Employment Contracts in New York

In recent years the use of employment contracts has come under scrutiny in many states, including New York.  But an employment contract may be necessary in order to prevent disclosure of trade secrets, unnecessary competition, or solicitation of clients or other employees.  When creating an employment contract, it is important to ensure the contract is legally binding for both parties.  Here in New York employment contracts must be supported by consideration, protect a legitimate business interest, and be reasonable in duration and geographic scope.  Accordingly, there are three primary factors for employers in New York to consider when determining if an employment contract is appropriate: 1) is the other party a potential new hire or a current employee; 2) what is the employee’s role within the business; 3) what is the employee’s geographic reach?

First, is the employee a new hire or a current employee?  All employment contracts must be supported by consideration.  (This means there must be something of value exchanged for the employee’s promise to uphold the contract.)  For new employees conditioning their employment on entering into the employment contract is sufficient consideration, because the employee is being offered something of value (a job) in exchange for entering into the contract.  For current employees, however, consideration must include something more than just continued employment, such as a raise or promotion. 

Second, consider the employee’s role within the business.  In New York there is a growing trend amongst courts to not enforce employment contracts, especially contracts where an employee agrees not to work for a competitor, between employers and low-level employees.  In other words, protecting the labor of low-level employees is generally not considered a legitimate business interest.  On the other hand, preventing the disclosure of trade secrets, client lists, or other confidential information, are all considered legitimate business interests.  Unfortunately, New York Law does not directly define low-level employee.  However, New York courts will examine all the facts when determining if the contract is enforceable; such facts might include the amount an employee earns, the employee’s duties, and the employee’s access to sensitive company information.  Further, legislation was recently introduced in New York to limit the enforcement of employment contracts to employees earning greater than $75,000.00 per year.  Accordingly, employers should consider the employee’s role within the company and the impact on the company in the event an employee leaves when deciding if an employment contract is necessary.

Finally, consider the employee’s geographic reach.  In order to be reasonable in geographic scope the employment contract should be limited to the geographic region where the employee works and/or interacts with clients.  For example, an international corporation with an employee who has clients around the globe may request that employee enter a contract that is global in scale.  Generally, however, the scope of any employment contract should be limited to the area where the employee does business.  Further, the contract should be limited in duration.  In New York courts have generally found that six months is a reasonable time frame, but courts have also upheld contracts that require employees not to compete for up to three years after they leave the company.

Regardless of whether you are an employee or an employer, you should seek legal advice before entering into an employment contract.  This will help ensure that the contract is legally binding for both parties and can save the time and frustration of litigating the enforceability of the contract down the road.

Picture: https://www.storyblocks.com/stock-image/employment-contract-bwhlar7hxdbj6gnsawx

Sing It, Celine. My Heart Will Go On.

February 14 is fast upon us and you fall into one of two camps: you either agree with the J. Geils Band that love stinks, or you are all about the chocolate and sweet nothings. History books will record the great NECCO Conversation Heart Tragedy of ’19, when the elementary school classic took a year off after the company changed hands. I’m not really sure how to ask you to be mine if I can’t do it with a peachy hued little gem of tooth-cracking pasty sugar with blurry words printed on it. These Dysfunctional Valentine Hearts appeal to my sense of humor.

When my older daughter was a pre-school age, her wonderful daycare provider was having a little Valentine party for the kids. My friend Marilyn and I joked about how we were going to out-supermom each other, and I spent hours late at night after my kids were asleep doing crafts (I am NOT a craft person) but I am pretty sure I won. These little felt pouches held Hershey kisses and little notes for each kid. I won, right?

All of this is the intro to what I really want to talk about today – not love and Valentines, but hearts. More particularly, heart health.

Do you know the difference between cardiac arrest and a heart attack? Did you think they were the same thing? (It’s ok to admit that, I think lots of people confuse the two).

Simply, cardiac arrest is an electrical problem and a heart attack is a circulation problem. With cardiac arrest, irregular heartbeat disrupts the heart’s pumping action and blood can’t get to the brain and other organs.

