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.

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25

March, 2022

3 Handbook Policy Requirements that New York Employers May Overlook

By Tracey I. Levy and Alexandra Lapes

Spring cleaning is a great time for employers to revisit their employee handbook policies to confirm that they comply with current legal obligations.  In addition to updates prompted by new legislation, there are more long-standing, New York-specific requirements that we find employers may overlook.  These include specific provisions on accommodation of breastfeeding employees, protection of reproductive health decisions, and smoking prohibitions.

Policy on Lactation Accommodation

All New York State employers are required to make reasonable efforts to provide their employees with a designated room or other private, sanitary location that is not a bathroom, as well as reasonable unpaid break time, for the purposes of expressing breast milk.  New York City law requires that employers have a written policy regarding the rights of nursing mothers to express milk at work, which it distributes to all employees upon hire.  The New York State Division of Labor Standards has similarly issued guidelines that employers are expected to provide employees who are returning to work following the birth of a child with written notice, either individually or through a written handbook policy, regarding their right to break time and an appropriate location for expressing breast milk.

A declarative statement as to the availability of appropriate time and space to express breast milk, or of the employer’s support of its breast-feeding employees, may not be sufficient.  The New York City law specifies a plethora of provisions that must be in the written policy, including:

  • a statement of the employee’s right of access to an appropriate lactation room and reasonable break time to use it;
  • how to request access to the designated lactation room;
  • reference to the employer’s obligation to respond to access requests within a reasonable timeframe, not to exceed five business days;
  • a procedure to follow when two or more individuals need to use the room at the same time; and
  • assure employees that if the request poses an undue hardship, the employer will engage in a cooperative dialogue with the employee to provide a reasonable accommodation.

Reproductive Health Decisions Policy

All employers in New York State are prohibited from discrimination based on an employee’s or the employee’s dependent’s reproductive health decisions.  The law further requires that any New York employer that provides an employee handbook to its employees must include in the handbook a notice of employee rights and remedies under the law.  This includes notice that:

  • employers are prohibited from accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making;
  • employers are prohibited from discriminating or retaliating against an employee based on the employee’s or dependent’s reproductive health decision making;
  • employers are prohibited from requiring an employee to sign a waiver of the employee’s right to make reproductive health decisions; and
  • employees have the right to bring a civil action against the employer for violation of the law and available remedies.

Some employers satisfy this obligation with a separate reproductive decisions policy.  Others may choose to incorporate the requisite provisions pertaining to reproductive health decisions into existing handbook policies that prohibit discrimination and retaliation and specify employees’ legal rights and available remedies under the laws against harassment, discrimination and retaliation.

Note: a March 29, 2022 federal district court decision, CompassCare et.al v. Cuomo, has permanently enjoined enforcement of the notice requirement with regard to reproductive health decisions, on the grounds that it violates the First Amendment.

Smoking Prohibitions in the Workplace

It has been several decades since New York State, New York City, and various counties adopted laws prohibiting smoking in the workplace and other public areas, such that those restrictions are no longer novel or surprising to most workers. This cultural shift may lead employers to overlook a long-standing requirement in many of the local laws, including from Westchester County and Suffolk County, that employers adopt and maintain written policies against smoking in the workplace. New York City’s law goes a bit further in its specificity.  The New York City law requires every employer to have and distribute to all new employees when hired a written policy outlining:

  • the legal prohibitions on smoking and the use of electronic cigarettes;
  • the protection from retaliation for employees or applicants who exercise their right to a smoke-free workplace; and
  • the employer’s procedure for an employee to raise concerns in the event of perceived retaliation.

Takeaways

The passage of time can dull any employer’s recollection of when handbook policies are simply memorializing employer expectations and practices, and when those policies are driven by legal requirements.  The latter must be maintained and updated as the law changes.  Now is a great time for employers to take stock of their handbook policies, and ensure they have the requisite provisions to comply with the law.

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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.

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25

October, 2021

Table of Vaccine Mandates and Latest Legal Updates: Takeaways Fall 2021

Our Fall 2021 issue of Takeaways covers the state of COVID-19 workplace requirements and guidelines (this time focusing on vaccinations), new age discrimination protections in New Jersey and Connecticut, changes in wage and hour requirements, the newest New York City guidance on background checks, and the Biden administration’s gradual roll back of determinations from the past four years to maximize employee protections.

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19

August, 2021

The Lines Have Been Redrawn; “Build Back Better” with Respectful Workplaces in New York

By Tracey I. Levy

Perhaps one of the most troubling quotes coming out of the investigation of sexual harassment allegations raised against Governor Andrew Cuomo was his statement, “In my mind, I’ve never crossed the line with anyone, but I didn’t realize the extent to which the line has been redrawn.”  He added, “There are generational and cultural shifts that I just didn’t fully appreciate.”

Indeed, there have been “generational and cultural shifts,” which were accelerated by the #MeToo movement.  The lines have been redrawn, expectations have shifted, and many organizations began revising their policies and practices years ago to hold employees to a higher standard of acceptable workplace behavior.  The law itself shifted substantially in New York State beginning in 2019, and employees (particularly managers) who do not recognize that shift now present a liability issue for their organizations.

