Workforce Bulletin

As featured in #WorkforceWednesday:  This week, we unpack the major updates the New York State Department of Labor (NYSDOL) incorporated into its model sexual harassment prevention policy:

The NYSDOL recently released major updates to its model sexual harassment prevention policy. The updates cover issues such as gender identity and remote work. What do employers need to know?

Organizations everywhere have recognized the importance of eliminating workplace harassment. From decreased productivity to higher turnover, the impact of workplace harassment can be monumental and even shake an entire business to its core. It is critical that your organization take the right steps to eliminate workplace harassment. Let’s take a look at three common mistakes organizations make in their harassment prevention initiatives. 

1. Inadequate Training

If harassment prevention training is lackluster or not administered properly, its impact will be minuscule. Employees should receive regular, updated training to stay informed of harassment laws and policies in their jurisdiction and in their particular workplace. In many jurisdictions, annual training is required, but even where it is not, it is critical that your organization be proactive and continue to train its employees in order to realize the full benefits.

The post-#MeToo reforms to New York State’s Human Rights Law, which expanded the anti-sexual harassment provisions, included a requirement that the state’s model policy, last issued in 2018, be reviewed and revised every four years. On January 12, 2023, the New York State Department of Labor (“NYSDOL”) published a Proposed Sexual Harassment Prevention Model Policy (“Proposed Model Policy”). The public has until February 11, 2023, to view and comment on the proposed revisions prior to a final version being adopted.

As the year 2022 was ending and 2023 got underway, New York Governor Hochul kept busy reviewing bills that were passed throughout the year but delivered to her for signature only after the November elections. Both houses of the New York State Legislature approved a total of 1,007 bills during the regular 2022 Legislative Session, a “modern-day record,” according to this December 20, 2022 interim report from the New York State Association of Counties. The Governor approved much of this legislation, but rejected a few measure.

As featured in #WorkforceWednesday:  This week, we look at H.R. 4445, new federal legislation that addresses mandatory arbitration of sexual assault and harassment claims.

On March 3, 2021, New York City Mayor Bill DeBlasio issued Executive Order No. 64 (“EO”), which, effective immediately, imposes new sexual harassment reporting requirements on “human services” providers who contract with the City.  The EO requires the Department of Investigation (“DOI”) to review information about sexual harassment complaints and provide its findings to any City agency that contracts with the disclosing provider.

“Human services” is defined by the relevant section of the Administrative Code to include “day care, foster care, home care ...

The final installment of a 10-part series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

Did COVID-19 end sexual harassment?

Did a global pandemic that sent humanity indoors, forcing many of us to work remotely (if at all) and to be socially distant while avoiding handshakes and touching obviate the need for such an obvious rule?  Well, not exactly.  I have been advising clients on this rule and the ripe environment for harassment claims since the pandemic began, and in candor, my position has been met with varying degrees of skepticism (yes, you can still see ...

On March 4, 2020, New Mexico Governor Michelle Lujan Grisham signed into law House Bill 21 (“Law”), limiting the use of non-disclosure agreements (“NDA”) in settlements of sexual misconduct claims.

The Law prohibits employers from requiring, as a condition of employment, that an employee agree to an NDA in a settlement agreement relating to a claim of sexual harassment, discrimination, or retaliation whether occurring in the workplace or at a “work-related event[s] coordinated by or through the employer.” In settlement agreements with former employees, the Law ...

A Trending News video featured in #WorkforceWednesday:  According to The New York Times, over 200 executives have been ousted since 2017, leaving some wondering – is #MeToo over? Far from it.

This dynamic, macro-equity movement has led to numerous workplace regulations that encompass broader pay equity and diversity and inclusion efforts. Privileged pay equity audits are one proactive tool.

