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In a decision issued on October 18, 2018, the Appellate Division concluded that the New York State Division of Human Rights (NYS DHR) has a right to impose a civil fine on an employer above $50,000 limit, due to a “serious and wanton disregard for the law,” but also concluded that NYS DHR could not impose the higher fine just because the employer refused to participate in the administrative hearing.[1]

In 2017, NYS DHR found that there was probable cause that Empire Toyota Scion engaged in disability discrimination when it terminated one of its employees. Empire Toyota Scion refused to appear or participate in the administrative trial. The trial was held without the employer, and the Administrative Law Judge concluded that the employer engaged in unlawful discriminatory conduct, and recommended awards of back pay, compensatory damages, and a civil fine of $1,000.

Empire Toyota Scion then challenged the ALJ’s recommendations, through an administrative appeal. After reviewing the appeal, NYS DHR adopted the ALJ’s recommendations, but increased the fine to $60,000, citing both (a) the employer’s submission of a letter indicating it had no intention of appearing at the hearing, and (b) the employer’s “serious and wanton disregard for the law.”

The employer commenced a proceeding in Albany County Supreme Court under Executive Law §298, challenging the $60,000 fine. The Supreme Court dismissed the petition, granting NYS DHR’s cross-petition, writing that "[p]etitioner's complete disregard for [respondent's] investigation and inquiries throughout the process evinced a serious and wanton disregard for the law and warranted the imposition of a greater penalty." A judgment was entered thereon in May 2017.

On appeal, the Appellate Division reversed and remanded, holding that NYS DHR has the right to impose a civil fine of up to $50,000. However, under Executive Law § 297 (4) (c) (iv) a civil fine exceeding $50,000, up to $100,000, may be assessed only when respondent determines that the offending party "committed an unlawful discriminatory act which [was] found to be willful, wanton or malicious." The Appellate Division concluded that it was unclear if NYS DHR relied on a valid reason for exceeding the $50,000 threshold. If the increased fine was due to the employer’s “serious and wanton disregard for the law” in terms of its violation of New York Human Rights Law, then the increased civil fine was permitted. However, if the increased fine was due to the employer’s refusal to participate in the hearing, then the higher fine would have exceeded NYS DHR’s statutory authority to fine recalcitrant employers. The matter was sent back to NYS DHR for more information about its justification for the increase in the civil fine from $1,000 to $60,000.

The bottom line is that NYS DHR has discretion to impose fines on employers up to $50,000, and fines exceeding that amount may not be imposed for refusing to participate, but only where there is strong evidence of intentional discrimination.


[1] JPK Imps./Oneonta, Inc. v. N.Y. State Div. of Human Rights, 2018 NY Slip Op 7011 (N.Y. App. Div., 2018)

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Updated: Nov 7, 2018

Certain public civil service employees cannot be disciplined or removed from office without receiving civil service protections described in Section 75 of New York Civil Service Law, including written notice of charges, and a full civil service hearing. Until this week, those in the "Labor Class" were not entitled to those procedures until completing 5 years of employment.

On September 7, 2018, Civil Service Law Section 75 was amended, to extend rights to labor class employees.  The amended law is effective immediately.  If you are a public employer and have any employees who fall within the "labor" civil service classification, they are now protected pursuant to Section 75. If you are an employee in this category, you are entitled to civil service protections before you are suspended, reprimanded, fined, or terminated.

This does not alter the rights that employee receive through union collective bargaining agreements.

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  • Laura Matlow Wong-Pan

Updated: Nov 7, 2018

NYS Releases Releases Model Sexual Harassment Policy

The New York State Department of Labor and Division of Human Rights released a model sexual harassment policy and complaint form that employers may adopt, to comply with the new State law intended to combat sexual harassment in the workplace. The State is soliciting comments until September 12, 2018 regarding this policy, so it is technically just a draft.

Employers must adopt sexual harassment policies that meet minimum standards by October 2018. According to the FAQ’s, “all employees must complete the model training (link) or a comparable training that meets the minimum standards (link) by January 1, 2019.” Employers are not required to use the model policy created by the State as long as their policy meets state guidelines.

Employers training programs must meet minimum standards to comply with the new state law. They must, for instance, be interactive and not in a purely lecture format. They must contain an explanation of sexual harassment and examples of sexually harassing conduct, so that it is clear for employees to understand what type of conduct is considered to be unlawful. Training must include information concerning employee’s rights to file complaints, and all of the different agencies and forums for filing complaints of sexual harassment. There must also be information about how to file a complaint if the employee’s supervisor is engaging in the improper conduct.

What are the next steps?

Comments are being accepted until September 12, 2018. After that, there may be some changes to the model policy and other guidance, based on the comments the agency receives.

Please feel free to contact Law Office of Laura Wong-Pan PLLC with any questions related to sexual harassment in the workplace, including training and preventive practices.

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