With a heart attack, a blockage in an artery prevents blood flow within the heart. Even though they are different health events, they are connected in that heart attacks can sometimes lead to cardiac arrest.

You have probably heard that heart attacks present differently in women than they do in men, but do you know the difference? For women, signs include nausea and vomiting, back or jaw pain, and a little thing called shortness of breath. If you (like me!) thought that shortness of breath was like that feeling after you just ran the Corporate Challenge and are totally out of breath, you are wrong. Shortness of breath actually feels like you can’t take deep breaths (I know this first hand, it’s ok to ask me next time you see me, and no, I did not have a heart attack). For men, it’s more like Redd Foxx on Sanford & Son – “I’m coming, Elizabeth!” with the sudden onset and intense chest pain (plus shortness of breath, nausea, etc.).

Whether it’s cardiac arrest or a heart attack, the first thing to do is call 911. The sooner medical intervention starts, the more likely it is that the person will have a positive outcome. I strongly encourage you to learn CPR so that if you ever find yourself in a situation where that skill is needed, you will be prepared. If you are reluctant because you still think of CPR as including mouth-to-mouth resuscitation, I have great news for you – we have gone the way of hands only CPR. Many places of business have AED devices (Automated External Defibrillators) and the machines literally talk you through each step so even if you are completely flustered by the situation, the robot voice will still help you help someone having cardiac arrest.

If you have a family history of heart disease, or if you have risk factors like smoking, poor diet, and lack of exercise, you can still take control of your health and start some heart-healthy habits to reduce your overall risk of cardiac arrest or heart attack. You should always talk to your doctor first, but changes to your diet (more leafy greens, fewer Baconator sandwiches at the Fair) and an exercise regimen will go a long way toward helping YOU go a long way in life. Your friends, family, and your lawyer all agree – you’re worth it.

Jennifer Granzow

Ms. Granzow holds a JD from the Syracuse University College of Law. Her practice is concentrated in the areas of business and corporate law, real estate, economic development, and government relations, with an emphasis on grants and public funding.

More Posts - Website

Sidewalk Snow Clearing Requirements

We all know that it is conscientious and neighborly to clear sidewalks running through your property or in front of your business after a significant snowfall, but there are other important reasons to keep our sidewalks snow and ice-free. 1) Accumulated snow and ice is dangerous; 2) snow blocked sidewalks can results in disabled and elderly residents being temporarily homebound; and 3) it is a legal requirement.

A Transportation Necessity

Many upstate cities are precariously situated with high poverty and limited public transportation resources. This means that many individuals rely on the network of sidewalks to get around. In Monroe County, for instance, U.S. Census data reveals almost 12,000 people walk to work and another 13,000 walk to and from bus stops to take public transportation to work. When snow and ice pile up on the sidewalks many disabled, wheelchair bound, or elderly residents are unable to leave their homes. Some are left reliant on family, neighbors, or community services for necessities like groceries and prescriptions. This strains community resources and familial networks at an already stressful time of year.

Safety

Wintry weather can be treacherous, especially for people whose primary mode of transportation is not an automobile. Slipping on ice-covered sidewalks is a major public safety issue. A Buffalo study of emergency room visits concluded 27 percent of pedestrian injuries occurred on icy surfaces. To avoid this danger, or more often to avoid snow in their shoes, many who venture out will be compelled to walk or wheel through the streets alongside traffic. Last winter a woman died after being hit by a car in downtown Syracuse. The state of the adjacent pedestrian thoroughfare led to suspicions she was in the road because the sidewalks were impassable. Likewise, the family of a 62 year old Rochester woman killed in a hit and run last March maintains she was walking in the street because the sidewalks were not clear. We can all contribute to reducing the prevalence of accidents by taking the initiative to maintain our walks.

