Labor & Employment Blog



A group of bipartisan lawmakers has introduced a bill, Ending Forced Arbitration of Sexual Harassment Act of 2017, that would make it illegal for companies to enforce contractual terms that force employees to arbitrate their sexual harassment or gender discrimination claims rather than take such claims to court.  Advocates of the bill say forced arbitration only protects the bad actor rather than the victim.  The arbitration process usually allows the employer and the bad actor to keep the harassment or discrimination much more private than is possible in a court case. 


There are finally signs of change at the National Labor Relations Board.  In the beginning of December, the New General Counsel (GC) Peter Robb, a former employer-side attorney, sent a memorandum to all regional offices signaling that pro-employer changes are on the horizon. 


To employers, managers, employees and everyone else in the workplace:

Surely most have heard about the many celebrities who have recently been accused of, and/or admitted to, serious acts of sexual harassment. Some of these acts were so extreme and outrageous, or occurred in places like Hollywood, that it might be easy to forget that the law prohibits severe and pervasive sex-related conduct in all New York workplaces with at least four employees.


The end of the year is approaching quickly, and most employers are likely preparing to issue performance reviews to their employees.  It is important to remember to encourage supervisors to be specific and accurate in their evaluations. 


Employment laws might get tougher for employers in businesses that call workers in at the last minute. Around the holidays, it is especially difficult for certain types of employers, like retail establishments, to predict how much traffic they will get on any given day. Many have traditionally had employees “at the ready” to report to work if needed. 


Earlier this year (April and September 2017), the New York State Appellate Division Courts for the First and Second Departments issued Decisions declaring one part of the pay structure for Home Health Aides, compensation for shifts of more than 24 hours in a patient's home, illegal for failing to pay them for all such hours.  These Decisions threaten to upend the industry as home care agencies, managed care plans and government programs may not be able to afford paying for the entire 24 hours, as opposed to the current 13-hour pay rule.  Under the 13-hour pay rule, as long as the Home Heal


There was an expectation that the EEOC’s enforcement efforts would shift or decrease with the Trump administration in place. This has not been the case thus far.  In fact, there was recently an uptick in EEOC lawsuit filings – 88 were filed in September 2017. In September 2016, the number was a third of that. Change may still be coming, however, as Trump has recently nominated new Republican members to serve as commissioners.  Once those individuals are confirmed, the rate and focus of enforcement may shift. 


The abhorrent behavior of Harvey Weinstein is a lesson to all employers and is something my colleagues and I repeat again and again.  Just because employees are not complaining about sexual harassment does not mean that it is not happening. Many victims of harassment fear that they will be retaliated against if they complain about the harassment, especially if the harasser is a high-level decision maker.


Employers sometimes need to offer executive position candidates employment agreements in order to successfully entice them to the company. Because employment agreements generally give employees more rights than they normally would have under the common law employment at-will doctrine in place in New York and many other states, employers are incentivized to negotiate the employment agreements' terms carefully.


The Trump administration recently announced that it would put an end to the Deferred Action for Childhood Arrivals (DACA) program. Those who successfully applied for the DACA program were granted work permits to allow them to work legally in the United States. When that program officially ends, employers who knowingly employ DACA recipients with expired work permits could face harsh penalties, including fines or jail time.