This post was written by Barbara E. Hoey and Steven R. Nevolis and originally posted on Kelley Drye’s Labor Days Blog.

As the summer reaches its peak, New York employers may be more concerned with juggling employee vacation schedules than drafting new policies. But with New York’s recent anti-sexual harassment legislation coming into effect this October, and continuing into the spring for New York City, employers need to begin rolling out new policies and ensuring that training is in place to meet these new standards. This alert provides a brief summary of the new requirements so that employers aren’t left without guidance during the dog days of summer.

New York State
On April 12, 2018, Governor Cuomo signed into law New York State’s newest anti-sexual harassment requirements, which will come into effect on October 9, 2018. For the first time, the state is mandating both a written policy and annual training for all employers.

New York City
For employers operating within the five boroughs with 15 or more employees, effective April 1, 2019, these employers will have to comply with Mayor de Blasio’s Stop Sexual Harassment in New York City Act. Like the New York State legislation, this law requires employers to complete annual employee training on sexual harassment. There is no requirement in this law regarding a written policy.

To read the advisory on the Kelley Drye website, click here.

This post was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Days Blog.

On Friday, July 27, after a 3 week trial in Manhattan , a jury awarded $1.25 million in damages to Enrichetta Ravina, a former professor at Columbia University Business School, who claimed that she was denied tenure and forced to resign in retaliation for complaining that a senior professor, Geert Bekaert, had sexually harassed her.  Professor Bekaert will owe her $500,000 in punitive damages, and Columbia will owe $750,000 in punitive damages.

Ravina first prevailed Thursday on her retaliation claims against Bekaert and against Columbia based on his conduct.  The jury also held Thursday that Bekaert, but not Columbia, could be held liable for punitive damages.  Jurors rejected Ravina’s gender discrimination claims against both.  The money verdicts then came in on Friday.

Interestingly, the jury found that there was no sexual harassment or gender discrimination.  The verdict was on the retaliation claims.  The jury also did not give the plaintiff the back pay and front pay she had sought.  They awarded only punitive damages, against both defendants.

This was a hard fought case, and both the university and Professor Bekaert continue to vigorously deny plaintiff’s allegations.  Very briefly, plaintiff, who had once worked closely and claimed that she was mentored by Bekaert, alleged that the relationship went sour after she rejected his sexual advances.  She claimed that he unfairly stalled her research, criticized her, and derailed her bid for tenure.  This all began in 2014, and by 2016 her tenure bid was over and she was forced to leave.

She alleged that she reported the harassment to Columbia, but that the university did not do enough to address it.

Columbia and Professor Bekaert denied there was any romantic relationship, and maintained throughout that the plaintiff was using the allegations as an excuse for her poor academic performance and reviews.  Once she saw that she was not getting tenure, according to defense attorneys, this was her ‘backup plan’.  The Defendants’ position has been consistent, that they did nothing unlawful and Columbia noted that its decision to deny Plaintiff tenure was upheld as lawful.

However, one key piece of evidence seemed to be a series of emails which Bekaert had written about the plaintiff, where he made very critical comments about Ravina and her work.

Plaintiff was also able to secure a good position at Northwestern University, where she earned more than when she left Columbia.  That is likely why the jury decided not to award her compensatory damages.

Ravina’s attorney, David Sanford of Sanford Heisler Sharp LLP, said in a statement Friday that the award “should send a clear message to Columbia University and the world of higher education that workplace retaliation and abuse of power in academia will not be tolerated.”

On that point – I agree with plaintiff’s counsel.  This verdict should send a message, not just to academia, but to all employers :

What is that message?