Legal Requirements

                There are two sources of law that require sidewalks be kept clear of snow and ice. Firstly, many municipalities have local laws which require sidewalks be maintained, this includes the clearing of snow and ice. The second, source are federal anti-discrimination statutes like the Americans with Disabilities Act (ADA), which require public accommodations be accessible to people with disabilities.
  A typical provision from the City of Saratoga Springs’s Town Code requires:

The owner, occupant or person in charge of an improved or unimproved lot adjoining a City street shall remove the snow from the sidewalks in front of such lot within 12 hours after each snowstorm and shall keep the sidewalks clear of snow and ice and, when slippery, keep the same safe by sanding.

Rochester City Code § 104-11(c) provides “[t]he owner of a building or lot must keep the sidewalks adjoining such building or lot free and clear from snow and ice and must not suffer or permit snow or ice to collect or remain on such sidewalk later than 9:00 a.m. if such snow shall have fallen or collected after 8:00 p.m. of the previous evening or later than 8:00 p.m. if such snow shall have fallen and collected after 9:00 a.m.” In addition to these affirmative laws, some municipalities have negative laws to prevent people from contributing to the problem. In 2015, the Syracuse passed a law making it illegal for plow operators to pile snow on a sidewalk. Violators can be fined $150 and the property owner can be fined $100.

                Title II of the ADA requires public accommodations to be accessible to people with disabilities. One fifth of families have at least one member with a mobility impairment. Sidewalk impediments may be a bother to the rest of us, but just a few inches of snow or ice can be an insurmountable barrier for someone walking with a cane or using an electric scooter. Scholars have argued the ADA therefore requires sidewalks be cleared of accumulating snow and ice. The U.S. Department of Transportation agrees with this finding. A federal guide to ADA compliance suggests that “only isolated or temporary interruptions” to accessibility are permissible. It does not define the timeframe, but clearly requires “reasonable snow removal efforts.” Another federal anti-discrimination statute, the Rehabilitation Act of 1973, requires sidewalks funded with federal money to be cleared.

Municipal Responses

                Local municipalities have taken different approaches to attempt to keep their sidewalks clear during the long winter season. Rochester has received praise for its program, which employs a fleet of contractors to clear sidewalks anytime it snows more than four inches. It funds the program through a property tax levy of about $35 per year to an average homeowner. Syracuse is in the first year of a similar albeit less ambitious program. Some municipalizes leave the onus entirely on property owners.  

Municipalities’ efforts to make sure all their sidewalks are indeed laudable, but public finances remain tight. The best way to keep our communities safe, accessible, and inviting is for individuals and businesses that own property to fulfill our obligations as law-abiding citizens and as good neighbors to keep our sidewalks clear.

Picture: www.delawareonline.com

Hiring an Attorney for Your Real Estate Purchase

If you are a transplant to New York it may come as a surprise to you to learn that real estate transactions involve not only real estate agents, but also attorneys to represent the buyer, seller,and (in some instances) lender.  This is because New York law mandates that only attorneys can practice law and specifies that the important aspects of a real estate deal are included under that umbrella.  However, hiring an attorney is also in your best interest, regardless of whether you are buying or selling property, since the attorney performs so many important functions during a real estate transaction. Specifically, a real estate attorney is there to review the contract for sale, review title, prepare (or review) the deed and other important legal documents involved in the transaction, and represent your interest during the closing.

Your attorney will first become involved in your real estate transaction after you have selected a property to purchase (or someone has elected to purchase the property you have for sale) in order to review the Sales Contract.  During this phase your attorney ensures the contract is in your best interests, that you understand what you are committing to, and that the contract is legally correct. 

Once the Sales Contract is approved by the attorneys for the buyer and the seller it’s time to review the title documents.  Reviewing the title documents is especially important for a buyer since this process ensures that the seller owns the property (and thus can legally sell it) and that there are no undisclosed liens attached to the property.  Further, the attorney will review the chain of title (the people who owned the property before the seller) to ensure that the property was legally passed from person to person in previous transactions.

Once the attorney determines that the title documents are sufficient, she will also review the other legal documents including the Deed, the tax documents, any necessary affidavits, etc.  During this process the attorney’s job is to ensure that the documents are correct, and that title will pass from the seller to the buy in a legally binding fashion.  If you are purchasing a property with another person, such as your spouse, your attorney will also discuss how you will take title to the property.  For example, a couple may take title to a property as joint tenants with right of survivorship, which means that in the event one spouse dies the title to the property will pass to the surviving spouse.

