9

May, 2022

Consider Transparency of Outcomes from Workplace Investigations

By Tracey I. Levy

What if we were less secretive about outcomes in our workplace investigations?

Conventional wisdom, and the cautionary note I most commonly provide when conducting harassment prevention training for organizations, is that the organization will not share specifics about whether and what remedial actions are being taken following a workplace investigation of concerns of harassment, discrimination, retaliation or other inappropriate workplace behaviors.  We explain that this is out of respect for the respondent and consistent with disciplinary process.  Just as I would not tell employee A that employee B was being written up for excessive lateness, I will not tell a complainant that a respondent has been written up, denied a promotion, had their bonus cut, or all of the above based on a violation of the organization’s policies.

But does that approach still make sense?  What do we sacrifice in the process?  Post #MeToo/Black Lives Matter, this may be the time for organizations to consider doing things differently.

Demonstrating Accountability

Earlier in my career, when I was conducting investigations in-house as an employee relations specialist, my colleagues and I would periodically vent to one another about the “bad rap” that our team and the human resources function more generally had when it came to addressing employee concerns.  We often took responsive actions following workplace investigations, with a host of wide-ranging consequences for respondents. We felt we were acting appropriately to achieve the primary objective — getting the behavior to stop, and deterring that individual from doing it again.  But because we were silent about what actions were taken, complainants assumed we had done little more than pay lip service to their complaints.  We were powerless to correct employees’ misimpression, because we were adhering to the conventional wisdom of respecting the respondent’s privacy.  I used to rationalize that it only was HR’s reputation that suffered from this process. I now think the harm is broader.

Accountability is a key component of any initiative to create a more respectful workplace, one that does not tolerate harassment, discrimination or retaliation. The EEOC made that clear in its seminal 2016 report on workplace training and effective prevention of harassing behavior. On a fundamental level, organizations usually do hold employees personally accountable for their inappropriate workplace behaviors, at least following a workplace complaint and investigation. If no one is told details of the outcome, however, then the organization’s responsive actions at best serve the limited purpose of deterring that particular individual from engaging in further inappropriate conduct. There can be no broader deterrent effect absent some transparency.

Alternative Approaches

One option is for organizations periodically to provide their workforce with aggregate data on the responsive actions taken following workplace investigations.  That serves the beneficial purpose of disclosing the range of actions taken, and how frequently they occur.  The downside is that the data may not mean much without additionally disclosing how many claims were substantiated, and the types of behaviors that were found to have occurred.  Each disclosure runs the risk of raising more questions than it answers.  Particularly if the number of claims found unsubstantiated is not considered sufficiently “high” from the employees’ perspective, organizations may find the aggregate reporting is too generalized to present the desired message of a responsive leadership team.

So how about full transparency — informing the complainant in an individual investigation of the responsive action being taken by the organization, including possible disciplinary action of the respondent.  Clearly there are downsides to this approach in that it tarnishes the reputation of the respondent and may add fodder to the gossip mill, thereby making it harder for the respondent to move forward.  But there are upsides as well, in that the complainant receives specific information about how the organization has responded, and is not left to wonder or doubt the sincerity of the organization’s approach.  Also, as employees learn that responsive actions are no longer being kept confidential, the deterrent effect may be enhanced — individuals may think twice about their behavior if they know that their actions will have public consequences.

Take Time to Evaluate Options

Each alternative presents challenges and concerns, and there is no single “right” answer.  But most organizations default to keeping responsive actions confidential, without even entertaining the possibility of an alternative approach.  I invite you to consider something different, weigh the upsides and downsides of greater transparency, and do not fall into the trap of maintaining the status quo simply for the sake of being consistent with past practice.

Facebooktwitterredditpinterestlinkedinmail
27

April, 2022

Maine as National Example Disappoints Employers with Newest Law on Paid Time Off

By Tracey I. Levy

A plethora of paid leave laws currently plague multi-jurisdiction employers and they seem to multiply with each passing year. The concept of paid sick leave, which originated in San Francisco in 2007, has spread to 16 states and at least 25 localities across the country.

