Tag: confidentiality

New York Employment Discrimination

New York Employment Discrimination Law Now Covers Everyone

Late in the night of June 19, 2019, the New York Legislature radically expanded the state’s employment discrimination laws. The legislation amends nearly every component of the New York State Human Rights Law regarding employment discrimination. Although no additional protected characteristics were added, the changes affect which employers and workers are subject to the law, the standards for proving or disproving a claim, and the penalties available to victims. Frankly, it’s hard to imagine how they could have gone further to promote discrimination claims against employers.

Note: At the time of the initial publication of this article, Governor Cuomo had not signed the new laws into effect. However, he has expressed support for the legislation and his intent to enact it.

No Worker Left Behind

For many years, the State’s employment discrimination laws only applied to employers with at least 4 employees. In 2016, this threshold dropped to 1 employee for sexual harassment claims only. Last year, the State extended the sexual harassment protections to all workers in a workplace, not just employees. This added coverage for independent contractors, vendors, consultants, etc.

With these amendments, the New York Human Rights Law will now apply to all employers of all sizes for all employment discrimination claims. This includes not only sexual harassment, but all forms of harassment based on other protected characteristics (age, race, etc.). It also includes non-harassment claims such as those alleging wrongful termination, discriminatory hiring, and failure to promote.

More “Harassment” Is Illegal

Historically, employees needed to show that workplace harassment was “severe or pervasive” to win a harassment case. This legislation expressly eliminates that requirement.

The Human Rights Law still doesn’t exactly define the term harassment. But it now sort of describes what it is:

First, to be illegal (as always) the harassment must be based on one of the numerous protected characteristics established by the law. In addition to sexual harassment, this includes harassment because of a person’s age, race, creed, national origin, sexual orientation, among others.

Second, “harassment” now becomes illegal “when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories.” That seemingly is what employees must show to prevail on a harassment claim.

Third, the legislation states that it will not be “determinative” that the worker hadn’t previously complained about harassment.

Fourth, the amendments specifically provide that workers complaining of harassment don’t need to point to any other workers for comparison purposes to prove their claims.

Fifth, an employer can only defeat harassment claims under these amendments to New York employment discrimination law if they prove that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”

On the whole, these amendments undeniably and certainly intentionally institute monumental expansion of the State’s anti-harassment protections.

Punitive Damages Now Available

Unlike some similar federal statutes, the New York employment discrimination law previously did not allow victims to recover punitive damages. This is additional money beyond what the discrimination cost the victim. These damages serve to punish and deter employers from engaging in further discrimination.

Significantly, unlike most federal discrimination laws, the New York legislation does not place any cap on the amount of punitive damages that juries can award.

Pay the Lawyers Too

The attorneys of employees who win their cases under New York employment discrimination law will now have their fees paid by the employer.

If an employer wins, disproving the plaintiff’s case, they will only receive their attorneys’ fees if they convince the court that the claim was frivolous. Realistically, such awards are likely to be few and far between.

Barrier to Confidentiality

In case you might want to settle a New York employment discrimination case, you might not get a confidentiality provision. At least, you’ll have to jump through more hoops if you want to.

The biggest hurdle is that you must be able to demonstrate that the “condition of confidentiality is the complainant’s preference.”

The Legislature added this restriction last year for sexual harassment claims only. It now applies to all discrimination claims.

Among other details, the complainant must have 21 days to consider the written terms of any such confidentiality or non-disclosure provision. Then, if the complainant signs off, they still have another 7 days to change their mind.

No More Arbitration?

As the Legislature enacted last year specifically for sexual harassment cases, this year’s amendments prohibit mandatory arbitration provisions with respect to all forms of employment discrimination.

However, there’s still an open question whether federal law (and its broad protection of arbitration) invalidates the New York law on this issue.

And Those Sexual Harassment Policies . . .

Most of the amendments apply to all forms of employment discrimination. But the legislation also adds to the still new sexual harassment policy and training requirements.

Every employer will have to not only train employees annually, but also give all employees a copy of their sexual harassment policy at each annual training. And now employees must receive both the training and the policy in their primary language if the State has prepared a model policy and training program in the language.

Plus More Time to File Sexual Harassment Cases

Despite many measures expanding protections for all protected characteristics, sexual harassment claims will still get special treatment in one area. Workers will now have up to 3 years to file sexual harassment claims with the New York State Division of Human Rights. All other New York employment discrimination claims can only be filed with the state agency for 1 year. Regardless, all New York employment discrimination claims can be filed in court for up to 3 years.

What Should Employers Do?