Finally, and perhaps most importantly, your attorney will represent your interests during a closing.  For example, during a purchase of a home with a mortgage, the attorney would help the buyer understand the legal commitments involved in loan documents.   Or, if there was some issue with the property during the final walk-through, the attorney would help you understand your legal rights and negotiate a favorable solution. 

If you are new to the State of New York it may seem unusual to hire an attorney to purchase (or sell) property but choosing an attorney who will diligently represent your interests throughout the process is one of the best investments you can make.    

Picture: https://freerangestock.com/photos/77222/house-sold-means-home-sale-3d-rendering.html

Giving Thanks

Over the river and through the woods…many of us will go tomorrow, to a dining table laden with traditional Thanksgiving feasts and ringed with family members, all waiting for the chance to dig into Grandma’s top-secret recipe sweet potatoes with marshmallows on top. My husband, kids and I will celebrate “Friendsgiving” with close friends who are like family to us.  No matter how you celebrate the fourth Thursday in November, the ribbon weaving the celebrations together is one of gratitude.

The endless string of news stories that bombard us daily bring tragedy into our homes in real time as it unfolds – right now, we are seeing entire neighborhoods destroyed by forest fires in California. We’ve seen mud slides and floods wash away lifetimes of possessions, crumbling houses into piles of debris. Hurricanes flattened cities, stranding families in makeshift shelters with only the clothes on their backs. There’s no clicking your ruby slippers together three times to make everything better again. There’s no place like home – but what would you do if faced with the loss of your home, your neighborhood, the playground where your kids tried to reach the clouds by swinging higher and higher?

It’s really hard to imagine the devastation that these natural disasters bring to people, the instant loss of everything they have spent a lifetime building, and the need to sometimes literally run for their lives. I feel incredibly fortunate that the worst thing I really have to complain about is that we get a lot of snow here. Perspective is a beautiful thing.

At the end of the day, though, there is the ribbon of gratitude. No matter what, we have our families, we have our friends, people who we love and who love us in return. Here in Syracuse, almost always away from the horror of Mother Nature’s wrath, we have the opportunity to put our gratitude into action. Maybe you can build a bigger table, literally or figuratively, for those whose needs exceed your own this holiday season. Maybe this is the year that you volunteer for organizations that are doing good things for your community, day in and day out. Maybe you can open your heart in understanding of those whose culture and beliefs don’t mirror yours. Maybe for every time your Aunt Karen asks why you are still single or don’t have a better job, and you restrain yourself from delivering a grumpy response, you will make a donation to a charity.

On behalf of my colleagues here at the Wladis Law Firm, thank you for allowing us to assist you with your personal and business legal matters this year. We are fortunate to have the privilege of doing meaningful work for you and we are honored that you have placed your trust in us. Our very best wishes of gratitude and true thanksgiving to each and every one of you.

Picture: www.patlive.com

Jennifer Granzow

Ms. Granzow holds a JD from the Syracuse University College of Law. Her practice is concentrated in the areas of business and corporate law, real estate, economic development, and government relations, with an emphasis on grants and public funding.

More Posts - Website

Look for the Helpers

“When I was a boy and I would see scary things in the news, my mother would say to me,

‘Look for the helpers. You will always find people who are helping.’” ~Fred Rogers

 

It has been a tumultuous start to fall in America. Whether you are a diehard law-nerd following the confirmation hearings of the proposed Supreme Court Justice like a hawk, or a passive spectator watching everyone in your social media feeds argue over the impact of the hearings, you have likely witnessed a lot of heated debates about the selection process for the vacancy on the court.  Sadly, it’s often debilitating to be a law-nerd, because as constitutional scholars we are all too aware that the selection process is left up to our elected representatives.  In times like this I try to remember my childhood.  My parents did not appreciate the act of commiseration.  Action, they explained, empowers you.  Complaining does not.  In times like this it is easy to feel like a lost voice among a sea of screaming people.  It is even easier still to be complacent, to forget to be grateful for what we have, and to forget that we too have the power to become helpers.

