|March 13, 2020||Effect of the #MeToo Movement on New York Employment Law||no comments|
|February 26, 2020||Non-Disclosure Agreements: Their Proper Use||no comments|
|February 26, 2020||Arbitration of Employment Issues: Its History and Growing Use||no comments|
|November 20, 2019||What New York Data Privacy and Security Protection Means for Employers||no comments|
|November 15, 2019||Customer-Based Sexual Harassment of Employees||no comments|
|October 30, 2019||No Mandatory Arbitration Under the NYS Anti-Sexual Harassment Law||no comments|
|October 24, 2019||What Potential Penalties Do Employers Face in NY Discrimination Cases?||no comments|
|October 24, 2019||First Lawsuit Under New York City’s Fair Workweek Law||no comments|
|October 08, 2019||What the New Anti-Sexual Harassment Law Means for NY Employers||no comments|
|September 12, 2019||Details of the NY Anti-Sexual Harassment Law for 2019||no comments|
Harvey Weinstein Convicted in NY Criminal Trial for Rape and Sexual Abuse
We are reminded of the effect of the #MeToo movement on New York employment law as the jury rendered guilty verdicts for Harvey Weinstein on February 24, 2020.
The jury found Weinstein guilty of third degree rape and sexual abuse. However, they found him not guilty of first-degree rape and predatory sexual assault, which were more serious charges. He still awaits trial in Los Angeles for charges of raping one woman and sexually assaulting another in 2013.
How the #MeToo Movement Affected Employment Law in NY and NYC
An article in NPR points out that the State of New York and New York City have passed the nation’s most rigorous workplace sexual harassment laws. Legislatures passed the laws subsequent to the #MeToo movement gaining momentum and media attention.
In New York, employees must undergo annual sexual harassment training regardless of the company’s size. The laws are sweeping, affecting every business in New York. In addition, employers must post sexual harassment policies in highly visible places.
The training must be interactive in that a live trainer must be available during training to respond to questions. Furthermore, employers must request feedback from employees regarding the training and materials.
Even when an employee outside of New York comes to a New York office, if only for a day, that employee must receive the training.
The outcome has been a complete shift in perspective regarding sexual harassment in the workplace.
What Changes Have Occurred in NY Business Culture?
As a result, employees subjected to sexual harassment are more willing to come forward and complain. High profile cases, such as Harvey Weinstein’s have made employers and employees more aware of potential consequences.
No business wants to be audited or investigated for failing to comply, especially if an employee has filed a sexual harassment complaint.
Stephen Hans & Associates has extensive experience working with employers in all areas of employment. We help business owners comply with regulations and represent them in employment disputes.
Types of Information Non-Disclosure Agreements Address
Non-disclosure agreements (NDA) allow companies to keep proprietary information out of their competitors’ hands. A high level of confidentiality is necessary for companies with innovative ideas. In some instances, the innovation is already making the company a profit. In other instances, a start-up company might need funding to launch its business. Having potential investors sign non-disclosure agreements protects their interests.
In addition to non-disclosure, an NDA prevents employees, clients, investors or other businesses from using proprietary information for themselves.
What Types of Information Can Non-Disclosure Agreements Include?
An NDA could apply for the following types of information:
Reasons for Using Non-Disclosure Agreements with Employees
Businesses often use a unilateral agreement with employees. A unilateral agreement is a contract that applies to one party, in this case the employee. The employee agrees to keep confidential the information learned on the job. Types of confidential information may include business trade secrets, copyrighted information, technology or research being done.
Situations Where an NDA Does Not Apply
Based on New York law, as of January 1, 2020, non-disclosure agreements must contain additional stipulations for employees. An NDA must allow employees or potential employees to speak with the following:
If an NDA does not contain language to this effect, courts will consider it null and unenforceable when it relates to discrimination complaints. (JD Supra)
When to Seek Legal Counsel
If concerns arise over a non-disclosure agreement, you should consult with an attorney. At Stephen Hans & Associates, our attorneys provide legal advice and representation to employers for all types of employment law issues. We have represented numerous employers over the years, and you can rely on our decades of experience.
