20

March, 2020

Federal, NYS Emergency Sick Leave Laws Protect Employees Impacted by COVID-19, Impose Substantial New Obligations on Many Private Employers

By Tracey I. Levy, Esq.

  • [Ed. Note 4/3/20: updated guidance from the NYS DOL has made clear that the paid sick leave requirement, discussed below, with respect to employers with 100 or more employees is 14 calendar days, not working days as a prior version of the DOL guidance had indicated.  Therefore, employers with 100-499 employees must provide the same duration of emergency paid sick leave under both federal and New York State law.]

On March 18, 2020 both the federal government and New York State adopted emergency legislation designed to provide some degree of salary protection to employees who are unable to work because of quarantine and isolation orders and certain precautionary measures taken in response to COVID-19.  These laws offer government funding to support employers in the form of tax credits (at the federal level) and by tapping into the existing disability and family leave insurance benefit pool (at the state level), but also impose substantial new requirements on employers that at least involve an initial outlay of salary payments to employees.

Federal Emergency Paid Sick Time

The federal government has taken a two-pronged approach to provide paid time off and job guarantees for employees who are unable to work due to health, child care or public safety reasons stemming from COVID-19.  More specifically, all private employers with 500 or fewer employees and many public employers are required to provide their employees (even new hires) with up to two weeks (80 hours) of paid sick time if an employee is unable to work due to one of six situations:

1.The employee is subject to a government-issued quarantine or isolation order due to COVID-19;

2. A health care provider has advised the employee to self-quarantine due to COVID-19 exposure;

3. The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;

4. The employee is caring for someone subject to a government-issued quarantine or isolation order;

5. The employee is caring for a child where the school or child care provider has closed or the paid care provider is unavailable due to COVID-19 precautions;

6. The employee is experiencing any substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Full-time employees are entitled to 80 hours of paid sick time, paid at their regular rate of pay up to a maximum of $511 per day for absences based on their personal condition (reasons 1 through 3 above) and two-thirds of their regular rate of pay, up to a maximum of $200 per day, for absences based on their care of others (reasons 4 through 6 above).  This paid sick time will not carry-over into next year, and unused amounts need not be paid out in the event of an employee’s termination.  Rather, all paid sick time ends immediately following termination of the emergency need.  Significantly, though, for employers that already offer some amount of paid leave time, an employer cannot require an employee to use other paid leave before claiming paid leave for a qualifying reason under this Emergency Paid Sick Leave Act.

Federal Emergency FML Leave

Following the initial two-week period of Emergency Paid Sick Leave, employers with 500 or fewer employees must permit employees to request up to twelve weeks of job-protected paid leave under the Emergency Family Medical Leave Expansion Act (“Emergency FMLEA”) [Ed. clarification 3/30/20: the first 2 weeks are unpaid under Emergency FMLEA but may run concurrently with Emergency Paid Sick Leave; up to 10 weeks of paid leave are then available] if the employee remains unable to work because the employee needs to care for the employee’s child under the age of 18 due to the closing of the child’s school or child care center or unavailability of the child’s regular paid child care provider for a COVID-19-related public health emergency as declared by a federal, state or local government authority.  In this limited childcare-related context, the Emergency FMLEA expands the federal FMLA, both in its coverage of every employer with 500 or fewer employees, and in its application to every individual who has been employed by such an employer for at least 30 calendar days.  It also provides that employees are to receive at least two-thirds of their regular rate of pay for this time off, based on their regular work schedule, to a maximum of $200 per day or $10,000 in aggregate.

Although the scope of covered employers, employees and qualifying reasons under the Emergency FMLEA, as well as the concept of paid leave, deviate substantially from employers’ existing obligations under the FMLA, other aspects of the FMLA with regard to providing requesting employees with notice of their leave rights, health insurance continuation, and job protection, are fully applicable in this context.  Employees cannot be discriminated or retaliated against for requesting or taking qualifying leave.  However, for Emergency FMLEA, employers with fewer than 25 employees can be exempted from the obligation to restore an employee to the same or equivalent job at the end of the leave period if the position no longer exists due to economic conditions or changes in operations that affect the individual’s employment, or as caused by a public health emergency during the period of leave.  To claim the benefit of this exception, the employer must have made reasonable efforts to restore the employee to an equivalent position, and for one year thereafter, the employer must continue to make reasonable effort to notify the employee if an equivalent position becomes available.

