Category: Employee Relations

3

January, 2023

New York Employers Face Complementary Federal/State Restrictions on Confidentiality and Nondisparagement Clauses

New York employers that include confidentiality or nondisparagement clauses in any agreement they enter into with an employee – including offer letters, employment agreements, restrictive covenant/noncompete agreements, severance agreements or settlement agreements – must ensure those clauses comply with the new federal Speak Out Act and with existing New York State law.  Those laws impose restrictions at different stages of the employment relationship, and thus present complementary, but navigable, restrictions for employers.

Limitations on Clauses Prior to Any Employment Dispute

The Speak Out Act, which took effect December 7, 2022, renders unenforceable any confidentiality or nondisclosure clause, or any nondisparagement clause, in a contract or agreement with an employee if:

  • it is entered into before a dispute has arisen and
  • it limits employees from disclosure or comment on a sexual assault or sexual harassment complaint.

Under the federal law, employees must be permitted to discuss “conduct,” the existence of a settlement involving “conduct,” or information covered by the terms and conditions of the contract or agreement.  The law does not define “conduct,” but it is presumably referring to the facts and circumstances related to a sexual harassment or sexual assault claim.

The Speak Out Act does not apply to other types of employment disputes, including any category of harassment complaint other than sexual harassment.  It expressly states that it is not meant to preclude employers from protecting trade secret or proprietary information.  It therefore does not invalidate most aspects of a typical restrictive covenant agreement, but employers must take care when drafting their agreements and tailor their language so the agreements cannot be construed as violating the Speak Out Act.

Employers drafting pre-dispute employment agreements with confidentiality restrictions must additionally ensure that their agreements comply with New York State law.  New York law renders unenforceable any agreement between an employer and employee that prevents the disclosure of factual information related to any future claim of discrimination unless the agreement notifies the employee that it does not prohibit the employee from speaking with law enforcement, the Equal Employment Opportunity Commission, state and local human rights commissions, or an attorney.

Limitations on Clauses Once a Dispute Arises

Because the Speak Out Act only applies to pre-dispute agreements, it permits employers to include confidentiality and nondisparagement clauses in settlement agreements with employees once an employee has asserted a sexual harassment or sexual assault claim.  New York law, however, imposes limitations on employers in this context.

New York State prohibits employers from entering into any agreement resolving a discrimination claim that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment.  New York’s law is broader than the Speak Out Act in that it applies to all discrimination and harassment complaints, not just sexual harassment.  But it is narrower in that it:

  • only applies to the facts and circumstances underlying the harassment complaint;
  • is limited to agreements that are resolving a discrimination claim; and
  • does not place any additional limitations on nondisparagement clauses.

New York does not preclude confidentiality clauses that apply to other aspects of the parties’ employment relationship, and the law’s confidentiality restrictions do not apply to severance agreements (where employment is being terminated outside the context of a discrimination claim).

New York also permits a process whereby, in settling a discrimination claim, an employee who wishes to keep the matter confidential can enter into a written confidentiality agreement with the employer that is separate from the settlement agreement.  The law dictates very specific terms to this confidentiality agreement, including that employees be granted a full 21 days to consider the agreement (and FAQs issued by the New York State Division of Human Rights provide that the employee cannot sign before the end of the 21-day period), and have seven days post-signing to reconsider and revoke their agreement.  The confidentiality clause also cannot restrict an employee from providing information in response to a subpoena or in the context of a government investigation of a complaint, or from disclosing information necessary to receive unemployment insurance, Medicaid or other public benefits.

Where that Leaves Employers

Federal and New York law collectively still permit employers to impose confidentiality and nondisparagement restrictions on employees.  Employers must, however, draft those clauses in the pre-dispute context to permit the disclosure of information protected by the Speak Out Act and to include the clarifying notification where required under New York State law.  When settling a discrimination claim, New York employers need to ensure any confidentiality restrictions do not extend to the facts and circumstances of the underlying claim, unless the employee also desires confidentiality and the employer complies with the state’s procedural requirements for entering into a post-dispute written confidentiality agreement.

