Protecting Interns from Discrimination and Harassment in the Workplace; Wage Theft Prevention Act Amended and Medical Marijuana Bill Passed

August 2014

New York Enacts Legislation Protecting Interns from Discrimination and Harassment in the Workplace

On July 22, 2014, New York Governor Andrew Cuomo enacted legislation that extends the laws against workplace discrimination and harassment to interns. The new law amends the New York State Human Rights law and is effective immediately. New York City passed similar legislation earlier this year amending the New York City Administrative Code.

Who is an "Intern"
Intern means a person who performs work for an employer for the purpose of training under the following circumstances:

A. The employer is not committed to hire the person performing the work at the conclusion of the training period;

B. The employer and the person performing the work agree that the person performing the work is not entitled to wages for the work performed; and

C. The work performed:
(1) provides or supplements training that may enhance the employability of the intern;
(2) provides experience for the benefit of the person performing the work;
(3) does not displace regular employees; and
(4) is performed under the close supervision of existing staff.

Under the new law, employers are prohibited from discriminating against interns on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, religion, predisposing genetic characteristics, marital status, or status as a victim of domestic violence.

The law also extends protection to interns who are sexually harassed at work. The law provides that it is an unlawful discriminatory practice for an employer to engage in unwelcome sexual advances, request sexual favors, or engage in other verbal or physical conduct of a sexual nature with an intern when that action affects the terms and conditions of the intern's employment. It also prohibits harassment based on any other protected class set forth above.

The new law provides protections for interns who are pregnant, prohibiting employers from compelling a pregnant unpaid intern to take a leave of absence unless the pregnancy prevents her from performing the activities associated with her position in a reasonable manner.

Lastly, the law includes an anti-retaliation provision, barring employers from retaliating against interns who oppose any action prohibited under the new law.

Take-Away for Employers

In light of this new law, New York employers should take the following steps:

  • Ensure that any individual who performs unpaid work for you meets the definition of intern;
  • Ensure you apply all equal employment opportunity and anti-harassment policies to your interns, in addition to your employees;
  • Inform managers and supervisors about the new protections afforded to interns under the new law; and
  • Update your anti-discrimination and anti-harassment training to reflect the change in the law.

New York Legislative Developments: Wage Theft Prevention Act Amended and Medical Marijuana Bill Passed

N.Y. Wage Theft Prevention Act Amendments: Repeal of Annual Wage Rate Notice, New Liability, and Increased Penalties

On June 19, 2014, the New York State legislature passed a bill that would amend the N.Y. Wage Theft Prevention Act (the "Act"). The amendments eliminate the annual requirement for employers to issue a wage rate notice to all employees between January 1 and February 1. Employers, however, will still be required to issue a wage rate notice to all new hires and the document retention requirements remain in place.

While the elimination of the annual notice requirement is welcome news for New York employers, many of whom viewed the notice requirement as an administrative burden with no significant benefit to employees, the amendments also create new liability and increase the current penalties for wage payment violations.

Governor Cuomo is expected to sign the amendments, which will take effect 60 days after his approval.

Use of Medical Marijuana Approved By N.Y. State Legislature

On June 20, 2014, the New York State legislature approved a bill that would permit the use of medical marijuana by individuals suffering from covered medical conditions.

Significant for employers, the bill includes a non-discrimination clause which provides that patients who use the drug will be deemed to have a "disability" under the Human Rights Law. Patients will, however, be required to satisfy several criteria in order to be eligible to receive medical marijuana, and thus be deemed "disabled" under the law.

Under the new law, employers may continue to create policies, or enforce existing policies, prohibiting employees from performing their employment duties while impaired by a controlled substance. Moreover, even though the use of medical marijuana will be legal in New York under certain circumstances, employees must consider that it remains illegal under federal law and is currently excluded from ADA protection.

Governor Cuomo is expected to sign the bill into law. The bill will not take effect until 18 months after it is signed by the Governor, providing employers with ample time to consider its impact on their business.

For more information on this issue or other employment matters, please contact:

Carol M. Goodman at [email protected] or +1 212 592 1465.

© 2014 Herrick, Feinstein LLP. This alert is published by Herrick, Feinstein LLP for information purposes only. Nothing contained herein is intended to serve as legal advice or counsel or as an opinion of the firm.