Federal Tax Credits

To pay for these substantial paid leave benefits, the federal law provides that employers may claim credits against taxes owed to the Internal Revenue Service each quarter equal to 100 percent of qualified sick leave wages and 100 percent of qualified family leave wages paid in the calendar quarter, up to the full amount of the taxes owed.  If the credit exceeds the taxes owed, then the excess is to be treated as an overpayment to be refunded to the employer.  The law also provides that sums paid as emergency paid sick leave or Emergency FMLEA leave are not to be considered “wages” for purposes of the federal tax law section 3221(a).  Finally, it should be noted that the tax credits are equally available to self-employed individuals to the extent they are unable to work because of qualifying sick or family leave reasons.

Limited Duration, Exceptions and Penalties Under the Federal Laws

Both Emergency Paid Sick Leave and Emergency FMLEA take effect by April 2, 2020 and end on December 31, 2020.  The laws both authorize the Secretary of Labor to issue regulations that exempt businesses with fewer than 50 employees where imposing the laws’ requirements would jeopardize the viability of the business as a going concern.  Health care providers and emergency responders also may opt out from the laws’ requirements.  Employers will be required to post a notice of rights under the Emergency FMLEA law, which the Department of Labor is supposed to be issuing within the next week.  Failure to comply and provide paid leave under the emergency paid leave laws will be considered a failure to pay minimum wages and will thereby be subject to the penalty provisions of the Fair Labor Standards Act.

New York State Emergency Paid Sick Leave

On the same day as the passage of the federal emergency paid leave laws, New York State passed its own emergency paid sick leave law, which takes effect immediately.  The New York State law is similarly comprised of two components – sick leave and extended paid leave – and, as with the federal law, it mandates that COVID-19-related sick leave days be provided in addition to any other paid leave benefit currently offered by the employers’ policies.  The New York State law also assures employees that, at the end of their leave, they will be returned to their job at the same pay, terms and conditions, and it prohibits employers from discriminating or retaliating against employees for requesting or taking leave under the law.  The law states that it does not preclude employers from taking any personnel action they would otherwise have taken had the leave not been requested or taken.  Despite these similarities, the New York State law differs in several material respects from the federal laws.

First, the state is not offering any tax credits or other reimbursement to employers for the sick leave component of the New York State law, but depending on their size and profitability, many employers will be required to provide some period of additional paid leave, as discussed below.  The extended paid leave benefit is to be administered through the existing mechanisms of New York State Short-Term Disability Leave (“STD”) and/or New York State Paid Family Leave (“PFL”), without the usual qualifying waiting period, and is thereby paid through employers’ current state-mandated STD/PFL insurance policies.

Second, New York State sick leave and STD are available only to employees who are unable to work (even remotely) because they are personally subject to a COVID-19-related order of protection or isolation (equivalent to category 1 under the federal Emergency Paid Sick Leave law).  PFL benefits may also be used in that context to provide a combined benefit.  Employees who are unable to work (remotely or otherwise) because they are caring for a minor dependent child who is subject to a COVID-19-related order of protection or isolation (which is a more limited version of category 4 under the federal Emergency Paid Sick Leave law) are also covered by the New York State law, but those individuals are only entitled to apply for benefits through the PFL program.

Calculating the Combined Federal and NYS Paid Leave Benefits

For any employee subject to a COVID-19-related order of protection or isolation whose regular salary equates to $511 or less per day and who works for an employer with 99 or fewer employees, the federal Emergency Paid Sick Leave law will fully supersede the New York State sick leave requirement.  Similarly, to the extent an employee is absent from work for a COVID-19-related reason other than a government-mandated quarantine or order of isolation, only the federal law will apply because the state law will be inapplicable.  In contrast, employers with more than 500 employees are fully subject to the New York State law requirements; the state provides no exemption for the largest employers.

There are several circumstances in which, depending on the size and profitability of the employer, an employee who is eligible for benefits under both laws may enjoy greater benefits under the state law than the federal law:

