New York City Council Header
File #: Int 0136-2018    Version: Name: Protections for workers under the city’s human rights law.
Type: Introduction Status: Laid Over in Committee
Committee: Committee on Civil and Human Rights
On agenda: 1/31/2018
Enactment date: Law number:
Title: A Local Law to amend the administrative code of the city of New York, in relation to protections for workers under the city's human rights law
Sponsors: Brad S. Lander, Helen K. Rosenthal, Deborah L. Rose, Margaret S. Chin, Justin L. Brannan, Ben Kallos, Antonio Reynoso, Keith Powers , James G. Van Bramer, Diana Ayala , Carlos Menchaca, Bill Perkins, Carlina Rivera , Donovan J. Richards, Stephen T. Levin, Jumaane D. Williams, Alicka Ampry-Samuel , Mark Levine, Adrienne E. Adams
Council Member Sponsors: 19
Summary: This bill would clarify which workers are protected by the City Human Rights Law. In particular, the bill would clarify how to determine whether an employer has four or more employees (which triggers some of the obligations of the City Human Rights Law) and that an employer’s parent, spouse, domestic partner or child if employed by an employer are included as in the employ of such employer. The bill would also establish that the protections and duties provided under section 8-107(1) of the Administrative Code extend to existing and prospective directors, officers, members and partners of business organizations, regardless of whether these individuals are considered employees of such business organizations. Furthermore, franchisors and parent companies can be held liable for the unlawful discriminatory practices of their franchisees or subsidiary companies. Finally, this bill would make explicit that all persons who perform work for an employer, including volunteers and independent contractors, whether paid or unpaid are considered employees.
Indexes: Oversight
Attachments: 1. Summary of Int. No. 136-A, 2. Summary of Int. No. 136, 3. Int. No. 136, 4. January 31, 2018 - Stated Meeting Agenda, 5. Committee Report 6/18/18, 6. Hearing Testimony 6/18/18, 7. Hearing Transcript 6/18/18, 8. Proposed Int. No. 136-A - 9/27/18

Proposed Int. No. 136-A

 

By Council Members Lander, Rosenthal, Rose, Chin, Brannan, Kallos, Reynoso, Powers, Van Bramer, Ayala,  Menchaca, Perkins, Rivera, Richards, Levin, Williams, Ampry-Samuel, Levine and Adams

 

A Local Law to amend the administrative code of the city of New York, in relation to protections for workers under the city’s human rights law

 

Be it enacted by the Council as follows:

 

Section 1. Section 8-102 of the administrative code of the city of New York, as amended by a local law voted on by the committee on civil rights on December 18, 2017, is amended to read as follows:

                     § 8-102 Definitions. Except as otherwise expressly provided, when used in this chapter, the following terms have the following meanings:

Acts or threats of violence. The term “acts or threats of violence” includes, but is not limited to, acts, which would constitute violations of the penal law.

Alienage or citizenship status. The term “alienage or citizenship status” means:

1. The citizenship of any person, or

2. The immigration status of any person who is not a citizen or national of the United States.

Caregiver. The term “caregiver” means a person who provides direct and ongoing care for a minor child or a care recipient. As used in this definition:

1. Care recipient. The term “care recipient” means a person with a disability who: (i) is a covered relative, or a person who resides in the caregiver’s household and (ii) relies on the caregiver for medical care or to meet the needs of daily living.

2. Covered relative. The term “covered relative” means a caregiver’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, or the child or parent of the caregiver’s spouse or domestic partner, or any other individual in a familial relationship with the caregiver as designated by the rules of the commission.

3. Grandchild. The term “grandchild” means a child of a caregiver’s child.

4. Grandparent. The term “grandparent” means a parent of a caregiver’s parent.

5. Parent. The term “parent” means a biological, foster, step- or adoptive parent, or a legal guardian of a caregiver, or a person who stood in loco parentis when the caregiver was a minor child.

6. Sibling. The term “sibling” means a caregiver’s brother or sister, including half-siblings, step-siblings and siblings related through adoption.

7. Spouse. The term “spouse” means a person to whom a caregiver is legally married under the laws of the state of New York.

8. Child. The term “child” means a biological, adopted or foster child, a legal ward or a child of a caregiver standing in loco parentis.

9. Minor child. The term “minor child” means a child under the age of 18.

Commercial space. The term “commercial space” means any space in a building, structure or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied for the manufacture, sale, resale, processing, reprocessing, displaying, storing, handling, garaging or distribution of personal property; and any space which is used or occupied, or is intended, arranged or designed to be used or occupied as a business or professional unit or office in any building, structure or portion thereof.