Sick Leave Isn’t Just for Being Sick, And Other Complications

“Sick” leave as defined by many of these laws is a far cry from typical employer policies in that usage often extends beyond an employee’s own illness and injury to include:

  • routine well visits for medical care;
  • care of an employee’s family member (in the broadest sense);
  • “safe” time for victims of domestic violence, sexual assault or similar crimes; and
  • coverage when a school, childcare center or place of employment is closed due to a public health emergency.

Particularly challenging for employers are the differences between the laws, in terms of leave time granted, permitted uses, accruals, carryover and requisite notice. So while the laws consistently state that an employer can maintain its own sick leave policy provided it meets all the elements of the legally-mandated sick leave, the varying requirements collectively make it nearly impossible to have one fully-compliant one-size-fits-all policy.

Maine Approached It Differently

Enter Maine with its paid personal leave law. It was refreshing in its simplicity.  Rather than adding an ever more expansive list of reasons why employees could use paid leave, the Maine law says the reason is irrelevant.  If you have more than 10 employees, full-time, part-time or otherwise, then you must provide them with up to 40 hours of paid leave, per year, for any purpose, provided they give reasonable notice. While there surely are employers of that size who do not already provide 5 days of paid time off per year, a great many provide that much or more. For those with existing paid time off policies, tailoring those policies to comply with the new Maine law should be relatively easy.

The only element of the law that deviates from typical employer practice (but aligns with most of the paid sick leave laws), is that employees need to be able to carryover up to 40 hours of accrued, unused paid leave from one calendar year to the next. When not subject to legal mandates, private sector employers typically restrict carryover of paid time off to a fixed number of days and require that the carryover days be used within a duration of three to six months into the new year. Employers may incur a cost when carryover is mandated, in that accrued days may need to be reflected as a pending liability in their business records.  Employers are therefore disinclined to allow too much in the way of carryover. While the Maine carryover mandate may require employers to modify their vacation or other paid time off policies, overall the law is simpler than the approach taken in other states and localities.

And Then Maine Complicated Things

But now, things have changed a bit.  Maine’s governor just signed a new law, which takes effect January 1, 2023, that amends the state’s wage statute to require employers to pay out employees for accrued, unused vacation upon termination.  Other states, like Massachusetts, Rhode Island and Illinois, have similar legal requirements, which thereby discourage employers from granting vacation time in a lump sum at the outset of the year, and deny employees the flexibility that comes with front-loaded vacation time.

Lesson for Legislators

Adopting ever more prescriptive paid time off laws sows confusion and impedes uniformity in approach for multi-jurisdiction employers.  As Maine demonstrated with its 2021 paid personal leave law, states can achieve the overarching goal of granting employees the assurance of paid days off to manage their personal lives, while minimizing the strictures that impede employers’ ability to draft consistent policies and manage their workforce.

Facebooktwitterredditpinterestlinkedinmail
13

March, 2022

New Fed Arbitration Ban Warrants Employers Redouble Measures to Prevent Workplace Harassment

By Tracey I. Levy

In the aftermath of #MeToo, state legislatures across the country adopted a range of new employment law protections, typically focused around four objectives:

  • advising employees of their legal rights and obligations and how to raise concerns;
  • expanding the scope and remedies under existing laws;
  • lifting the cloak of secrecy around sexual harassment and sexual assault allegations; and
  • ensuring employees can pursue legal claims in a public judicial forum.

A new federal law, which took effect March 3, 2002, addresses the fourth objective by prohibiting forced arbitration of sexual harassment and sexual assault claims.  The new federal law raises the stakes for employers and warrants revisiting existing measures to prevent incidents of offensive sexual conduct in the workplace.

Advising Employees of Their Legal Rights

New York woke up after #MeToo and has since been at the forefront of the effort to educate employees on the prevention of sexual harassment.  The state mandated both that employers adopt sexual harassment prevention policies that include an array of specific provisions, including a written complaint form, and that they conduct annual sexual harassment prevention training for all employees.  Other states, like California and Connecticut, which had existing harassment prevention training mandates for supervisors, imposed new training requirements applicable to all employees.  And some states imposed requirements only for particular industries.  For example, Illinois targeted restaurants and bars with a requirement to have a written sexual harassment prevention policy with specific provisions, while Washington state mandates sexual harassment prevention training for businesses that employ janitors, security guards, hotel housekeepers, or room service attendants.