Formerly, harassment was defined by the courts in New York, which looked to federal law to provide a wordy definition, considering, with respect to unwelcome conduct based on a protected characteristic, whether submitting to the conduct was made explicitly or implicitly a term or condition of an individual’s employment; submitting to or rejecting the conduct was used as the basis for employment decisions affecting an individual; or the conduct had the purpose or effect of “unreasonably interfering” with an individual’s work performance or creating an “intimidating, hostile or offensive” working environment, with the final element requiring consideration of whether the behavior was so severe or pervasive as to rise to the level of actionable harassment.  The standard is a mouthful to recite, hard to memorize, and overwhelming on a powerpoint slide.

In 2019, as part of Governor Cuomo’s “Women’s Justice Agenda,” the governor signed into law sweeping changes with regard to the legal standard and enforcement provisions for claims of sexual harassment.  Significantly, the law adopted a new, far simpler definition of sexual harassment (which was subsequently broadened to harassment based on other protected characteristics), as subjecting an individual “to inferior terms, conditions or privileges of employment based on” a protected characteristic.  Not only is the new standard pithy, but the law then expressly goes on to state that an individual need not show that the behavior is severe or pervasive.  Rather, it is for the employer to demonstrate that the conduct was nothing more than a “petty slight” or “trivial inconvenience.”  The legal bar for asserting unlawful harassment dropped precipitously with the new law, and the governor’s press release at the time expressly quoted him trumpeting that change: “By ending the absurd legal standard that sexual harassment in the workplace needs to be ‘severe or pervasive’ and making it easier for workplace sexual harassment claims to be brought forward, we are sending a strong message that time is up on sexual harassment in the workplace and setting the standard of equality for women.”

So how could the very individual who made these legal changes a centerpiece of his legislative agenda have fallen so far short in his own behavior?  Why, in 2021, are we still so fervently teaching the lessons of #MeToo, and how can we effectuate lasting change?  These are the questions that keep me up at night, and that I mull over at random hours.  How do we “build back better” when it comes to workplace culture?

I have no magic antidotes, but certain elements are important in progressing toward a more comfortable workplace.

Commitment from Senior Leadership

As with so many other organizational changes, there needs to be buy-in from the top.  If senior leadership shares the New York governor’s perspective, little if anything will change in their organizations.  Senior managers need to lead by example – both in articulating a commitment to providing a respectful workplace, and in conducting themselves publicly and privately in a manner that comports with that articulated standard.

Putting Sidewalks Around the Law

Preventing harassment based on sex and other protected characteristics is the legal standard.  But when that is our only goal, we end up quibbling about whether an individual’s behaviors do or do not exceed the level of a “petty slight” or what we mean by a “trivial inconvenience.”  Organizations should aim for something broader – offering a “respectful” workplace to employees and everyone else in the workplace.  We need to define what we mean by “respectful,” and that definition should both embody and exceed the legal standard.  Perhaps that means that an organization equally prohibits bullying behavior, which is not singling someone out based on a protected characteristic, but which most certainly can create an uncomfortable or intimidating work environment.  Or perhaps the organization wants to define expectations with regard to how employees communicate with one another – that such communications should be civil, and that employees should be able to articulate their perspective and have their views duly considered.  Alternatively or additionally, employers might address respectful behavior in terms of collaboration, and fostering a team environment where individuals feel supported.  The common and essential component of all these definitions is that they put “sidewalks” around the law by setting forth standards that embody and exceed the current legal standard.  When our goal is broader than the legal standard, the harassment takes care of itself so to speak, in the sense that it is definitionally inconsistent with and therefore should not be occurring in a truly “respectful” work environment.

It Takes a Village

Managers cannot single-handedly root out harassing behavior or impose a culture of respect, nor can any individual or series of complaints give rise to lasting organizational change.  Rather, an organization needs to encourage, empower, and perhaps even mandate that its employees go from bystanders to “upstanders.”  Here the New York City subway safety tagline is most apt – “if you see something, say something,” and that is the mantra to be inculcated throughout the organization.  But it is not sufficient to adopt a catchy refrain.  Employees need to be trained – on what the standards and expectations are for measuring appropriate behavior, about how they can intervene, and on where to submit concerns.  The New York State or New York City versions of the mandatory harassment prevention training programs are not sufficient for that purpose.  Rather, targeted messages, specific to those expectations, need to be communicated to employees and then reinforced at periodic intervals.

You May Need to Change

At times, a manager will seek to excuse questioned behavior with a comment along the lines that the manager is “no different than I was when I started working here,” however many years ago that may have been.  In a nutshell, the manager’s comment precisely illustrates the problem.  The lines have been redrawn.  We are holding employees, and everyone in the workplace, to a higher standard than was the case in 2017.  But that higher standard may not be the optimal objective from a cultural perspective.  Creating a comfortable, respectful workplace requires organizations to do more.  In doing so, an organization may also reap manifold benefits in employee morale, retention, and productivity, as well as reputation, that “build back better” and even help the organization’s bottom line.

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