Happy Halloween! Some Tips to Avoid Getting Spooked by New Employment Laws
October 30, 2019
There are scarier things than lions, tigers, and bears facing New York State employers this Halloween. Ghosts and goblins cannot compete with the following scenarios, which are more “trick” than “treat."
Trick: Effective October 11, 2019, New York eliminated the “severe or pervasive” standard for harassment under the Human Rights Law, and replaced it with any conduct based on a protected characteristic that rises above “petty slights or trivial inconveniences.” However, with the precise meanings of “petty slights” and “trivial inconveniences” left unclear, there is an unprecedented amount of responsibility on the employer to determine if conduct violates the new law, or is simply unprofessional.
Treat: To mitigate risk, employers are advised to ensure that all supervisors and managers are aware of this new standard. Furthermore, each complaint of harassment or discrimination must be investigated, to ensure that the employer meets its obligations under the law. When determining appropriate corrective action, employers are best served by treating similarly situated employees in a similar manner.
Trick: The New York Human Rights law, for the first time, also now allows punitive damages and attorneys' fees to be imposed against employers when the employee prevails in a lawsuit. Punitive damages, which are reserved for particularly egregious conduct, may be imposed on any private sector employer at judicial discretion. Attorneys' fees, on the other hand, are automatically awarded to the employee if he or she prevails. The imposition of these new monetary remedies significantly increases the potential cost, and therefore, the potential risk, for employers who are sued under the Human Rights Law.
Treat: As noted above, employers should ensure that they adequately train supervisors and conduct thorough investigations. It is important that supervisors and managers do not engage in any egregious conduct that could expose an employer to punitive damages, and that they adequately address any harassing behavior that is reported to them. Employers may also wish to consider purchasing employment practices liability insurance, which might absorb some of the costs of defending or settling a lawsuit or an administrative claim.
Frightening False Filers
Trick: Periodically, an employer will have an individual employee who files multiple, successive complaints against the same individuals or based on the same set of facts. This situation puts the employer in the unenviable position of, on the one hand, not thoroughly investigating every single complaint and being potentially liable for allowing illegal conduct to continue, or on the other hand, continually spending an inordinate amount of time and resources on one employee.
Treat: Given the lower standard for establishing harassment and the increased monetary damages under the Human Rights Law, employers need to ensure that each complaint, regardless of the number of complaints previously filed by the complainant, is investigated. Failing to investigate each complaint increases the risk that an employer may be found liable for not adequately preventing harassment or discrimination in the workplace. Some employers have policies in place that allow for discipline of individuals who file “knowingly false” or “deliberately false” complaints. However, before imposing disciplinary action under such a policy, an employer should be 100% sure that it can prove in defense of a retaliation complaint that the employee knowingly made false allegations.
Trick: Some of the most difficult lawsuits for employers are those that allege claims of retaliation under the Human Rights law. Retaliation lawsuits are particularly difficult because they often involve the timing of an employer’s actions. For example, if an employee is disciplined or terminated shortly after that employee’s filing of a complaint or participation in an investigation, there may be an inference of cause and effect. Without sufficient documentation, it can sometimes be difficult for an employer to prove that the adverse action was not related to the protected conduct.
Treat: Employers can make it easier to defend against a retaliation claim by carefully documenting and addressing any performance or conduct problems that arise, and by making sure that all adverse actions taken against an employee who has engaged in protected conduct are taken for legitimate reasons. Employers should also make sure to treat employees who have engaged in protected conduct in a similar manner as other employees who have not engaged in protected conduct.
Trick: In April 2019, New York changed the amount of paid leave that employers must provide to their employees in order to enable them to vote. The new law states that an employee is entitled to take as much working time as will enable the employee to vote in any election, up to three hours. In addition, employers are no longer permitted to take into consideration the amount of time the employee has outside of working hours in determining how much time off the employee needs to vote. Since the passage of that law, there has been considerable confusion, with more questions than answers, such as: (1) which elections qualify for leave; (2) whether employers may require proof of voting; and (3) whether this law applies to the early voting time period.
Treat: Although guidance on how to interpret the new voting leave law has been sparse, a few months ago, the Board of Elections published guidance on how to interpret the law. The guidance states that employers may not require employees to use accrued paid time off to vote. In addition, the guidance clarifies that school district, library district, fire district, and special town elections are not covered elections under the law. However, the guidance does not address whether an employer can require proof of voting, or how the new law applies to the early voting time period. In the absence of statutory language or guidance, employers may desire to mitigate risk by taking a conservative approach and allowing leave in most circumstances.
If any of these scenarios give you a fright, "who you gonna call"? You can always call your favorite “ghost-busting” Bond employment attorney.