Legal Analysts

Showing posts with label employer. Show all posts
Showing posts with label employer. Show all posts

Friday, June 09, 2023

Navigating Updates in New York's Sexual Harassment Laws: A Fresh Perspective on Labor Law Section 201-g for Employers

As the landscape of anti-discrimination law continues to evolve, New York's Labor Law Section 201-g has seen significant updates that employers / employees should be aware of.  

The updates, which are encompassed in a  Model Sexual Harassment Prevention Policy, aim to strengthen workplace protections and foster a safe environment for all employees. New York employers must adopt the model policy or create their own sexual harassment prevention policies that meet or exceed state standards. They are also obligated to provide employees with annual sexual harassment prevention training. 

Let's take a closer look at the key changes:

1. Expanded Definition of "Sexual Harassment:

The new policy broadens the definition of sexual harassment to include harassment based on gender, gender identity, gender expression, or sexual orientation. It recognizes that harassment doesn't have to be of a sexual nature, emphasizing that any form of harassment related to these characteristics constitutes sexual harassment. Furthermore, the policy defines important terms such as "cisgender," "transgender," and "non-binary" to ensure a comprehensive understanding.

2. Updated Standards:

Previously, proving a claim of sexual harassment required demonstrating that the conduct was "severe and pervasive." However, the updated policy aligns with the law's 2019 amendments which eliminated this strict standard. Instead, it emphasizes that New York plaintiffs need only show they experienced inferior treatment compared to others based on protected class membership, similar to the standards set by the New York City Human Rights Law.

3. Virtual and Hybrid Workspaces - A New Frontier of Harassment:

The updates in the law recognize the rise of virtual and hybrid workspaces, providing examples to illustrate what constitutes harassment in these contexts. In a world where many employees continue to work remotely, it's crucial for employers to understand and address harassment that may occur outside of the physical office. This includes unwelcome comments or behaviors in virtual meetings and messaging apps, among other things.

4. Universal Application Across Discrimination Types:

The law clarifies that the policy applies equally to all forms of discrimination based on other characteristics, such as race, age, religion, disability, or sexual orientation. It underlines the fundamental principle that all employees should be free from any form of discrimination, regardless of its nature. The reporting and investigation procedures for other forms of discrimination are aligned with those for sexual harassment, ensuring consistent treatment and protection across all protected classes.

5. Interplay Between Sex and Other Protected Characteristics:

The revised law offers examples showing how sexual harassment can intersect with other forms of discrimination. These instances are crucial for employers to understand as they illustrate complex situations where employees might be subjected to discrimination based on multiple protected characteristics simultaneously. 

6. Third-Party Intervention: A Key Role:

One key update emphasizes third-party intervention in instances of perceived harassment or discrimination. The policy provides a clear set of five steps that bystanders can take to intervene and support those affected, including interrupting the harassment, seeking help from a third party, making a record of the incident, checking in on the target, and confronting the harasser. This change underscores the collective responsibility within organizations to maintain a respectful and inclusive work environment. 

7. Strengthened Retaliation Protections:

The policy's retaliation section now explicitly lists examples of retaliatory actions, including disparagement on social media platforms. Importantly, employees are protected from retaliation even if the alleged conduct is not ultimately deemed unlawful, provided they had a good faith belief that it was. This provision encourages a safe reporting environment for all individuals.

8. The Responsibility of Supervisors:

Supervisors play a critical role in maintaining a harassment-free workplace. The updated policy emphasizes that supervisors must not wait for a formal complaint before reporting incidents of harassment. It highlights their duty to offer accommodations to victims and highlights the potential disciplinary consequences for supervisors who fail to report known instances of harassment. 

Streamlined Complaint and Investigation Process:

The new policy streamlines the complaint and investigation process, with an emphasis on promptness. Investigations should be initiated and completed as soon as possible. Additionally, employees are no longer required to submit complaints solely through the policy's complaint form; they can report incidents orally or in other written forms such as emails.

The revised sexual harassment prevention policy in New York State signifies a crucial step forward in creating safer and more inclusive workplaces. By familiarizing themselves with these changes, employers and employees can contribute to a work environment free from discrimination.

Monday, August 29, 2022

DC Law Now Requires Mandatory Sexual Harassment Training for Tipped Wage Workers

Washington DC now has mandatory sexual harassment trainings from a 2018 law, the Tipped Wage Workers Fairness Amendment Act.

Under the law, covered employers’ primary obligations include providing mandatory sexual harassment training to both business operators & tipped employees.

Other obligations require covered employers to report to the DC Office of Human Rights (OHR) both their sexual harassment policy & all harassment complaints made to management from 2020 on. All requirements are set forth in OHR’s fact sheet on employee rights, which must be posted at places of employment. 

OHR has created a portal for employers to report their compliance with the mandates of the Act & employers will be watched - so tread carefully. 

If you were harassed or discriminated against, this law & its trainings are not the end of the story. You have a claim under Title VII & other federal & state laws. Know your rights & act because statutes of limitations, including a filing requirement with EEOC might otherwise curtail your rights. This is serious & damages can be outrageous.  