  1. All companies and institutions need to be on notice that behavior that could be perceived as ‘harassing’ or ‘bullying’, particularly when directed by a superior against a lower level employee of another race or gender, is a red flag.  What the boss may regard as ‘tough’ or ‘harsh’, a jury could see as discrimination or harassment.
  2. Be careful with email and text messages.  These can be preserved, and abusive words preserved in an email will hold a lot of sway with a judge or jury. Emails remain the most potent piece of evidence in employment litigation today , and everyone needs to be cautious about what they say via email and text.  One “nasty” email can influence a jury, as may have happened here.
  3. Employers need to learn to empower their bystanders.  An employer cannot always prevent a bad actor from behaving badly.  However, an employer can empower those who are aware of or witness that behavior to report it, before it goes too far.
  4. Be sure to investigate and respond to internal complaints promptly, and carefully document those investigations.  No one knows what happened at Columbia except those involved in that situation, but again – juries today will be expecting to see evidence that there was a prompt and thorough response to any claim.  Now, even more than before the “ME Too” era, consider bringing in outside experts to investigate when necessary, in order to avoid the appearance of bias.  And, where there is bad heavier take effective action to stop it.
  5. Individual executives need to remember that New York State and City law (like many other local laws) allows for individual liability if you are found to have engaged in harassment, discrimination, or retaliation.  Like the defendant professor in this case, you could be looking at a sizeable award against you personally, if a jury believes that you broke the law.
  6. Finally, be careful of retaliation claims, as they are serious business and present real liability.  Again, without commenting on what happened here, clearly the jury felt that this plaintiff was treated poorly after she made her complaint – even though they did not credit the complaint itself!  That is very frustrating.  This is not the first (and will not be the last) case where a jury find that there was NO discrimination, but also finds that the plaintiff was unlawfully retaliated against for making the complaint.

In conclusion, the only real solution here is education and training.  Beginning this fall, New York mandates sexual harassment training for all employees. Take this message and if you have not already done so, invest in live training for your executives. It will be well worth the time and effort.

  • 07/30/2018 – Region 6 OSHA News Release – U.S. Department of Labor Cites Three Companies in Oklahoma After Five Employees Fatally Injured by Explosion and Fire
  • 07/30/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Kansas Grain Bin Operator
  • 07/27/2018 – OSHA Trade Release – The Department of Labor Proposes Rule to Better Protect Personally Identifiable Information
  • 07/26/2018 – OSHA Trade Release – The Department of Labor Plans to Propose Rule to Better Protect Personally Identifiable Information
  • 07/26/2018 – Region 6 OSHA News Release – U.S. Department of Labor and Manhattan Construction Company Partner To Enhance Safety and Health at Texas Ballpark Project
  • 07/26/2018 – Region 6 OSHA News Release – Corrected: U.S. Department of Labor Cites East Texas Countertop Company for Safety and Health Violations
  • 07/25/2018 – Region 6 OSHA News Release – Court Orders Contractor to Pay $250,000 for Safety Violations Following Fatal Fall at Dallas Apartment Complex
  • 07/24/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Manufacturer For Exposing Employees to Workplace Hazards
  • 07/24/2018 – Region 4 OSHA News Release – U.S. Department of Labor Finds Safety Violations Following Fatal Kentucky Shipyard Towboat Explosion
  • 07/20/2018 – Region 4 OSHA News Release – U.S. Department of Labor Joins Partnership to Promote Workplace Safety During Georgia Construction Project
  • 07/20/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Auto Parts Manufacturer For Exposing Employees to Safety Hazards
  • 07/19/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Wisconsin Contractor For Repeatedly Exposing Workers to Falls
  • 07/18/2018 – OSHA Trade Release – U.S. Department of Labor Seeks Comments on Proposal Regarding Railroad Construction Equipment in Cranes and Derricks Construction Standard
  • 07/18/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Missouri Excavating Company After Observing Employees Working in Unprotected Trench
  • 07/17/2018 – Region 2 OSHA News Release – U.S. Department of Labor Cites New York Flooring Manufacturer for Exposing Employees to Mechanical, Chemical, and Other Hazards
  • 07/16/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Southeast Georgia Manufacturer After Employee Amputation

 

This post was written by Michael Gallion and David Van Pelt and originally posted on Kelley Drye’s Labor Days Blog.

In a noteworthy decision last week, the Ninth Circuit ruled that fast food workers in California can voluntarily bargain away some of their meal period rights in exchange for discounted meals. The unanswered questions are how much employees can trade away, and in exchange for what.

The case (Rodriguez v. Taco Bell) challenged Taco Bell’s policy of offering discounted food to employees to be eaten during their meal breaks, as long as the employees agreed to remain in the store. Taco Bell’s reason for adopting the policy was apparently to prevent employees from leaving the premises and giving the food to friends or family. California law requires that during employees’ required meal breaks, employees must be relieved of all duty and be free to leave the premises.