Probably, move out of New York. Otherwise, prepare to redouble efforts to avoid any hint of harassment. New York employment discrimination litigation will definitely increase as a result of this legislation.

We’ll follow up with more commentary and insight on the potential impact once the Governor acts on the bill. To receive updates on this and other topics of importance to New York employers, sign up for our free email newsletter.

Employee Side Hustle

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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Telecommuting Employees

10 Telecommuting Topics for Employers

Does your company allow employees to work from home? Telecommuting can be a great fit for many workers (and their employers). But organizations should consider various implications before going in this direction.

Here, I’ll share 10 potential legal issues related to telecommuting. This isn’t meant to deter any business from using this model. It’s just designed to help you make an informed decision and take appropriate precautions.

1. Timekeeping

Most employers are required under the FLSA or state laws to keep accurate time records of their employees. This is especially true for non-exempt employees who may be eligible for overtime pay when they work over 40 hours per week (or another applicable threshold). Employers must be able to trust their employees working at home to report their time accurately and provide a mechanism for doing so.

2. Meal Periods

Some state laws, such as New York’s, impose mandatory meal period breaks during the workday. These may apply to employees working from home as well as those on the employer’s premises. If so, employers must ensure that their telecommuting employees take the required time off during the day.

3. Overtime

Many companies restrict the amount of overtime their employees work–usually as a cost-containment measure. This may be more difficult to control for telecommuting employees who are out of sight. Nonetheless, if non-exempt employees working from home exceed the applicable threshold, the employer must pay the overtime compensation.

4. Time Off

It can be a challenge to monitor and handle time off for on-site workers. This can sometimes become even more difficult when the employees don’t physically report to work. First, supervisors may not know whether an employee is actually working, so some employees may not use leave time even though they are not doing work when they normally should be. And the opposite can also raise issues. A telecommuter who takes a day off may feel compelled to perform some work while they’re supposed to be on vacation or sick leave. This may raise complications in tracking benefit time and hours worked.

5. Confidentiality

Telecommuting employees often have remote access to company information that on-site workers may not need. Or, at least, they usually have less direct supervision in their use of company data and property. Employers should consider measures to prevent employees from intentionally or accidentally taking or transferring their proprietary information to unauthorized third parties.

6. Security

Even if your employees don’t misuse company information, other nefarious third-parties may seek to do so. Remote data transfer between telecommuting employees and the company’s electronic systems may not be as secure as on-site access. This could be especially true when employees may access company information from outside their homes, such as through public Wi-Fi connections.

7. Discrimination

As with most workplace issues, consistency is important in permitting employees to telecommute. Inconsistent treatment, even if inadvertent, can give the appearance of unfair treatment. This may even give rise to discrimination claims. For example, although well-intended, a company that only allows women with young children to work from home, might be discriminating against male employees. Likewise, an organization that discourages older workers from working from home, but permits younger employees to do so (on the theory that they’re more “tech savvy”) could be engaging in age discrimination.

8. Disability Accommodations

The Americans with Disabilities Act and similar state laws require employers to make reasonable accommodations to qualified employees with disabilities. This could extend to the home workplace. Thus, under some circumstances, employers may need to modify employees’ homes to enable them to work there. At present, however, most employers would probably not be required to allow employees to work from home to accommodate a disability if they do not normally allow telecommuting. This could mean that allowing telecommuting in the first place opens employers to greater disability accommodation responsibilities.

9. Safety

Under OSHA, employers must keep their employees’ workplace reasonably safe. In addition, companies may become responsible, through their workers’ compensation insurance, for telecommuting employees’ injuries occurring in their own homes. As a result, it may be prudent (though not always practical or desirable) for an employer to inspect employees’ home workspaces.

10. Unions

Employees who work from home can still be in represented bargaining units. And unions vary in their approach to whether this is a good idea. Some unions would object to an employer allowing some employees to telecommute. Others may push for the option.

Telecommuting on the Rise

Like unions, employers have different ideas about how effective telecommuting can be. Some embrace it completely, and others reject it altogether. Others are in-between. But, whatever your take, telecommuting is increasingly popular.

A 2017 State of Telecommuting in the U.S. Employee Workforce Report indicates that 3.9 million U.S. employees work from home for at least half of their work time. This is 2.9% of the overall U.S workforce and a 115% increase since 2005.

In this digital era, many employees place tremendous value in having the flexibility to work remotely. Companies that want to attract those workers may need to modify their past approach to telecommuting. But, there remain many industries, such as manufacturing, hospitality, and construction, where much of the workforce must be physically present. Remember that the above issues also apply to traditional work arrangements as well!