By Tracey I. Levy

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8

December, 2022

Is Pay Transparency Just Legislators Throwing Arrows at a Dartboard, Missing the Root Problem

What if all these new legislative initiatives at pay transparency are solving the wrong problem?  Touted as a solution to pay inequity, a recent study lends much reason to question the viability of that approach.  And from personal experience as a “big law” associate,  I know that “transparency” is not always as clear as it may seem.

Can Pay Transparency Hit the Bull’s-Eye?

I have been having a lot of conversations about this subject recently. I  have spoken with reporters, some “on background” and some for articles in which I have actually been quoted, conversed with colleagues about how we think the latest laws will play out, and had thorny practical discussions with my clients who are struggling to understand just what they need to do in order to be in compliance with laws that are incredibly localized when their recruiting area is incredibly diffuse.  I am particularly proud of and grateful for my recent conversations, posted in Forbes.com (New Wage Transparency Law Has Overlooked Problems and Why Your Company May Need A ‘No Haggle’ Rule) with award-winning author, coach, mentor and researcher of the secrets to professional success Dr. Ruth Gotian.  All these conversations are driven by recent legal changes, which in certain jurisdictions now mandate that employers disclose and in some instances affirmatively and publicly publish, the range of what they are willing to pay for any particular job opening.

I have read commentary from many others, including colleagues who I hold in high esteem, on this very same subject. And there is one statistic that I found buried in the midst of a recent article published by SHRM that has me feeling more discouraged than ever and wondering whether legislators are simply throwing arrows at a dartboard and hoping for a bull’s-eye.

Clarifying the Cause and Meaning of “Pay Inequity”

The federal government statistics we use when we refer to a pay equity gap are based on the average earnings of individuals in various demographic categories, without controlling for related business factors. Payscale has reported that when controlled for job responsibilities, education and experience, women earn 99 cents for every dollar earned by a man, and the pay disparities among men of different races similarly only differ within the range of a penny.

So do we have a serious pay inequity problem? Job responsibilities, education and experience have long been recognized as entirely legitimate, nondiscriminatory factors that may be considered in making employment decisions. While facially non-discriminatory, factors such as education can also be misused as a proxy that excludes or marginalizes individuals of color who otherwise possess abundant performance potential.  But absent statistical proof of a disparate impact, and evidence undermining the legitimacy of the criterion applied, our legal system does not recognize differences in treatment based on those factors to be evidence of discrimination. And if differences in pay based on education, job responsibilities, and experience are widely recognized to be lawful, then what is it that we expect pay transparency will achieve?

Back in the Day…Lessons from Personal Experience

Back when I was an associate at a large law firm, I took comfort in the lockstep pay scale that governed my first eight years with the firm. It was my law school graduation date that determined how much I would be paid, and I knew the same was true for the other men and women associates in the offices surrounding me.

There are of course a few deviations even in the most lockstep of systems, and in law firms associates may be told they are taking a step back by a year or two in the pay scale based on intervening work experience before joining the firm that may not directly relate to the work of the department with which they are now associated. But it was all transparent, or seemingly so, and I never had reason to question whether I was being paid differently as a woman.

I made a conscious choice relatively early in my large law firm career to scale back my work schedule, first to allow for advanced legal studies and then to care for my children, and my compensation continued along the lockstep track but with a proportionate reduction that aligned to my reduced billable hours commitment.  That too was transparent and I was and remain so grateful for the opportunity I was given to continue my career with the firm in that capacity.

But all was not quite as transparent as it seemed. I had a 1200 hour per year billable expectation, and I made it my business to meet and usually exceed that billable target every single year. My compensation was in line with that target. What was less apparent was that some associates who were classified as full-time employees, and therefore expected to meet a 2000 hour per year billable target, did not consistently achieve their objective. I know anecdotally from my work over the years with other large law firms that those who fall regularly short of the billable hours target receive taps on the shoulder and a nudge to secure alternative employment outside of the firm. There is only so long that they are carried on a more lucrative financial wave than that which applied to people like me who worked (and were paid) for a part-time schedule.

