Tag: sexual harassment

Love Contracts

Love Contracts Under #MeToo

Does your human resources department deal with love contracts? If you think this is a crazy question, then you probably haven’t gone down this road before. But these are real legal documents that some companies use when co-workers become involved in romantic relationships. Love contracts (or office relationship contracts) have never been overly commonplace. And the #MeToo movement and the related heightened attention on workplace sexual harassment issues, perhaps ironically, may be revealing even more reason not to use them.

What Are Love Contracts?

You might sooner think of a prenuptial agreement than the type of contract we’re talking about here. But these love contracts are designed primarily to protect employers, not the people who are, well, in love! However, the couple might receive some benefit as well–the ability to continue their relationship without forfeiting their jobs.

There is no straightforward legal definition of a “love contract.” But they usually address these items (perhaps among others):

  • Acknowledgment of a consensual romantic relationship
  • Reiteration of the company’s equal opportunity and anti-harassment policies
  • Guidelines for appropriate workplace behavior
  • Identification of the reporting relationship (if any) between the employees and any potential conflicts of interest
  • Any change in work circumstances necessary to enable the relationship to continue without impairing work performance
  • Recognition that romantic relationships don’t always work out
  • Agreement that the romantic relationship (or its dissolution) does not constitute a violation of company harassment policies

The terms of one of these contracts are usually not negotiable. The company provides the document to the employees. If they choose to sign, then they continue employment and, as they desire, their personal relationship. If either employee refuses to sign, then the company takes alternative action. This could include either re-assigning or possibly terminating one or both of the employees.

Do Love Contracts Work?

One could ask this question from many different perspectives. However, the answer would always be about the same: Maybe, in some respects, but there are no guarantees.

1. Do they encourage employees to disclose workplace romances?

Sometimes, but not always. Dating and sex are topics that most employees don’t want to talk about with HR in the first place. The prospect of possibly being asked to sign a love contract probably further diminishes the incentive to report.

Then you add in the fact that some meaningful percentage of extra-workplace relationships between co-workers are extramarital affairs. Hardly anyone will want to disclose those to their employer, much less put it in writing!

2. Do they ensure that relationships don’t cause trouble at work?

Casual dating among co-workers doesn’t have to be a big problem, and probably isn’t in many cases. The same can be true of more established relationships. But, in either situation, there’s always the reasonable possibility that at least one person will end up upset.

Keep in mind too that relationships don’t always affect just two people. Third parties can also become involved. What of the other employee who is attracted to one of the employees in a workplace relationship? People who were formally involved with one of them? Current or former spouses? For the most part, these “outsiders” won’t be part of a love contract, but could still take offense or otherwise become disgruntled about the relationships or how it carries over into the workplace.

3. Do they prevent sexual harassment claims?

Present data on that question would be hard. But love contracts likely have prevented sexual harassment claims here and there. In different instances, either because they helped employees behave appropriately regarding their relationship or simply discouraged one of the employees from making a claim in light of the existing agreement.

One could also guess that love contracts have, at times, prompted sexual harassment (or sex discrimination) claims. If nothing else, raising the legal significance of the relationship by requiring a contract could make some employees more likely to seek formal recourse when the love dies.

Legally, it is unlikely that the existence of a love contract would automatically “defeat” an employee’s sexual harassment claim. Employees can’t prospectively waive these claims as a formal matter. However, the acknowledgment of the consensual relationship could help the employer overcome some allegations (i.e., that the relationship wasn’t consensual).

As suggested above, love contracts are especially unlikely to prevent or disprove harassment or discrimination claims by employees outside of the relationship. If a co-worker claims he was passed over for a promotion that went to one of the love contract signees because that person was in a relationship with a decisionmaker (the other love contract signee), then the love contract would probably be irrelevant as to that claim.

How Does #MeToo Enter the Equation?

From a societal standpoint, it probably shouldn’t. Workplace sexual harassment has always been inappropriate, and it has been illegal for many years.

At the same time, most companies that have asked employees to sign love contracts probably had good intentions. They weren’t prioritizing hiding sexual harassment. They were trying to make sure that nothing unwelcome was occurring in the first place. HR wouldn’t (in all but the worst run organizations) put undue pressure on an employee to sign an agreement saying they were having a consensual sexual relationship if the employee didn’t believe at the time that it was consensual. If the employee instead said they felt subject to harassment, good companies would have promptly investigated the claim and taken appropriate corrective action.

The positive impact of love contracts on employees has been that they were able to continue to pursue their hearts and their careers (potentially) without interruption. Without love contracts, employers might have (lawfully) forced the employees to choose between their relationship or their jobs.

Now, of course, sexual harassment is at the forefront of media and business attention. That’s good in the sense of hopefully reducing the incidence of harassment. But it does risk increased litigation, which imposes costs on employers.

All told, anyone faced with a workplace romantic relationship these days should be on high alert. Again, no one (whose opinion matters) wants sexual harassment to occur. We don’t want employees to be disadvantaged because they didn’t accept romantic or sexual advances or because co-workers did. At the same time, few employees want to go to HR and put this target on their backs. And, frankly, probably fewer and fewer human resources department or managers want to hear about these relationships because of how complex the implications can be. Sure, they’ll try to do the right thing as problems arise, but that’s different than proactively asking people to sign legal documents related to their romantic, probably sexual, activities.