Expanding Legal Remedies

New York also was one of the first states to respond by expanding the application of its law against sexual harassment – to every employer in the state, and by including independent contractors within its definition of “employees.”  The initially laws myopically applied only to claims of sexual harassment but were subsequently expanded to include all other protected characteristics.  New York also legislatively defined harassment more broadly than most – to cover any situation in which an employee is subject to “inferior terms, conditions or privileges of employment” based on a protected characteristic, without need to prove that the behavior was severe or pervasive.  Other states have made similar changes, including California, Connecticut, Delaware, Illinois, Maryland, and Vermont.

Lifting the Cloak of Secrecy

California, New Jersey, New York and Tennessee were among the states to adopt measures restricting employers from imposing nondisclosure or confidentiality requirements in the context of settlements of sexual harassment or sexual assault claims.  Illinois, Maryland and Vermont have gone a step further, by additionally mandating that employers periodically report certain data on sexual harassment complaints to a state government agency.  Congress similarly sought to limit nondisclosure agreements by amending the tax code in December 2017 to prohibit employers from claiming a deduction for any settlement payment or attorney’s fees related to sexual harassment or abuse if the settlement was subject to a nondisclosure agreement.

Preserving the Ability to Sue in Court

Most of the same states that invalidated nondisclosure or confidentiality requirements also declared invalid any pre-dispute arbitration clause applicable to a sexual harassment claim.  Those efforts have been stymied, however, because employers generally have been successful in arguing that the state laws are preempted by the Federal Arbitration Act.

Where the New Federal Law Fits In

The new federal law on arbitration of sexual harassment and sexual assault claims avoids the problem the states have faced because it falls outside the scope of the Federal Arbitration Act.  The law also is notably different in scope and import because it:

  • applies to all existing and future pre-dispute arbitration agreements throughout the country;
  • applies to all existing and future class action waiver clauses throughout the country; and
  • grants the party asserting a claim for sexual harassment or sexual assault (whether under federal, state or tribal law) the sole discretion to elect whether to proceed through arbitration or in court, and whether to pursue the claim as a class or collective action.

Senator Lindsey Graham, one of the bill’s sponsors, has been quoted as remarking that the new law will force corporate America to “up their game” and adopt new practices.

Employer Actions in a Higher Stakes Environment

Employers looking to decipher what that could mean should start with a two-fold assessment.  First, ensure that you are complying, in all your workplace locations, with the most recent state and local laws regarding harassment prevention.  In particular, confirm that your policies are current, your agreements are compliant, and that you are timely meeting all training requirements.

Second, consider the four objectives that have driven the state legislative responses.  What initiatives might you want to adopt in your workplace to enhance a culture of respect and ensure employees feel comfortable raising concerns?  Are you conducting harassment prevention training at periodic intervals?  Is your harassment prevention training program merely a check-the-compliance-box exercise, or has it been structured, scheduled and promoted to invite heightened awareness and genuine reflection?  Where still legally permissible, what are the upsides and downsides of maintaining confidentiality and nondisclosure agreements, and are they the best approach for your organization at this time of greater transparency?

No employer is immune from complaints of unlawful harassment.  But our experience has been that actions taken by employers to create and sustain a respectful workplace culture can substantially mitigate that risk and create a more productive workplace environment.

Facebooktwitterredditpinterestlinkedinmail
21

December, 2021

Diverging Vaccine Mandates at NYC/NYS/Fed Levels Present Pitfalls for Unwary Employers

By: Alexandra Lapes and Tracey I. Levy

Employers in New York face a panoply of overlapping and inconsistent obligations at the local, state and federal levels as the government seeks to contend with the latest threats from COVID-19.  New York issued a statewide mandate on December 10, 2021, that all businesses and venues must implement a full vaccination requirement or require masks be worn for everyone on their premises, effective as of December 13, 2021.  In tandem with New York State, on December 15, 2021, New York City updated its “Key to NYC” program to require employers implement a vaccine mandate and require employees who work in-person or interact with the public to show proof of vaccination by December 27, 2021.

Businesses that were part of the original Key to NYC program, which required only one dose of a COVID-19 vaccine, must require proof of a second dose by December 27, while all remaining businesses in the city must require employees to show proof of an initial vaccine dose by December 27, and proof of a second dose within 45 days thereafter.  New York City considers a covered workplace to be any location — including a vehicle — where an employee works in the presence of at least one other person.

