Category: Discrimination

August 27, 2018

First Look: NYS Model Sexual Harassment Policy & Training

In April 2018, New York State law was amended to require all employers to maintain a written sexual harassment policy and provide annual sexual harassment training for all employees. The law required the New York State Department of Labor to formulate model policies and training programs. On August 27, 2018, initial versions of these documents appeared online.

The State’s website on “Combating Sexual Harassment in the Workplace” notes that “the sexual harassment policy and complaint form are draft documents”. It encourages interested parties to submit comments by September 12, 2018.

[Click here to read an earlier summary of the new sexual harassment laws themselves.]

Model Sexual Harassment Policy

Many New York employers already have written anti-harassment policies. These policies may prohibit many forms of workplace harassment, of which sexual harassment is just one. However, the New York law only requires a sexual harassment policy. And the State’s draft model policy only addresses sexual harassment. Thus, it remains unclear whether employers can satisfy the law through an omnibus anti-harassment policy or must have a standalone sexual harassment policy. For now, compliance caution favors the latter approach.

The State’s model policy is seven full pages long, single-spaced. It includes these primary sections:

Introduction
What Is “Sexual Harassment”?
What is “Retaliation”?
Supervisory Responsibilities
Complaint And Investigation Of Sexual Harassment
Legal Protections And External Remedies

Most of these sections have sub-headings. These include “Examples of sexual harassment,” “Where can sexual harassment occur?” and “Contact the Local Police Department.”

That last section is one to note. It reads, in full: “If the harassment involves physical touching, coerced physical confinement or coerced sex acts, the conduct may constitute a crime. Contact the local police department.” This wording does not clarify who should contact the police. Does it pertain to management receiving complaints or just employees subjected to such conduct?

The model policy goes into other areas not normally included in traditional anti-harassment policies. For example, it gets fairly detailed in describing the steps management will take in investigating complaints of sexual harassment. The steps are generally absolute and don’t allow for much investigatory judgment. On the other hand, it is not comprehensive in explaining all aspects of an effective workplace investigation.

The NYS model sexual harassment policy is available here.

“Zero Tolerance” Policy

The New York draft model sexual harassment policy states at the outset that it is a “zero tolerance” policy “for any form of sexual harassment.” It later references a “zero tolerance” policy for retaliation against anyone “who, in good faith complains or provides information about suspected sexual harassment.” However, the policy does not carefully explain what “zero tolerance” means.

As I’ve discussed before, “zero tolerance” policies are a good idea if properly understood only to mean that the employer does not tolerate harassment. However, many misperceive the term to indicate that any form of harassment will lead to termination of employment. That philosophy often proves untenable.

On the whole, the model policy clearly intends that termination is not the only possible outcome for prohibited sexual harassment or retaliation. But it can also be read as strongly favoring severe penalties for even comparatively minor violations. “Sexual harassment” under the law and this policy is not always physical or even “sexual” per se. As the model policy acknowledges, it includes unwelcome conduct “which is directed at an individual because of that individual’s sex.” This can include comments or jokes unrelated to sexual intentions or motivations. Although still wrong, such actions will not always warrant job loss.

Not Limited to the Workplace

The draft model sexual harassment policy properly advises that harassment can occur even outside the workplace. It contains the following provision to this point:

“Unlawful sexual harassment is not limited to the physical workplace itself. It can occur while employees are traveling for business or at employer-sponsored events or parties. Calls, texts, emails, and social media usage by employees can constitute unlawful workplace harassment, even if they occur away from the workplace premises or not during work hours.”

Sexual Harassment Complaint Form

As the new State law requires, the model policy references a written complaint form. The State has issued a draft complaint form as well. The policy encourages, but does not require, the complaining employee to use this form.

The form itself asks basic identification information about the complaining employee, their immediate supervisor, and the alleged harasser. It then asks questions about the nature of the sexual harassment and the identity of witnesses.