Earlier this year, we reported legislative efforts in Illinois to curb sexual harassment in the hospitality industry via Illinois House Bill 3551, which would require restaurants to adopt a sexual harassment policy and provide training to all employees.  While that bill appears to have stalled in the House, similar requirements appear in Illinois Senate Bill 75 (titled the “Workplace Transparency Act”), which, after sitting on the Governor Pritzker’s desk for several months, was finally signed by Governor Pritzker on August 9, 2019.

Section 2-110 of the Workplace ...

This Employment Law This Week^® Monthly Rundown discusses the most important developments for employers in July 2019. Both the video and the extended audio podcast are now available.

This episode includes:

• State Legislation Heats Up
• NLRB Overturns Another Long-Standing Precedent
• SCOTUS October Term 2018 Wraps Up
• Tip of the Week: How inclusion and trust can increase innovation in the workplace

See below to watch the full episode - click here for story details, the video, and the extended audio podcast.

Stay tuned: Sign-up for email notifications and subscribe to the ...

Many retail employers require their employees to agree to arbitrate employment-related disputes as a condition of employment. The United States Supreme Court has repeatedly emphasized that workplace arbitration agreements are enforceable according to their terms, and state law that restricts such enforcement is preempted by the Federal Arbitration Act (“FAA”). Notwithstanding those pronouncements, states, such as New York and New Jersey, have crafted legislation designed to nullify an employee’s agreement to arbitrate certain employment-related claims.

In response to the #MeToo movement, New York and New Jersey have enacted legislation banning workplace arbitration agreements covering sexual harassment and discrimination claims. On April 12, 2018, New York State, as part of its 2018-2019 budget, amended § 7515 of the New York Civil Practice Law and Rules (“CPLR”) to prohibit employers with four or more employees from incorporating mandatory, pre-dispute arbitration clauses in written employment contracts requiring the resolution of allegations of claims of sexual harassment. Additionally, any such clause in a contract entered into after the effective date of the law would be rendered null and void.

On June 19, 2019, the New York legislature passed a bill (which, as of the date of this post, has yet to be signed into law) that makes sweeping changes to New York’s harassment and discrimination laws. Among other things, the bill again amends § 7515 of the CPLR to ban mandatory pre-dispute arbitration clauses in written employment contracts requiring the resolution of allegations of claims of workplace discrimination generally, not just sexual harassment claims and renders any such clause null and void.

On March 18, 2019, New Jersey Governor Murphy signed legislation that declares unenforceable any “provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment.” N.J.S.A. 10:5-12.7(1)(a).  The law further provides that “[n]o right or remedy under the [Law Against Discrimination], or any other statute or case law shall be prospectively waived.” N.J.S.A. 10:5-12.7(1)(b). Both provisions can be construed to prohibit the waiver of a right to a jury trial as required by an arbitration agreement.

Many observers have questioned whether these laws restricting arbitration would be preempted by the FAA. A recent decision in the Southern District of New York, Mahmoud Latif v. Morgan Stanley & Co. LLC, No. 18cv11528 (DLC), 2019 U.S. Dist. LEXIS 107020 (S.D.N.Y. June 26, 2019), confirms that state laws targeting enforcement of arbitration agreements are vulnerable to attack on FAA preemption grounds.

As discussed below, in Latif, the court held that New York’s ban on the arbitration of sexual harassment claims was unenforceable as preempted by the FAA. The court also stated, in a footnote, that the as yet unsigned June 19, 2019 New York legislation would be preempted by the FAA for the same reasons. Latif suggests that employers covered by the FAA can be more confident that their agreements seeking to arbitrate employment-related claims will be enforceable.

Launched more than a decade ago, the #MeToo movement made its way into the national (and international) conversation in 2017, and, by 2018, the movement had such momentum that it spurred a cornucopia of new state laws.  One of these new laws, which became effective July 11, 2018, is a New York State statute that prohibits employers from requiring employees to submit sexual harassment claims to mandatory arbitration.  This new law is codified in Section 7515 of the Civil Practice Law & Rules of the State of New York (“C.P.L.R.”), entitled “Mandatory arbitration clauses; ...