Presently, the state’s mandate is effective until January 15, 2022, when it will be reevaluated and may be extended, while the city’s mandate does not have a specific sunset date.

  1. The mandate is full vaccination or full masking – no mix and matching permitted

Many employers in recent months had relaxed masking requirements for employees who are fully vaccinated, while those who are not vaccinated were required to wear a mask in the workplace, except when seated in a private office.  The state’s FAQs make clear that hybrid approach is no longer permissible.  An employer must either require everyone on premises to be fully vaccinated or require everyone — regardless of their vaccination status — to wear a face mask in the workplace.

Under state law, an employer can choose whether to implement a vaccine mandate or mask requirement, but the chosen requirement must apply in its entirety to all staff, patrons, and visitors throughout the premises.  New York City employers do not have that option – they must institute a full vaccination mandate.  If full vaccination is not applied uniformly to all, then New York State requires the employer to ensure everyone in its workplace complies with the masking requirement.

  1. Full vaccination currently means up to two doses

New York State defines “fully vaccinated” in accordance with the CDC’s definition, as 14 days past an individual’s last vaccination dose in their initial vaccine series (14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine; 14 days past the one-shot Janssen/Johnson & Johnson vaccine).

  1. Face masks can be removed only for limited circumstances of limited duration

For businesses adopting a masking requirement, that requirement allows few exceptions.  In offices, masks can be removed only when necessary to eat or drink, or when an employee is alone in an enclosed room. Even in restaurants and bars, unless the business is strictly enforcing a full-vaccination requirement for everyone on premises, patrons can only remove masks when eating or drinking; restaurant staff must be wearing a face mask at all times.  For tv and film production, the talent can remove a face mask during filming, but must maintain six feet of distance from all others, such as the crew and production staff, and masks must otherwise be in place for everyone on premises. Hospital and healthcare settings must continue to ensure all employees and visitors are masked at all times, regardless of vaccination status.

  1. Granting a vaccination exception for those with accommodations means the employer does not have a “full vaccination” program under the New York State mandate

Employers who grant exemptions as an accommodation for individuals because of a medical, religious or other legally protected reason and permit those individuals entry on the premises apparently must then implement a masking requirement for everyone.  While the impact of accommodations on the full vaccination requirement is not explicitly addressed in the FAQs, one specific FAQ juxtaposes the prohibition on a hybrid approach of full vaccination or masking with a reference to the continuing responsibility of “unvaccinated individuals, including those with medical exemptions” to wear masks in accordance with CDC guidance.  The FAQs also footnote that they should be interpreted consistently with the Americans with Disabilities Act, workplace safety guidelines and applicable regulations.  It therefore appears that, when exceptions are made and a full-course vaccine requirement cannot be maintained in its entirety, all individuals in the workplace must be held to a masking requirement.

  1. Employers cannot automatically ban from the workplace all employees requesting a vaccination exemption as a reasonable accommodation

New Guidance for Employers on Equitable Implementation of COVID-19 Vaccine Requirements, published by the New York City Commission on Human Rights (NYCCHR), reminds New York City employers of their obligation to engage in a “cooperative dialogue” with any employee who requests to be exempted from complying with a vaccination requirement as a reasonable accommodation – whether based on disability, pregnancy, childbirth, lactation, religious beliefs  or observances, or status as a victim of domestic violence, stalking, or sex offenses.  The guidance recognizes that remote work or unpaid leave – actions that keep the unvaccinated individual out of the workplace – may be a reasonable accommodation, but indicates that placing an unvaccinated employee on leave should only be considered if no reasonable accommodation is possible that would enable the employee to continue performing the employee’s job duties in the workplace without posing a direct threat or an undue hardship.

Employees are supposed to submit requests for a reasonable accommodation under the Key to NYC program by December 27, 2021.  If an accommodation is granted, New York City employers must keep record of the basis for the accommodation and any supporting documentation.

