Employment Law Alert Blog

Anti-Harassment Policies and Training: What New York Employers Need to Know Now

Anti-Harassment Policies and Training: What New York Employers Need to Know Now

New York State As part of the 2018-2019 New York State Budget (“the Law”), employers within New York State are required to implement an anti-harassment policy by October 9, 2018 and implement an anti-harassment training program for employees and supervisors. In connection with these requirements, the New York State Department of Labor (NYSDOL), in consultation with the New York State Division of Human Rights, recently released drafts of its model anti-harassment policy, complaint form, interactive training program, and FAQs (“Anti-Harassment Materials”). Employers may adopt these Anti-Harassment Materials or develop their own policies and programs, provided they comply with or exceed the minimum standards set forth in the Law for the model policy and training program. The NYSDOL accepted comments on the Anti-Harassment Materials through September 12, 2018. Final documents are expected soon. The seven-page template policy is extensive and covers the topics required by the Law, such as: a statement that sexual harassment is a form of “employee misconduct” an explanation of sexual harassment specific examples of harassing conduct details concerning external avenues of complaints for employees (e.g., local, state, and federal anti-discrimination agencies and the local police in cases of assault) prohibitions against retaliation reporting procedures supervisory responsibilities detailed...

New Fair Credit Reporting Act – Summary of Rights Forms

New Fair Credit Reporting Act – Summary of Rights Forms

The Consumer Financial Protection Bureau (“CFPB”), the Federal agency that administers the Fair Credit Reporting Act (“FCRA”), just issued new Summary of Rights forms. An employer conducting a background check on an employee or applicant through a consumer reporting agency must provide such employee or applicant a Summary of Rights notice when first obtaining consent to conduct the background check — together with a written disclosure about the use of the background check — and when taking adverse action based on the background check. Starting today, September 21, 2018, the new Summary of Rights form must be used. The CFPB also issued forms called Summary of Consumer Identity Theft Rights that must be provided to consumers by credit reporting agencies when the subject of an identity theft. A new law also requires credit reporting agencies to implement a “national security freeze” at no cost to a consumer that restricts prospective lenders from access to a consumer’s credit report. Other changes include a one year (instead of 90 days) notification of a fraud alert in a consumer’s file. The notification informs a lender that the consumer may have been the victim of identity theft, for which the lender must take additional...

New York Employers Fall Review

New York Employers Fall Review

In 2018, employers in New York encountered several important changes, including in the areas of anti-harassment and scheduling, warranting a Fall review of current employment practices and preparation for next year’s developments. Employers should take the time now to review current practices and prepare for the imminent future. NEW YORK CITY’S TEMPORARY SCHEDULE CHANGE LAW New York City’s Temporary Schedule Change Law (“TSC Law”) became effective July 18, 2018, and requires private employers to provide eligible employees with an allowance of a “temporary change” to their usual work schedule for certain qualifying “personal events” for up to two occasions per year (i.e., one business day twice per year or two business days on one occasion). Eligible employees are those who work at least 80 hours a year in New York City and have been employed by their employer for 120 or more days, with limited exceptions, including employees covered by collective bargaining agreements waiving the law. Temporary schedule changes may include paid time off, use of short-term unpaid leave, permission to work remotely, or working hour swaps or shifts. Qualifying “personal events” include: (a) an employee’s need to: (i) care for a minor child or care recipient (i.e., a person...

Third Circuit Overturns Summary Judgment Based on the Faragher-Ellerth Defense

Third Circuit Overturns Summary Judgment Based on the Faragher-Ellerth Defense

Employers who are sued for sexual harassment committed by a supervisor may be able to avoid liability, even if harassment had, in fact, occurred, by asserting the so-called Faragher-Ellerth affirmative defense, named after the two United States Supreme Court cases that first recognized the defense. An employer may assert the Faragher-Ellerth defense to supervisor harassment when no tangible employment action has been taken against the harassed employee and the employer is able to demonstrate (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Recently, the United States Court of Appeals for the Third Circuit, in Minarsky v. Susquehanna County, addressed the requirements of the Faragher-Ellerth defense in the context of the assertion of a female employee that she acted reasonably in not taking advantage of the procedures made available by her employer to prevent or correct the harassment against her by her supervisor. In so doing, the Third Circuit reversed the district court’s grant of summary judgment to the employer based on the Faragher-Ellerth defense and held on the facts of the case a jury should...

NYC Paid Sick/Safe Time Law Expands

NYC Paid Sick/Safe Time Law Expands

New York City’s Sick Leave Law was expanded on May 5, 2018, to include additional reasons for eligible employees to use NYC paid sick leave (called “safe leave”) including: to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking; to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking; to meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit; to file a complaint or domestic incident report with law enforcement; to meet with a district attorney’s office; to enroll children in a new school; or to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of...

