Breaking it Down – the New Sexual Harassment Laws in New York
As of October 9, 2019, Employees are more protected from discrimination in New York than ever before, and Employers are subjected to new standards of which they must be familiar to protect themselves from the flood of litigation that will surely follow. How so? Thanks to a number of broadly protective legislative changes, anti-harassment laws in New York State now encompass all protected classes under the New York Human Rights Law, not only sexual harassment cases. These protected classes include discrimination based on an employee’s age, race, color, sex, sexual orientation, national origin, marital status, criminal record, amongst others.
The Burden of Proof for a Hostile Work Environment Has Changed, and it is Decidedly Pro-Employee
The Old Standard – Severe and Pervasive
In the past, to succeed in a claim based upon a hostile work environment, an employee suing an employer for discrimination had to prove that harassment was “severe and pervasive.” Under any stretch of the imagination, this was a touch standard to satisfy in a Court of law. An unwanted sexual attack or repeated discriminatory comments made over a period of months to an employee based on their protected class would be obvious examples of severe acts sufficient to satisfy this old standard. Read More
The New Standard – Petty Slights and Trivial Inconveniences
Now that the new anti-harassment laws are in effect, the burden of proof has changed from this old standard of “severe and pervasive” discriminatory conduct to the new standard of “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.” This is a huge change in the burden of proof that will invariably open the floodgates of litigation in cases that were historically brought under the Federal anti-discrimination statute, Title VII. Now, employees will be empowered to bring their claims under the new laws in New York State without the necessity of first exhausting their administrative remedies with the Equal Employment Opportunity Commission, a prerequisite to commencing an action in Federal Court. Read More
As always, we at The Van De Water Law Firm is your local resource for all your legal needs, including prosecuting and defending claims of discrimination and sexual harassment in the workplace. Call now for a free evaluation and consultation at (631) 923-1314, or email us at Chris@VDWLawFirm.com. You can also visit us on the web.
WHAT YOU NEED TO KNOW AS BOTH AN EMPLOYER AND EMPLOYEE
As I previously blogged on the topic, the New York State Senate and Assembly passed an omnibus bill that completely overhauls New York State’s dated and out of touch anti-discrimination laws, and in the process uprooted deeply engrained precedent upon which employers have relied for decades in defending harassment claims. This is good news for employees seeking to hold their employers liable for acts of harassment that take place in the work environment, but bad news for employers who will be defending those same claims.
More specifically, Governor Andrew Cuomo signed the bill into law on August 12, 2019, and the various amendments to the New York State Human Rights Law (NYSHRL), the General Obligations Law, the Civil Practice Law and Rules (CPLR), and the New York Labor Law (NYLL) will take effect as follows. Read More
As always, we at The Van De Water Law Firm is your local resource for all your legal needs, including prosecuting and defending claims of discrimination and sexual harassment in the workplace. Call now for a free evaluation and consultation at (631) 923-1314, or email us at Chris@VDWLawFirm.com. You can also visit us on the web .
August 23, 2019 UPDATE
Governor Cuomo, on August 12, 2019, signed into law Assembly Bill A8421, which significantly expands New York State sexual harassment and discrimination laws. These changes are in addition to the significant legislation that New York enacted in 2018 that were originally reported by The Van De Water Law Firm. This article details the revised and most timely deadlines and requirements under New York State and New York City sexual harassment training laws.
New York Sexual Harassment Training Deadline of October 9, 2019
By October 9, 2019, employers must provide sexual harassment training to all employees located in New York State. Thereafter and upon an ongoing basis, all employers must provide sexual harassment training to all employees each year. Both court decisions and numerous regulations in New York State have made it clear for years that all employers should provide harassment prevention training. Now it’s the law!
The New York State law:
- Applies to all employers, regardless of their size, who employ anyone in the state of New York.
- Applies to all employees, not just supervisors.
- Requires that the training is provided annually.
- Applies to all contractors who bid on New York State contracts.
