|August 22, 2019||What Is Retaliation in the Workplace?||no comments|
|August 15, 2019||Why Are Family Responsibilities Discrimination Cases on the Rise?||no comments|
|August 15, 2019||Family Responsibilities Discrimination (FRD) Lawsuits||no comments|
|August 09, 2019||Making Work Accommodations for Pregnant Women||no comments|
|July 23, 2019||What Employers Should Know About Time Off to Vote||no comments|
|July 12, 2019||New York City’s Ban on Discrimination for Sexual and Reproductive Health Decisions||no comments|
|July 12, 2019||Why Working Off the Clock Can Be a Liability||no comments|
|July 02, 2019||What Is Fissuring in the Workplace?||no comments|
|June 19, 2019||Hairstyle Discrimination in the Workplace||no comments|
|June 19, 2019||Earned Safe and Sick Time Act (ESSTA) Proposed Amendments||no comments|
Important Reasons for Employers to Avoid Retaliation
Retaliation in the workplace is unlawful. Therefore, as a business owner it is important to understand what it is and to avoid it. Employers violate the law if they retaliate against an employee who has engaged in “protected activity” under the New York City Human Rights Law or forbidden activities under the Law.
What Does Retaliation Mean?
“Retaliation” in a legal sense refers to “punishment of an employee by an employer for engaging in legally protected activity such as making a complaint of harassment or participating in workplace investigations. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction or job or shift assignment.”
Examples of protected activity include:
Even when the employee has left the company, if the employer provides an unreasonable negative reference about the former employee, such behavior can fall under retaliation. However, the employee would have to show that the negative reference was based on retaliation.
Potential Penalties for Retaliation
Under New York Law, the New York State Department of Labor can assess potential penalties for retaliation, including:
If a New York court finds an employer guilty of retaliation it can impose the following:
Reinstatement of the employer to the former position
At Stephen Hans & Associates, we help employers comply with employment laws, avoid retaliation, offer legal advice and represent them in employment issues.
The Underlying Causes of FRD Lawsuits
Statistics show that Family Responsibilities Discrimination (FRD) lawsuits are on the rise. This means that courts are seeing an increase in lawsuits brought against employers by caregivers. Caregivers include single parents, pregnant women, breastfeeding women, parents of young children, and employees who are taking care of sick children, spouses, relatives or other disabled dependents.
According to an article on FRD published in Working Mother, FRD cases increased 269 percent between the years of 2006 and 2015. This fact is based on a report done by the Center of Worklife Law, a research and advocacy organization at the University of California, Hastings College of Law.
During the past three years, FRD decisions averaged more than 400 decisions, which was an increase over the previous years. Furthermore, this statistic only included cases where courts issued a decision. It did not include all court complaints or charges filed by the EEOC (Equal Employment Opportunity Commission).
Here are some other statistics that employers should also note:
Cases that went to trial saw success rates at 67 percent
Why is this significant? Typically, employees lose discrimination cases and their winning cases range between 16 and 33 percent. But, as you see, that is not the recent trend.
Contributing Factors to the Rise in Families Responsibilities Discrimination Cases
Contributing factors to the increase in lawsuits are the following:
When companies can hang onto employees so they do not have the costs involved with turnover and hiring/training new employees, it is more financially feasible. Keep in mind, employers who can make it known that they support workers who are caregivers may see lower turnover rates.
If you are unsure about whether your company policies are free of FRD, seek legal advice. Our attorneys at Stephen Hans & Associates are glad to advise you.
What is FRD or Caregiver Discrimination?
Families Responsibilities Discrimination (FRD), also called “caregiver discrimination,” refers to discrimination against:
That employers have been subject to discrimination claims and lawsuits is nothing new. However, FRD or caregiver discrimination is a relatively new protected class compared with other protected classes. Therefore, NY employers should be aware of what it entails.
New York City Human Rights Law and Family Responsibilities Discrimination (FRD)
Effective as of May 4, 2016, it became a violation in New York City to treat employees or job applicants with caregiving responsibilities differently than other employees. The New York City Commission on Human Rights protects caregivers. If your company has four or more employers, you must comply with the New York City Human Rights Law.
