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Top Posts of 2017

Top Posts of 2017

As the year comes to a close, I thought I would review the New York Management Law Blog’s top posts of 2017.

These posts reflect some topics that most interested New York employers in 2017. Do they also suggest what will be top of mind in 2018?

New York Minimum Wage Increases on 12/31/17

This post reminded New York employers of the scheduled increases to both minimum wage and the salary threshold for overtime exemptions under state law.

If you haven’t already checked whether your company is paying enough, act fast! If you’re reading this, new requirements are already in place.

For those looking ahead, this post contains full charts of all scheduled increases to New York minimum wage and overtime exemption salary requirements. This includes increases taking effect on December 31st of 2018, 2019, 2020, and beyond.

New York Paid Family Leave

The New York Paid Family Leave Program kicks off on January 1, 2018. Companies throughout the state have spent much of 2017 preparing for this significant change in New York employment law. As a result, 3 of our 10 top posts of 2017 addressed this topic.

New York Paid Family Leave Notice Requirements

If you still haven’t determined what the employer and employee notice requirements are, then don’t wait any longer.

There are several things all covered employers must do beginning January 1, 2018, including:

  • Post a Notice Confirming Coverage
  • Provide Written Guidance to Employees
  • Provide a Notice of Rights When Employees Request Leave

If you still have questions about the New York Paid Family Leave Program, check out these two top posts that include replays of webinars I presented on the topic:

In Case You Missed It: New York Paid Family Leave Webinar 9-12-17

I presented this webinar in September. It addresses many of the paid family leave basics. If you still don’t know whether your organization is covered or what it means if you are, start here.

Are You Ready for New York Paid Family Leave? (Webinar)

This more recent webinar gets into some of the latest details about what employers need to know to comply with the New York Paid Family Leave Benefits Law.

This webinar will help you get your written policy in place and prepare you for administering paid family leave in 2018.

Who Will Get the Last Seat on the NLRB?

In his first year in office, President Trump appointed two new members to the National Labor Relations Board: Marvin Kaplan and William Emanuel. Both are Republicans, which temporarily gave the 5-member Board a 3-2 Republican majority. Chaired by Philip Miscimarra (R), the NLRB reversed several key Obama-era precedents in December.

However, Chairman Miscimarra’s term ended on December 16, 2017, creating a new vacancy. President Trump named Kaplan the new Chairman, but has not yet formally nominated a new member to fill the Board.

Two names surfaced over the past several months as potential Miscimarra replacements. Our top posts of 2017 featured both of these individuals:

Report: Attorney John Ring May Replace Miscimarra on NLRB

Mike Stoker for NLRB?

Although Trump has not made his selection official, it now appears that Ring will be the pick in early 2018. A Republican management-side labor and employment lawyer, Ring will likely join Chairman Kaplan and Member Emanuel in continuing to move away from the Obama NLRB’s pro-union decisions.

5 Best Reasons for Anti-Harassment Training

2017 brought to light an extensive pattern of sexual harassment and assault by powerful men in the entertainment industry. This placed a spotlight on employers’ duties to prevent and remedy harassment in the workplace.

If your organization is still not sure where to start, this top post of 2017 is for you.

What Employers Didn’t Know About Existing New York Labor Laws

The 3 remaining top posts of 2017 shed light on several legal issues that were not new this year. This follows the blog’s purpose of providing useful information even about topics that are not being discussed elsewhere. Posts like these are another reason you should sign up for my email newsletter so you don’t miss out on critical guidance that you didn’t even know you needed!

New York Law Protects Employees’ Off-Duty Conduct

Are you familiar with Section 201-d of the New York Labor Law? Well, for starters, it applies to all New York employers. Click above to find out more!

New York’s Shared Work Program Provides a Layoff Alternative

Many employers were interested in this post about a little-known aspect of New York’s unemployment insurance benefits program. Sometimes companies can reduce their employees’ hours while offsetting the lost wages with partial unemployment benefits. This arrangement can help employers who would otherwise have to lay off employees during slow periods and risk losing them to other jobs before business picks up.

Disciplining Public Employees in New York Under Civil Service Law Section 75

This was a top post of 2017 among public employers. This includes governmental entities such as counties, municipalities, school districts, and state agencies. If you work in one of these organizations and have a role in employee discipline, you may need to understand how Section 75 of the New York Civil Service Law works. Or, at least, you must make sure it doesn’t apply, then determine what other due process requirements you have to comply with instead.