What’s the Alternative to Love Contracts?

Let’s leave open the possibility love contracts might still work well in some situations. Use them thoughtfully, on a case-by-case basis, though consistent with company policies. Get legal advice and don’t assume they’ll solve all your problems.

As an alternative, many companies have anti-fraternization policies. The limits of these policies vary. Some prohibit any dating or romantic relationships between employees. Others only restrict relationships between employees in the same departments or within the same reporting structure.

Unfortunately, these fraternization or dating policies share many of the same side-effects as love contracts. Principal among them is that they encourage employees to hide their relationships at work. On the one hand, this could be good to the extent that it prevents the relationship from directly affecting the workplace. On the other hand, it can create animosity among employees who do find out about relationships.

Again, it’s not fair to universally condemn or endorse anti-fraternization policies. What works in one workplace might not work in another. But there is one policy that is paramount for all organizations: the anti-harassment policy.

All employers should have written anti-harassment policies covering sexual harassment and all other categories protected by applicable laws (which may vary from state to state). Whatever preventative measures might be in place, employers must take all allegations of sexual harassment seriously, investigate promptly, and take appropriate action.

 

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New York GENDA

New York GENDA Amends Human Rights Law

On January 25, 2019, New York Governor Andrew Cuomo signed an amendment to State law banning employment discrimination based on gender identity or expression. This action codifies employee protections that were arguably already in place through New York Division of Human Rights regulations. The New York State Assembly had passed the Gender Expression Non-Discrimination Act (GENDA) 10 times before, but this was the first time the legislation gained Senate approval.

What Is GENDA?

GENDA amends the New York State Human Rights Law to include protections for gender identity and expression. These protections are not limited to employment, but also apply in the areas of licensing, labor organizations, training programs, public accommodations, credit, housing, and commercial real estate transactions.

The legislation also amends other State statutes, including in the areas of education and criminal law.

GENDA defines “gender identity or expression” to mean “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

For most purposes, GENDA takes effect on February 24, 2019. The amendments to the penal law will apply beginning November 1, 2019.

What Does GENDA Mean for Employers?

The amendment to the Human Rights Law won’t necessarily change anything for employers. In 2016, the Division of Human Rights, at Governor Cuomo’s direction, had already issued regulations interpreting the protected category “sex” to include discrimination on the basis of gender identity. The recent amendment essentially codifies those regulatory interpretations into the statute.

The regulations defined “sex” to include “gender identity and the status of being transgender.”

They defined “gender identity” as “having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.”

Thus, there are slight differences between the 2016 regulatory definitions and the new statutory ones. However, it’s not clear that the intended scope of the protections differs materially.

Whether under the regulations or the new statutory terms, covered employers with employees in New York cannot discriminate based on gender identity. Employers should assume broad interpretation of that term. Prohibited discrimination includes failure to hire, discipline, discharge, and other adverse employment actions based on gender identity or expression. The law also prohibits workplace harassment on this basis.

Could GENDA Reduce Workers’ Rights?

By codifying gender identity as a characteristic different than sex, GENDA raises the interesting question of whether harassment based on gender identity constitutes “sexual harassment.” That question is potentially relevant in determining the scope of protection under the New York Human Rights Law.

In most respects, the New York Human Rights Law applies to employers with at least 4 employees. But the law prohibits all New York employers with as few as 1 employee from engaging in sexual harassment.  Now that the terms “sex” and “gender identity” are codified separately, it might be that the law technically does not ban employers with fewer than 4 employees from gender identity harassment.

Similarly, 2018 amendments extended protection from sexual harassment to non-employees in the workplace. Did/does this expansion apply to gender identity?

Caution: These nuanced legal distinctions are not ones that employers should deliberately rely on as justification for harassment! If nothing else, it is unclear how the courts would rule on these nuances.

Impact on Sexual Harassment Prevention Requirements

Beyond pure technicalities, GENDA creates reasonable confusion regarding New York’s sexual harassment policy and training requirements. The Department of Labor’s guidance on these new obligations for all New York employers relies on Division of Human Rights guidance pre-dating GENDA. That earlier guidance makes express reference to “sexual harassment that occurs because the victim is transgender.”

Moreover, the State’s model sexual harassment policy provides that “Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.”

As mentioned above, there might now be a new statutory basis for an argument that “sexual harassment” does not include harassment based on most of those characteristics. Then again, “sexual orientation” has long been separately identified in the Human Rights Law as a basis of protection from discrimination, suggesting that “sexual harassment” can include harassment based on statutory categories other than “sex.”

Overall, given the clear legislative intent to expand employee protections, employers should probably continue to assume an expansive reading of “sexual harassment” and broadly cover all of these areas that could be deemed to touch on “sex” or gender in some way.