The Court rejected the employee’s argument that by being required to remain in the store, the employee was “under the control” of Taco Bell and the meal period was invalid. The Court noted that purchasing the discounted food was “entirely voluntary,” and Taco Bell did not interfere in how the employee spent the meal break.

The obvious question is how far the reasoning in this case can be extended. The California Supreme Court held years ago that an employer is not liable if employees voluntarily choose not to take their meal break. Does this mean that employees can trade away their right to take meal periods or rest breaks in exchange for a company gift card, for example? What about a monthly bonus? Employees in California can waive their meal periods under certain circumstances. Can they also trade them away, and be required to work an eight-hour shift with no meal period, in exchange for a benefit?

In our view, a significant expansion of this case is unlikely. California courts are simply too protective of employee rights (or perhaps paternalistic, depending on your viewpoint) to permit employees themselves to trade away significant rights. The Court in this case suggested that if the employee had been “under the control” of Taco Bell during the meal period, even voluntarily as part of receiving discounted meals, the practice would have been struck down. Indeed, California law provides that even if an employee prefers to work (and be paid) during his/her meal period, an employer can only do so if the nature of the job makes it necessary.

Still, this case does provide an opportunity that California employers may use to their advantage. Companies might consider ways to lessen the inconvenience that comes with certain legally-protected employee rights (such as the right to leave the premises during a meal period) in exchange for a benefit. Employers should just be aware that any limitation on employee rights will be viewed with suspicion by California courts.

  • 07/13/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites North Carolina Shipyard After Towboat Worker Drowned in Storm
  • 07/12/2018 – OSHA Trade Release – U.S. Department of Labor Kicks Off Safe + Sound Week on August 13th
  • 07/12/2018 – Region 7 OSHA News Release – U.S. Department of Labor and Alberici Healthcare Sign Safety Partnership During Construction of Saint Louis Hospital
  • 07/10/2018 – Region 7 OSHA News Release – U.S. Department of Labor Seeks to Stop Increase in Worker Fatalities In Kansas, Missouri, and Nebraska
  • 07/10/2018 – Region 7 OSHA News Release – U.S. Department of Labor Enters Partnership to Promote Safety During Omaha Construction Project
  • 07/09/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites North Florida Shipyard for Safety Violations Following Employee Drowning
  • 07/09/2018 – Region 4 OSHA News Release – U.S. Department of Labor Joins Partnership to Promote Workplace Safety During Alabama Construction Project
  • 07/05/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Illinois Pallet Manufacturer After Employees Are Sickened from Unsafe Carbon Monoxide Levels
  • 07/03/2018 – OSHA Trade Release – U.S. Department of Labor Extends Enforcement Date of Certain Provisions of the Beryllium Standard to August 9
  • 07/03/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites South Florida Manufacturer for Exposing Employees to Safety Hazards
  • 07/03/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Miami Commercial Bakery For Exposing Employees to Electrical and Fall Hazards
  • 07/03/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Bluewater Construction Solutions For Exposing Employees to Falls at Two Florida Worksites
  • 07/03/2018 – Region 6 OSHA News Release – U.S. Department of Labor Renews Alliance to Help Prevent Construction Injuries and Illnesses in West Texas
  • 07/02/2018 – OSHA Trade Release – U.S. Department of Labor Confirms Effective Date of the Direct Final Rule Revising Beryllium Standard for General Industry
  • 07/02/2018 – Region 4 OSHA News Release – U.S. Department of Labor Finds West Virginia Roofing Contractor Exposed Employees to Fall, Electrocution, and Other Workplace Hazards

 

 