The NYC law, entitled the “Stop Sexual Harassment in NYC Act,” applies to all employers with 15 or more employees, and requires annual sexual harassment training for all employees. Mandatory compliance with that law began on April 1, 2019.
As a matter of course, both the New York State and New York City laws detail specific content that must be addressed in the training. While New York State training content requirements are similar to content requirements in other states, New York City’s law goes beyond the training content that previously has been required in other jurisdictions. For example, the training provided to employees in New York City must:
- Address bystander intervention
- Describe the complaint process available through the NYC Commission on Human Rights, the New York State Division of Human Rights, and the United States Equal Employment Opportunity Commission, and provide employees with those agencies’ contact information
The two tables below detail the obligations and the differences between the New York State and New York City laws regarding:
- Training Requirements (Table 1)
- Training Content (Table 2)
Bottom of Form
Sexual Harassment Training Obligations in New York State Read More:
Harassment Training Content Requirements in New York State and NYC: Read More
**Quoting Chart from Clear Law Institute, New York State and New York City Sexual Harassment Training Laws Michael Johnson, J.D., CEO, Clear Law Institute, August 12, 2019
Required Distribution in Writing of Anti-Harassment Policy and Information Presented in the Employer’s Training Program
According to the 2019 New York State legislation, employers must now provide employees in New York with written notice at the time of their hire and during annual sexual harassment training. The notice must include (1) the employer’s sexual harassment prevention policy and (2) the information presented in the employer’s sexual harassment prevention training program.
Employers must provide the required information in English and in the language identified by each employee as his or her primary language.
The state will publish a model policy in languages other than English (depending on the prevalence of each language in the state). New York employers are not required to provide their policy in another language if the state has not published a template in that language. This requirement to provide notice at the time of hire and during annual training goes into effect immediately upon enactment on August 12, 2019. Read More
Most employers likely will turn to a third party with expertise in training on sexual harassment prevention, such as The Van De Water Law Firm. Indeed, the New York City law explicitly states that its model training is designed to be a minimum threshold. Many employers will likely and should in fact turn to expert providers of sexual harassment training: Read More
As always, we at The Van De Water Law Firm are your local resource for all your Company’s sexual harassment questions and provide detailed and fully compliant sexual harassment training that strictly complies with both the New York State and City requirements. Call now for a free evaluation and consultation at (631)923-1314, or email us at Chris@VDWLawFirm.com. You can also visit us on the web.
As a breastfeeding mother, the last thing on your mind during this joyous time should be how and when you are permitted to pump breast milk at work. However, the cold reality is that many employers don’t have a policy in place to permit pumping, and even worse, some employers discourage new mothers from pumping activities during working hours. This is illegal and has no place in today’s evolving society norms. As an employer, you have an obligation to create a breastfeeding policy and accommodate your employees.
As of 2010, Section 7 of the Fair Labor Standards Act (FLSA), a Federal statute that protects employees in their workplace, was amended to require employers to provide basic accommodations, such as time, space and other accommodations, for breastfeeding mothers at work. Learn more about what employers are required to provide.
What time accommodation does an employer have to provide nursing employees? Read More
“Reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision.
What space accommodations does an employer have to provide nursing employees?
“A place other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision.
Why do employees who are breastfeeding need time and space for lactation at work?
Health benefits. Breastfeeding is so important for the health of mothers and babies that major medical organizations, such as the American Academy of Pediatrics (AAP), recommend that babies receive nothing but breast milk during the first 6 months of life and continue receiving breast milk for at least their first year. More than 80% of new mothers now begin breastfeeding immediately after birth.1 Breastfed babies are healthier and have lower health care costs. Giving breast milk, rather than formula, helps prevent sudden infant death syndrome (SIDS), asthma, ear infections, type 2 diabetes, and many other illnesses.2 And the longer a mother feeds her child breast milk, the more health benefits there are for both mother and child.2
Biological needs. Breastfeeding is a normal biological process. Breastfeeding employees need breaks throughout the workday to pump because milk production is a constant, ongoing biological process. A breastfeeding mother needs to feed her baby or pump milk about every 3 hours. Otherwise, her body will stop making breast milk. When a nursing mother cannot pump or breastfeed, the milk builds up in her breasts, causing pain and sometimes infection. Removing milk from the breast is a biological need, similar to the need to eat or sleep.
