Although the U.S. is still in the thick of the COVID-19 crisis, this is exactly when employers who are deemed “non-essential” should be developing a careful, considered plan to bring their workforces back. Employers face a multitude of challenges in the planning process, including: (1) determining when and who comes back; (2) parting ways with employees with whom the business can no longer support or need; (3) sidestepping lawsuits that could otherwise arise after employee terminations; and (4) balancing employees’ legitimate concerns for themselves and their families’ with an increasingly imperative need to get your business up and running again.

This post briefly addresses issues employers should consider when bringing employees back. For a deeper dive of the issues covered in this post and more, check out a recording of Kelley Drye’s Part 1: Getting Back To Work: Preparations and Considerations for Employers webinar, and register for Part 2: Getting Back To Work: When the Rubber Hits the Road. Part 2 is scheduled for April 30, 2020 at 12:30 PM ET, click here to register.


Continue Reading COVID-19 and Returning to Work: For Employers, It’s Not Too Soon to Plan a Comeback

Last week, the US Supreme Court made it easier for a federal worker to establish a claim for age bias.

This decision does not impact private employers, because it relied on the specific language of the federal sector section of the Age Discrimination in Employment Act (ADEA). But could this signal a possible future loosening of the burden of proof for other plaintiffs? We will have to wait and see.

SCOTUS held that federal employees can establish age discrimination under the federal sector section of the ADEA, merely by proving that age bias “taints the employer’s decision-making process.” Babb v. Wilkie, Secretary of Veteran Affairs, No. 18-882. This is weaker than the “but-for” standard of causation applicable to age discrimination claims under Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). In other words, the fact that the same employment decision would have been reached had age not been taken into account is not relevant for purposes of deciding a federal government employee’s age discrimination claim.


Continue Reading It is Now Easier For Federal Workers to Prove Age Bias

On the evening of Monday, March 16, the House amended the Families First Coronavirus Response Act (“FFCRA”) (HR 6201) by amending the bill with what are being called “technical corrections.”

The previous bill, passed by the House on March 14, contained two main centerpieces: (1) new paid Family and Medical Leave to deal with the

JOIN US: Tuesday, March 17, 2020 at 12:30 PM EST

Employers are in uncharted territory with the COVID-19 pandemic, which has created complicated employment issues that continue to evolve by the hour. Join Kelley Drye’s Labor and Employment co-chairs Barbara Hoey and Mark Konkel and senior associate Diana Hamar as they share practical advice for

As federal, state and local governments continue to develop their responses to the COVID-19 outbreak, employers may find themselves in uncharted territory as to how to deal with emerging employee issues.

There are three overriding rules that all employers should remember:

  1. Think safety first. Keeping those employees who are infected or at risk of infection at home to ensure that the rest of the workforce is safe should be the number one priority.
  2. Think about how you can keep your business going.  Make sure your work-from-home policies and technology are up to date, and remind employees how to use them.
  3. Avoid stereotypes. Do not allow employees to assume that people of certain ethnicities are at a higher risk than others. If you become aware of any discrimination or harassment—stop it immediately.

Below are some general answers to questions our clients have been asking.  However, please be aware that this is a very fact-specific and complex topic; COVID-19 related employment issues are evolving by the hour. Employers are cautioned to stay abreast of federal, state, and local government advisories, and to consult legal counsel before making employment decisions or changing policy.


Continue Reading Managing Your Workforce During COVID-19

With the arrival of 2019 novel coronavirus (“COVID-19”) to the United States, employers should begin thinking about strategies to mitigate business interruptions, ensure employee safety, and avoid unnecessary litigation.

Know Your Resources

Employers should continue to monitor reliable guidance provided by the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies. Understanding how COVID-19 is transmitted and what steps can be taken to protect diagnosed or exposed employees is essential to dispelling employee fears. Employers can educate employees on prevention and symptoms and should be prepared to answer employee concerns regarding workplace safety. The following are guides which may be helpful to employers:


Continue Reading Employer Survival Kit: Coronavirus Edition

As we close the books on 2019, and enter the new decade, New York employers should keep a list of all new legislation handy. Below is our brief summary of legislation effective 2020.

New York State Human Rights Law (NYSHRL)

In August 2019, Governor Cuomo signed groundbreaking legislation amending the NYSHRL, which we covered.  Several pieces of the law will become effective in the upcoming months, including the following:

  • January 1, 2020: Settlement agreements cannot bar individuals from speaking to an attorney, the New York State Division of Human Rights, the EEOC, local human rights commissions, or any other form of law enforcement.
  • February 8, 2020: NYSHRL will be applicable to employers of all sizes who do business in the state.
  • August 12, 2020: Statute of limitations for filing sexual harassment claims with the State Division of Human rights will be expanded from one to three years.


Continue Reading New York: 2020—New Decade, New Laws

What’s happening at McDonald’s should serve as an important lesson for many employers.  In the past two weeks, it was reported that its CEO resigned or was terminated (depending on what news outlet you read) because he exercised “poor judgment” by having an affair with a subordinate.  McDonald’s is facing a brave new world without its CEO with the added expense and distraction of defending new and outstanding sexual harassment lawsuits. What lessons can be learned?

In my management training I have been very direct with executives – do not date people in your division or line of report.  Full stop.  I now have many clients who – like McDonald’s – have enacted polices that prohibit workplace romances.

Why are these policies good and why should you consider one?  Several reasons: workplace romance is often a distraction to the business; it takes up time; it causes resentment and jealousy, and it is simply bad for business.


Continue Reading It Starts at the Top

A Los Angeles jury awarded a black former UCLA phlebotomist nearly $1.6 million in damages for being subjected to racial harassment by co-workers. Birden v. The Regents of the University of California, No. BC6681389 (Los Angeles Superior Court May 30, 2017).

Birden, who worked at UCLA as a per diem phlebotomist for approximately one year, alleged that she was subjected to racial slurs and disparaging remarks by Latino co-workers who referred to her as “lazy,” a “dark woman,” and used the “N” word in her presence. Birden claims that she reported the harassment to her supervisors but the school did not take action.

In his opening statement at trial, the attorney for the UC Board of Regents described one of Birden’s co-workers as a “good guy,” claimed “[h]e wasn’t doing it to try to offend somebody” with the use of the “N” word and argued that Birden was fired because of a clear pattern of performance issues. Birden’s counsel argued that Birden had no disciplinary history and offered testimony of Birden’s strong work ethic.

Ultimately, the jury agreed that Birden was subjected to severe and pervasive harassment by her co-workers due to her race and awarded Birden (1) $500,000 for past emotional distress and mental harm, (2) $800,000 for future emotional distress and mental harm, (3) more than $190,000 for past economic loss and (4) more than $86,000 for future economic loss. However, the jury did reject Birden’s claim that she was terminated because of her race.


Continue Reading Employers’ Non-Action Resulted in $1.6 Million Awarded in Harassment Claim

Governor Cuomo signed the groundbreaking harassment legislation that we previously covered here on August 12, 2019. The law profoundly alters the landscape of harassment claims in New York and how employers should be prepared to handle them. Key provisions include eliminating the “severe or pervasive” standard for discriminatory and retaliatory harassment cases, prohibiting mandatory arbitration for all discrimination claims (not just sexual harassment), and banning non-disclosure agreements for all discrimination claims.

Continue Reading BREAKING NEWS: Governor Cuomo Signs Off On Groundbreaking Harassment Legislation