The holidays are just around the corner, and with them come another season of giving.  If you are a frequent holiday volunteer who doesn’t spend much time in the community the rest of the year perhaps its time to take some of the passion you have felt toward the current political climate and turn it into action.  Below are some traditional and not so traditional ways to give back.

If none of those ideas spark your interest you may try something closer to home.  Many local schools look for volunteers in the classroom to listen to children read or help with other activities.  If political discourse is more up your alley consider volunteering with the local chapter of your political party, or volunteering to assist ensure voters are registered or can get to the poles on time.  Looking for something even more informal?  Try committing yourself to a few random acts of kindness per month (or week, or day).

I appreciate that Mr. Rogers’ mother taught him that helpers would always be near, as a child that must have been a great comfort for him, but it is also important to remember that if we want our children to see a community of helpers we must be helpful. It doesn’t matter if your version of help is raking the leaves for your elderly neighbor, or building houses for the less fortunate, or being an ear for a victim in a time of crisis.  What matters is that you do what you can to give back.  What matters is that our children see us acting as often as they see us arguing or complaining.  What matters is that we give them helpers to look for.

  • Volunteer CNY (A United Way Initiative) – The United Way’s Volunteer CNY offers a myriad of volunteer opportunities and is currently seeking assistance for: weekend meal prep; the Syracuse Film Festival; the care package project; and more! http://www.volunteercny.org/
  • Habitat for Humanity – In addition to help building houses (near and far) Habitat for Humanity seeks volunteers to work in their “Re-Store” and the local office. https://www.syracusehabitat.org/
  • Vera House – Vera House seeks volunteers to assist domestic violence victims with a variety of services from crisis hotlines to family court assistance. http://www.verahouse.org/volunteer
  • Salvation Army – If you are into something more traditional consider volunteering for the Salvation Army, of course you could ring the bell and collect donations for the holidays, but the Salvation Army offers volunteer opportunities year-round. https://syracuseny.salvationarmy.org/SyracuseNY/Volunteer
  • Rosamond Gifford Zoo – Working with animals doesn’t have to mean a trip to the animal shelter. Consider volunteering at the zoo for a unique experience that is sure to warm your heart. http://www.rosamondgiffordzoo.org/volunteer

 

Picture: http://www.clipartpanda.com/categories/thank-you-volunteer-clip-art

 

 

Sexual Harassment: Part Three. State Releases Model Policy

New York State has, at long last, released its final model sexual harassment policy and training materials. Back in April, Governor Cuomo signed into law a bill requiring all state employers to adopt what might be the most stringent mandatory anti-sexual harassment policies in the country and to provide sexual harassment prevention training to all of their employees on an annual basis.

The state first released a sample model policy and training on August 23rd for public comment and review. Then, on October 1st, the state finally released the official versions of the training materials and the model policy. These materials are only a sample, so employers are free to substitute their own materials so long as they meet or exceed the minimum requirements for the new policies. Those minimum requirements are also available on the DOL’s website. However, the state Department of Labor (DOL) has said that adopting the model policy will be sufficient to satisfy employers’ obligations under the new law.

One question that will arise when designing a prevention training, or even when implementing the DOL model training materials, is what the training should actually look and sound like. The DOL model training is available in one of two formats: a PDF document in the form of a script – apparently designed to be read by a presenter to a group of employees, or a power point presentation. It is important to remember that the training must be “interactive” to meet the minimum specifications of the law. Merely providing employees the power point presentation or the script is clearly insufficient.

The DOL has specified four ways in which employers can, relatively simply, make their training regimens comply with the interactive requirement:

  • having the training be presented in person and the presenter either asks questions of the employees or leaves time throughout the presentation for employees to ask questions;
  • for online versions of the training, enabling employees to have the option of asking questions and receiving an immediate response;
  • for online versions, forcing employees to periodically answer questions accurately to proceed with the training; or
  • at the conclusion of the materials requiring employees to submit a “feedback survey” discussing what they learned.