How Employment Arbitration Became Widespread
Arbitration of employment issues was rare before the 1990’s. In fact, in 1992, a little more than 2 percent of the U.S. workforce was subject to mandatory arbitration for employment disputes.
A study done by the Economic Policy Institute showed that use of mandatory arbitration rose after a series of Supreme Court decisions that began in 1991.
To What Extent Has Arbitration of Employment Issues Grown?
The following statistics show the increase of the mandatory arbitration in employment issues:
Class Action Waivers in Arbitration Agreements
One of the more recently disputed issues regarding mandatory arbitration has been regarding class action litigation. Employers began incorporating class action waivers in their mandatory arbitration agreements. A class action or collective lawsuit taken against an employer would seek damages for all employees in that class. For example, a sexual harassment lawsuit could seek compensation for a whole class of plaintiffs that were sexually harassed.
Being forced to arbitrate a class action complaint could be very costly for employers and would complicate the direct, simplified nature of arbitration. For this reason, employers began including waivers in the agreements. The disputed legal point addressed whether mandatory arbitration included class action matters.
The Supreme Court ruled that unless both parties explicitly consented to arbitrating a class action complaint, mandatory arbitration would not apply to class action issues.
Stephen Hans & Associates can assist you in complying with employment and labor laws and drafting employment agreements. We can also represent you in employment litigation or alternative dispute resolution cases.
Employers Must Comply with New SHIELD Law
In July of 2019, the New York legislature passed the “Stop Hacks and Improve Electronic Data Security” (SHIELD) act. The new law provides greater protection for private information and broadens requirements for security breach notification.
Which NY Employers Must Comply with the Law?
The SHIELD law applies to all NY employers because private information includes individual names and Social Security numbers.
Businesses that do not reside in New York but that do business with New York residents are also subject to the law’s security requirements.
What Does Private Information Include?
Private information includes:
What Is Necessary for Compliance?
To be in compliance with SHIELD, employers must implement a data security program that keeps private information secure and adheres to the act. How extensive the program must be depends on the size of the company and its business activities and the sensitivity of the personal information it gathers.
If the business is already in compliance with the following laws, they are also in compliance with SHIELD:
What Are the New Breach Notification Requirements?
The new law expands the definition of breach of the security system. Breach now includes unauthorized access of computerized data that compromises:
Breach also now extends to New York residents and not only New York businesses.
A company may be exempt from breach notification if the breach was unintended and will probably not result in misuse, financial harm or emotional harm to the affected persons.
Companies must be in compliance with the breach notification amendments by October 23, 2019. The new data security requirements must be in effect by March 21, 2020.
(References: The National Law Review)
Stephen Hans & Associates assists employers in complying with employment laws and represents them in employment litigation.
How You Can Protect Employees from Customer-Based Sexual Harassment?
Customer-based sexual harassment of employees can be a problem, and employers may not know what to do about it. It is vital to protect their employees’ rights. Also, employers could be at risk for liability, and they should consider taking responsible actions to protect their own rights.
The National Law Review featured an article that discussed what employers could do to protect against liability in situations where customers harass their employees. The same standards apply for sexual harassment of employees by customers as for sexual harassment by other employees.
What Actions Should Employers Take to Deal with Customer-Based Sexual Harassment of Employees?
The first step, and you must do this immediately, is to conduct an investigation of the alleged customer-based sexual harassment. According to Lapka v. Chertoff (7th Circuit, 2008),”Employers are liable for third-party harassment if they ‘unreasonably fail to take appropriate corrective action reasonably likely to prevent the misconduct from recurring.’ ” In the Lapka case, the court stated, “The hallmark of [appropriate] corrective action is a prompt investigation.”
Steps to Take After Investigation
Based on the findings of their investigation, employers should take corrective action to prevent future harassment. They should also follow up to see whether their corrective actions have been effective.
Some corrective actions you can take may include:
Seek Legal Advice
If you believe you are legally at risk, it is wise to seek legal counsel for guidance. At Stephen Hans & Associates, our attorneys advise employers regarding work related issues. We also represent employers in employment litigation.
Will the Provision Hold Up Under Higher Court Scrutiny?
