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? Read More
Who Does the New Law Affect and How? Read More
How Do the Changes Affect Employment Agreements? Read More
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:
- Other individuals providing services pursuant to contract
- An employee of such a contractor (contractor, subcontractor, vendor, consultant or other person providing services)
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.
(References: New York State Bar Association article, New York Post)
Stephen Hans & Associates assists employers in complying with employment laws and represents them in employment disputes.
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:
- Filing a formal written complaint about discrimination (within the company through its management or Human Resources or with any anti-discrimination agency)
- Testifying or assisting in a Human Rights Law proceeding regarding discrimination
- Making a verbal or informal discrimination complaint to management
- Making a complaint that another employee has been subjected to discrimination
- Encouraging another employee to report an occurrence of discrimination
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:
- Penalties ranging from $1,000 to $20,000
- An order to pay lost compensation to the employee
- An order to pay liquidated damages
If a New York court finds an employer guilty of retaliation it can impose the following:
Reinstatement of the employer to the former position
- Restoration of seniority
- Payment of lost compensation
- Damages of up to $20,000 per employee
- Payment of reasonable attorney’s fees
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:
- Women file an estimated 88 percent of FRD cases
- Of these women, about 50 percent received a settlement, judgment or favorable court ruling
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:
- Childcare becoming increasingly expensive
- Families taking on more caregiving themselves
- Stagnating wages
- Cultural shift from #MeToo movement on inequality for women in the workforce
- Employers still basing decisions on 1950’s era models of one household adult (woman) at home
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.
The NY State Legislature Passed an Election Law
Time off to vote for employees was part of the legislation that the NY State Legislature passed in April of 2019.
The name of the law is the New York State Election Law and it went into effect immediately.
What Does the Time Off to Vote Mean for Employers?
Based on the new law, employers must allow their employees who are registered voters up to three hours of time off to vote. The employee will lose no pay for the three hours and this applies to voting at any election.
Guidelines for the Time Off
The employer must allow the time off only at the beginning or end of the employee’s work shift. The employer either designates the time or the employee and employer can mutually agree on the time.
The employee must notify the employer about taking time off to vote two working days before the Election Day.
Posting a Notice of the NY State Election Law
Employers must post in the workplace a notice that states the provisions of the NY State Election law. They must post it conspicuously no less than 10 working days before every election. In addition, they must keep the notice posted until the election polls close that day.
What Might Have Prompted the New Law?
According to an article in The New York Times, the mid term elections in 2018 in New York favored incumbents. New York was the only state in the country that held separate state and federal primary elections. Two separate voting days made it more difficult for voters to turn out to vote. In addition, New York does not have the options of early voting, voting by mail, nor same-day voter registration.
By comparison, some of New York’s voting laws were much more restrictive than laws in other states.
The New York State Election Law is one response taken by a more liberal legislature to effect change. More changes may be on the way.
At Stephen Hans & Associates, our attorneys work to stay up-to-date with legal changes. We like to let employers know about them so they can avoid employment law issues. We also represent business owners in employment litigation.
Working off the clock can be problematic for an employer. One reason is that time clocks or time sheets exist to document an employee’s work hours. When workers do not punch in, the book keeping of hours worked becomes nebulous. However, aside from that, employees can be subject to wage and hour lawsuits, penalties and other additional expenses when they fail to pay employees for time worked.
What Is “Working Off the Clock”?
Why Is Working Off the Clock Illegal?
Examples that Qualify as Working Off the Clock
If you call employees outside of work or send them work related emails that they must answer, you would be encouraging unpaid work or work done “off the clock.”
If you allow your employees to come in early or stay late to finish their work tasks, you can run into problems as an employer. Perhaps your restaurant worker is cleaning up or your laborer is simply dropping off equipment at another site outside of work hours. Off-the-clock work includes employees who work outside of the scheduled hours, for example to get a worksite ready for the production day. Workers who correct errors in paperwork past the time they should’ve gone home also qualify as working off the clock. Even having an employee wait to receive an assignment, despite the fact the employee is not doing anything but waiting, qualifies as work time.
How Fissuring Is Changing the Work Environment
Fissuring in the workplace is a relatively new term. You may have heard about fissuring, a term coined by David Weil. He and Tanya Goldman in the article “Labor Standards, the Fissured Workplace and the On-Demand Economy” explain fissuring as follows:
It “means that in more and more workplaces, the employment relationship has been broken into pieces often shifted…to individuals who are treated as independent contractors.”
Other terms have become prevalent that also reflect this employment change. These are terms such as standard employment, non-standard employment, alternative work arrangements, independent contractors and contract employees.
The business models that typically accomplish fissuring use:
- Temporary agencies
- Labor brokers
- Third-party management
What Does Fissuring Mean for Employers and Employees?
As stated by an article in The American Prospect, the workplace is undergoing a change, and fissure is what is happening to the U.S. workforce.
Back in the day, an employee worked for a company, received benefits, stayed with the company long-term and received a pension for retirement. The average worker often spent a lifetime working for the same company.
In an effort to reduce labor costs and also lasting ties to workers, companies have implemented a variety of employment strategies. Strategies include hiring through apps, employing temp workers and freelancers along with contracting out and in some cases, misclassifying employees.
Today, many people have two or three part-time jobs because main jobs are not available. Multiple part time jobs are necessary for them to make financial ends meet.
Yet, various wage changes have also emerged as a result of the fissured workplace. New York, New Jersey, California, Illinois, Maryland, Massachusetts and Connecticut have all enacted $15 minimum wage laws.
The History Behind the Wage Increases
Governor Cuomo of New York created a wage board and held hearings throughout New York. At the hearings, many fast-food workers testified that they couldn’t survive on the $8.25 minimum wage. The New York legislature enacted legislation to raise wages to $15 per hour. Subsequently, the New York City’s Taxi and Limousine Commission engaged in a similar action and raised wages to a minimum of $17.22 per hour for app -based drivers.
The newest emerging trend is for cities to create boards that help workers raise their pay. In this effort, the boards appear to be taking on the previous function of labor unions, which were known in the past for working to equalize pay.
As Bob Dylan sang back in the 1960s, “The Times, They Are a Changin’.“
At Stephen Hans & Associates, we work with employers to help them comply with employment laws and to deal with employment issues.