  • New York State-qualifying employees with a daily salary higher than $511 – these individuals are entitled to receive paid sick days under New York State law at their full, uncapped daily rate.
    • For employers which, as of January 1, 2020, had eleven to 99 employees, and smaller employers that had a net income greater than $1 million last year, five days of emergency sick leave must be paid at the employee’s regular base salary.
    • For New York State employers that had 100 or more employees as of January 1, 2020, 14 days of emergency paid sick leave at the employees’ regular base salary.
  • Employees who work for an employer with 100-500 employees – the New York State law literally mandates “at least fourteen days” of emergency paid sick leave. It appears, from the FAQs issued by the state Department of Labor, that this means 14 working days, which is more than the two full workweeks of pay provided under the federal law.  Therefore, at any salary level, these employees would be entitled to four more days of emergency paid sick leave under the state law than is provided by federal law. [See Ed. Note at top of this article]
  • Employees who are already subject to an order of protection or isolation or become subject to such before the federal law takes effect – because the New York State law has immediate effect, to the extent New York State employees already are subject to an order of protection or isolation or become subject to such an order prior to the federal law taking effect, they would be entitled to receive the full benefit provided under the state law and their eligibility for federal Emergency Paid Sick Leave would likely be determined looking forward from the effective date of the federal law. This may have the effect of entitling New York employees to the benefit of both paid New York State emergency sick leave and some amount of federal Emergency Paid Sick Leave, and we will need to await clarification from the state and federal Departments of Labor as to how to reconcile this overlap.

New York State Emergency Extended Leave

Once an employee has exhausted their federal and state emergency paid sick leave, the state law requires that they exhaust any other sick leave provided by their employer.  If they thereafter remain unable to work and are still subject to an order of protection or isolation, then they will be eligible to apply for both STD and PFL benefits for the duration of their time in quarantine or isolation.  Notably, although the New York State law uses the vehicle of the STD program, it has substantially enhanced the benefit threshold to an amount equal to an employee’s total average weekly wage, up to a maximum of $2,043.92 per week.  In addition, the state has made an exception to the PFL benefit program to permit the use of PFL in this context for an employee’s own condition, and to permit simultaneous receipt of benefits under both the STD and PFL programs.  As a result, when combined with the maximum PFL benefit of $840.70, eligible employees will receive a combined total weekly payment of $2,884.62, which may offer employees greater pay than the Emergency FMLEA benefit.

For any employee who is not personally under a quarantine or isolation order, but who needs to care for a minor child subject to such an order, the two weeks of federal Emergency Paid Sick Leave offers the same or a greater benefit (even at the $200 cap) than just applying for the NYS PFL benefit.  If the isolation order continues and care is required beyond those first two weeks, the Emergency FMLEA likely offers a greater benefit and will thereby supersede the New York State extended paid leave requirement for employers with 500 or fewer employees.

Challenging Times

These emergency paid leave laws represent uncharted territory from a federal law perspective, and the overlay with state laws presents interesting challenges.  The immediate effect of the New York State law and the realities of the COVID-19 response in New York State may necessitate taking employment actions without the benefit of further guidance from the Department of Labor.  While the above analysis highlights the key provisions of both laws and how they do or may intersect, employers are advised to seek legal advice to clarify their obligations before taking responsive action.

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8

March, 2020

Managing Workplace Epidemics: Coronavirus Concerns in Westchester County and New York City

By Tracey I. Levy, Esq. and Alexandra Lapes, Esq.

As the global Coronavirus situation is expanding rapidly and hitting close to home, Westchester County and New York City employers should review their communicable disease plans and implement preventative measures to limit the potential effect of illness in the workplace.

Key strategies for employers in preparing and responding to a Coronavirus outbreak are:

  1. Implement a communicable disease policy

If your organization has not done so already, HR professionals should devise a communicable disease policy and prevention plan in case the outbreak directly impacts their workplace.  An effective policy should identify and communicate the organization’s objectives and address workplace safety precautions, such as employee travel restrictions, mandatory reporting of exposure, reporting to public health authorities, employees quarantined or in isolation, and facility shutdowns.

Employers should also establish policies to encourage employees who feel sick to stay home, post reminders on proper handwashing and coughing/sneezing practices and make hand sanitizers and tissues available throughout the workplace. Remind employees of relevant policies that may provide them with paid time off in these circumstances, including time off under Westchester County’s Earned Sick Leave Law and New York City’s Earned Sick and Safe Time Act, as discussed below.

  1. Make sure not to discriminate

Because of the heightened risk that COVID19 presents for individuals with underlying medical conditions, in the course of implementing a communicable disease policy or administering a response to the current Coronavirus threat employers may learn, inadvertently or otherwise, of latent disabling conditions impacting some of their employees.  Employers should treat all such information as confidential, and take care not to engage in any actions that could be perceived as discriminating based on a disability.

Employers also should avoid, and take measures to prevent, any harassment or discriminatory actions that target individuals who may be associated with an ethnic or religious group, or who have relatives from a particular country, that has been more substantially impacted by the spread of the virus.  Employment policies should be consistent with public health recommendations, as well as local, state, and federal workplace laws.