New York’s new anti-sexual harassment law states that New York employers may no longer include mandatory arbitration clauses for sexual harassment claims. Furthermore, settlements regarding sexual harassment claims may not include non-disclosure provisions. The exception would be when the complainant prefers to include such a provision.
Reasons the Arbitration Provision May Not Stand
In a recent case, Mahmoud Latif v. Morgan Stanley & Company, the company moved to compel arbitration of Latif’s claims based on their arbitration agreement.
The arbitration agreement stated that covered claims would include statutory discrimination, harassment and retaliation claims.
Latif alleged that he was sexually assaulted by a female supervisor, was subjected to inappropriate comments regarding his sexual orientation, inappropriate touching, sexual advances and offensive comments about his religion. He reported the incidents to the company’s Human Resources department.
The only disputed aspect between the parties is whether the complaint is subject to the arbitration agreement based on the recently enacted New York anti-sexual harassment law.
Ruling in the Case
The judge granted Morgan Stanley’s motion to compel arbitration of the Latif claim. The reason given was that “the Federal Arbitration Act requires courts to enforce covered arbitration agreements according to their terms.”
The judge stated that “the Supreme Court has instructed that the FAA reflects ‘both a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract.'”
Basically, the federal law takes precedence over state law. State law is subject to preemption, which means that a higher court or authority displaces a lower court or authority regarding matters that are in conflict.
If you have employment related issues, our attorneys at Stephen Hans & Associates are glad to answer your questions, provide legal advice or representation. We have decades of experience representing employers in work-related issues.
More Potential Penalties for Employers
Potential penalties for employers are likely to result from the amendments to the New York State Anti-Harassment Law. As the repercussions of the amendments become clearer to employers, more businesses will establish anti-discrimination work policies. Revised anti-harassment policies and stricter enforcement of them may help prevent lawsuits.
Potential Penalties that Employers Face Financially
The recent amendments enable an employee, who wins an employment discrimination case against an employer, to receive punitive damages.
What are punitive damages? A court can award punitive damages in a civil lawsuit to punish the defendant or deter the defendant’s future engagement in the same type of conduct. These are monetary amounts that the defendant must pay to the plaintiff and are also called exemplary damages. Courts award such damages in addition to other damages awarded in a case. In most cases, courts award punitive damages when the conduct is willful and intentional. (Cornell Law)
Recovery of Attorney’s Fees
Another potential monetary penalty that employers face if the plaintiff wins the case is a penalty of having to pay the plaintiff’s attorney’s fees. However, the same is not true if the employer (as the defendant) wins the case. The court will only have the employee pay the employer attorney’s fees if it can be proven that the action or proceeding filed by the employee was a frivolous lawsuit.
Typically, a frivolous lawsuit is one that the plaintiff files based on an intention to harass, disturb or annoy the other party. Lawsuits are also frivolous when the plaintiff knows that the likelihood of succeeding in court is very slight or non-existent.
(Reference: JD Supra)
Seek Legal Advice and Representation
Employers can often avoid disputes and lawsuits. At Stephen Hans & Associates, our attorneys advise employers about making changes in employment agreements and other employment related policies. We also represent employers in employment litigation.
Employers and Predictable Schedules in the Restaurant Industry
The Fair Workweek Law went into effect in New York City on November 26, 1917, and it affected employers in the fast food and retail industries. Under the law, employers had to provide employees with good faith work schedule estimates. They had to notify employees about how much time they were scheduled to work and when they would work. In other words, employers would provide predictable work schedules. They also had to provide the opportunity to work newly available shifts before they could hire new workers. Employers were obligated to offer existing employees the work first.
Under this law, employers must give workers their written work schedule at least 14 days prior to the date of the first shift in the schedule. A “clopening” shift is a term that applies to working two shifts over two days when the first shift ends and there are less than 11 hours between shifts. Employers must get the worker’s consent in writing for working a clopening shift and must pay them a $100 premium to work it.
More details about this law are available at the NYC Consumer Affairs Fast Food and Retail Workers page.