Don’t Stop at the Top Posts of 2017!

I hope you find it helpful to look back at what happened last year, but you should also look forward. Please continue to follow the New York Management Law Blog in 2018.

The best way (in my opinion) to stay informed of the hottest topics in New York labor and employment law is to subscribe to my monthly email newsletter. It not only recaps my recent blog posts, but also announces upcoming complimentary webinars that help you manage the people in your organization.

See you in 2018!

 

Anti-Harassment Training

5 Best Reasons for Anti-Harassment Training

The media is full of devastating reports of sexual harassment these days. This is the time for us all to figure out how to put an end to it, along with all other forms of harassment. This is especially critical to employers. Not just because harassment is wrong and bad for business. But also because of their legal obligations under employment discrimination laws. Anti-harassment training is a key component of avoiding liability in this area.

Yes, training employees involves costs. You not only have to pay someone to conduct the training, but you also must invest the time of your employees to participate. But, even though most employers are not strictly required to provide anti-harassment training, it’s really too costly not to.

Still not convinced? Here are the 5 Best Reasons for providing Anti-Harassment Training in your workplace:

1. The Law Requires It (Where Applicable)

A few states require employers to provide sexual harassment training.

In California and Connecticut, employers with 50+ employees must provide 2 hours of sexual harassment prevention training to all supervisors in the state.  Covered employers must provide the training within 6 months of hire or promotion. California also requires retraining of these employees at least every 2 years.

Maine requires employers with 15+ employees to conduct an sexual harassment education and training program for all new employees in their first year of employment. More in-depth training is required for management and supervisory employees.

Several other states require training for certain employees, most typically those employed by the state itself. Most states, however, do not affirmatively require employers to conduct anti-harassment training.

The few laws that require training are limited to sexual harassment. However, I think it is very important not to limit anti-harassment training to harassment based on sex. This approach disproportionately victimizes women. A discussion of various protected characteristics brings everyone into the mix as a potential victim and harasser–obviously with the goal of having everyone be neither!

2. It Creates a Defense to Employee Claims

Even employers who are not in states that require them to provide anti-harassment training have good law-based reasons for doing so. Under most state and federal employment discrimination laws, the courts recognize a possible defense for employers who have taken reasonable efforts to prevent harassment. This is commonly known as the Faragher/Ellerth defense, based on the names of two U.S. Supreme Court cases.

This defense doesn’t help where the alleged harassment resulted in a “tangible employment action,” which could include reduction in pay, denial of promotion, or termination, for example.

In other cases, the employer the Faragher/Ellerth defense may apply if the employer can show that:

(a) The employer exercised reasonable care to prevent and promptly correct any harassing behavior; and

(b) The employee unreasonably failed to take advantage of any preventive or corrective opportunities by the employer or otherwise unreasonably failed to avoid harm.

As a practical matter, establishing this defense requires the employer to at least have an anti-harassment policy and an effective complaint procedure. Okay, so where does the training come in?

If nothing else, anti-harassment training goes a long way in helping an employer establish that employees knew about the anti-harassment policy and how to file a complaint! Ideally, the training will also encourage employees to report relatively minor incidents earlier so they don’t escalate into more serious situations. The employer’s prompt response in such cases can further prove the effectiveness its policy and procedures.

Click for more on Responding to Employment Discrimination Complaints.

3. Good Employees Will Behave Better

No one is arguing that if every employer provided anti-harassment training it would stop workplace harassment entirely. There’s not even good data that it will meaningfully deter the people most likely to engage in unlawful harassment. But let’s look at what it does do.

Think about your model employee, at least from a behavior standpoint. This may be the person most likely to change behavior following anti-harassment training. He or she hardly ever makes inappropriate comments to co-workers in the first place. But that doesn’t mean they are perfect and always avoid making others uncomfortable. Good training will demonstrate subtle ways they may occasionally offend others. Well-behaved employees will readily pick up on these examples and conform their behavior. They’ll become even more pleasant to work with and less likely to offend other employees.

Perhaps even more important, training can empower these good employees to recognize when others cross the line. Ideally, it will give them the knowledge and encouragement to speak up, either directly to the harasser or to human resources, etc. Or at least it will show them the value of speaking to those who suffer harassment from others to offer support.