The DOL did not specify what a feedback survey might look like.

The date for complying with the new requirements for adopting a sexual harassment prevention policy is still October 9th, just eight days after the model policy was officially released. However, the state made two significant changes regarding the timeline for having all employees undergo the anti-sexual harassment training. The date for existing employees to undergo training has been shifted back from January 1 to October 9, 2019 and the 30-day deadline for new employees to undergo training has been scrapped in favor a requirement that they undergo training “as quickly as possible”. Presumably, these shifts were made in order to give businesses more flexibility in adopting a training program that works for their particular organization.

It will be important for employers to keep a close eye on the development of these rules for a couple reasons. Firstly, because any issues involving sexual misconduct are subject to a high degree of politicization and this certainly does not appear to be waning any time soon. Secondly, because New York’s new law is something of an aberration among the states; how it will play out in practice cannot be easily determined by looking at the experience of prior adopters. Thirdly, and most starkly, because the Governor said on a phone call with reporters this week that the state hadn’t “even concluded the regs on the law that we passed.” Indicating that further guidance from Albany about the requirements might be on the horizon.

https://www.ny.gov/combating-sexual-harassment-workplace/employers

 

Picture: www.deadline.com

 

 

 

Back to School and Moving Forward

“Car Drop Off Line? No. Parking Lot? Yes!”

 

Yet another summer has come to a screeching halt before any of us were really ready for it to go.  It’s still been nearly 90 degrees out, sun blazing.  But it’s September, and those glossy floors that the custodians so carefully cleaned and waxed are now home to lost class schedules, those little scraps of paper left from tearing a sheet from a notebook, and the footprints of the hundreds of students and staff who have returned, filling schools with the everyday noise, chaos and life that is back to school season. If you have kids in school, you are in one of two camps:  you either are sad that you’re apart during school hours after a summer together, or you are relieved for the restored routine, happy that school is back in session.  The start of school is definitely a beginning and an ending all at the same time.

Since we’re talking about things that divide the parents of schoolchildren, let’s talk about the dreaded school drop off line.  If your kids ride the bus, complain all you want about having to rush to get to the stop on time, but consider yourself lucky that you are not part of the daily drama of the drop off line. If your kids don’t ride the bus, you are either part of Club Tuck and Roll, or you need to use the parking lot.  There are no other options.

Don’t even think about getting in the drop off line if your student is still finishing up her Latin homework in the car, or needs your help retrieving his cello from the back of your SUV. No. The car line is not for you. That is why there are parking lots. The parking lot is where you go when your child (or you!) is in need of a bit of extra time before exiting your vehicle and skipping joyfully toward the school doorway.  I am the parent of middle schoolers, I know there is no joyful skipping (but that there is plenty of Latin homework). If you want those extra minutes together for a heartfelt goodbye and a pep talk for the day ahead, nobody is going to give you a single bit of shade about that so long as you are doing so in the parking lot and not the drop off line.

Those of us who are part of Club Tuck and Roll know that the very essence of the drop off line is that it is a continuous stream of stops and starts but that it is meant to keep moving forward.  Pull ahead, don’t just park in the spot that is nearest to the door.  You need to pull up to let the other cars behind you file into place and not back up onto the street. Cars pull up, kids – having already gathered their things and said their goodbyes – hop out, cars pull away so the next batch repeats the routine.  Over and over, until every car in the drop off line has deposited its precious cargo at the curb.

When someone who belongs in the parking lot decides to enter the drop off line, that breaks the zen of the drop off line (note:  if you have ever been in the drop off line, you know there is no zen there). There is a wrench thrown in the works, the machinery of the drop off line comes to a (muttering, sometimes honking) frustrating halt. The parents in the cars behind you, Parking Lot Parent in the Drop Off Line, are not thinking pleasant thoughts about you. You are the substance of countless internet memes and funny Facebook videos that make the Club Tuck and Roll Team nod in knowing solidarity. Don’t be that person.