The remaining questions are more surprising. One question asks whether the employee has “previously complained or provided information (verbal or written) about sexual harassment” at the employer. This questions (and a follow-up) may be seeking to determine whether the employee has raised concerns about the same harasser in the past (and to whom), but as phrased, is broader and arguably appears to ask whether the person is a frequent complainant.

The form then advises the employee that they may be able to file claims with government agencies or in the courts. Moreover, it specifically asks the employee whether they have filed a claim with an agency or in court and whether they have hired an attorney. I’m not sure that most employers would feel comfortable asking these questions so directly on their own or whether employees would expect to have to answer them.

The third page of the model complaint form provides “Instructions for Employers.” These “instructions” are brief and essentially remind the employer to investigate.

You can access the draft model complaint form here.

Minimum Standards for Sexual Harassment Prevention Policies

The State has also provided a one-page document that acknowledges that employers don’t have to adopt the model policy.

Instead, an employer could implement an alternative policy that exceeds these minimum standards:

prohibits sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
provides examples of prohibited conduct that would constitute unlawful sexual harassment;
includes information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
includes a complaint form;
includes a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
informs employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
clearly states that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
clearly states that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

Many employers will likely adopt the State’s model policy as a path of least resistance. However, some employers will prefer to craft their own language to better fit their organizations (and avoid some of the questionable contents of the model policy, at least as contained in the draft version).

This minimum standards guidance document also asserts that “Employers should provide employees with the policy in the language that is spoken by their employees.” The scope of this requirement is unclear.

Model Sexual Harassment Prevention Training

New York State has issued a 24-page Model Sexual Harassment Prevention Training manual (labeled the “July 2018 Edition”). It is not clear whether the State is seeking comments on this document or may revise it before October 9th.

The training documentation reiterates the law’s requirement that the training must be “interactive.” The State clarifies that this requires “some level of participation by those being trained.”

To this end, the model training manual advises:

The training should include as many of the following elements as possible:

Be web-based, with questions asked of employees as part of the program
Accommodate questions asked by employees
Include a live trainer made available during the session to answer questions
Require feedback from employees about the training and the materials

There is some ambiguity in whether the State prefers sexual harassment training to be both “web-based” and facilitated by a live trainer.

The training manual references model materials that include a script, PowerPoint, video, and FAQs.

Click here for the model training package. And here for the draft PowerPoint presentation.

Training FAQs

The law requires annual interactive sexual harassment training. The training materials focus solely on sexual harassment. Thus, it’s still unclear whether or to what extent training must separate out sexual harassment from other forms of prohibited workplace harassment. However, the State’s Combating Sexual Harassment website does answer some questions employers have been asking.

Some of the State’s questions followed by my paraphrasing of its answers:

By what date do all of my employees need to be trained? January 1, 2019
How often must employees receive sexual harassment training? After 1/1/19 may be based on calendar year, employee anniversary “or any other date the employer chooses”!
What about new employees or those who start after January 1? Must complete sexual harassment training within 30 days of start date.
What happens if some employees fail to take the training despite an employer’s best efforts to make it available, and to require everyone to take it? Every employee must receive annual training. If you can’t get them to participate, you may have to fire them to stay compliant.

What Should New York Employers Do Now?

If you have any employees in New York, then:

You must have a compliant written policy in place by October 9, 2018; and
You must provide compliant sexual harassment training to all employees by January 1, 2019.

But, I wouldn’t rush to put the State’s model sexual harassment policy into place yet. Expect that employers, unions, employees, business groups, attorneys, and various other parties will submit numerous comments and critiques by September 12, 2018. Even if the State would like to simply finalize its current draft, that outcome is unlikely. Some revisions will occur.

Depending on what the final model policy looks like, employers may be better off to implement an alternative, though legally sufficient, policy. Employers should, however, confer with experienced employment counsel before taking that approach.