Commission. The term “commission,” unless a different meaning clearly appears from the text, means the city commission on human rights.

Consumer credit history.  The term “consumer credit history” means an individual’s credit worthiness, credit standing, credit capacity, or payment history, as indicated by: (i) a consumer credit report; (ii) credit score; or (iii) information an employer obtains directly from the individual regarding (1) details about credit accounts, including the individual’s number of credit accounts, late or missed payments, charged-off debts, items in collections, credit limit, prior credit report inquiries, or (2) bankruptcies, judgments or liens. A consumer credit report shall include any written or other communication of any information by a consumer reporting agency that bears on a consumer’s creditworthiness, credit standing, credit capacity or credit history.

Cooperative dialogue. The term “cooperative dialogue” means the process by which a covered entity and a person entitled to an accommodation, or who may be entitled to an accommodation under the law, engage in good faith in a written or oral dialogue concerning the person’s accommodation needs; potential accommodations that may address the person’s accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the covered entity.

Covered entity. The term “covered entity” means a person required to comply with any provision of section 8-107.

                      Disability. The term “disability” means any physical, medical, mental or psychological impairment, or a history or record of such impairment. As used in this definition:

1. Physical, medical, mental, or psychological impairment. The term “physical, medical, mental, or psychological impairment” means:

(a) An impairment of any system of the body; including, but not limited to, the neurological system; the musculoskeletal system; the special sense organs and respiratory organs, including, but not limited to, speech organs; the cardiovascular system; the reproductive system; the digestive and genito-urinary systems; the hemic and lymphatic systems; the immunological systems; the skin; and the endocrine system; or

(b) A mental or psychological impairment.

2. In the case of alcoholism, drug addiction or other substance abuse, the term “disability” only applies to a person who (i) is recovering or has recovered and (ii) currently is free of such abuse, and does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

Domestic partner. The term “domestic partner” means any person who has a registered domestic partnership pursuant to section 3-240, a domestic partnership  registered  in  accordance with executive order number 123, dated August 7, 1989, or a domestic partnership registered in accordance with executive order number 48, dated January 7, 1993.

Educational institution. The term “educational institution” includes kindergartens, primary and secondary schools, academies, colleges, universities, professional schools, extension courses, and all other educational facilities.

Employer. For purposes of subdivisions 1, 2, 3, 11-a, and 22, subparagraph 1 of paragraph a of subdivision 21, and paragraph e of subdivision 21 of section 8-107, the term “employer” does not include any employer [with] that has fewer than four persons in his or her employ at all times during the period beginning six months before the start of an alleged unlawful discriminatory practice and continuing through and including six months after the end of such alleged unlawful discriminatory practice. For purposes of this definition, (i) natural persons [employed as independent contractors to carry out work] working as independent contractors in furtherance of an employer’s business enterprise [who are not themselves employers] shall be counted as persons in the employ of such employer and (ii) the employer’s parent, spouse, domestic partner or child if employed by the employer are included as in the employ of such employer.

Employment agency. The term “employment agency” includes any person undertaking to procure employees or opportunities to work.

Family.  The term “family,” as used in subparagraph (4) of paragraph a of subdivision 5 of section 8-107, means either a person occupying a dwelling and maintaining a household, with not more than four boarders, roomers or lodgers, or two or more persons occupying a dwelling, living together and maintaining a common household, with not more than four boarders, roomers or lodgers. As used in this definition, a “boarder,” “roomer” or “lodger” residing with a family means a person living within the household who pays a consideration for such residence and does not occupy such space within the household as an incident of employment therein.

Gender. The term “gender” includes actual or perceived sex, gender identity and gender expression, including a person’s actual or perceived gender-related self-image, appearance, behavior, expression or other gender-related characteristic, regardless of the sex assigned to that person at birth.

Housing accommodation. The term “housing accommodation” includes any building, structure or portion thereof that is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings. Except as otherwise specifically provided, such term includes a publicly-assisted housing accommodation.

Intelligence information. The term “intelligence information” means records and data compiled for the purpose of criminal investigation or counterterrorism, including records and data relating to the order or security of a correctional facility, reports of informants, investigators or other persons, or from any type of surveillance associated with an identifiable individual, or investigation or analysis of potential terrorist threats.

Intern. 1. The term “intern” means an individual who performs work for an employer on a temporary basis whose work:

(a) Provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced;

(b) Provides experience for the benefit of the individual performing the work; and

(c) Is performed under the close supervision of existing staff.

2. The term includes such individuals without regard to whether the employer pays them a salary or wage.

Labor organization. The term “labor organization” includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms and conditions of employment, or of other mutual aid or protection in connection with employment.