Chipotle Sued under Fair Workweek Law
In September 2019, New York City filed the first lawsuit for violations of the Fair Workweek Law. The city sued Chipotle, which has locations in Brooklyn and Manhattan. The restaurant chain has more than 2,500 locations nationwide. Workers at the Brooklyn locations filed dozens of complaints with the city regarding scheduling violations.
The city alleges that they violated the Fair Workweek Law with more than 30 employees. Furthermore, the city is seeking $1 million in penalties and restitution for the employees. In addition, the Department of Consumer and Worker Protection is investigating the 11 Manhattan restaurant locations for violations.
In response to the filings, the representative for Chipotle has stated that the company is working with the city, is committed to complying with all laws and that the lawsuit filing was unnecessary. (Reference: Fox Business News)
At Stephen Hans & Associates, we inform employers about new employment laws, offer legal advice and represent them in employment disputes.
Is There Liability You Could Face that You Did Not Face in the Past?
The NYS new anti-harassment law has a number of sweeping changes. For one, it applies to all protected classes under New York Human Rights Law, not only to sexual harassment cases. Protected classes include discrimination based on:
New Anti-Sexual Harassment Law Burden of Proof for a Hostile Work Environment
The “Severe or Pervasive” Standard
Under the previous law, to succeed in a claim, an employee suing an employer for discrimination had to prove that harassment was “severe and pervasive.” Rape or beating up an employee based on their protected class would be obvious examples of a severe act.
More often though, the courts looked for pervasive harassment, such as continually making racial slurs or frequently touching the employee in a sexual way over a period of time. Workplace comments had to rise to the level of vulgar and humiliating verbal assaults rather than occasional teasing or jokes.
In some instances, a combination of unwelcome physical acts, such as forcible touching and verbal abuse would meet the burden of proof. Unless employees could provide evidence that rose to that level of proof, they would not have an actionable claim.
The New Burden of Proof: Rising Above “Petty Slights and Trivial Inconveniences”
With the new law, the burden of proof has changed from “severe and pervasive” to “rising above petty slights and trivial inconveniences.” An affirmative defense for an employer is to prove that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
Also, under the previous legislation, your attorney could argue that the claim was not actionable because the employee failed to file a complaint and take advantage of the employer’s correction process. However, under the new law, this failure does not result in rendering a decision that the employer is not liable.
(References: The National Law Review)
Stephen Hans & Associates assists employers in complying with employment laws and represents them in employment litigation.
The New NY Anti-Sexual Harassment Law: What Employers Should Know
Additional New York State anti-sexual harassment law protections came into existence in August 2019.
Under the new law, sexual harassment only has to rise above the level of “petty slights or trivial inconveniences,” which is a much lesser burden of proof. This change will make it much easier for victims to come forward and file a lawsuit against employers. By comparison, under the previous law, the plaintiff would have to prove that sexual harassment was “severe or pervasive.”
When Does the New Law Go into Effect?
The law will roll out in three stages during the next 60 days.
Who Does the New Law Affect and How?
The new law amends existing Human Rights Law and includes all public and private employers in New York. Also, the law increases the statute of limitations (time limit to file a lawsuit) from one year to three years.
How Do the Changes Affect Employment Agreements?
Employment agreements can no longer prohibit employees from filing a complaint with a state or local agency, nor can it prevent them from testifying in government investigations. In addition, the law prohibits employers from requiring mandatory arbitration in settlement agreements.
Arguments against the law and that are in favor of employers are that this is unfair because it weakens employers’ affirmative defense. They would incur significant liability for behavior that occurs outside of work hours that they have no way of knowing about.
How Are All Individuals in the Workplace Protected?
The new law extends protection beyond private company or government employees and offers protection to the following people in the workplace:
How Does the New Law Affect an Employer’s Liability and Responsibilities?
All employers will need to investigate complaints and take corrective action or face liability for the failure to do so.
The extent of the employer’s control over the harasser in cases involving non-employees is also a consideration when reviewing the case.
In addition, all state contractors when submitting bids for work most also submit certification that written policy addressing sexual harassment prevention in the workplace has been implemented. Contractors must also show that all employees receive annual sexual harassment training.
Stephen Hans & Associates assists employers in complying with employment laws and represents them in employment disputes.