So I know firsthand what pay transparency looks and feels like, and I know it not to be a panacea that achieves true equality. The point that stymies me is that if our societal problem pertains to differences in pay that align to differences in the type of work we are performing, the training we received before engaging in that work, and the years of experience we have developed, then how on earth is pay transparency going to change that societal problem? It feels instead like additional window dressing to claim we are solving a problem when what actually we are doing is likely to have little or no impact.

Let’s Name the Real Problems

As a step in a forward direction, I suggest we begin by naming our actual problems:

One:

Women and certain marginalized groups are more likely to take jobs that fall on the lower end of the overall societal pay scale.  As a result, their lifetime earnings are likely to be less than those of white men.

Two:

Women and certain marginalized groups are less likely to accrue as much seniority in the jobs that they take because life factors may necessitate their temporary exit from the job market, or their experiences at work may be such that they eventually choose to leave, often for less lucrative positions, rather than stick it out in an environment where they do not fully feel they belong.

We Need Different/Better Solutions

The existence of these specific problems is not new news. But the laws on pay transparency seem entirely irrelevant to solving them.  Instead, we need to take several reflective steps back as a society. We need to give serious thought to whether we are under-compensating people for caretaker and other types of roles that currently fall on the lower end of the pay spectrum.  Supply and demand helps to drive wages, but so does the government, and reimbursement rates for child care, elder care services, and preschool education that leave people just above the poverty level send a message that we are looking to do these things on the cheap and do not place as much value on them as a society.

As for our workplaces, our laws against harassment and discrimination can really only go so far. My earliest exposures in corporate America to what was then entitled diversity and inclusion initiatives was greatly underwhelming. They felt like lip service, comprised of special recognition days and a handful of guest speakers over the course of a 12 month period and I could not imagine how any of that made those who were under represented feel wanted and included.  But D&I has evolved to Diversity, Equity, Inclusion and Belonging, and more recently I have had the good fortune to work with many talented, insightful leaders who are pressuring organizations to turn a mirror on themselves, to look at the composition of their workforces to consider whether those align with the organization’s values, to search for where people may be discouraged from applying or may choose to leave before they or the organization have been able to enjoy the benefits of their contributions, and to develop creative solutions.  I regularly tell DEIB professionals that I do not envy their jobs. To be effective, they must lead a course of soul-searching, break down systems, analyze their component parts, and get buy-in to effectuate change.

I applaud the objective of getting us to a point in society where we all feel valued and appropriately compensated for the work that we do. But no wave of a magic legislative wand is going to get us there. Let’s instead buckle down at each of our organizations, partner with those who are developing some expertise in this area, roll up our sleeves and get to work.

By Tracey I. Levy

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25

November, 2022

Sometimes We All Need a Little Help – and a Cooperative Dialogue with our Employer to Get Us There

I have been thinking a lot about managing physical and mental impairments recently. Not the permanent ones, but the ones that may come on suddenly and impede what we consider to be our “normal” functioning ability. The subject is on my mind for two reasons. First, because in the past few years we have heard of so many more instances of workers facing mental health or substance abuse issues, or newly diagnosed as adults with conditions like ADHD for which they are being prescribed medications or other treatment. Second, because I have been facing down my own physical and mental health issue – a chronic medical condition that at its most severe can produce hours-long, paralyzing vertigo attacks and hearing loss.

In my case, prior to the pandemic I thought I had my condition largely under control through a combination of diet and medication. Then I took the weight of the world on my shoulders as we heard the progressively more bleak stories of the impact of COVID-19, my vertigo attacks returned, and they became more frequent, less predictable and more debilitating. I lost 50 percent of my hearing in one ear, and the status quo clearly was not sustainable. I took the rare step of opting for surgery five weeks ago, a minor surgery with great odds of stopping the vertigo attacks (and thereby stemming the hearing loss).

I had anticipated a weekend for my recovery from surgery, and allowed a cushion of two additional days when I was scheduled to be out for religious observance. I had a roster of ongoing matters and deliverables, but no worries about working through all of them immediately following the holiday.  I didn’t even set an out-of-office message, figuring I could return any necessary calls or emails as soon as the anesthesia wore off.