Lawful source of income. The term “lawful source of income” includes income derived from social security, or any form of federal, state or local public assistance or housing assistance including section 8 vouchers.

National origin. The term “national origin” includes “ancestry.”

National security information. The term “national security information” means any knowledge relating to the national defense or foreign relations of the United States, regardless of its physical form or characteristics, that is owned by, is produced by or for, or is under the control of the United States government and is defined as such by the United States government and its agencies and departments.

Occupation. The term “occupation” means any lawful vocation, trade, profession or field of specialization.

Partnership status. The term “partnership status” means the status of being in a domestic partnership, as defined by subdivision a of section 3-240.

Person. The term “person” includes one or more natural persons, proprietorships,   partnerships, associations, group associations, organizations, governmental bodies or agencies, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.

Person aggrieved. 1. The term “person aggrieved,” except as used in section 8-123, includes a person whose right created, granted or protected by this chapter is violated by a covered entity directly or through conduct of the covered entity to which the person’s agent or employee is subjected while the agent or employee was acting, or as a result of the agent or employee having acted, within the scope of the agency or employment relationship. For purposes of this definition, an agent or employee’s protected status is imputed to that person’s principal or employer when the agent or employee acts within the scope of the agency or employment relationship. It is irrelevant whether or not the covered entity knows of the agency or employment relationship.

2. A person is aggrieved even if that person’s only injury is the deprivation of a right granted or protected by this chapter.

3. This definition does not limit or exclude any other basis for a cause of action.

Place or provider of public accommodation. The term “place or provider of public accommodation” includes providers, whether licensed or unlicensed, of goods, services, facilities, accommodations, advantages or privileges of any kind, and places, whether licensed or unlicensed, where goods, services, facilities, accommodations, advantages or privileges of any kind are extended, offered, sold, or otherwise made available. Such term does not include any club which proves that it is in its nature distinctly private. A club is not in its nature distinctly private if it has more than 400 members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of non-members for the furtherance of trade or business. For the purposes of this definition, a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a religious corporation incorporated under the education law or the religious corporation law is deemed to be in its nature distinctly private. No club that sponsors or conducts any amateur athletic contest or sparring exhibition and advertises or bills such contest or exhibition as a New York state championship contest or uses the words “New York state” in its announcements is a private exhibition within the meaning of this definition.

Publicly-assisted housing accommodations. The term “publicly-assisted housing accommodations” includes:

1. Publicly-owned or operated housing accommodations;

2.  Housing accommodations operated by housing companies under the supervision of the state commissioner of housing and community renewal, or the department of housing preservation and development;

3. Housing accommodations constructed after July 1, 1950, and housing accommodations sold after July 1, 1991:

(a) That are exempt in whole or in part from taxes levied by the state or any of its political subdivisions;

(b) That are constructed on land sold below cost by the state or any of its political subdivisions or any agency thereof, pursuant to the federal housing act of 1949;

(c) That are constructed in whole or in part on property acquired or assembled by the state or any of its political subdivisions or any agency thereof through the power of condemnation or otherwise for the purpose of such construction; or

(d) For the acquisition, construction, repair or maintenance for which the state or any of its political subdivisions or any agency thereof supplies funds or other financial assistance; and

4. Housing accommodations, the acquisition, construction, rehabilitation, repair or maintenance of which is, after July 1, 1955, financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof, or the state or any of its political subdivisions or any agency thereof.

Real estate broker. The term “real estate broker” means any person who, for another and for a fee, commission or other valuable consideration, lists for sale, sells, at auction or otherwise, exchanges, buys or rents, or offers or attempts to negotiate a sale at auction, or otherwise, exchange, purchase or rental of an estate or interest in real estate or collects or offers or attempts to collect rent for the use of real estate, or negotiates, or offers or attempts to negotiate, a loan secured or to be secured by a mortgage or other incumbrance upon or transfer of real estate. In the sale of lots pursuant to the provisions of article nine-a of the real property law, the term “real estate broker” shall also include any person employed by or on behalf of the owner or owners of lots or other parcels of real estate, at a stated salary, or upon commission, or upon a salary and commission, or otherwise, to sell such real estate, or any parts thereof, in lots or other parcels, and who shall sell or exchange, or offer or attempt or agree to negotiate the sale or exchange of any such lot or parcel of real estate.

Real estate salesperson. The term “real estate salesperson” means a person employed by or authorized by a licensed real estate broker to list for sale, sell or offer for sale at auction or otherwise to buy or offer to buy or to negotiate the purchase or sale or exchange of real estate or to negotiate a loan on real estate or to lease or rent or offer to lease, rent or place for rent any real estate, or who collects or offers or attempts to collect rents for the use of real estate for or on behalf of such real estate broker.