Specifically, employers cannot discriminate against employees or job applicants who:
Examples of FRD Discrimination
You could be sued for caregiver discrimination, if you as an employer decide not to hire an applicant or promote an employee for any of the following reasons. If the person:
Furthermore, making statements like the following could be used against you in a discrimination claim:
Whenever employers provide benefits to employees, such as flexible scheduling, they must also provide them to employees who are caregivers. However, they do not have to offer special accommodations to employees who have care giving responsibilities.
Is Your Employment Contract Up-to-date with Current Laws?
Making work accommodations for a pregnant woman is something not all employers are aware of doing.
In fact, a recent article entitled “More Parents than Ever Are Suing Their Employers for Discrimination–and Winning” gave an example of a municipality that was the subject of an EEOC (Equal Employment Opportunity Commission) claim for this reason.
In 2017, a pregnant policewoman working for the Cromwell, Connecticut police force went to her police chief asking for accommodations due to her pregnancy. She was five months pregnant and provided information including a doctor’s note and a list of work she could do at a desk job. Her union representative accompanied her when she made the request. The chief’s response was that there would be no accommodation because it was not in the contract.
The policewoman missed four months of work, filed a complaint through the EEOC and Connecticut Commission on Human Rights and Opportunities. A settlement was reached that reimbursed her wages and paid-time-off benefits lost during pregnancy. As part of the settlement, the police force also agreed to incorporate policies that would protect future pregnant employees.
Be Aware of NY State Guidelines and Work Accommodations for Pregnant Women
New York Human Rights Law specifically requires that employers must reasonably accommodate the medical needs of employees with disabilities, including temporary disabilities. Pregnancy related disabilities fall under the category of temporary disabilities.
In addition, any restrictions that a medical doctor advises for a pregnant woman triggers the employer’s obligation to accommodate the woman based on the NY Human Rights Law. Accommodations would include:
Do You Reasonably Accommodate Pregnant Employees?
Failing to adhere to NY Human Rights Law could be costly for your business. At Stephen Hans & Associates, our attorneys work with employers to help them make legal changes in employment contracts and other policies. We also represent business owners in employment litigation.
The NY State Legislature Passed an Election Law
Time off to vote for employees was part of the legislation that the NY State Legislature passed in April of 2019.
The name of the law is the New York State Election Law and it went into effect immediately.
What Does the Time Off to Vote Mean for Employers?
Based on the new law, employers must allow their employees who are registered voters up to three hours of time off to vote. The employee will lose no pay for the three hours and this applies to voting at any election.
Guidelines for the Time Off
The employer must allow the time off only at the beginning or end of the employee’s work shift. The employer either designates the time or the employee and employer can mutually agree on the time.
The employee must notify the employer about taking time off to vote two working days before the Election Day.
Posting a Notice of the NY State Election Law
Employers must post in the workplace a notice that states the provisions of the NY State Election law. They must post it conspicuously no less than 10 working days before every election. In addition, they must keep the notice posted until the election polls close that day.
What Might Have Prompted the New Law?
According to an article in The New York Times, the mid term elections in 2018 in New York favored incumbents. New York was the only state in the country that held separate state and federal primary elections. Two separate voting days made it more difficult for voters to turn out to vote. In addition, New York does not have the options of early voting, voting by mail, nor same-day voter registration.
By comparison, some of New York’s voting laws were much more restrictive than laws in other states.
The New York State Election Law is one response taken by a more liberal legislature to effect change. More changes may be on the way.
At Stephen Hans & Associates, our attorneys work to stay up-to-date with legal changes. We like to let employers know about them so they can avoid employment law issues. We also represent business owners in employment litigation.
What Does This New Protected Class Mean for NYC Employers?
New York City passed legislation that bans discrimination for sexual and reproductive health decisions.
While New York City has some of the United States’ most expansive human rights laws, this law gave specific rights, creating new protected class regarding “sexual and reproductive health decisions.” The law went into effect in New York City on May 20, 2019.
This new protected class joined the already existing anti-discrimination protected classes of New York City Human Rights Law. Protected classes include age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, gender identity or expression, sexual orientation and alienage or citizenship status.
What Does the New Protected Category Mean in Everyday Language?
It means that employers are subject to discrimination litigation if they make decisions in hiring, promoting or firing employees based on this new class. Examples would be deciding to fire an employee because she got an abortion, or deciding not to hire an employee based on the employee’s decision whether to use or not use birth control.