The surgery went as planned. The recovery did not.  My weekend was spent sedated in the hospital, trying to make the world stop spinning. I rested at home over the holiday and then tried to resume my work in short intervals, from my recovery bed. My colleagues covered for me on some matters, and some I pushed off or worked through at less than my regular pace. I built in downtime between my meetings so I could just rest, give my eyes a break, and regain my strength for my next meeting or project. I had a running list of all my deliverables and gradually made my way through completing them.

By week four, the list had been reduced to just a few ongoing matters. But while I had seen gradual, albeit painfully slow, improvement in my first three weeks, I began to backslide. I was stretching out six hours of productive work over a 10 to 12 hour daily window, and by 8 pm, a milder version of the old vertigo was returning, leaving me helpless to do anything for 45 minute intervals and so exhausted thereafter that I had to call it quits for the night. By the weekend, the vertigo was back with a major roar, sudden, fierce and completely debilitating attacks that had me violently ill and confined to my bed. Clearly something had to change.

This past Monday, I confronted my own situation. I called out the areas in which I was not delivering at my expected level – the blog articles I had not even brought myself to start writing, the training materials I had only half-developed, the investigation I’d had to decline taking on for a new client and the one that was in danger of stalling – and I took some sage advice from a respected teacher. I put myself on medical leave (you can do that when you own the business). I emailed clients to request to push out some deadlines, I set out-of-office messages on my phone and email, I went for a walk outside, and then I went to bed. I saw my doctor the next day, who has put me on a new medication that is so far keeping the vertigo away. I am continuing to walk outside each day, I am accepting the care of my family and friends, and until now I had almost entirely retired my laptop and work emails.

And it is working. I feel slowed by the medication, but freed of the oppressive weight of the vertigo I was perpetually fighting off. I am not entirely steady on my feet, but my walks on flat terrain help to clear my head. And ideas and inspiration to write, the lifeblood of my professional existence, are flowing once again.

Perhaps this is too much disclosure of personal information. Perhaps I have spent just a few too many hours listening to Moth hour story podcasts on National Public Radio this past month when the vertigo left me unable to absorb any form of visual engagement. But I share all this because, while I hope my particular ordeal is unique, I am afraid that the themes of wanting to continue to deliver at work, not wanting to admit the scope of the problem, not wanting to accept too much help, and not giving in to “defeat” are more universal and more prevalent in our workplaces than we may recognize.

For those of you in circumstances like mine, I see you and I empathize. But I also want to educate because going it alone is not your only option. If you are suffering from a serious medical condition, it may qualify as a “disability” under federal law and even more likely so under the law in states like New York, Connecticut, New Jersey and others. What that means is that you are entitled to help to enable you to perform the essential functions of your job. In New York City they call it a “cooperative dialogue” process and I like the friendliness of that phrasing.

You will likely be asked for documentation from your health care provider, but most employers I work with genuinely want to help and support you. Certainly the work needs to get done, but particularly if yours is just a short-term debilitating condition, and particularly if you are part of a larger organization, it may be possible to temporarily shift certain projects or responsibilities to colleagues who can help cover. Sometimes deadlines are more aspirational than essential, and they can be shifted for compelling circumstances. And sometimes the best thing you can do for yourself and everyone around you is to just step away for a little bit, take a leave of absence and allow your body and mind the time and space to heal.

Marvel characters aside, none of us are superheroes. All of us, at some point, face circumstances usually not of our choosing that interfere with the career trajectory, performance standards and aspirations that we set for ourselves. If you are like me, the hardest step in that situation is recognizing our own limitations – to ourselves, and to those we work with. But health issues do not typically resolve themselves just by pretending they do not exist, and the caliber of work we can deliver under trying circumstances often does not meet our own lofty standards.  Make the call, and if you need it, ask for the help.

