Read This Now: New York’s Groundbreaking Sexual Harassment Legislation

Clichés like “seismic shift” and “paradigm change” do not begin to describe just how profoundly the New York legislature changed the standards for harassment claims in a bill passed June 19. HR professionals and employers beware: the sexual harassment foundation you have known for 30 years—and upon which all your in-house training, HR policies, and legal and HR instincts are built—has just been neatly demolished. Here’s why:

A Critical Bit of History

Boring history lesson now ensues (but will make you sound smart when you tell your HR and management colleagues about it):

Everybody knows that Title VII of the Civil Rights Act of 1964—the basic model for all state employment discrimination statutes—makes it unlawful to discriminate against employees on the basis of a number of protected characteristics, including “sex.” In 1964, and for a couple of decades after that, “discrimination” meant the big employment decisions: you couldn’t refuse to hire, fail to promote, or fire somebody because she was, say, a woman, or black, or a Baptist. Under the original conception of Title VII, those were the tangible, serious “adverse employment actions” that violated the law—that is, anything that involved getting a job, losing a job, getting promoted or paid on that job, etc. The big stuff only.

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Seven Ways Savvy HR Leaders in New York Are Spending Their Summers

Ah, summer: less-demanding schedules, lighter workloads, and a more relaxed work wardrobe. In keeping with the professional reputation of lawyers as killjoys, however, we recommend that HR professionals act more like Aesop’s ants—using the summer to prepare for fall—than the grasshopper, who was so busy partying that he failed to prepare at all. So listen, Grasshopper: savvy HR leaders know to use their summer downtime to set themselves up for success when we all go “back to school.”

Here are seven suggestions of what New York HR professionals can get ahead of over the summer:

1. Coordinate Sexual Harassment Prevention Training – Under New York State law, all employers must provide annual sexual harassment prevention training that satisfies the State’s training requirements by October 9, 2019 (NYC has its own requirements, as we describe here). An employer can satisfy these requirements by either adopting the State’s model training documents or by providing live or interactive online/video training which meets or exceeds the State’s minimum standards. With a mid-fall deadline quickly approaching, summer is the perfect time to think about, and possibly complete, your workforce’s first annual training.

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The Importance of Record-Keeping: Lessons from an Exotic Dancer and Truck Driver

On Monday May 6, 2019, a Florida federal judge denied a strip club’s bid for sanctions against an exotic dancer and her lawyer who filed a so-called “cookie-cutter” Fair Labor Standards Act lawsuit, depriving the strip club of the chance to recoup.

The next day, on Tuesday, May 7, 2019, a Texas state jury awarded a plaintiff $80 million – of which $75,000,000 was in punitive damages – to a truck driver who fell asleep and crashed behind the wheel, when his supervisors forced him to alter his log book and drive without the required amount of rest.

What could these two cases possibly have in common? Both impart the same basic lesson: adherence to good record-keeping practices can save employers money.

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Going It Alone: The Supreme Court Continues to Limit Class Arbitration for Employees

If you’re waiting for a reversal of the trend at the Supreme Court to limit employers’ ability to insist on arbitration instead of litigation, or of the trend limiting class claims, keep waiting.

The Supreme Court continues to limit the ability of employees to pursue class arbitration against their employers. The latest salvo—the Court’s decision in Lamps Plus, Inc. v. Varela—comes on the heels of last year’s Epic Systems Corp. v. Lewis, which found that class action waivers in individual arbitration agreements between employers and employees are enforceable. Taking the next natural step in limiting class actions, Lamps Plus now requires arbitration agreements to specifically permit class claims; if an arbitration agreement leaves the issue unaddressed, no class claim is available at all.

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*UPDATE* EEO-1 Reporting Requirements: Upcoming Deadlines

This is an update to our March 28th post – EEO-1 Reporting Requirements Become More Onerous . . . Maybe.

Employers with 100 or more employees, and federal contractors with 50 or more employees, have until September 30, 2019 to file EEO-1 Component 2 pay data for calendar years 2017 and 2018 with the Equal Employment Opportunity Commission (“EEOC”). Component 1 demographic data, which includes identification of the number of employees by race, ethnicity, and sex, is still due to the EEOC on May 31, 2019. Employers may request a two week extension to submit Component 1 data.

