Employment Discrimination Lawsuit Rules Are Changing

On October 9, 2020, the EEOC submitted a proposed rule in the Federal Register to change the conciliation procedures in an employment discrimination lawsuit. 

Basically, a conciliation is a required mediation of the discrimination case undertaken after EEOC finds reasonable cause for a charge, but before a lawsuit is filed. Historically, the process has been a mystery for employers as EEOC kept the steps, charges, and process secret. This mystery has resulted in approximately 1/3 of employers refusing to participate in conciliation even though the process is confidential and can't constitute evidence against such employer (unless otherwise agreed upon in writing).

The proposed rule requires that "the Commission will provide to the respondent, if it has not already done so:

(1) A summary of the facts and non-privileged information that the Commission relied on in its reasonable cause finding, and in the event that it is anticipated that a claims process will be used subsequently to identify aggrieved individuals, the criteria that will be used to identify victims from the pool of potential class members;

(2) a summary of the Commission's legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts, as well as non-privileged information it obtained during the course of its investigation that raised doubt that employment discrimination had occurred;

(3) the basis for any relief sought, including the calculations underlying the initial conciliation proposal; and

(4) identification of a systemic, class, or pattern or practice designation. The Commission also proposes to specify that the respondent participating in conciliation will have at least 14 calendar days to respond to the initial conciliation proposal from the Commission."

These rules are terrific and will result in increased settlements because an employer now has the ability to ascertain risk and then, strategically engage in meaningful settlement discussions in the conciliation process rather than blindly throwing money at a situation to make it go away. 

We encourage you to comment on the proposed rule should you have any suggestions to enhance its effectiveness by writing your thoughts, up until November 9, 2020, and sending them by mail, with reference to RIN Number 3046-AB19, to Bernadette B. Wilson, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.

Federal Eviction and Foreclosure Moratoriums Invite Litigation

Andrew Lieb published the article in The Suffolk Lawyer, Federal Eviction and Foreclosure Moratoriums Invite Litigation. This article discusses issues that will be litigated if an eviction moratorium is raised as a defense to an eviction proceeding.

CLICK HERE FOR ARTICLE

Employers in NYC Must Update Their Sick and Safe Leave Policies

On September 28, 2020, Mayor De Blasio signed a bill into law amending the New York City Paid Sick and Safe Leave law to make it largely consistent with New York State's new Paid Sick Leave law. 

The law amends the New York City Paid Sick and Safe Leave law as follows:

Amount of Sick Leave: 

• Employers with 4 or fewer employees and a net income of over a million dollars are obligated to provide 40 hours of Paid Sick and Safe Leave per calendar year (no prior requirement);
• Employers with 5-99 employees (regardless of net income) are required to provide 40 hours per calendar year (unchanged);
• Employers with 100 or more employees are required to provide 56 hours of paid sick leave per calendar year (previously 40 hours). 

Other Notable Changes:

• Each pay period, an employer must provide to all employees a writing (whether via paystub or other document) containing the amount of sick leave accrued and used by the employee;
• If employers require employees to provide supporting medical documentation when using Paid Sick and Safe Leave, employers must reimburse employees for any fees incurred in obtaining such documentation;
• The new law permits the City to conduct an investigation into employer violations (even if there is no employee complaint) and commence a civil litigation against an employer;
• Employers can face civil penalties of $500 per violation plus a $15,000 penalty if they engage in a "pattern or practice" of violation of the law. If employee is discharged in violation of the law, an employer can be obligated to pay a $2,500 penalty in addition to lost wages/benefits.

The amendments to the law take effect on September 30, 2020. Employers with employees in New York City should update their policies to avoid exposure.

NYS Senate Committee - Housing Discrimination Hearing

 Watch the hearing live now here 

What do you think? 

The key question was whether there should be legislation to cap the number of salespersons per supervising broker. Wowwwwwww

Is Your Pot Smoking History Holding Your Job Prospects Back?

If you were ever convicted of unlawful possession of marijuana, you can now easily get your record expunged and then, records about your arrest, prosecution, and criminal history will be destroyed.

Persons eligible to apply for the destruction of expunged marijuana (a/k/a, marihuana) convictions records are: 

• Persons convicted of Penal Law 221.10: “A person is guilty of unlawful possession of marihuana in the first degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than one ounce.”
• Persons convicted of Penal Law Section 221.05: “[a] person is guilty of unlawful possession of marihuana in the second degree when he knowingly and unlawfully possesses marihuana.”

Persons adjudicated as Youthful Offenders are not eligible for expungement and destruction because such adjudication is not considered a conviction.

The following records will be destroyed:

• Arrest records;
• Prosecution records;
• Criminal history records;
• Any dismissal of your case; and
• Any expungement of your conviction.

It is important to note that only convictions of Penal Law 221.10 and 221.05 may be expunged and the destruction of records does not include any other conviction for any other felony or misdemeanor concerning the drug.

If you are interested in getting your marijuana conviction expunged and records destroyed, you should complete an Application to Destroy Expunged Marihuana Conviction Record and file it with the court where you were convicted. There is no application filing fee and you may file multiple applications if you were convicted in multiple courts.