By Tracey I. Levy

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24

October, 2022

Mandated Pay Transparency – the Public Posting of Salaries Being Offered – Is Imminent in NYC and CA

At the onset of the pandemic, when businesses were being shut down, new government edicts were materializing by the hour and it felt like the world had turned on its head, I heard from a great many clients, each trying in their own way to sort through the confusion. There was a level of chaos then that I hope never again to experience at quite that level in my professional career.

But I have advised and managed through other inflection points – times at which a jurisdiction (most typically NYC, thank you to my home stomping grounds) has rolled out a substantial change in employment laws that, while covered in advance by lots of law firms and journalists, still caught many employers by surprise. The advent of paid sick leave did that – with rules and guidance issued by the city literally at the eleventh hour before the effective date and employers that already had some form of paid sick leave benefit scratching their heads to discern how what they offered met (or more often did not meet) all that the new law required. And years before that it was the laws prohibiting smoking in the workplace – something that has now become a fairly standard workplace norm was radically shocking when it rolled out, with exceptions for private enclosed office spaces, signage mandates and a plethora of legislative compromises.

We are again at one of those inflection points, and this time the target is employer’s hiring practices. Next week New York City employers will face round one of the change, as November 1 brings with it a mandate that every job posting for a position that could be filled in the city (including by a remote worker) must specify the wage or job range for the position. That mandate takes effect in Westchester County on November 6 and for the entire state of California on January 1.

January 1 also will bring round two to New York City – a requirement that the myriad tools employers may now be deploying for their hiring practices undergo anti-bias testing and that those results, plus a plethora of other information, be made public on employers’ websites and through various notice requirements to job applicants. These requirements will cover the most basic of AI tools, like those that perform key word searches to help filter through (and reject) stacks of job applicants, to far more sophisticated systems that rate candidates’ suitability relative to designated hiring criteria or even conduct and analyze video interviews of prospective applicants.

One client recently commented that this is the full job security for recruiters law, and at least in the short-term it may be. New York City seems to place far greater faith in the unbiased (or at least more modestly scaled) feedback of recruiters and hiring managers than it does in technology that can be programmed to whittle applicant pools down to the choicest of candidates in the blink of an eye.

I have been writing and speaking of these legal changes for months and want to call out some of the resources you can reference for additional information.

  • For background on the basic elements of the pay transparency laws, see page 1 of Takeaways from Summer 2022. For similar background on the AI law, see page 5 of Takeaways from Winter 2021/22. And for the Westchester County piece of this, see my most recent posting on the WHRMA blog.
  • More in-depth articles that we have posted on each of these subjects for the Levy Employment Law blog include: NYC pay transparency law, NYC pay transparency guidance, AI tools, and pending NYS pay transparency legislation.
  • For some of the collateral consequences employers should be anticipating from pay transparency, see my Forbes interview with award-winning executive coach and author Dr. Ruth Gotian, and my more recent interview for the Employment Law column of SHRM, the Society for Human Resource Management.
  • For the broader context of how pay transparency aligns with the 50-year history of pay equity initiatives in the U.S., our firm delivered a continuing legal education program with the Federal Bar Association and MyLawCLE that can be accessed here.

And there are more articles to come, as we help our clients work through the practical applications and implications of these laws. I have been thinking through a range of options employers may wish to consider for their own organizations that get ahead of the pay transparency issue. Yes, a pay equity audit is a good start – as so many legal practitioners have been advising – because the first step in solving a problem is knowing whether one exists. But options and opportunities go well beyond that initial step.

Also, there is the nagging question of whether any of this new legislation actually is addressing the right problem. There is reason to believe it is not, but also options (albeit challenging ones) for how to truly get to the thorny underlying issues. Keep checking with me as we explore those ideas, and please consult employment counsel if you have any questions about how the new hiring laws apply to your organization.

By Tracey I. Levy

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19

September, 2022

Workplace Investigations: Why Get a Written Report

One of the thorny process questions that eventually arises in any workplace investigation is whether and how to memorialize the findings and conclusions from the investigation. Is it sufficient just to save the notes from the investigation interviews in a file? How about a letter notifying the key parties that the investigation has been closed and the concerns raised were or were not substantiated? Perhaps an executive summary would be helpful to memorialize the concerns raised, the process followed, and the final conclusions? Or should you also capture the factual information considered and assessed in reaching those conclusions?