U.S. Supreme Court Issues “Epic” Decision for Employers Upholding Arbitration Agreements and Class Action Waivers

U.S. Supreme Court Issues “Epic” Decision for Employers Upholding Arbitration Agreements and Class Action Waivers

On May 21, 2018, the United States Supreme Court resolved the split amongst several Federal Circuit Courts by finding the Federal Arbitration Act (FAA) enables employers enforce class action waivers in arbitration agreements with their employees notwithstanding employees’ rights under the National Labor Relations Act (NLRA) to engage in “concerted activity.” The Court’s 5-4 decision, with the majority opinion authored by Justice Gorsuch, was rendered in In Epic Systems Corp. v. Lewis and companion cases Ernst & Young LLP et al. v. Stephen Morris et al. and National Labor Relations Board v. Murphy Oil, Inc. (all decided simultaneously). The Court ruled that Congress did not intend the NLRA to provide for class and collective actions, and although the NLRA provides employees the right to organize and bargain collectively, the statute does not dictate how claims must be adjudicated. Accordingly, the Court determined that the NLRA cannot be interpreted to provide employees with an implicit right to class and collective actions in contravention of the FAA, which explicitly confers upon employers and employees the ability to arbitrate and determine their chosen arbitration procedure. Instead, these laws must be interpreted consistently. The three companion cases involve employees challenging arbitration agreements containing class and...

Governor Murphy Signs New Jersey Paid Sick Leave Law

Governor Murphy Signs New Jersey Paid Sick Leave Law

On May 2, 2018, Governor Murphy signed the comprehensive paid sick leave bill passed by the New Jersey Legislature in April. For a description of the law and how it will affect New Jersey employers, please see our previous blog post. For questions regarding this bill, or paid sick leave laws generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

New York City and New York State Pass Comprehensive Anti-Harassment Legislation

New York City and New York State Pass Comprehensive Anti-Harassment Legislation

The New York City Council recently passed the Stop Sexual Harassment in NYC Act (“NYC Act”), a series of bills that address sexual harassment prevention in the workplace. Mayor Bill de Blasio is expected to sign the legislation into law in the near future. The passage of the NYC Act coincides with the signing of the 2018-2019 New York State Budget (“the Bill”), which includes comprehensive and significant changes to State anti-harassment laws described as “necessary to combat sexual harassment in the workplace.” STOP SEXUAL HARASSMENT IN NYC ACT Mandatory Anti-Harassment Training The NYC Act would require employers (with 15 or more employees including interns) to conduct annual anti-sexual harassment training beginning on April 1, 2019 for all employees, including supervisors and managers. The training is required for all employees who work more than 80 hours in a calendar year and for new employees within 90 days of hire. The training must cover a range of topics, including a statement that harassment is a form of discrimination under state and federal law; a description of sexual harassment (including examples of what constitutes harassment); internal complaint procedures for an employee to make a harassment complaint; information about the complaint process under...

Governor Murphy Signs New Jersey Pay Equity Legislation

Governor Murphy Signs New Jersey Pay Equity Legislation

Yesterday, Governor Murphy signed the Diane B. Allen Equal Pay Act. The new law will go into effect July 1, 2018. For a description of the law and how it will affect New Jersey employers, please see our previous blog post. If you have any questions regarding how to comply with New Jersey’s new pay equity law, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department. Suzanne Herrmann Brock is Counsel in the Gibbons Employment & Labor Law Department.

New Jersey Senate Labor Committee Amends Bill Prohibiting Use of Nondisclosure Provisions in Employment and Settlement Agreements

New Jersey Senate Labor Committee Amends Bill Prohibiting Use of Nondisclosure Provisions in Employment and Settlement Agreements

In response to the recent spotlight on sexual abuse and harassment claims in the workplace and the #MeToo movement, the federal government and numerous states, including New Jersey, have focused attention on the use of nondisclosure provisions in settlement agreements involving claims of sexual harassment and assault. As we previously reported, the Tax Cuts and Job Bills Act was passed in December 2017 and includes a provision that bars any settlement or payment related to claims of sexual harassment or sexual abuse from being deducted as a business expense if the payments are subject to a nondisclosure agreement. While the federal tax bill aims to discourage the use of nondisclosure agreements, the proposed New Jersey legislation initially provided an outright ban on such agreements. At the time of its first introduction during the prior legislative session in December 2017, Senator Loretta Weinberg’s proposed bill prohibited New Jersey employers from including “a provision in any employment contract or agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment.” The bill is unique because it is not limited to sexual harassment or abuse claims, but rather would apply to any type of discrimination,...