Update Your Policies

Even if GENDA has not substantively changed employers’ obligations and employees’ rights, employers should at least update their non-discrimination and anti-harassment policies to include the new statutory terms. The 2016 regulations caused some employers to make similar changes, but others left the word “sex,” subject to whatever it meant under the law. Both approaches warrant revision at this time. The list of protected categories in New York should now specifically include “gender identity and expression.”

 

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Top Posts of 2018

Top Posts of 2018

As the year ends, we again review the most viewed New York Management Law Blog posts from this year. Did you miss any of the top posts of 2018?

These posts reflect some topics that most interested New York employers in 2018. Do they also suggest what will be top of mind in 2019?

Curious about last year? Click to see what posts made the list in 2017.

2019 New York Minimum Wage

Like last year, our post reminding employers of increases to both minimum wage and the salary threshold for overtime exemptions under state law caught readers’ eye.

Remember these changes take effect on December 31, 2018, not January 1st. If you haven’t adjusted accordingly yet, don’t delay any longer!

And there are still more increases scheduled for the years to come. This post includes charts showing those planned increases.

Sexual Harassment Draws More Attention

Well-publicized harassment allegations beginning in October 2017 put sexual harassment prevention on the top of our minds this year. Both the federal and New York state governments took deliberate action to address the unfortunate reality.

In April 2018, the New York Legislature enacted extensive legal requirements aimed at workplace sexual harassment. These included the obligation that all employers in the state adopt written sexual harassment policies and provide annual sexual harassment prevention training to all employees.

Employers were eager to learn more about what the New York Department of Labor would expect from them to meet the policy and training requirements. This made “First Look: NYS Model Sexual Harassment Policy & Training” one of our top posts of 2018. When the DOL updated its guidance closer to the October 9, 2018 effective date, we likewise offered an update.

In October, we also received telling data from the U.S. Equal Employment Opportunity Commission (EEOC). We examined this in “EEOC Releases 2018 Sexual Harassment Statistics.” The EEOC initially reported that after steadily declining over the previous decade, sexual harassment charges went up more than 12% in the fiscal year ending September 2018. In “EEOC: 2018 Sexual Harassment Data Even Worse” we discussed the final numbers showing a 13.6% increase.

The FMLA Is Always a Hot Topic

All the hype in 2017 was about the launch of New York’s Paid Family Leave Program. In 2018, the federal Family & Medical Leave Act (FMLA) turned 25 years old. But employers remain interested in learning more about what it means and how it works.

One of the most viewed posts of the year contrasted these two significant legal regimes. “New York Paid Family Leave vs. FMLA” takes a look at employer coverage, employee eligibility, qualifying circumstances, compensation, and other issues under these laws.

And after a year of learning when an employee might have rights under the New York Paid Family Leave, employers became even more interested in double checking “Who Is an FMLA Eligible Employee?”

Drugs in the Workplace

Another issue that hasn’t gone away is employee drug use. Amidst a continuing national debate over the legalization of marijuana, readers were interested in what existing employment laws say about drugs generally.

What Does the Drug-Free Workplace Act Require?

This federal law doesn’t go as far as most people probably think. First, it only applies to businesses that have sufficiently large contracts with the federal government.

The Drug-Free Workplace Act requires these covered employers to adopt a drug-free workplace policy and establish a drug-free awareness program. However, it does not force these companies to fire employees who bring drugs to work or work under the influence of illegal drugs.

Drug Testing New York Employees

Employers in New York (and most other states in the U.S.) have broad rights to test employees for drug use. But many sources of law touch on the subject. That’s probably why this post was so popular with readers trying to determine their rights and obligations in various situations. (It was the #1 most viewed post on the New York Management Law Blog in 2018!)

Vacation Pay in New York

New York employers don’t have to let employees take paid vacations. But if they do offer a vacation benefit, the parameters must be clearly described in writing.

If you haven’t done so recently, now’s a good time to review your vacation pay policy. Use this post as a starting point.

What is Executive Order 11246?

You’d be surprised how many people asked that question in 2018. (I was.) This was actually our second most viewed post of the year. So, what is it?

Signed by President Lyndon B. Johnson in 1965, this Executive Order imposes anti-discrimination and affirmative action requirements upon covered federal contractors. For example, companies with more than 50 employees and a contract with the U.S. government for at least $50,000 must maintain written affirmative action plans.

Although the Executive Order remains in place, the federal Office of Federal Contract Compliance (OFCCP), which oversees Executive Order 11246, has occasionally made the news over the past year or so. It recently announced several new policies on November 30, 2018.

What Are Employees Up To?

Two other top posts of 2018 addressed the reality that your employees don’t always want to be working (at least, for you).

Should You Let Employees Watch the World Cup?

Though less popular in the United States, the 2018 FIFA World Cup was one of the biggest global events of the year. For one month this summer, fans around the world cheered their favorite soccer nations. Before the contest began, we considered some pros and cons of letting employees watch the matches during work time.

Your Employee Has a Side Hustle

Many employees with regular full- or part-time jobs are also working on a personal business venture on the side. This is not necessarily good or bad in itself. Situations vary. But this post raised many legal considerations for employers ranging from conflicts of interests to federal leave laws.

Don’t Stop at the Top Posts of 2018!

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 2019.

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

See you in 2019!