I also would not rush to provide sexual harassment training immediately. There may also be further guidance or at least model materials available before January 1st (and hopefully before October 9th). Regardless, employers have tough decisions to make about the best approach to training, keeping in mind that it will be an annual responsibility (and an ongoing one for new hires).

Stay tuned for more analysis of any new guidance on New York’s sexual harassment policy and training policies. To receive updates through our email newsletter, sign up here.

August 23, 2018

Your Employee Has a Side Hustle

Browse the internet these days, and you can find many articles extolling the virtues of allowing employees to have a side hustle. Ask many established employers, however, and the response will often be less enthusiastic. Some will ask, “a what?” Others will instinctively respond, “Bad for my business.” As an employment lawyer, it’s not my job to weigh in on either side of this debate. But I will take on the task of describing some potential legal implications and considerations that arise when employees have outside business interests.

What Is a Side Hustle?

Many companies still have “no moonlighting” policies. These forbid employees from working outside of their “day job.” However, the prevalence and ease of having a second income stream might be at all-time highs.

“Side hustle” itself isn’t a new term. Merriam-Webster reports that it entered our vocabulary in the 1950s, and generally refers to “work performed for income supplementary to one’s primary job.”

Modern and emerging usage focuses more specifically on the nature of the supplementary work. One recent description explains:

“A side hustle is not the same as a part-time job. While a part-time job still entails someone else (your employer) calling most of the shots (including hours worked and what you’ll be paid), a side hustle gives you the freedom to decide how much you want to work and earn.”

Employee Policies

Let’s move back to where the employer does call the shots. You have a business to run and need employees to operate it. While they’re working for your company, you have to exercise reasonable control over your workers. You are, after all, responsible for what they do on the job. This includes both the outcome of their work (productivity, customer satisfaction, etc.) and legal liability (harassment, personal injury, etc.).

Most companies with more than a few employees have an employee handbook of some kind. This manual contains a number of policies about what employees can and can’t do. Let’s take a closer look at some of these policy areas that relate to your employee’s side hustle.

Moonlighting

Moonlighting has typically meant having a second job outside of work. This more often meant working for a second employer. But, as mentioned, is now increasingly likely also to encompass an employee’s self-employed side hustle.

Not all of these policies are absolute. Some are limited to competitors, customers, or other restrictions related to a potential conflict of interests. Employers should revisit their moonlighting policies in consideration of the side hustle proliferation.

Conflicts of Interest

With or without specific moonlighting policies, many employers have a conflicts-of-interest policy. These policies might encompass, but often exceed, references to outside jobs. They might, accordingly, be both more and less likely to cover concerns related to employee side hustles. While unlikely to use the term, these policies are broader in scope of activity and thus not limited to outside “jobs.” At the same time, they usually don’t address outside activities that don’t relate to the company’s business.

Confidentiality

Most handbooks contain policies that prohibit employees from disclosing confidential company information or using it for personal gain. These policies should limit how employees use proprietary data, often including customer information, in their side hustle. But few of these policies were written with the current landscape of outside employee business interests in mind. So, again, now would be a good time to review your policies with modern realities in mind.

Vacation and Other Leaves

Many employers, of course, provide employees with vacation, sick leave, personal leave, or other forms of paid-time-off (PTO). Employee handbooks often address the conditions for these leaves. Sometimes these policies preclude the use of PTO for outside work or other business pursuits. But many policies are silent in that area. If your employees do have side hustles, they might decide to use vacation time to work on their personal venture. Or, in any event, they probably will not entirely abstain from working their side hustle while on vacation. Consider how those scenarios impact your business and make policy revisions, if necessary.

Computer Use & BYOD

Do your employees use computers in their jobs? Do they have smartphones (personal or company-owned) in hand during their workday? Employers usually address related issues in their handbooks or policy manuals. Some of these policies permit incidental personal use. Few specifically address an employee’s side hustle. If there is language regarding outside business ventures during work time, does the company monitor or enforce those restrictions? Striking the right balance for your workforce is important.

