Tag: harassment

November 9, 2018

EEOC Outreach and Enforcement in FY 2018

On November 9, 2018, the U.S. Equal Employment Opportunity Commission (EEOC) reported on the agency’s activities over the past year. The EEOC oversees most federal employment discrimination laws. This broader release on EEOC outreach and enforcement follows earlier reports addressing only sexual harassment. The EEOC’s fiscal year ended September 30, 2018.

EEOC Outreach Initiatives

EEOC outreach programs reached approximately 398,650 people in FY 2018. These efforts serve to provide information about employment discrimination and worker rights.

“Many people in thousands of workplaces around the country depend every day on the work of the EEOC. I am proud to say that the EEOC met the increased demand for our expertise, for information and training, and for strong enforcement to combat all forms of discrimination, including sexual harassment,” said Victoria A. Lipnic, Acting Chair.

On the subject of workplace harassment, the EEOC conducted over 300 “Respectful Workplaces” training sessions. More than 9,800 employees and supervisors participated in these trainings.

These initiatives may have contributed to increased administrative charges against employers last year. For example, the EEOC previously reported a 13.6% increase in work-related sexual harassment charges in FY 2018.

During this fiscal year, the EEOC received more than 554,000 calls and emails. This includes over 200,000 inquiries regarding possible discrimination claims. This represents a 30% increase in such inquiries, which led to 40,000 intake interviews.

EEOC Enforcement Efforts

The EEOC reports that overall for 2018 it resolved 90,558 charges and obtained $505 million for employees claiming discrimination. The majority of these funds ($354 million) came as a result of mediation, conciliation, and settlements. Only $53.5 million resulted from litigation. (The remaining $98.6 million came through special hearing and appeals procedures for federal government employees.)

Although very few EEOC charges result in litigation, the agency filed 199 lawsuits alleging employment discrimination in FY 2018.

Looking ahead, the EEOC will release its 2018 Performance and Accountability Report on November 15, 2018. It will also publish its comprehensive enforcement statistics for FY 2018 early next year.

For more on the EEOC’s FY 2018 sexual harassment statistics, click here.

For information on FY 2017 EEOC statistics, click here.

Message to Employers

The EEOC has a prominent role in enforcing several federal anti-discrimination laws. These include Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, and the Genetic Information Non-Discrimination Act.

These laws collectively prohibit discrimination in the workplace based on race, color, sex, national origin, religion, disability, age, and genetic information. Despite the EEOC’s recent emphasis on sexual harassment cases, it is not ignoring the other categories.

Employers should always remain vigilant to prevent and redress all forms of employment discrimination, including harassment and other tangible employment actions. As a first step, every business should have a comprehensive anti-harassment policy and effective complaint procedures. These measures can help prevent legal liability.

EEOC outreach on employment discrimination will continue in the next fiscal year and beyond. Thus, the FY 2018 statistics are only a reminder that the anti-discrimination laws remain in effect. They are not the end of the story.

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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 10, 2018

Transgender Employees in New York

There are an estimated 1.4 million individuals in the United States who identify as transgender. People may consider themselves transgender or gender nonconforming if their gender identity is inconsistent with the sex they were assigned at birth. Transgender individuals often go through a transition, where they adopt different pronouns, receive hormone treatments, and sometimes undergo surgery. With these diverse circumstances evolving for many Americans, you may have transgender employees in your workplace right now without even realizing it.

Many new questions are arising regarding the applicability of employment laws to transgender status. At the federal level, this issue remains very much in transition. In New York, however, the law is clearer. In 2016, the New York State Division of Human Rights issued regulations clarifying that the New York Human Rights Law protects transgender and gender non-conforming individuals in several ways.

It is essential for employers to be aware of these regulations to ensure their policies and practices are compliant.

Who Are Transgender Employees?

The New York Human Rights Law has long prohibited discrimination in employment based on a person’s sex. The 2006 regulations expressly expanded the scope of that protection by defining “sex” to include “gender identity and the status of being transgender.”