In all seriousness, there is a real safety issue that arises when the drop off line doesn’t continue its smooth orderly progression. Traffic gets backed up, snaking through lots and onto the street. There are plenty of pedestrians around school grounds, and it’s important to keep things safe. Let’s all do our part to help keep things moving and most of all – keep things safe.  Here’s to a fantastic school year for all the kids, teachers and staff. We’d honk and wave, but we’ve got to keep moving.

 

Picture: Beattie Elementary School

 

Jennifer Granzow

Ms. Granzow holds a JD from the Syracuse University College of Law. Her practice is concentrated in the areas of business and corporate law, real estate, economic development, and government relations, with an emphasis on grants and public funding.

More Posts - Website

Sexual Harassment: Part Two. New Rules Explained

 

 

In the last post I explained that New York had passed some pretty significant rules aimed at curbing the problem of sexual harassment in the workplace. The paragraphs that follow give a summary of five of the most significant changes included in the reform package and hopefully provide some guidance for employers looking to stay in compliance with these important rules.

Expanded Liability

In the past, employers were only responsible for claims of sexual harassment from people directly in their employ. This is no longer the case. In order to expand protections to a larger segment of the working population, and in recognition of the way that work has shifted in this 21st century economy, this reform allows employers to be held accountable for the sexual harassment of independent contractors, subcontractors, vendors, and generally anyone performing services on the employer’s behalf. If a contractor or another covered individual is harassed, the employer can be held liable if they or their agents, knew or should have known about the harassment and failed to take appropriate corrective action. This reform went into effect the day the budget was signed on April 12, 2018.

Confidentiality Agreements

Prominent news pundit Bill O’Reilly famously paid a woman $34 million dollars to settle a sexual harassment claim and, more expensively, to keep quiet about it. Often a sexual harasser, or their employer, will attempt to limit the negative publicity or personal embarrassment associated with a sexual harassment settlement by including a non-disclosure or “confidentiality” agreement. This reform limits these agreements to instances when it is in “the plaintiff’s preference.” Policy makers argue that these agreements allow for too many repeat offenders and conceal the full extent of this problem from the public. The “plaintiff’s preference” exception presents a difficult question for litigants and judges to parse. Certainly Mr. O’Reilly’s victim’s preference must have been to keep quiet in exchange for a hefty payment. Couldn’t the same be said for all plaintiffs who voluntarily enter into these agreements? The answer is yet unclear. The statute does provide the guidance that this exception will only be allowed when the court determines that the plaintiff’s choice “is not a result of intimidation, coercion, retaliation, or threats” and that it will not result in an adverse “potential impact on the public.” Plaintiffs are afforded a seven-day window after signing any such agreement to revoke their acceptance. This part of the reform applies to all settlements entered into after July 11, 2018.

Mandatory Arbitration

One controversial aspect of the reforms is the prohibition on enforcement of mandatory arbitration provisions. Arbitration clauses are generally favored by policy makers on account of their effect on judicial efficiency. Employers also like them because they are often more cost effective and they avoid some of the publicity associated with litigation. However, the Legislature felt it was more important to ensure that victims could have their day in court, so the reform says that mandatory arbitration clauses will not be enforced after July 11, 2018, even if the agreement was entered into prior to that date. Employers should revisit any agreements in which these clauses were included to reassess the level of risk they are exposed to. This reform will probably be challenged on the grounds that it is preempted by the Federal Arbitration Act. Because federal laws reign supreme in our system of federalism, this could lead to this reform being declared unenforceable, meaning that employers’ arbitration clause are still binding. But this has not happened yet – as of today, this reform is still the law in the state of New York.