  1. Consider alternative work arrangements

Encourage sick employees to stay home and focus on their health, and recovering employees or those who have been asked to self-quarantine to do so.  Consider flexible work schedules to limit the number of workers in the same work area or worksite, reduce exposure during commutes on mass transit at peak times, and reduce face-face contact.  Use virtual work environments to replace in-person meetings with video or telephone conferences. Leverage remote access solutions where logistically possible to enable healthy employees to stay productive in the event the workplace or specific individuals are subject to a quarantine.

  1. Advise employees before traveling

Employers should continuously check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which an employee may need to travel.  Advise employees to check themselves for symptoms before travelling and notify their supervisor if they need to stay home.  If an employee becomes sick while travelling or on temporary assignment, ensure the employee understands to notify a supervisor and promptly call a local health care provider.  New Yorkers can call the State hotline at 1-888-364-3065, and for Westchester County COVID-19 information call 211.

  1. Manage employee benefits and compensation

Non-exempt employees must be paid overtime compensation if they work in excess of 40 hours in a workweek while covering for other employees absent due to the Coronavirus.  Time spent working from home or through other remote work arrangements also is compensable.

Most employees in Westchester County and New York City will be eligible for up to five days of paid sick leave, under local paid sick leave laws, if they personally contract the Coronavirus, their workplace is closed due to a public health emergency, they are caring for a family member who has contracted the virus, or they are caring for a child whose school or childcare provider is closed due to a public health emergency.

Employers should consider whether, independent of any available paid leave time, they want to continue to pay employees for all or some portion of the time that they are unable to or are precluded from working because of the Coronavirus.  While some organizations have suggested leave donation plans as a means of encouraging sick employees to stay home if they have exhausted their paid time-off benefits, such programs need to be carefully considered.  If not appropriately structured, the donated time can have tax consequences for the donor and the recipient.  Further, the benefits of such a program for small and mid-size employers may prove to be few or fleeting in the context of a pandemic, as donated time may benefit the first to fall ill, but then leave little in the bank for the donors and others who later contract the disease.

New York State Paid Family Leave is available for employees who may need to care for a close family member with a serious health condition.  However, the state defines a “serious health condition” as an “illness, injury, impairment, physical or mental condition requiring inpatient care in a hospital, hospice, or inpatient/outpatient residential health facility;” or “continuing treatment or supervision by a health care provider.”  Under this definition, care of a family member who is hospitalized due to Coronavirus or who has complications from the virus due to an underlying medical condition, such as asthma or respiratory disease, likely would be covered.  Care of a family member who experiences milder Coronavirus symptoms, more akin to the flu, likely would not be covered.

  1. Stay informed on changes to state and local law

Local paid sick leave laws in Westchester County and New York City present some additional challenges for employers.  The laws permit employers to require employees to provide documentation from a health care provider after three consecutive sick days, but employers may not require the health care provider to specify the medical reason for sick leave.  Employers need to balance this provision against the need to be informed, for public safety reasons, if an employee has been diagnosed with the Coronavirus or is being quarantined so as to take appropriate precautions to prevent the further spread of the virus throughout the workplace.  Also, the National Centers for Disease Control and Prevention advises employers not to require medical certification at this time to validate employees who are sick with acute respiratory illness, as they anticipate healthcare providers and medical facilities may be extremely busy and not able to provide such documentation.

Notably, while it has been widely reported that New York State Governor Cuomo plans to amend New York State’s paid sick leave bill to deal with the Coronavirus, there currently is no state-wide paid sick leave law in New York.  Paid sick leave at the state level is simply proposed legislation that needs to make its way through the legislative process and, even if enacted, as proposed the law would not take effect until April 2021.

  1. Employee morale and business continuity

Lastly, employers should endeavor to communicate information to employees about their organization’s communicable disease plan, efforts to reduce the risks of contagion in their workplace, and policies and benefits for those who are directly impacted by the Coronavirus.

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12

August, 2019

New York State Amends Other HRL Discrimination Protections – Broad Protections Expanded Well Beyond Sexual Harassment

By Tracey I. Levy, Esq. and Alexandra Lapes, Esq.

Just over a year after New York enacted sweeping protections against sexual harassment, Governor Cuomo today signed into law further amendments to the New York State Human Rights Law to provide more expansive protections for employees based on any protected characteristic.