Monday, December 20, 2021

Vaccine Mandates are Here - OSHA's Emergency Temporary Standard is Upheld - If You Don't Like it, Seek a Variance / Accomodation NOW

On 12/17/2021, the Sixth Circuit Court of Appeals upheld the OSHA vaccine mandate for employers with 100 or more employees

Per OSHA, citations for non-compliance will start on January 10, 2022. These citations are going to be huge with penalties for non-compliance set at:

Type of ViolationPenalty
Posting Requirements
$13,653 per violation
Failure to Abate$13,653 per day beyond the abatement date
Willful or Repeated$136,532 per violation

To remind employers, and according to the Circuit Court, the Emergency Temporary Standard of 11/5/2021 "requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace." 

If you are questioning why OSHA has the authority to issue this Emergency Temporary Standard, the Circuit Court explained that "OSHA is charged with ensuring worker safety and health 'by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems.'” Plus, it can make an Emergency Temporary Standard if it determines “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that an “emergency standard is necessary to protect employees from such danger.”

If you are still unconvinced and if you are an employer that doesn't want to follow the Emergency Temporary Standard don't just ignore it. Instead, seek a variance from the standard, which is available if you can demonstrate “that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard.”

If you are an unconvinced employee, seek a reasonable accommodation based upon your sincerely held religious belief or disability.

If you are instead wrongfully relying on the Fifth Circuit's stay of these guidelines, DON'T. The Sixth Circuit is the final word unless the Supreme Court elects to hear the case. The difference between the Circuit Courts' decisions came down to the enabling statute 29 USC 655(c)(1) and OSHA's authority to issue the Emergency Temporary Standard (yes, there were differences about almost everything all the way to the Commerce Clause, but that wasn't the heart of the decisions). Section 655(c)(1) provides that OSHA is required "to issue an emergency standard if necessary to protect workers from a “grave danger” presented by 'exposure to substances or agents determined to be toxic or physically harmful or from new hazards.'" Whereas the Fifth Circuit defined the terms in that phrase ("substances or agents," "toxic or physically harmful," and "grave danger,") narrowly, the Sixth Circuit took a broader holistic view. As such, this entire issue isn't about COVID, vaccines, mandates, workers, liberty, or rights. Instead, this all comes down to the rules of statutory interpretation. 

Tuesday, November 09, 2021

Employers Required to Provide Employees Notice of Electronical Monitoring Beginning May 7, 2022

Starting May 7, 2022, if you wish to electronically monitor your employees, you will need to provide statutory notice first.

On November 8, 2021, Governor Hochul signed Bill A430 into law, which amends Section 52-c to the Civil Rights Law, and starting on May 7, 2022, employers with a place of business in New York who monitor or otherwise tap telephone calls, e-mails, or internet access of an employee by any electronic device or system, must give prior written notice upon hiring to all employees. Additionally, each employer must also post the notice of electronic monitoring in a visible place which is readily available for viewing by its employees.


Any employer found to be in violation of this Bill will be subject to a maximum penalty of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

Thursday, July 01, 2021

Court Rules Short Term Injuries Now Qualify As Disabilities Under ADA

Many more disability lawsuits are anticipated after the 2nd Circuit ruled that temporary injuries qualify as disabilities under ADA. 

An injury that only lasts 19 days can constitute a qualifying disability for purposes of a failure-to-accommodate claim under the Americans with Disabilities Act, according the Second Circuit Court of Appeals in Hamilton v. Westchester Cnty

For background, disabled individuals have a legal right to demand a reasonable accommodation from rules, policies, and procedures so that they can have equal access to public services, enjoyment of property, and opportunities at work. 

When disabled individuals are denied rightfully requested accommodations, lawsuits happen for big $$. 

When disabled individuals aren't provided with a forum to negotiate an accommodation, known as the interactive process, lawsuits happen for big $$. 

When disabled individuals aren't even provided with an opportunity to request an accommodation in the first place (such as by a form or notice), lawsuits happen for big $$. 

Simply, disability discrimination law is a really big deal, with big numbers at stake, to employers and property owners / managers. In fact, 26% of US adults have some sort of disability according to the CDC. As a result, every employer and property owner / manager must understand this new change in the law. 

Before this case, it was unclear in the Second Circuit, which controls NY, CT, & VT, whether an individual with a short-term disability from an injury could qualify for an accommodation under the law. 

Now, we know that they qualify. 

While the case before the Circuit Court was about an inmate at the Westchester County Jail, who claimed a denial of an opportunity to participate in or benefit from services, programs, or activities, under Title II of the ADA, the takeaway is that temporary disabilities can trigger the protections of the ADA under all three of its Titles, including:

  • Title I - Employment & Hiring
  • Title II - Public Services, Programs, & Activities
  • Title III - Public Accommodations (i.e., commercial property & websites) 

It is clear that the Circuit Court intended all three Titles to apply to temporary disabilities because it expressly based its decision on the 2008 ADA Amendments Act, which broadened the definition of "disability" under the ADA to include temporary or Transitory injuries. In so reasoning, the Circuit Court pointed to 28 CFR 25.108(d)(ix) (i.e., the regulations to the ADA) to find that a "'disability' shorter than six months in duration now can be actionable under the ADA." 