According to an article in The National Law Review, the following are examples of services related to sexual and reproductive health decisions:
What Actions Should Employers Take?
As an employer, you should revise your handbooks and employment policies by adding the protected category of “sexual and reproductive health decisions.” You should also train your managers, employees and any HR personnel on this new legal change.
The repercussions of a lawsuit based on this protected class could result in having to hire or reinstate an employee, compensate for back pay, pay compensatory damages (and in extreme cases punitive damages), pay civil penalties and cover the employee’s attorney’s fees and costs.
Our attorneys at Stephen Hans & Associates represent employers in employment related issues and can help you protect your rights.
Working off the clock can be problematic for an employer. One reason is that time clocks or time sheets exist to document an employee’s work hours. When workers do not punch in, the book keeping of hours worked becomes nebulous. However, aside from that, employees can be subject to wage and hour lawsuits, penalties and other additional expenses when they fail to pay employees for time worked.
What Is “Working Off the Clock”?
Working off the clock refers to work an employee does that is not paid or does not count toward the total number of weekly hours worked.
According to the U.S. Department of Labor, work that is done off the clock includes “all the time an employee must be on duty, on the employer’s premises or at any other prescribed place of work.”
Why Is Working Off the Clock Illegal?
The Fair Labor Standards Act (FLSA) establishes the law for wages and hours that employees work. The FLSA addresses overtime, minimum wage and various protections for most workers. Exceptions exist for overtime pay regarding certain administrative and professional employees in some industries, and also for executives, managers and commission based sales employees.
Most employees, those who are not exempt and work over 40 hours in a week, must receive overtime pay for the hours exceeding the 40-hour workweek.
An employee receiving an hourly wage must receive payment for all the work done, even when working extra hours on tasks that are not requested, but which the employer allows.
Examples that Qualify as Working Off the Clock
If you call employees outside of work or send them work related emails that they must answer, you would be encouraging unpaid work or work done “off the clock.”
If you allow your employees to come in early or stay late to finish their work tasks, you can run into problems as an employer. Perhaps your restaurant worker is cleaning up or your laborer is simply dropping off equipment at another site outside of work hours. Off-the-clock work includes employees who work outside of the scheduled hours, for example to get a worksite ready for the production day. Workers who correct errors in paperwork past the time they should’ve gone home also qualify as working off the clock. Even having an employee wait to receive an assignment, despite the fact the employee is not doing anything but waiting, qualifies as work time.
If you are unsure about whether your employees are working off the clock, seek legal advice. Our attorneys at Stephen Hans & Associates are glad to advise you.
How Fissuring Is Changing the Work Environment
Fissuring in the workplace is a relatively new term. You may have heard about fissuring, a term coined by David Weil. He and Tanya Goldman in the article “Labor Standards, the Fissured Workplace and the On-Demand Economy” explain fissuring as follows:
It “means that in more and more workplaces, the employment relationship has been broken into pieces often shifted…to individuals who are treated as independent contractors.”
Other terms have become prevalent that also reflect this employment change. These are terms such as standard employment, non-standard employment, alternative work arrangements, independent contractors and contract employees.
The business models that typically accomplish fissuring use:
What Does Fissuring Mean for Employers and Employees?
As stated by an article in The American Prospect, the workplace is undergoing a change, and fissure is what is happening to the U.S. workforce.
Back in the day, an employee worked for a company, received benefits, stayed with the company long-term and received a pension for retirement. The average worker often spent a lifetime working for the same company.
In an effort to reduce labor costs and also lasting ties to workers, companies have implemented a variety of employment strategies. Strategies include hiring through apps, employing temp workers and freelancers along with contracting out and in some cases, misclassifying employees.
Today, many people have two or three part-time jobs because main jobs are not available. Multiple part time jobs are necessary for them to make financial ends meet.
Yet, various wage changes have also emerged as a result of the fissured workplace. New York, New Jersey, California, Illinois, Maryland, Massachusetts and Connecticut have all enacted $15 minimum wage laws.