  • 06/26/2018 – OSHA Trade Release – OSHA and CareerSafe Form Alliance to Protect Safety and Health of Young Workers
  • 06/26/2018 – OSHA Trade Release – Specific Employers Required to Submit 2017 Injury and Illness Data by July 1
  • 06/25/2018 – Region 4 OSHA News Release – Roofing Company Faces Penalties After Exposing Employees to Numerous Fall and Other Safety Hazards
  • 06/22/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Excavating Company Following Fatal Trench Collapse
  • 06/22/2018 – Region 5 OSHA News Release – U.S. Department of Labor Joins Safety Partnership in Wisconsin
  • 06/21/2018 – OSHA Trade Release – OSHA and the International Safety Equipment Association Form Alliance to Protect Workers’ Safety and Health
  • 06/20/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites South Florida Utility Contractor for Exposing Employees to Trenching Hazards
  • 06/20/2018 – Region 8 OSHA News Release – U.S. Department of Labor and Montana Contractor Compensation Fund Sign Alliance to Promote Workplace Safety
  • 06/15/2018 – OSHA Trade Release – OSHA Extends Comment Period for Proposed Rule to Ensure Crane Operators Are Qualified to Safely Operate Equipment
  • 06/12/2018 – Region 5 OSHA News Release – U.S. Department of Labor Finds Wisconsin Contractor Continues To Expose Roofers to Falls and Other Safety Hazards
  • 06/08/2018 – OSHA Trade Release – U.S. Department of Labor Issues Memorandum Outlining Enforcement of Silica Standard for General Industry and Maritime
  • 06/07/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites a Colorado Chemical Manufacturer
  • 06/01/2018 – Region 1 OSHA News Release – U.S. Department of Labor Cites New Jersey Renewable Energy Company Following Fatality at New Hampshire Power Plant
  • 06/01/2018 – Region 1 OSHA News Release – U.S. 1st Circuit Court of Appeals Orders Maine Roofer to Correct Violations, Implement Safety Measures, and Address $389,685 in Fines

 

This post was written by Steven R. Nevolis and Mark A. Konkel and originally posted on Kelley Drye’s Labor Days Blog.

For decades, technological innovation has changed our world at a rapid pace. Across industries and departments, businesses have a plethora of new and exciting technology and tools they can utilize to deliver products and services more effectively and efficiently to their customers. This is especially true of today’s human resources department and function. Recent trends have shown an increasing number of technology innovations aimed at HR professionals that offer to help more effectively recruit employees, manage workforce productivity, and address employee and labor relations issues as they arise. However, as businesses begin to adopt these new methods of workforce management, human resource professionals must stay ahead of the curve to ensure this technology is being used effectively and, in some cases, legally.

Technology Ahead of Laws and Regulations – Or Is It?
It’s generally accepted that technological advancement will outpace the legislatures and courts tasked with regulating that technology. But that isn’t to say the legislatures and courts won’t catch up. Just recently, we have seen social media enter the spotlight as the newest target of potential government regulation. And with the European Union enacting the General Data Protection Regulation, companies must be vigilant in how they collect and maintain job applicant information, or face the possibility of severe fines. As fast as new technology is introduced to the market, regulators are working to act just as quickly to mitigate potential harm from that technology.

However, one thing that may be lost in the shuffle is the unintended consequences of some of these technologies, and how that may expose businesses to potential claims under existing laws. Take for example a business that decides to shift its recruiting efforts from a more human-driven approach to a process that uses data to steer the course. There is a trove of data points that a company can collect on a job applicant, such as experience and education. But if HR allows these data points to drive the recruiting and interview process, they may be allowing this data to exploit innate biases, albeit unintentionally. If a data-driven process leans too heavily on quality of education, the process may filter out those candidates who may not have had a ready access to high-quality education, but still may be a good fit for the job. HR professionals need to be careful in implementing these types of processes and work to eliminate these issues, otherwise they may face heightened scrutiny. Continue Reading Technology Ahead of Laws and Regulations – Or Is It?

  • 05/31/2018 – OSHA Trade Release – U.S. Department of Labor Publishes Proposed Extension of Some Beryllium Standard Compliance Dates
  • 05/29/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Wichita Contractor for Exposing Roofers to Safety Hazards
  • 05/29/2018 – Region 7 OSHA News Release – U.S. Department of Labor, Sheet Metal and Air Conditioning Contractors Sign Alliance to Protect Workers
  • 05/24/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Utility Construction Company For Exposing Employees to Cave-in Hazards
  • 05/22/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites South Florida Utility After Employee Sustains Fatal Injuries
  • 05/22/2018 – Region 4 OSHA News Release – U.S. Department of Labor Orders Florida Flight Training Company To Reinstate Instructor Terminated After Raising Flight Safety Concerns
  • 05/22/2018 – Region 7 OSHA News Release – U.S. Department of Labor Enters Partnership to Promote Safety During Demolition of Federal Complex in Kansas City
  • 05/18/2018 – OSHA Trade Release – OSHA Proposes Rule to Ensure Crane Operators Are Qualified To Safely Operate Equipment
  • 05/18/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Wisconsin Battery Company For Exposing Employees to Lead, Other Hazards
  • 05/18/2018 – Region 8 OSHA News Release – U.S. Department of Labor and Industry Representatives Partner To Address Trenching Hazards in North Dakota