Why can’t employees pump milk in the bathroom?
Bathrooms are a place to eliminate waste from the body and to wash hands afterward in order to prevent the spread of germs and disease. Breast milk is food and should be handled in the same way other food is handled. No one would be willing to prepare food in a bathroom, and that includes breast milk. Bathrooms are not a sanitary place to prepare and handle food of any kind.
In the past, mothers were forced to use bathrooms to pump because there was no other private space available when it was time for a mother to express milk. Pumping is not something that all moms can do discreetly under a cover, in the way a baby can be breastfed discreetly in public. Breastfeeding mothers need space that is not a bathroom to express milk in a clean and private environment.
Are employers required to pay employees for pumping breaks?
“An employer shall not be required to compensate an employee receiving reasonable break time to express milk for any work time spent for such purpose.” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision.
Does my employer have to create a lactation policy?
Creating a policy helps ensure that all employees have access to the same level of support, no matter what type of workplace they have. A policy helps the company be sure it is complying with federal regulations and also shows support for the health of employees and their families. A policy clearly defines the roles and responsibilities of both supervisors and employees, potentially helping them avoid embarrassment about discussing a personal topic.
What about New York State laws that protect breastfeeding mothers?
The following summaries the protections available to breastfeeding mothers under New York State Statutes:
- N.Y. Civil Rights Law § 79-e (1994) permits a mother to breastfeed her child in any public or private location. (SB 3999)
- N.Y. Labor Law § 206-c (2007) states that employers must allow breastfeeding mothers reasonable, unpaid break times to express milk and make a reasonable attempt to provide a private location for her to do so. Prohibits discrimination against breastfeeding mothers.
- N.Y. Public Health Law § 2505 provides that the Maternal and Child Health commissioner has the power to adopt regulations and guidelines including, but not limited to donor standards, methods of collection, and standards for storage and distribution of human breast milk.
- N.Y. Public Health Law § 2505-a creates the Breastfeeding Mothers Bill of Rights and requires it to be posted in a public place in each maternal health care facility. The commissioner must also make the Breastfeeding Mothers Bill of Rights available on the health department’s website so that health care facilities and providers may include such rights in a maternity information leaflet. (2009 N.Y. Laws, Chap. 292; AB 789)
We at the Van De Water Law Firm, P.C. specialize in wage and hour and overtime cases. If you believe you are the victim of overtime violations, we are always available for a free consultation and can be reached via email: Chris@vdwlawfirm.com, cell phone: (516) 384-6223, office (631) 923-1314. More information can be found at the website.
“Discrimination in the present culture shouldn’t be tolerated under any circumstances, especially in the context of a woman’s pregnancy.” Attorney Chris Van de Water
By Jack Newsham, New York Law Journal, August 08,2019
The New York County Lawyers Association has been sued by a former employee who claims she was taunted in the workplace, had to pump breast milk in the bathroom and was ultimately fired because of her two pregnancies.
The Plaintiff, a fee dispute program administrator, said she worked for the prominent New York bar association starting in 2005 and began facing discrimination once she became pregnant in 2013. The suit, filed Wednesday in Brooklyn Supreme Court, alleges violations of city and state human rights laws and seeks unspecified damages.
The first time she became pregnant, The Plaintiff alleged, she was assigned arduous tasks that she wasn’t assigned before, such as retrieving boxes from a basement. After giving birth, she said, she could initially only pump breast milk in the bathroom and was only given 15 minutes to do so. After complaining, she was given access to a conference room, but it was rarely available for use, she said.
“Both defendants’ managing director and director repeatedly [asked] plaintiff whether she planned on having any more kids and ‘how many babies do you people have!,’ among numerous other snide and degrading remarks,” her suit claims. Read More
Christopher Van De Water of the Van De Water Law Firm, who represents The Plaintiff, said, “Discrimination in the present culture shouldn’t be tolerated under any circumstances, especially in the context of a woman’s pregnancy.”