As has been reported by the New York Times, NBC, and other outlets, asset-management firm TCW is defending a lawsuit filed by a former fund manager, Sara Tirschwell, charging the firm with gender discrimination and retaliation, among other allegations. Ms. Tirschwell’s lawsuit has received media attention not only because of the substantial damages that she demands (in excess of $30 million), but also—and perhaps, principally—because the suit has been characterized as Wall Street’s first public brush with the #MeToo movement.

The basic contours of the dispute are ...

On July 9, 2018, Governor Edmund Brown, Jr. signed into law Assembly Bill 2770 (“AB 2770”) to protect victims of sexual harassment and employers from defamation claims brought by alleged harassers. AB 2770 was sponsored by the California Chamber of Commerce and passed by the California Legislature to address the chilling effect that the threat of defamation suits can have on harassment victims and employers: deterring victims and witnesses from coming forward; deterring employers from telling prospective employers about a genuine harasser; and allowing repeat sexual ...

Featured on Employment Law This Week:  NJ Senate Advances Ban on Sex Harassment Confidentiality Agreements.

The New Jersey Senate wants no more secrecy around harassment claims. On a 34-to-1 vote, the chamber approved legislation banning confidentiality agreements involving sexual harassment claims. The bill is still pending in the House, where a vote is expected in the next few weeks. The legislation would also allow victims to keep their identities confidential and would establish jurisdiction in Superior Court, arguably bypassing arbitration agreements.

Watch the segment ...

On May 30, 2018, Vermont Governor Phil Scott signed bill H.707, titled “An Act Relating to the Prevention of Sexual Harassment” (the “Act”). Effect on July 1, 2018, the Act provides expansive protections for employees and prospective employees, as well as some groundbreaking employer obligations and potential penalties for violations of the law.

Among its key provisions, the Act:

• Applies to all persons “hired to perform work or services,” thereby covering independent contractors and unpaid interns;
• Prohibits employers from requiring any employee or prospective ...

On March 21, 2018, Washington Governor Jay Inslee signed bill SB 5996 (the “Law”), which prohibits employers from requiring as a condition of employment that employees sign a nondisclosure agreement preventing them from discussing workplace sexual harassment or sexual assault. The Law goes into effect on June 7, 2018.

In addition to sexual offenses in the workplace, the Law covers such incidents that occur at work-related events “coordinated by or through the employer,” or between employees, or between an employer and an employee off the employment premises. The new Law ...

On March 7, 2018, the New York City Council formally introduced “The Stop Sexual Harassment in NYC Act,” a package of 11 bills, aimed at strengthening protections against, and remedies for, sexual harassment in the workplace. As discussed below, four of these bills, if enacted, would significantly expand the obligations of many employers to prevent sexual harassment and would increase all private NYC employers’ vulnerability to sexual harassment claims.

Mandatory Sexual Harassment Training

Int. 632 would require all private NYC employers with 15 or more employees to ...

Our colleagues Katrina J. Walasik and Amy B. Messigian, at Epstein Becker Green, have a post on the Health Employment and Labor blog that will be of interest to many of our readers in the retail industry: “DFEH Publishes Materials to Assist Employers With Handling Harassment Allegations.”

Following is an excerpt:

The Department of Fair Employment and Housing (DFEH) recently released a brief, nine-page guide for California employers, which was prepared in conjunction with the California Sexual Harassment Task Force.  This guide is intended to assist employers in developing an ...

By Amy Messigian

Last month, the California Court of Appeal ruled that a former employee of Forever 21 must try her claims against the retailer in arbitration, enforcing the company’s employment arbitration policy and reversing a lower court decision finding the agreement unconscionable under California law.  The plaintiff, Maribel Baltazar, alleged that she had been discriminated against by the retailer due to her race and sexually harassed by a supervisor and coworker.  She filed a complaint against Forever 21 and several of its employees in the Los Angeles Superior Court and ...