Now, all employers, property owners, brokers, property managers, and governmental officials in NY, CT, & VT better adjust their policies and afford rights to those disabled from injuries (even really short-term injuries) or they are going to get sued?

Have you ever been denied your rights to have policies adjusted to enable you to have the full enjoyment of life, which was otherwise problematic because of your disability?

Shouldn't disabled people be given every benefit to fully enjoy life?

This is good law.

Wednesday, January 06, 2021

Are Your Staff Employees or Independent Contractors? A New Regulation Answers The Question

During the last two weeks of his Presidency, Trump's Department of Labor just revised the test for whether an individual is an independent contractor or employee under the Fair Labor Standards Act. 

This is significant because employees are entitled to minimum wage and overtime whereas independent contractors are not. 

If an employer misclassifies a staff member as an independent contractor when such staff member should be classified an employee, it can result in a devastating blow to the employer who will be exposed to statutory penalties, back pay, attorneys' fees and more. 

Now, Trump's government is using the "economic reality" test to determine employee status. 

According to the government, "the ultimate inquiry is whether, as a matter of economic reality, the worker is dependent on a particular individual, business, or organization for work (and is thus and employee) or is in business for him- or herself (and is thus an an independent contractor)." 

Under this test, the Department of Labor or a Court hearing the case will look to five distinct factors to answer the test. However, two of those factors now have more probative value in answering the question than the rest. These two key factors are:

  1. The nature and degree of the worker's control over the work; and
  2. The worker's opportunity for profit or loss. 

The other factors, of less importance, are:
  1. The amount of skill required for the work;
  2. The degree of permanence of the working relationship between the individual and the potential employer; and 
  3. Whether the work is a part of an integrated unit of production.
Regardless, employers better take note of this change and analyze their staff's true work to ascertain if they are classified properly. If this is too much, you better hire a consultant to do the job NOW.

Here's a question

While the government argued in support of this new test by pointing to the need for clarity for business, is this the time to tax companies with new rules in the middle of a pandemic where small businesses are closing every day? 

More so, with a change in the Presidency less than two weeks away, will Biden just change this back next month? 

This new regulation isn't effective until March 8, 2021, so Biden could theoretically undo it before it even takes off. 

Should he? 

Tuesday, March 24, 2020

What Happens When You Ignore the Essential Services Executive Order

Beyond injuring others and being a terrible person, have you looked-up the exposure for violating Executive Order 202.8.

To remind you, 202.8 is what provides, in pertinent part, that "[e]ach employer shall reduce the in-person workforce at any work locations by 100% no later than March 22 at 8 p.m."

As to exposure for violating 202.8, it provides that "[a]ny business violating the above order shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law." Then, section 12 of the Public Health Law provides for "a civil penalty of not to exceed two thousand dollars for every such violation" for the first violation and a penalty "not to exceed five thousand dollars for a subsequent violation." However, if your violation "results in serious physical harm to any patient or patients, the penalty is "not to exceed ten thousand dollars."

So, if you infect someone, you are getting charged with a $10K penalty per violation.

Oh, by the way, the State can also get an injunction against your continued violations and potentially shut down your business, remote or otherwise, with that injunction.

Don't be crazy and ignore the order. Instead, if you believe you are essential, apply for a designation here.

Monday, September 30, 2019

NYC: Using the Word "Alien" Could Result In $250,000 Fine

More discrimination lawsuits are on the horizon in NYC based upon the City's Commission of Human Rights new enforcement guidelines concerning immigration status and national origin.

Landlords, merchants, and employers now face up to $250,000 in fines for using terms and phrases like "illegal alien", "alien", and "speak english" when used in the context meant to demean, humiliate, or offend.

In their press release, the NYC Commission of Human Rights provided hypothetical examples of discriminatory behavior, including:
  • Harassing a restaurant patron because of their accent;
  • Refusing repairs on a unit occupied by an immigrant family and threatening to call ICE if they complain;
  • Paying a lower wage or withholding wages to workers because of their immigration status; and
  • Harassing a store customer by telling them to stop speaking their language and demanding they speak English.

*ATTENTION LANDLORDS AND EMPLOYERS* - your teams must be trained in the different forms of discrimination and harassment to avoid fines, lawsuits, and bad publicity.

Tuesday, August 13, 2019

Have you been the victim of employment discrimination?

Attention Employees - Have you faced inferior terms, conditions or privileges of employment because of your age, race, creed, color, national original, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or because you have opposed discrimination at work?

Did you know that you only need to prove that this discrimination rises above what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences to win your claim?

Did you know that you can recover lost wages?
Are you aware that you can be reinstated into your job?
Better yet, did you know that your employer could be required to pay you punitive damages (punishment)?

Guess what? Courts have been directed to award you reasonable attorney's fees if you win. This means that your employer's exposure goes up the entire time that they are defending the claim - it's a huge motivation for your employer to settle with you quickly.

Yesterday, 8/12/19, you were given a voice by the Governor - it's time for you to use that voice and speak up to end discrimination in the workplace.