Bring on Employment Laws

In addition to the company’s policies, employers also must stay within the boundaries of numerous labor and employment laws. I don’t think I’m going too far out on a limb in suggesting that most of these laws came into being without specific consideration of the modern side hustle. Many of them pre-date the internet, which is the platform for much of the side hustle realm. And even newer employment laws tackle a specific concern without fully considering the workplace and societal implications.

Here are just a few examples of federal employment laws that could cause headaches when balancing employer and employee interests regarding outside business interests.

FMLA and ADA

The Family and Medical Leave Act (FMLA), directly, and Americans with Disabilities Act (Act), indirectly, give many employees the right to take time off from work for medical and certain other situations. These laws do not specifically address the extent to which employees may engage in outside employment or business activities while on protected leave. Although courts have weighed in on a case-by-case basis, employers still face a gray area when employees on leave continue to pursue their side hustles.

It is one thing for an employee on FMLA leave to spend full days running a company store. Then their employer (from whom they’re taking leave) might have the right to terminate them for FMLA abuse.

But what if an employee recovering from surgery continues to post on a personal (for-profit) blog and manage related social media accounts? Do they lose their leave protection?

Harassment

Federal laws prohibiting harassment of employees include Title VII of the Civil Rights Act of 1964 (race, color, sex, religion, and national origin), the ADA (disability), the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA). Under these laws, employers must avoid a hostile work environment based on protected characteristics. This obligation does not conveniently cease once an employee steps outside the employer’s facility.

There have been many cases where employees complain of harassment because co-workers treated them inappropriately outside of work. Whether this conduct creates legal liability for the employer depends on the circumstances. But it is at least possible that an individual could create a hostile work environment for co-workers through their side hustle.

For example, despite the platforms’ user guidelines, YouTube or Instagram accounts are not always workplace friendly. People might resort to more colorful language or less conservative clothing through these channels. They might generally relax their inhibitions from what they demonstrate in their office or factory job. And co-workers might find their conduct offensive along various lines. This could affect their ability to work side-by-side Monday through Friday. Even where not raising a legal concern, productivity could suffer.

Minimum Wage and Overtime

What happens when an employee’s side hustle supports their employer’s business? At some point, it could become difficult to draw the line between the employment relationship and the outside activity. This might raise questions of whether the employer must compensate employees for time worked on their “personal” ventures.

Suppose you own a boutique clothing store and your employee has a popular fashion vlog. These could be entirely separate businesses. But if your employee repeatedly references your store (presumably in a positive way) and starts driving customers to the store, is the employee working for you while vlogging? The devil is probably in the details here. But it’s a question worth asking. Otherwise, you might run afoul of minimum wage or overtime requirements under the Fair Labor Standards Act. Or, at least, you might not be keeping adequate records of the employee’s time worked (by not counting time spent vlogging about your store).

Here’s another example. Your employee does landscaping jobs after work and on the weekends. He’s employed by your company as a facilities manager. If you pay him to mow the grass around the company offices, does that time count toward overtime? It might, depending on the nature and extent of his landscaping “business” and the scope of his normal job tasks. And it might be an open question even if the employee’s job position is entirely unrelated to any physical labor.

Plan Ahead

The side hustle is a real phenomenon that is not likely to go away soon. Employees of all ages are looking for supplemental income outside of their traditional jobs. Employers should review their policies and evaluate whether the boundaries they impose go too far or not far enough in guiding employees with outside business interests. A proper balance for your workplace might not only serve as a competitive advantage, but could also help you avoid legal compliance problems down the road.

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August 16, 2018

Preventing Federal Retaliation Claims

According to EEOC statistics, retaliation is the most common basis for discrimination or harassment claims against employers. Retaliation occurs when an employer takes an adverse employment action against an employee for filing a complaint or otherwise participating in protected activity. Adverse actions include firing, giving undesirable assignments, and harassment. A retaliation claim can be asserted even if the original discrimination or harassment claim turns out to be unfounded, so long as the claim was made in good faith.