Sexual Harassment Policies & Employee Training

Employers are now obligated to adopt a written sexual harassment prevention policy to be distributed to all employees. The policy must:

  • prohibit sexual harassment and provide examples of prohibited conduct;
  • include information about federal and state sexual harassment laws and mention that there may be applicable local laws;
  • include a standard complaint form;
  • include a procedure for the timely and confidential investigation of complaints including due process for all parties;
  • inform employees of their rights to redress and available forums for adjudicating claims administratively and judicially, it is prudent, but not necessarily sufficient, to mention that employees can file a complaint with the Equal Employment Opportunity Commission and/or the New York Division of Human Rights (“DHR”);
  • state sexual harassment is misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and supervisors and/or management who allow such behavior to continue; and
  • state retaliation against individuals who complain of sexual harassment or who testify or assist in any proceedings is unlawful.

Employers are also required to provide all employees with sexual harassment prevention training on an annual basis. The training must include:

  • an explanation of sexual harassment;
  • examples of sexual harassment;
  • information concerning the federal and state laws concerning sexual harassment and remedies available to victims; and
  • information concerning employees’ rights of redress and forums for complaints.

The training is required to be interactive, but the statute does not specify in what way it needs to be interactive. Employers should scrupulously document the dates employees went through this training. These portions of the reform go into effect October 9, 2018. Before employers run out and hire an HR consultant to design them a training regimen, they should know that the law mandates the DHR produce a model prevention policy and training program, the adoption of which will be sufficient for compliance with the new rules. The DHS has yet to produce these materials, but they are also required to comply by October 9, 2018.

Conclusion

If employers don’t comply with these reforms they can face serious penalties. In addition to the obvious liability concerns, state contracts will not be awarded, and may even be revoked, from entities that fail to comply. There are numerous other specific requirements for public authorities, municipalities, and government agencies that are not discussed in this post, which come with their own sets of consequences. These reforms are necessary to address a serious issue in our society and although the compliance may seem like a headache at first glance, with diligence and a little guidance, these requirements can be a very manageable part of employers’ operations.

 

Picture: www.chem.com

 

Sexual Harassment: Part One. New Rules for New York State

Sexual harassment in the workplace is not a new phenomenon. It has risen to the forefront of public consciousness many times. At least since the infamous Clearance Thomas Supreme Court confirmation hearings in 1992, the general public has been well aware of the problem. Recent revelations about Hollywood producer Harvey Weinstein along with a cavalcade of high-profile allegations of workplace sexual misconduct which has resulted in the ouster of famous actors, top news broadcasters, wealthy executives, a federal Appellate Judge, and even a sitting United States senator, have generated renewed interest in concrete solutions to the problem. After all, the most troubling aspect of all this unfortunate news is that there are countless instances of workplace sexual harassment being perpetrated by less noteworthy offenders that go unreported and unpunished every day in workplaces across the country.

Not content with hand-wringing, the New York State Legislature included sweeping new sexual harassment prevention reforms into the State’s Budget, which were signed into law by the Governor on April 12, 2018. These laws and regulations affect all entities throughout the state, no matter the size, , so long as they employ at least one individual aside from the owner, excluding New York City, which is implementing its own unique slate of reforms. It is crucial that all New York employers familiarize themselves with these new rules and adjust their policies and practices accordingly.

Global Definition

The reforms adopt a standard definition of sexual harassment:

Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature if such conduct is made either explicitly or implicitly a term or condition of employment, or submission to or rejection of such conduct is used as the basis for employment decisions affecting an individual’s employment, or such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment, even if the complaining individual is not the intended target of sexual harassment.

Employers should use this definition in all company documents and training materials.

Major Policy Updates

The reforms are highlighted by five major changes that effect all employers:

1) expansion of liability for harassment that takes place on employers’ watch;

2) prohibition of confidentiality agreements in settlements of sexual harassment claims;

3) no more forced arbitration of sexual harassment claims;

4) mandatory adoption of written sexual harassment prevention policy; and

5) mandatory sexual harassment training for all employees.

These new policies all come with their own nuances and unique implementation features. Grappling with the details of each policy is important to ensure every employer is in compliance.  Next week, I will elaborate on what exactly each of these changes mean for employers and what some appropriate steps would be for them to make sure they do not run afoul of the new laws.

 

Picture: deadline.com