4. Bad Employees Will Be Stopped

It would be nice to think that good training will deter employees from engaging in harassment. But the employees most likely to offend others may also be those least likely to accept readily that they’re doing anything wrong.

The good news is that because you hopefully have many more “good employees” than “bad” ones, the training can still reduce incidents of harassment. Training can show employees how to stand up for themselves and others. This can help end harassment as soon as it start. Or, if harassment persists, the victims and their co-workers will know how to report it. Then its just up to the organization to investigate appropriately and take the right action to correct the situation.

Related: What does it mean to have a “Zero-Tolerance” Anti-Harassment Policy?

5. It Sends the Right Message

Admittedly, most employees don’t look forward to attending anti-harassment training. But they can’t deny that workplace harassment is a very serious matter. And many, especially those who have felt victimized by harassment, will appreciate their employer’s efforts to address the subject.

Put differently, what does it say if you don’t provide anti-harassment training? At best, it suggests you accept harassment as inevitable and unavoidable. At worse, it appears your organization is indifferent to harassment. Providing the training doesn’t cost enough to justify either message.

You may also be interested in this webinar, where I discuss my Top 7 Tips for Investigating Workplace Harassment Complaints.

Workplace Harassment

What Makes Workplace Harassment Unlawful?

Investigating Workplace Harassment Complaints
Click for your FREE copy of this valuable reference guide!

Most employers do or should have zero tolerance policies regarding workplace harassment. These policies don’t exist just for legal reasons. Harassment is bad in itself, plus it interferes with productivity. But not all harassing behavior violates employment discrimination laws.

First, let’s define harassment. Then, we’ll discuss when harassment becomes legally actionable.

[Click here to get my FREE step-by-step Guide to Investigating Workplace Harassment Complaints!]

What Is Harassment?

Under state and federal employment discrimination laws, harassment is unwelcome conduct based on a protected category.

These laws collectively protect many characteristics.

At the federal level: Title VII protects race, color, sex, religion, and national origin. The Americans with Disabilities Act protects qualified individuals with disabilities. The Age Discrimination in Employment Act protects age, for workers 40 or older. The Genetic Information Nondiscrimination Act protects genetic information, which includes a broad range of information about family medical history.

State laws often protect these same categories, plus others. Some states protect sexual orientation, marital status, familial status, etc. Michigan law even protects workers from harassment because of height and weight.

These laws also usually protect against harassment based on an individual having complained of discrimination. In other words, they prohibit retaliation.

However, one or two isolated comments, even if unwelcome, may not violate these laws.

Unlawful Workplace Harassment

Harassment becomes unlawful where:

  1. enduring the offensive conduct becomes a condition of continued employment, or
  2. the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

The “reasonable person” standard means that it’s not enough that the specific employee involved feels this way. If most similarly situated people would not be offended, then the conduct wouldn’t rise to the level of being unlawful. Again, that doesn’t mean it is acceptable in the workplace.

Forms of Harassment

Harassment can come in numerous forms, including:

  • offensive jokes,
  • slurs,
  • epithets or name calling,
  • physical assaults or threats,
  • intimidation, ridicule or mockery,
  • insults or put-downs,
  • offensive objects or pictures, and
  • interference with work performance.

Note that the anti-discrimination laws protect employees from workplace harassment not only by co-workers and supervisors, but also by third parties. Thus, employers must prevent and remedy inappropriate conduct by vendors, customers, visitors, contractors, etc., against their employees. If employers permit harassment by outsiders to persist to the point of unlawful harassment, then the employer may be legally responsible.

How To Avoid Unlawful Harassment?

The best way to avoid unlawful harassment is to prevent harassment altogether. This is why employers should have anti-harassment policies that go beyond just what the law prohibits. It’s not a good idea to permit behavior that even comes close to the line.

In addition to a well-written and carefully followed policy, employers should also train employees about harassment. Many employers include anti-harassment training in their on-boarding process. But it is a good idea to also provide periodic group training to all employees. Several states require private employers to do so.

Finally, employers must respond promptly to all complaints of workplace harassment. Investigating thoroughly and taking appropriate action will hopefully avoid escalation. If not, the employer’s good faith attempt to keep the workplace free of harassment may still help avoid liability.

For more, read: Responding to Employment Discrimination Complaints and download my Guide to Investigating Workplace Harassment Complaints.