Reasonable accommodation. 1. The term “reasonable accommodation” means such accommodation that can be made that does not cause undue hardship in the conduct of the covered entity’s business. The covered entity has the burden of proving undue hardship. In making a determination of undue hardship with respect to claims filed under subdivisions 1, 2, 22 or 27 of section 8-107, the factors which may be considered include but are not limited to:

(a) The nature and cost of the accommodation;

(b) The overall financial resources of the facility or the facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(c) The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and

(d) The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.

2. In making a determination of undue hardship with respect to claims for reasonable accommodation to an employee’s or prospective employee’s religious observance filed under subdivision 3 of section 8-107, the definition of “undue hardship” set forth in paragraph b of such subdivision applies.

Sexual orientation. The term “sexual orientation” means an individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, bisexuality, asexuality and pansexuality.

Trade secrets. The term “trade secrets” means information that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and (iii) can reasonably be said to be the end product of significant innovation. The term “trade secrets” does not include general proprietary company information such as handbooks and policies. The term “regular access to trade secrets” does not include access to or the use of client, customer or mailing lists.

Unemployed or unemployment. The term “unemployed” or “unemployment” means not having a job, being available for work, and seeking employment.

Uniformed service. The term “uniformed service” means:

1. Current or prior service in:

(a) The United States army, navy, air force, marine corps, coast guard, commissioned corps of the national oceanic and atmospheric administration, commissioned corps of the United States public health services, army national guard or air national guard;

(b) The organized militia of the state of New York, as described in section 2 of the military law, or the organized militia of any other state, territory or possession of the United States; or

(c) Any other service designated as part of the “uniformed services” pursuant to subsection (16) of section 4303 of title 38 of the United States code;

2. Membership in any reserve component of the United States army, navy, air force, marine corps, or coast guard; or

3. Being listed on the state reserve list or the state retired list as described in section 2 of the military law or comparable status for any other state, territory or possession of the United States.

Unlawful discriminatory practice. The term “unlawful discriminatory practice” includes only those practices specified in section 8-107.

Victim of domestic violence. The term “victim of domestic violence” means a person who has been subjected to acts or threats of violence, not including acts of self-defense, committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim, by a person who is or has been in a continuing social relationship of a romantic or intimate nature with the victim, or by a person who is or has continually or at regular intervals lived in the same household as the victim.

Victim of sex offenses or stalking. The term “victim of sex offenses or stalking” means a victim of acts that would constitute violations of article 130 of the penal law or a victim of acts that would constitute violations of sections 120.45, 120.50, 120.55, or 120.60 of the penal law.

§ 2. Paragraph (f) of subdivision 1 of section 8-107 of the administrative code of the city of New York, as amended by a local law voted on by the committee on civil rights on December 18, 2017, is amended to read as follows:

(f) The provisions of this subdivision [shall] do not govern the employment by an employer of the employer’s parents, spouse, domestic partner, or children; provided, however, that such family members shall be counted as persons employed by an employer for the purposes of the definition of employer set forth in section 8-102.

§ 3. Subdivision 1 of section 8-107 of the administrative code of the city of New York is amended by adding a new paragraph (g) to read as follows:

(g) The protections and the duties provided by this subdivision extend to existing and prospective directors, officers, members and partners of business organizations, regardless of whether such individuals are considered employees of such business organizations.

§ 4. Subdivision 23 of section 8-107 of the administrative code of the city of New York, as added by local law number 9 for the year 2014, is amended to read as follows:

23. Additional provisions relating to employment. a. The provisions of this chapter relating to employees [shall] apply to all persons who perform work for an employer, whether paid or unpaid, including volunteers, interns and persons working in furtherance of an employer’s business enterprise as independent contractors.

b. A person is deemed to be in the employ of any employer that maintains full or partial control over (i) the terms, conditions or privileges of the person’s work, (ii) the conduct of the person’s work or (iii) the right of the person to continue to work, regardless of whether there is any integration of operations between multiple employers and regardless of which, if any, employer compensates the person.

c. For purposes of this chapter, a parent entity is deemed one of the employers of all persons employed by a subsidiary entity of such parent entity, and a franchisor is deemed one of the employers of all persons employed by a franchisee of such franchisor, except that as used in this subdivision the terms “parent entity” and “franchisor” do not include the city or any agency thereof.

§ 5. This local law takes effect 270 days after it becomes law.

 

 

 

 

 

 

MN/JJ/BAM

LS #4450/Int. 1016-2015

LS #355 06/05/2018 11:00 A.M.