In her Order, Judge Chutkan ordered the EEOC to notify filers via its website that the 2018 calendar year pay data collection must be submitted no later than September 30, 2019. The Court also gave the EEOC the option to either 1) collect Component 2 EEO-1 pay data for calendar year 2017, or 2) collect Component 2 EEO-1 data for 2019 during the 2020 EEOC reporting period. On May 2, 2019, the EEOC stated that it will collect both 2017 and 2018 pay data from employers. Both calendar years of data must be submitted to the EEOC by September 30, 2019. The EEOC stated that it expects to begin collecting 2017 and 2018 Component 2 data in mid-July, 2019, though it did not specify the exact date.

Judge Chutkan’s Order, as well as the EEOC’s update, resolves any ambiguity regarding the reporting deadlines. The EEOC has always required employers with 100 or more employees to submit annual reports, known as “EEO-1” submissions, to the Commission. These reports are required to include data concerning the number of employees the company employs based on gender, race, and ethnicity. At two pages long, they were relatively straightforward and the data fairly easy to submit.

Coming Soon: No Pre-Employment Marijuana Testing in New York City

Following its usual approach of lifting employment restrictions in the five boroughs, on April 9, 2019 the New York City Council approved legislation that will prevent employers from conducting pre-employment screens for tetrahydrocannabinols, commonly known as THC, the active ingredient in marijuana. The bill was sent to Mayor Bill de Blasio, who is expected to sign it into law.

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Employers Should Look for Litigation Threats That Cross the Line Highlighted by Michael Avenatti’s Indictment

The fact-pattern is familiar to employers who have been on the receiving end of attorney litigation threats. A plaintiff’s lawyer calls, or writes a letter, outlining a potential claim by a client, makes a demand for damages, then perhaps throws in mention of the harm the company will suffer if the allegations become “public.” Just another run-of-the-mill litigation threat from a plaintiff’s attorney. Nothing to make a “federal case” out of it, right? Nothing criminal, right?

Well, maybe it is criminal. The recent charges filed by the United States Attorneys’ Office in the Southern District of New York against celebrity attorney Michael Avenatti highlight the lines that both management and plaintiff’s attorneys need to be aware of during communications involving threats of litigation.

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EEO-1 Reporting Requirements Become More Onerous . . . Maybe.

The Equal Opportunity Employment Commission (“EEOC”) has always required employers with 50 or more employees to submit annual reports, known as “EEO-1” submissions, to the Commission. These report are required to include data concerning the number of employees the company employs based on gender, race, and ethnicity. At two pages long, they were relatively straightforward and the data fairly easy to submit. The requirement has yo-yoed back and forth from being much more onerous over the past several years, with recent developments casting a shadow of uncertainty over the current EEO-1 obligations.

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Harassment – It’s Not Just About Sex

Harassment claims continue to dominate the legal news, but the Second Circuit recently reminded us that workplace harassment extends far beyond sex and gender.

The Circuit recently joined several sister circuits recognizing that a plaintiff can pursue a claim for harassment based on disability under the Americans with Disabilities Act (“ADA”), clearing up any doubt regarding the Circuit’s position on the matter.  Fox v. Costco Wholesale Corp., No. 17-0936-cv (2nd Cir. March 6, 2019).  The Circuit also made such claim easier to prove, finding that a plaintiff is not required to set forth the exact number of times actionable comments or conduct occur to demonstrate that the alleged harassment was “severe and pervasive.”  Continue Reading

The Rumor Mill Is Now Your Problem? Yes, According to the Fourth Circuit

In a decision that could have wide-ranging implications for all employers, the Fourth Circuit recently held that an employer’s failure to stop a false rumor that a female employee slept with her male boss to obtain a promotion, could give rise to employer liability under Title VII for gender discrimination. Parker v. Reema Consulting Services Inc., No. 18-1206 (4th Cir. Feb. 8, 2019).

So now employers must police the rumor mill? This decision is confusing to say the least, as employers now have dueling obligations—to quash rumors while not infringing upon an employee’s Section 7 rights to discuss the terms and conditions of employment. Continue Reading

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