SPECIAL ALERT – IMMEDIATE ACTION REQUIRED

Distribute Policy for Harassment Prevention Training

Of most immediate concern, employers who are racing to comply with the October 9 deadline for year one of harassment prevention training should note that, effective immediately, employers are mandated to distribute a copy of their sexual harassment prevention policy at every training session, as well as at hire, both in English and in the employee’s primary language.

Other Significant Changes

In addition to the policy distribution requirement, New York State’s new law extends the Human Rights Law’s requirements to employers of any size, as well as domestic workers, and expands the law’s protections to contractors, consultants and vendors who can show the employer knew or should have known of discrimination directed at them and failed to take immediate and appropriate corrective action that was within its ability.

In addition, the new law:

  • Broadly defines unlawful harassment as subjecting an individual to inferior terms, conditions, or privileges of employment because of an individual’s protected characteristic(s);
  • Eliminates the employee’s obligation to prove that harassing conduct is severe and/or pervasive;
  • Declares that an employee need not show that a comparative individual was treated more favorably;
  • Mandates that the state’s Human Rights Law be construed liberally, regardless of how comparable federal or other states’ laws may be interpreted; and
  • Eliminates the employer’s ability to defend the complaint on the grounds that the employee failed to raise an internal complaint;
  • But it permits employers to defend a claim by proving that the harassing conduct does not rise above the level of what a reasonable person in the shoes of the plaintiff would consider petty slights or trivial inconveniences.

For most employers, these changes will not require any revisions to their existing harassment prevention policy.  However, the “sidewalks” that most policies build around the legal standards have now gotten much narrower, and the amendments collectively make it significantly easier for an employee to support a legal claim of unlawful harassment.  Procedurally, the law increases the remedies available in litigation to include punitive damages and attorneys’ fees for a prevailing plaintiff (while an employer can seek recovery of its attorneys’ fees only if it shows the case was frivolous); and extends the statute of limitations for sexual harassment claims from one to three years.  With the exception of the change in the statute of limitations (which takes effect one year after enactment of the new law), all these changes take effect within the next 60 to 180 days.

Moving beyond litigation, the new law expands the confidentiality and mandatory arbitration clause restrictions adopted last year for sexual harassment claims to now apply to any claim of harassment or discrimination under the Human Rights Law, and it voids out any confidentiality clause to the extent it precludes participation in a government agency investigation or impedes a complainant’s filing for unemployment insurance, Medicaid or other public benefits.  As of January 1, 2020, any non-disclosure provision to which a complainant affirmatively consents must include language confirming that it does not prevent the employee from speaking with law enforcement, a human rights enforcement agency, or an attorney.

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31

May, 2019

Why Local Law Matters for Westchester Employers

By: Tracey I. Levy and Alexandra Lapes

Employers in Westchester County must pay close attention to legal developments at the county level, as the past ten months have brought an unprecedented array of new mandates specific to private employers in the county, and further requirements are likely to come.  For those employers who may have overlooked it, the new mandates include paid leave benefits – first sick time and soon “safe time” leave – as well as restrictions on hiring practices – a ban on salary history inquiries, and limits on when employers can inquire about criminal history.

Earned Safe Time

Beginning October 30, 2019, employers in Westchester County must provide employees with up to 40 hours of paid safe time leave for victims of domestic violence, family offense matters, and human trafficking.  Employees are eligible for safe time leave after being employed in the county for more than 90 days in a calendar year, on a full-time or part-time basis.

Employees can use their safe leave time to:

  • attend or testify in criminal or civil court proceedings related to domestic violence or human trafficking; or
  • move to a safe location.

In providing the time, employers cannot set a minimum increment of use but can require an employee to provide reasonable documentation that leave was used for a covered purpose.  Employers must keep confidential the information an employee provides in support of a request for safe time leave, and such information cannot be disclosed without the employee’s written permission, or as required by law.  Employers must keep any health or safety records on a separate form and in a separate file from an employee’s other personnel information.

Mimicking the County’s paid sick leave procedural requirements, employers are obligated to:

  • post a copy of the law in English, Spanish and any other language deemed appropriate by the County, in a conspicuous location in the workplace; and
  • to provide employees with a copy of the law and written notice of how it applies with 90 days of the effective date and, thereafter, upon hire.

Employers face a fine of up to $500 per violation for failing to meet the notice and posting requirements.

Earned Sick Time

Since April 10, 2019, employers in Westchester must provide employees with at least one hour of sick time for every 30 hours worked, up to a maximum of 40 hours per year.  For employers with five or more employees, the sick time must be paid.