Retaining Notes
Yes, the notes should be saved from all investigation interviews. So should any other documents, photos, data, recordings, video or other electronic communications that may have been considered. All those items are important to reflect what issues were raised, what information was gathered, and what support exists for the concerns.

Notifying the Parties
Yes, you should notify the key parties whether the concerns raised were or were not substantiated. It is even more helpful if you inform all the parties – not just the complainant(s) and respondent(s) – that the investigation has been closed. Those communications may be verbal or written, depending on your organization’s practice and best determined with the guidance of legal counsel.

What is most important is that the communications actually occur. It provides closure to the parties and those involved in the investigation. That way they know that the issues were considered and appropriate actions have been taken. You thereby enhance confidence in your process — that concerns raised do not fall into a “black hole.” You also stem the tide of gossip.

When there is no follow-up, people wonder whatever happened with the matter that x person raised. Worse still, people conclude that because they heard nothing further it must mean that the organization did nothing with the information that those individuals had provided. All your hard work to investigate becomes for naught.

Drafting an Executive Summary
It often is helpful to prepare at least an executive summary of the investigation that was conducted. The executive summary should:
• Outline the concerns raised and when they were brought to the organization’s attention;
• Identify who was interviewed and their job titles;
• Identify what documents or other information was reviewed; and
• State the conclusions with regard to each concern raised and the key findings in support of those conclusions.

The executive summary serves essentially as a road map.  Decisionmakers can reference it as a basis for considering appropriate responsive action. Should a concern arise in the future involving one or more of the same parties or work group, a subsequent investigator can similarly reference the executive summary to understand the scope of the prior investigation.

While helpful, an executive summary by definition lacks detail. It does not summarize the information provided by each interviewee, it includes limited information about where conflicting accounts were provided and how credibility was assessed, and it most certainly cannot “stand on its own,” should the underlying complaint proceed to an adversarial posture. For that level of detail, you need a full written report.

Advantages of a Written Report
A written report should start with an executive summary and offers all the benefits of that as a road map to the issues, process followed, and conclusions. The written report should go further, though, and tell the full narrative of what concerns have been raised, what the interviewees said in regard to those concerns, where documentary or other evidence was relevant to the concerns, what conclusions were reached, and how those conclusions were derived. In contrast to the executive summary, the written report should provide sufficient detail such that it is not necessary for the investigator to provide any additional information.

A written report thus reflects the investigator’s findings and analysis, and thereby supports the conclusions reached. It memorializes a considered process and demonstrates due diligence by the organization. The report also allows decisionmakers to carefully consider appropriate action, consistent with the investigator’s findings.

Not every workplace investigation results in the drafting of a full written report. Cost and time often are significant factors, as a written report is not something that can be knocked out in a few hours. Where an investigation has found sufficiently serious violations of policy that the organization has decided to terminate the respondent’s employment, some organizations conclude that no written report is necessary. The termination itself is viewed to demonstrate the seriousness with which the issues were considered and addressed. Other organizations in that same situation will conclude that a written report is very much needed to memorialize why the respondent’s employment was terminated. That is particularly so if the terminated individual would have been eligible for some severance package, stock award or bonus, or is to be stripped of a prior award, based on whether employment was terminated “for cause.”

A written report offers other benefits. Sometimes an organization may disclose portions or all of the report to a complainant’s attorney and can use the report to further settlement discussions. Other times, the persuasion is internal, and the report may be impactful in garnering support from senior leaders for changes within the organization.

Ultimately, whether to request or prepare a written report is an individualized determination. Workplace investigations, done properly, take time and care. Organizations that commit that level of effort would do well to ensure they have memorialized their efforts in some fashion. That written record can inform future actions relevant to the individuals and group involved and the organization as a whole, and it can protect the organization in the event a matter proceeds to litigation.

*****************

In this periodic Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

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