance with NYCCBL’s requirements.  The Department of Consumer Affairs is the agency currently charged with enforcing the law.   However, enforcement will be transferred to a newly created Office of Labor Standards, starting in Spring 2016.  Employers will not be subject to penalties for violations that occur before July 1st and employers will have 90 days to cure a violation before DCA is authorized to seek penalties. An employer found in violation of the law can be liable for a civil penalty ranging from $100 to $250 for the first violation.  After the 90 day cure period passes, for every 30 days that an employer remains in violation, a civil penalty of $250 will be assessed.

The New York City Council also passed the Caregiver Discrimination Bill, which was signed into law by Mayor De Blasio on January 5, 2016. Under the new law, caregiver status is now included as a protected class under New York City’s Human Rights Law (NYCHRL), prohibiting discrimination against an employee on the basis of the employee’s actual or perceived status as a caregiver. “Caregiver” is defined as anyone who provides direct or ongoing care for a child under the age of 18 or for a care recipient.  A “care recipient” is defined as an individual with a disability who is (1) a covered relative of a person residing in a caregiver’s household, and (2) relies on the caregiver for medical care of to meet the needs of daily living. “Covered relative” is a caregiver’s child, spouse, domestic partner, parent, sibling, grandchild, grandparent, child or parent of the caregiver’s spouse or domestic partner or any other individual in a familial relationship with the caregiver.

It is now an unlawful discriminatory act for an employer to refuse to hire, terminate or discriminate against an employee in compensation or in relation to terms, conditions or privileges of employment base on the employee’s status as a caregiver. While the law does not include an express requirement for employers to provide caregivers with reasonable accommodations, as is required under New York City’s Pregnant Workers Fairness Act, it is possible that the reasonable accommodation requirement may be added at a later date.

The law permits the New York City Commission of Human Rights (“Commission”) to designate additional familial relationships that would be covered under the law.  Enforcement guidance guidelines will likely be issued by the Commission before the law’s effective date, which is May 4, 2016.  The Commissioner of the New York City Human Rights Commission has vowed to “vigorously” enforce the law. An aggrieved employee can file a complaint with the Commission within 1 year of a violation or file a court action within 3 years.  An employer found in violation could be subject to a civil penalty for violating the NYCHRL ranging from $125,000 to $250,000 (if the violation was willful). These civil penalties are in addition to other remedies available under the NYCHRL such as back and front pay, compensatory and punitive damages, attorney’s fees and costs.  The law goes into effect until May 4, 2016.

In addition to newly passed legislation, New York City employers should be aware of employment related legislation currently pending before the City Council.  First, Intro. No. 804-A, proposes to amend the NYC Administrative Code with respect to reasonable accommodations for individuals with disabilities. The proposed amendment would expressly require an employer or potential employer to engage in a good faith interactive discussion with an employee or applicant with a disability, as part of the reasonable accommodation process, in order to identify what reasonable accommodations are available for the person to perform the job in question.  Failure of an employer or potential employer to engage in the good faith interactive process would give rise to an independent cause of action for unlawful discrimination even if a reasonable accommodation is not available.

Also pending before the NYC Council is Intro. No. 815, which seeks to amend the NYC Administrative Code by expanding to the employment context the provisions of the NYCHRL with regard to the right to truthful information.  The amendment would make it illegal for an employer to lie to someone about the availability of a job, benefit or program for discriminatory reasons.  It would also permit an organization to bring claims for violations of the law uncovered by testers and to provide a remedy for persons aggrieved when their agents or employees are discriminated against.

The best way to stave off litigation is for employers to stay current on the law and promptly implement the policies necessary to bring them into compliance. Employers should review their existing policies to ensure compliance with NYCCBL and provide training to managers and supervisors on the new protections afforded to caregivers.  We will continue to monitor the legislation pending before the New York City Council for any updates.