Representatives for the NYCLA didn’t immediately respond to comment requests. Davis, who no longer appears on NYCLA’s staff list online, could not be reached for comment.
Whether you are an employee who just secured their dream job, or an employer who has made a key hire, there exist certain key terms and obligations that must specifically be set forth in any resulting employment contract to protect all parties’ interests and set the ground rules for the duration of the employment relationship and beyond. A well-drafted employment contract significantly lowers the potential for conflict down the line, increases employee morale and provides a means for redress should the employment relationship break down and eventually terminate.
Towards that lofty end, I have set down the Top 10 things an effective employment contract should include. By no means is this an exhaustive list, but is rather meant to provide a general framework from which the parties may commence negotiations.
Job responsibilities and information
Job title, a description of job duties and expectations, as well as the department with which the employee shall work should all be set forth. Equally important is providing clarity with respect to how the employee will be evaluated and to whom the employee will directly report.
Job compensation and benefits package
Clearly outline the employee’s compensation and benefits package, including the salary or hourly rate, specific information about performance and merit-based raises, bonuses and incentives, as well as detail the process under which each such benefit is obtained. Explain when medical benefits become effective, what plans are available and what percentage is covered by the employer, as well as provide information about other possible benefits including a 401(k) plan, equity options and other negotiated benefits.
Vacation, PTO and sick time
The employer’s policy for employee time off should be fully explained. At what rate does PTO, including sick and vacation, time accrue? What is the employer policy with respect to emergency, sick or unpaid leaves? Is flex-time permitted and if so, under what circumstances and approvals?
As a new hire, will an employee be considered an employee or an independent contractor? Once a designation has been made, cross-reference to the job duties and responsibilities section should be made to support such designation.
Period of employment and job schedule
Whether or not an employee is being hired for a set term or on an ongoing basis is an integral term. Key terms in this section include expected total weekly hours, daily hours of work, whether overtime hours are possible and if so, how they will be paid, and whether night and weekend work is expected, even if occasionally.
The Confidentiality Agreement
This section cannot be stressed enough and is the most litigated issue in most employment relationships. Therefore, it is imperative that not only do the parties agree to strict confidentiality of all of the employer’s intellectual property and trade secrets, such as client lists, but that the parties mutually detail what information is considered confidential so that there is no confusion should this issue ever be disputed.
In this age of Facebook, Twitter and Instagram, we exist in a culture of immediate gratification. That translates to an employee’s frequent use of the employer’s technology to access social media during working hours. The employer should clearly set forth what their policy is with respect to an employee’s use of social media during working hours, not only for use of the employer’s computer, but also for use of the employee’s cell phone and other on site technology.
Let’s face it, nearly all employment relationships end, hopefully on good terms but that is by no means a guarantee. Provide concise direction as to what notice period is required for either party to terminate the relationship, whether such notice must be in writing, and explain the employer’s policy with respect to severance, if any.
An employer’s brand is their lifeblood and should be protected at all costs. That translates into consideration of putting into place an outplacement plan should the employee and employer part ways. Explaining what types of assistance may be available to a terminated employee goes a long way in buying good faith in a potentially bad situation.
If the new hire is a key player in the employer’s organization, the parties may want to enter into a non-complete that is carefully tailored to the circumstances while providing the employee a means to earn a living should the parties decide to part ways. Overly broad non-competes are rarely enforced, and while Courts have wide discretion in narrowing an overly broad non-compete, the employer risks having it rejected in its entirety. Thus it is in the parties’ mutual best interest to carefully negotiate this section to account for all competing interests.
We at the Van De Water Law Firm, P.C. are well versed in all manner of employment contracts and are happy to answer any and all of your questions regarding employment contracts and all other employment issues at (631) 923-1314 or Chris@vdwlawfirm.com. You can also find more informative articles about the employment relationship by visiting our employment website.