The regulations include the following definitions:

Gender Identity “means having or being perceived as having a gender identity different from the sex assigned to that individual at birth.”

Transgender describes an individual “who has a gender identity different from the sex assigned to that individual at birth.”

Gender dysphoria “is a recognized medical condition related to an individual having a gender identity different from the sex assigned at birth.”

Discrimination

The New York Human Rights Law applies to employers with at least 4 employees. Covered employers may not discriminate in regards to employment based on sex. With the expanded definitions, this means that covered employers cannot discriminate regarding gender identity or transgender status.

The Human Rights Law also prohibits disability discrimination and requires employees to make reasonable accommodations for employees with disabilities. The 2016 regulations further clarified that the term disability, as used in the law, includes gender dysphoria. Thus, employers may not discriminate against employees based on gender dysphoria. The regulations also specifically state that “[r]efusal to provide reasonable accommodation for persons with gender dysphoria or other condition meeting the definition of disability in the Human Rights Law . . . is disability discrimination.”

Harassment

The Human Rights Law also prohibits workplace harassment based on sex and disability. The regulations now establish that harassment on the basis of transgender status is unlawful. This means employers and other employees may not harass an employee based on their gender identity or transgender status. Thus, employers cannot ask about an applicant’s gender or transgender status during a job interview. And employees must respect a transgender individual’s preferred name and pronouns, as insisting on alternative names or pronouns could constitute harassment.

Notably, the Human Rights Law’s sexual harassment protections apply to all employees, even if their employer has fewer than 4 employees.

Bathroom Usage

One particular area of confusion and discomfort regarding transgender individuals is bathroom usage. Consistent with the broad protections of the Human Rights Law, New York employers generally should allow employees to access the restroom that matches their gender identity, regardless of whether it makes other employees or customers uncomfortable. Gender neutral bathrooms are an option, but employers probably may not force particular employees to use a single stall restroom if others are also available for employee use.

Illustrative School District Guidance

New York State has issued several guidance documents regarding transgender bathroom use in public schools. Although not directly applicable to employers (other than schools), the principles demonstrate the State’s general approach toward the issue. As recently as February 2018, the State Attorney General’s Office and the Commissioner of Education issued a joint reminder that school districts in New York State have an obligation to provide all students with “a safe and nondiscriminatory educational environment without regard to their gender identity.”

The State document acknowledged that federal law arguably does not impose these requirements, but emphasized that New York school districts “have independent duties to protect transgender students from discrimination and harassment in their schools and at all school functions. This includes an obligation to allow students to use bathrooms and other facilities consistent with their gender identities. Furthermore, New York’s Dignity for All Students Act prohibits discrimination and harassment, on school property or at a school event, on the basis of a student’s gender identity or expression.”

Similar juxtaposition applies in the workplace. Whereas the legalities remain uncertain at the federal level, New York law provides more direct protection to transgender applicants and employees.

Dress Codes

Legal issues involving dress codes are complex. It is often best not to set different dress standards for male and female employees without compelling business reasons. And to avoid potential discrimination claims under the Human Rights Law, employers should allow employees to dress according to their gender identity.

New York City Human Rights Law

The New York City Human Rights Law also includes broad protection for transgender workers. The New York City Commission on Human Rights has issued guidance that goes into greater detail than the state-wide regulations. In fact the guidance begins with an affirmation that the New York City Human Rights Law must be interpreted “’independently from similar or identical provisions of New York state or federal statutes,’ such that ‘similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.’”

Organizations with employees working within New York City should become familiar with the city’s additional restrictions and requirements.

Conclusion

The application of existing laws to situations involving transgender and gender nonconforming individuals is rapidly developing. Many employers who have never had to consider issues related to transgender employees will need to at some point in he future. Thus, it will be critical that employers stay up-to-date on potential changes to federal, state, and local laws.

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