Employees can use their sick time:

  • to care for themselves or a family member due to illness, injury, or health condition, need for diagnosis, care, or treatment of mental or physical illness, injury, or health condition, and for preventative medical care;
  • when their place of business, child’s daycare, or child’s school closes due to public health emergency; or
  • if public health authorities deem the employee or a family member a health risk to the community because of his or her exposure to a communicable disease.

As mentioned above, in addition to providing the time, employers must also conspicuously post a copy of the law in English, Spanish and any other language deemed appropriate, as well as provide employees with a copy of the law and written notice of how it applies to them as of July 9, 2019, and, thereafter, upon hire.

An employer that willfully violates the notice and posting requirements may be subject to a fine of up to $500.

The Fair Chance to Work Act

As of March 4, 2019, Westchester County law prohibits employers from discouraging applicants with an arrest record or criminal record from applying for jobs, and from asking about arrest and criminal history on the initial employment application.

More specifically, it prohibits employers with at least four employees from:

  • making oral or written inquiries or statements related to criminal convictions or arrest records in an employment application;
  • disqualifying an applicant from employment for refusing to answer an unlawful inquiry or statement related to criminal history, or
  • specifying qualification criteria based on criminal history in a job advertisement.

Employers can inquire about criminal history after the stage of the initial employment application, but the law requires that employers conduct a relevance analysis under Article 23A of the New York Correction law before making a hiring decision based on an applicant’s adverse criminal history.  An applicant who is denied employment based on criminal history may request a written statement from the employer that details the reasons for the adverse employment decision.

The law recognizes two limited exceptions to the restrictions on criminal history inquiries:

  • when the employer is subject to “state, federal or county law that required criminal background checks for employment purposes or bars employment based on criminal history”; or
  • when the applicant is applying for a position at a law enforcement agency, or as a police/ peace officer.

Employers face fines up to $10,000 for willful, wanton, or malicious violations, backpay and compensation, as well as costs and reasonable attorney’s fees.

The Wage History Anti-Discrimination Law

As of July 9, 2018, employers in Westchester have been prohibited from:

  • relying on a prospective employee’s current or prior wage history when determining the wages for a prospective employee, unless the information is voluntarily provided by the prospective employee to support a wage higher than the one being offered by the employer;
  • requesting or requiring that prospective employees disclose current or prior wage information as a condition of being interviewed, considered, or offered employment; and/or
  • seeking wage information from any current or former employer of the prospective employee.

If a prospective employee responds to an offer by providing his or her wage information to support a wage higher than the one offered by the employer, the employer may only seek to confirm that wage information from a current or former employer after obtaining written authorization from the prospective employee.

Employers are prohibited from retaliating or refusing to hire an individual based upon their salary history or because they exercised their rights under the law.

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9

July, 2018

Moving Forward After #MeToo – Consider Your Policies

Recent changes to New York State law regarding prevention of sexual harassment will require employers to revisit existing policies to comply with newly-mandated provisions, as summarized in our lead story from Takeaways, Spring 2018.  But looking beyond the state law, one key lesson to be derived from the #MeToo movement is that workplace policies prohibiting harassment must also emphasize power disparities.  The common thread in so many of the #MeToo-type incidents reported in the media is the use of, or perceived threat to use, power to objectify or demean someone.   This power-based focus is not just limited to gender; it plays out in interactions between individuals of different races, national origin, religions, sexual orientation and other protected classes, and thus it should be emphasized in any policy prohibiting harassment, not just those pertaining to sexual harassment.

Power disparities also are not limited to supervisor-subordinate relationships.  Consider a new hire being shown the ropes by an employee with five or ten years of experience.  Those individuals may be peers on an organization chart, but there still is a power disparity that can cause the new hire to feel uncomfortable objecting to offensive behavior.

Other times, the behavior at issue may not fall into the category of actionable harassment based on a protected characteristic.  Sometimes the behavior is just demeaning and abusive on an individual or group level.

Regardless of whether the behavior would give rise to a legal claim, the nature of such conduct can be corrosive in the work environment.  It can undermine morale, loyalty and productivity.  One step in addressing that is to add a clear, express statement in your anti-harassment policy that you will not tolerate the use of, or perceived threat to use, power to objectify or demean someone based on a protected class.  Employers that want to go further than the law can build on that with an anti-bullying or workplace conduct policy emphasizing that actual or perceived misuse of power, including abusive behavior, is not acceptable and grounds for disciplinary action.

Employment policies need to comply with legal requirements, but employers have the option of holding employees to a higher standard of behavior.  Updating policies to incorporate lessons learned from #MeToo is an important step in that process.

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