  1. NYC requires employers verify and keep record of vaccination status

Under the Key to NYC program, employers cannot rely on an honors system or self-attestation of vaccination status.  Rather, employers must check each employee’s vaccination record (a CDC or other official immunization record, or the NYC COVID Safe App, the CLEAR Health Pass or the Excelsior Pass) and keep a record of each worker’s proof of vaccination, either by:

  • making a copy of the employee’s vaccine proof or a record of a reasonable accommodation with supporting documentation;
  • creating a paper or electronic record that includes the employee’s name, vaccine status including the date they must provide the second dose (if only submitting proof for the first dose), and record of a reasonable accommodation with supporting documentation; or
  • checking each employee’s proof of vaccination before they enter the workplace each day and keeping a record of each verification.

Independent contractors or non-employees must also provide proof of vaccination.  A New York City business can request that a contractor’s employer confirm proof of vaccination.

  1. NYC is requiring signage and certification of compliance

New York City employers have two additional obligations:

  • complete an official attestation sign created by the Department of Health and Mental Hygiene, affirming compliance with the vaccination requirement, and post it in a public space by December 27, 2021 (even if the business also has its own signage about vaccination); and
  • place the Vaccination Required Poster for Businesses in a place that is clearly visible to people before they enter the premises.

Pulling it together, with consideration of pending federal mandates

In addition to the layers of requirements issued by New York State and New York City, employers nation-wide with 100 or more employees need to anticipate that they will be subject to vaccination or weekly testing requirements under an OSHA directive, as we discussed in this prior blog article.  We have summarized the combined impact on the federal, state and local levels in the chart below.

While enforcement of the OSHA directive had been stayed by the federal appellate courts, the Sixth Circuit Court of Appeals dissolved the stay on December 17, 2021.  Pending further action by the Supreme Court, OSHA has advised employers that it will not issue citations for noncompliance before January 10, 2022, and will not issue citations related to the testing option before February 9, 2022, provided the employer is making good faith efforts to come into compliance.

Employers that are imposing a full vaccination requirement, either under the Key to NYC program or to meet the New York State mandate, may need to update their policies, but should otherwise have minimal additional obligations under the OSHA directive.  New York State employers with at least 100 employees that are instead adhering to a full-time masking requirement, and do not already impose a weekly testing obligation for their unvaccinated employees, will have additional compliance obligations under the OSHA directive.

Keep checking for new developments

The only thing certain about these requirements is that there could be more changes in the weeks to come.  Businesses should review their policies and procedures to ensure compliance with the current mandates and continue to check dedicated COVID-19 government websites and get legal advice to ensure compliance with any new requirements.

Facebooktwitterredditpinterestlinkedinmail
28

November, 2021

NYC’s Condemnation of Employment At-Will Chases a Bogeyman to Correct for Bad Management

By Tracey I. Levy

Crain’s New York Business reported in its November 22, 2021 issue that six of the seven New York City Council speaker candidates support modifying or ending the concept of employment at-will, in favor of a “just cause” standard.   If the just cause requirement that New York City put into effect this past year for fast food franchises is to be the model for all employers going forward, New York City employers have much to worry about.  Such a plan would essentially take a hatchet to solve a problem that is fundamentally one of bad management, with little regard to the myriad repercussions for employers.

The concerns that the City Council speaker candidates reportedly cited as grounds for scaling back or eliminating employment at-will were threefold: the unfairness of being terminated without just cause, the perception that employment at-will “primarily” impacts communities of color, and the difficulties that a sudden job loss present for employees with families.  In regard to the third concern, Councilman Francisco Moya was quoted as saying that “’[i]n certain jobs, workers can be fired for taking the day off or for bringing their kid to the doctor.’”  The council speaker candidates seem to lack a full appreciation of the protections already afforded to employees under current federal, state and local laws that collectively impose myriad incursions on the concept of employment at-will.

Communities of Color and Certain Employee Actions Are Already Legally Protected

First and foremost, to the concern of the impact on communities of color, our current employment law protections expressly prohibit any employer from taking adverse action against an employee based on more than 20 protected characteristics, including race, color, national origin or ethnicity.  Woe to the employer that terminates an employee of color without any legitimate business reason.  An employer that falls back on the shield of employment at-will in that situation leaves itself with little more than a pie plate by way of defense to a discrimination claim, as the absence of any legitimate business reason gives rise to an inference of discrimination that can be impossible to disprove.

