Woman working remotely

Out-of-State Remote Workers Not Protected by New York Anti-Discrimination Laws

By Douglas Lipsky

A federal court recently held that an employee working remotely in New Jersey cannot assert discrimination claims under the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL). The decision is good news for employers with concerns about claims being filed by out-of-state workers, but one that should be concerning to employees still working remotely. 

Employers and employees alike should know that the ruling only applies to New York-based businesses; other states may have more inclusive approaches. The best way to understand your rights and obligations is to consult with an experienced employment discrimination attorney

New York’s “Impact Test”

In Shiber v. Centerview Partners, LLC, the plaintiff started working for the New York City-based company in July 2020. Because of Covid-19 restrictions, she worked exclusively from her New Jersey home, with the understanding that she would work in Centerview’s NYC office when it reopened. 

In August, the plaintiff found the exceedingly long hours she expected to work worsened her anxiety and mood disorder which required consistent sleep. She complained to the company that she needed 8 to 9 hours of sleep each night as a reasonable accommodation. Plaintiff was subsequently terminated based on the employer’s assessment that she was unable to perform the essential functions of the job. 

Plaintiff filed suit in Manhattan Federal Court asserting claims under the NYSHRL, the NYCHRL, and the New Jersey Law Against Discrimination (NJLAD).  The court dismissed the plaintiff’s NYSHRL and NYCHRL claims, applying New York’s impact test. Under this test, courts look to where the alleged discriminatory conduct was felt. 

In particular, the court found that because the plaintiff only worked remotely from New Jersey and never set foot in the employer’s New York City office, she cannot assert claims under the New York laws. In short, there was no “impact” of alleged discriminatory conduct within the state. 

The court also noted that New York courts have previously held that the impact test remains a clean directive regardless of the pandemic’s impact on offices. The judge found that applying a different standard would have impermissibly broadened the scope of both New York laws.

The Takeaway

The broad legal protections of the NYSHRL and NYCHRL remain limited to those who live or physically work within the jurisdiction. But other jurisdictions have different rules. In New Jersey, for example, an out-of-state employee working for a New Jersey-based employer may be able to assert claims under the NJLAD, based on the specific facts of the case. 

Finally, the outcome of this case may have been different if the plaintiff had worked in New York before she started working remotely due to the pandemic. Whether she would have been covered under the New York laws under these circumstances remains unclear, however. In any case, if you believe you have been treated unfairly by your employer while working remotely, talk to an experienced New York employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.