The History Behind the Wage Increases
Governor Cuomo of New York created a wage board and held hearings throughout New York. At the hearings, many fast-food workers testified that they couldn’t survive on the $8.25 minimum wage. The New York legislature enacted legislation to raise wages to $15 per hour. Subsequently, the New York City’s Taxi and Limousine Commission engaged in a similar action and raised wages to a minimum of $17.22 per hour for app -based drivers.
The newest emerging trend is for cities to create boards that help workers raise their pay. In this effort, the boards appear to be taking on the previous function of labor unions, which were known in the past for working to equalize pay.
As Bob Dylan sang back in the 1960s, “The Times, They Are a Changin’.“
At Stephen Hans & Associates, we work with employers to help them comply with employment laws and to deal with employment issues.
Are Your Company Policies Compliant with Hairstyle Discrimination Law?
Hairstyle discrimination can be a form of racism in the workplace, according to NYC Human Rights Law. The NYC Human Rights Law “protects the rights of New Yorkers to maintain natural hair or hairstyles closely associated with their racial, ethnic, or cultural identities.”
In particular, hairstyle discrimination has been a form of anti-black racism. Hairstyle discrimination includes work policies that prohibit natural hairstyles associated with Black people. Examples include policies that ban locs, cornrows, twists, braids, Bantu knots, fades, Afros and the right to keep hair in an uncut or untrimmed state.
The NYC Commission on Human Rights issued a Legal Enforcement Guidance on Race Discrimination on the Basis of Hair in February 19, 2019 that addressed this issue.
Why Africans’ Hairstyles Are Protected
In some cases, the hairstyle may protect the health of the hair. Black hair is susceptible to loss and breakage and other medical conditions when the hair is subjected to tension. Individuals may suffer from skin and scalp damage when forced to straighten or relax their hair.
Hairstyles are also protected because individuals may wear a particular hairstyle for medical, religious, financial, personal or spiritual reasons.
Discriminatory targeting of Black children and adults for their hairstyles traces back to white slave trading days. At that time, the hairstyle was described as “dreadful.” The term later developed into “dreadlocks.”
Historical Anti-Discrimination Established at the Federal Level
The U.S. Department of Defense, which is the largest employer in the nation, enacted a ban on Black hairstyles in 2014. After Black service members protested, it later reversed its decision. In 2017, the Army lifted its ban on female soldiers wearing locs and removed the words “matted and unkempt” from its Black hairstyle description in the Army’s appearance regulations.
If you are unsure about how revise your appearance policies to avoid hairstyle discrimination, our attorneys at Stephen Hans & Associates are glad to provide legal advice.
Will NYC Add Personal Time and Expand Employee Protections?
The NYC Council is considering expanding ESSTA to include paid “personal time” for employees. Employees could use personal time for any reason. In addition, the employee would not have to document the reason for extended paid time off work.
If Passed, What Are the Provisions of the New Bill?
According to the National Law Review, employees and non-agency employed domestic workers, who work more than 80 hours in a calendar year, are eligible. They could earn one hour of personal time for every 30 hours worked, up to a maximum of 80 hours per year. Currently, ESSTA provides eligible employees with sick and safety time. Personal time would be additional.
An employer could count the unused 80 hours from a previous year for the current year, establishing the maximum time as already earned. However, additional time would not keep accruing year after year. ESSTA applies to employers with five or more employees, and the personal time would apply to employers of this size as well. The exception would be domestic workers who would be entitled to be paid for personal time for any size of employer.
What Employers Would Remain Unaffected by Personal Time?
Employers who already provide paid vacation or other paid time off would not have to pay for personal time. The only requirement is that the paid time off could be used in the same way and under the same conditions as personal time as covered by the new law.
Employees Would Have Expanded ESSTA Protections for Leave Use
Currently ESSTA allows employers to restrict the use of earned time for up to 120 days. However, under the new bill, employers could only restrict use for up to 90 days after the employee began employment.
Employees would have expanded protection against retaliation. To prove retaliation, employees would only have to show that the protected activity under ESSTA was a “motivating factor for adverse employment action.
Employers could receive penalties of up to $500 for each employee violation of the new law. All civil penalties could also apply on a per employee basis.
The NYC corporation counsel would have the right to investigate potential ESSTA violations and bring civil actions against employers to enforce the law.
Our attorneys at Stephen Hans & Associates will continue to stay abreast of further developments regarding this bill.