 

  • 05/11/2018 – Region 2 OSHA News Release – U.S. Department of Labor Cites New York Cosmetics Manufacturer For Safety and Health Hazards Following November 2017 Fire
  • 05/11/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Contractor and Staffing Agency Following Fatal Trench Collapse at Alabama Work Site
  • 05/10/2018 – OSHA Trade Release – OSHA Announces Delayed Enforcement of Certain Provisions of the Beryllium Standard
  • 05/10/2018 – Region 3 OSHA News Release – U.S. Department of Labor Cites Philadelphia Contractor For Multiple Safety Violations; Proposes $222,152 in Penalties
  • 05/10/2018 – Region 3 OSHA News Release – U.S. Department of Labor Inspection Cites Pennsylvania Box Manufacturer For Failure to Correct Prior Safety Hazards
  • 05/10/2018 – Region 3 OSHA News Release – U.S. Department of Labor Recognizes Pennsylvania Brick Manufacturer For Excellence in Workplace Safety
  • 05/10/2018 – Region 7 OSHA News Release – U.S. Department of Labor and PARIC Corp. Partner to Promote Workplace Safety and Health During Construction of St. Louis’ Ballpark Village Projects
  • 05/09/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Two Colorado Companies For Workplace Safety Failures in Fatal Pipeline Fire
  • 05/08/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Georgia Manufacturer For 36 Safety And Health Violations
  • 05/04/2018 – OSHA Trade Release – OSHA Issues Direct Final Rule Revising Beryllium Standard For General Industry
  • 05/04/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Framing Contractor For Exposing Employees to Dangerous Falls
  • 05/03/2018 – OSHA National News Release – 5th Annual National Safety Stand-Down to Prevent Falls Begins May 7
  • 05/03/2018 – OSHA Trade Release – OSHA Schedules Meeting to Request Comments on Whistleblower Issues in the Railroad and Trucking Industries
  • 05/02/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Health Facility for Exposing Employees to Workplace Violence
  • 04/30/2018 – OSHA Trade Release – U.S. Department of Labor Fixes Error Dating to 2016 Implementation of “Improve Tracking of Workplace Injuries and Illnesses” Regulation
  • 04/27/2018 – OSHA Trade Release – Statement by Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt on Workers’ Memorial Day 2018
  • 04/27/2018 – Region 6 OSHA News Release – U.S. Department of Labor and Association of Energy Service Companies Renew Alliance to Keep Texas Oil and Gas Employees Safe
  • 04/26/2018 – Region 4 OSHA News Release – U.S. Department of Labor and Florida Roofing Contractor Settle Lawsuit on Whistleblower Allegations
  • 04/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor, Georgia Tech, and Georgia Department Of Public Health Form Alliance to Reduce Lead Exposure
  • 04/23/2018 – Region 5 OSHA News Release – U.S. Department of Labor Proposes Penalties for Farm Supply Company For Operating Damaged Forklift at its Ohio Facility
  • 04/20/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Plastics Company, Proposes $261,454 in Penalties for Workplace Safety Hazards
  • 04/20/2018 – Region 9 OSHA News Release – U.S. Department of Labor Orders California Company to Pay $110,000 To Manager Who Reported Concerns Regarding E-Cigarette Ingredients
  • 04/17/2018 – OSHA Trade Release – OSHA Flier Offers Steps to Keep Tractor Trailer Drivers Safe at Destination
  • 04/17/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Company For Exposing Employees to Trenching Hazards
  • 04/17/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Contractor for Exposing Workers to Trenching, Other Safety Hazards on North Dakota Municipal Project