|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|
|September 12, 2019||NY Anti-Sexual Harassment Training||no comments|
|August 22, 2019||What Is Retaliation in the Workplace?||no comments|
|August 15, 2019||Why Are Family Responsibilities Discrimination Cases on the Rise?||no comments|
|August 15, 2019||Family Responsibilities Discrimination (FRD) Lawsuits||no comments|
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.
Have You and Your Employees Done the NY Current Anti-Sexual Harassment Training?
NY State law requires that employers do Anti-Sexual Harassment training, based on a law signed into effect in 2018. Failing to do so can result in civil penalties of up to $250,000. Furthermore, if you have not done the training, your business may be subject to greater liability, should an employee file a sexual harassment lawsuit.
How Does the Anti-Sexual Harassment Training Work?
If your business is located in NYC, the New York City Commission on Human rights provides an online training program that is compliant with the city and state’s requirements.
The training is not time-consuming or complicated. In fact, you can do the training online and it takes about 45 minutes to do.
Facts About the Training
At the end of the course, you will receive a certificate that you must save to your computer or laptop. If using a mobile device, you can take a screenshot, save or email the certificate.
This training is also accessible to users with disabilities. It includes audio descriptions for the videos along with closed captioning for videos and slides. There is also voiceover audio and alt-text for images and icons.
Compliance Factors for Employers
As an employer there are steps you must take to be in compliance:
To avoid disputes and additional expense, it is wise comply with NY Human Rights Law. At Stephen Hans & Associates, our attorneys work with employers, helping them make legal changes in employment agreements and other policies. We also represent business owners in employment litigation.
Important Reasons for Employers to Avoid Retaliation
Retaliation in the workplace is unlawful. Therefore, as a business owner it is important to understand what it is and to avoid it. Employers violate the law if they retaliate against an employee who has engaged in “protected activity” under the New York City Human Rights Law or forbidden activities under the Law.
What Does Retaliation Mean?
“Retaliation” in a legal sense refers to “punishment of an employee by an employer for engaging in legally protected activity such as making a complaint of harassment or participating in workplace investigations. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction or job or shift assignment.”
Examples of protected activity include:
Even when the employee has left the company, if the employer provides an unreasonable negative reference about the former employee, such behavior can fall under retaliation. However, the employee would have to show that the negative reference was based on retaliation.
Potential Penalties for Retaliation
Under New York Law, the New York State Department of Labor can assess potential penalties for retaliation, including:
If a New York court finds an employer guilty of retaliation it can impose the following:
Reinstatement of the employer to the former position
At Stephen Hans & Associates, we help employers comply with employment laws, avoid retaliation, offer legal advice and represent them in employment issues.
The Underlying Causes of FRD Lawsuits
Statistics show that Family Responsibilities Discrimination (FRD) lawsuits are on the rise. This means that courts are seeing an increase in lawsuits brought against employers by caregivers. Caregivers include single parents, pregnant women, breastfeeding women, parents of young children, and employees who are taking care of sick children, spouses, relatives or other disabled dependents.
According to an article on FRD published in Working Mother, FRD cases increased 269 percent between the years of 2006 and 2015. This fact is based on a report done by the Center of Worklife Law, a research and advocacy organization at the University of California, Hastings College of Law.
During the past three years, FRD decisions averaged more than 400 decisions, which was an increase over the previous years. Furthermore, this statistic only included cases where courts issued a decision. It did not include all court complaints or charges filed by the EEOC (Equal Employment Opportunity Commission).
Here are some other statistics that employers should also note:
Cases that went to trial saw success rates at 67 percent
Why is this significant? Typically, employees lose discrimination cases and their winning cases range between 16 and 33 percent. But, as you see, that is not the recent trend.
Contributing Factors to the Rise in Families Responsibilities Discrimination Cases
Contributing factors to the increase in lawsuits are the following:
When companies can hang onto employees so they do not have the costs involved with turnover and hiring/training new employees, it is more financially feasible. Keep in mind, employers who can make it known that they support workers who are caregivers may see lower turnover rates.
If you are unsure about whether your company policies are free of FRD, seek legal advice. Our attorneys at Stephen Hans & Associates are glad to advise you.
What is FRD or Caregiver Discrimination?
Families Responsibilities Discrimination (FRD), also called “caregiver discrimination,” refers to discrimination against:
That employers have been subject to discrimination claims and lawsuits is nothing new. However, FRD or caregiver discrimination is a relatively new protected class compared with other protected classes. Therefore, NY employers should be aware of what it entails.
New York City Human Rights Law and Family Responsibilities Discrimination (FRD)
Effective as of May 4, 2016, it became a violation in New York City to treat employees or job applicants with caregiving responsibilities differently than other employees. The New York City Commission on Human Rights protects caregivers. If your company has four or more employers, you must comply with the New York City Human Rights Law.
Specifically, employers cannot discriminate against employees or job applicants who:
Examples of FRD Discrimination
You could be sued for caregiver discrimination, if you as an employer decide not to hire an applicant or promote an employee for any of the following reasons. If the person:
Furthermore, making statements like the following could be used against you in a discrimination claim:
Whenever employers provide benefits to employees, such as flexible scheduling, they must also provide them to employees who are caregivers. However, they do not have to offer special accommodations to employees who have care giving responsibilities.