In addition to preventing lawsuits, employers should avoid retaliation because of its harmful effects on the workplace. Employees often do not report perceived harassment or discrimination because they fear reprisals from supervisors or other employees. If employees don’t report and potential issues remain unresolved, it can harm productivity and produce higher turnover. If employees see that their employer does not tolerate retaliation, they are more likely to report concerns.

Retaliation claims can arise in many contexts:

Title VII

Under Title VII of the Civil Rights Act of 1964, covered employers may not discriminate against employees on the basis of race, color, religion, sex, or national origin or by their association with others who are of a particular race, color, religion, sex, or national origin. Therefore, if an employee files a discrimination claim, employers should ensure that they suffer no adverse employment action because of the filing.

Disability Accommodation

Under the Americans with Disabilities Act, “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” This means employers cannot retaliate against employees for requesting reasonable accommodations, such as a disabled cashier asking if he can sit on a stool while working.

Sexual Harassment Investigation

Sexual harassment cases are ripe for potential retaliation because the alleged harasser is often higher in the chain of command than the alleged victim. Employers should ensure that employees who feel they are being harassed have multiple avenues of reporting their concerns to management.

Retaliation for Contesting Terms of Employment

Many other federal laws and agencies afford employees protection against retaliation.

Under the National Labor Relations Act, it is illegal for employers to retaliate against employees for filing charges with the NLRB or participating in that agency’s investigations or proceedings.

The U.S. Department of Labor’s Wage and Hour Division enforces the Fair Labor Standards Act. This law requires employers to pay minimum wage and overtime. It also prohibits retaliation against employees’ efforts to assert their rights under the FLSA.

The Occupational Safety and Health Administration (OSHA) enforces various “whistleblower” provisions. These include protections from retaliation for employees raising workplace safety or health concerns.

What Constitutes Retaliation?

U.S. Supreme Court cases have clarified what the scope of adverse employment actions can constitute retaliation if they are in reaction to protected activity. This includes retaliation for oral or written complaints. The standard is whether the employer’s response would deter a reasonable employee from engaging in protected activity. Examples include:

● Strongly opposing a promotion or denying a raise
● Denying training or mentorship opportunities
● Poor performance reviews
● Exclusion from meetings or projects
● Changing shifts or work assignments

Claims of retaliation can arise even after the employment relationship has ended. Negative job references can constitute retaliation if an employer gives them because the former employee made a complaint. Refusing to provide a reference can also be retaliation, as can informing a potential future employer of protected activity. For example, the Supreme Court found retaliation for requesting disability leave when an employer described a former employee’s leave for “medical issues” in a job reference.

Retaliatory references are unlawful regardless of whether they affect the potential employer’s decision. However, whether the employee obtains the job may reduce the monetary relief available to the employee. To reduce the risk of liability, many employers adopt a neutral reference policy. By policy, these employers only give the dates of employment and final job title. Employers with these policies must apply them consistently and equally.

Zone of Interests

Adverse employment actions can be unlawful even if they are not directed against the employee who claims retaliation. The Supreme Court looks at whether the employer’s retaliatory conduct affects the employee’s “zone of interests.”

The “zone of interests” includes family members. For instance, the Supreme Court held that an employer unlawfully retaliated by terminating the husband of an employee who filed a charge of sex discrimination. The Supreme Court has not clarified whether the “zone of interests” includes friends. But it has ruled out mere acquaintances.

Conclusion

Employers must train supervisors and managers to avoid retaliation. These employees must know that no one can retaliate throughout or after an investigation. During an investigation, employers should inform participants of the company’s retaliation policy and encourage them to report perceived retaliation. If an employee alleges retaliation, the employer should conduct another investigation into the claim.