It often is noted that many European countries have just cause requirements for termination of employment.  That is true, but European countries also operate under a rather different legal system than what was developed in the United States, with a far greater emphasis on codes and adherence to procedural protections and a considerably lesser role for protection of individual rights through court action.  Some may think that system is better.  Certainly, it is different.  But both are designed to protect against certain employer overreaching, and it would be a mistake to port over a small slice of a foreign country’s legal system without looking at the entirety of its legal structure and how that contrasts with current systems already in place here.

Councilman Moya’s comments about workers being fired for taking the day off or bringing their child to the doctor also appear to be based on a misunderstanding of current legal protections.  New York State and New York City law both provide employees with paid sick and safe leave time, and employees can use those days for a broad range of reasons, including if they personally feel unwell, or need to care for a sick child or take their child to a well-visit with the child’s doctor.  An employer that fires an employee in contravention of those state and city laws faces the full weight of the enforcement provisions, including civil penalties, orders of reinstatement, and payment of back wages and benefits.

Unfairness or Surprise Does Not Equate to Lack of a Legitimate Reason

As to the concerns of unfairness and sudden job loss, in my experience most employee terminations are not for lack of cause, but they may well be perceived as sudden or unexpected by an employee due to ineffective communications and sub-optimal performance management practices.  Giving pointed performance feedback is hard.  I have been coaching managers and HR professionals through it for decades now, and it never gets easier.  As a manager myself, one of the least favorite aspects of my job is when I need to tell an employee that the employee’s work, attitude, behavior (or all three) is not meeting my expectations.  Countless times I have worked with organizations that have “packaged someone out,” offering some amount of severance to an underperforming employee to hopefully part ways quietly because the organization can no longer tolerate making do with the employee’s subpar delivery, but the organization also recognizes that it did not effectively communicate its dissatisfactions to the employee over the preceding weeks, months, or years.

It’s not just that managers dislike having difficult conversations.  Often organizations need to balance competing demands, such as maximizing productivity, delivering on a key product or deadline, or accepting the realities of a tight job market or hiring freeze.  In each of these situations, a manager may elect to keep the employees the manager has, no matter how marginal the performance, because the time and expense of managing the employee out may be too great.  Just in this past year, I can think of repeated instances in which an organization explained to me that an employee had been told of the employee’s errors on multiple occasions, but the manager did not expressly inform the employee that such errors were viewed as performance concerns because the employee had a pivotal role in one or more key projects and the organization did not want to deliver pointed, critical feedback that might leave the employee feeling demotivated.  The organization made the choice to continue with the employee they had, until they finally reached their wits’ end or the project was at a less critical stage, such that they concluded it was now wiser to make a staffing change.  Those organizations each had just, and ample, cause for the termination decisions they made, but to the impacted employees, the decisions may have felt unfair and sudden.  Chasing the bogeyman of employment at-will therefore will not solve the problem, nor is it clear why the City Council needs to be legislating in this area.

The costs of recruiting, hiring and training new employees further disincentivize organizations from terminating employees willy-nilly, without cause.  Nearly every client and business owner I speak with, in a broad range of industries, are finding it difficult to hire qualified, motivated employees at present.  They certainly are not firing their current people if it is remotely possible for them to avoid doing so.  Social media and websites like Glassdoor further serve as a check on employers engaging in baseless termination decisions.  Disgruntled employees make their views known on those websites, and bad reviews can hamper an organization’s recruiting efforts.

I am not so naïve as to believe there are no employers out there that engage in bad employment practices.  However, returning to my initial hatchet analogy, the remedy being proposed by so many of the candidates for council speaker overlooks a range of legal and practical checks on employer behavior that collectively offer substantial protections to many employees.  The problem with a just cause requirement is not so much in the need for employers to have reason to terminate an employee; currently, in most situations, those reasons already exist.  Rather, the problem, as discussed in my prior blog article on the fast food franchise law, is that the definition of “just cause” under such a law and the processes that accompany the enforcement of such a requirement hamstring employers in myriad other ways.  Any legislative response must consider those implications.  Notably, Montana, which was the first and has long been the only state to require “good cause” for termination, substantially scaled back its employee protections earlier this year, following its experience of years of litigation over the specifics of employer termination decisions.

Facebooktwitterredditpinterestlinkedinmail
Back to Top