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New York Employer Law Blog

Avoiding unfair workplace dress code polices

Most employees in New York must adhere to workplace dress codes. When a dress code singles out a group of employees unfairly, the employer can be accused of discrimination. That's why employers should be wary of the risks of creating a gender-based dress code.

Gender-based dress codes carry a risk of violating discrimination laws. A policy that negatively impacts an employee based on their gender may violate Title VII of the Civil Rights Act of 1964.

Employers may limit a worker's free speech

Employers in New York and around the country have broad authority to limit employee speech. In fact, it may even be possible to terminate an employee based on something that he or she said or wrote. This is because the First Amendment only forbids the government from taking actions that would curtail a person's right to free expression. However, those who work for the government may have greater free speech rights than the average employee.

This depends on what a government employee has to say. Speech that makes it difficult to provide service to the public could be grounds for termination. Discipline may be more likely in cases where a worker isn't talking about an issue of national significance. Certain types of speech may enjoy more protection regardless of if an employer is in the public or private sector.

Court finds dreadlock ban is not discriminatory

A New York employer might be able to deny employment to someone on the basis of that person wearing dreadlocks. The Equal Employment Opportunity Commission filed a claim on behalf of a woman whose job offer with a company in Alabama was rescinded because of her dreadlocks. However, the 11th U.S. Circuit Court of Appeals ruled that the employer's action was legal.

The argument of the EEOC was that the company's action was in violation of Title VII of the Civil Rights Act of 1964 because dreadlocks have been used in negative stereotyping against African-Americans. However, the court's ruling depended on the concept of an "immutable physical characteristic." The ruling argued that the company had a policy that was race-neutral and that a hairstyle was not an immutable characteristic despite its cultural association with any given group. The ruling's bottom line is that elements of a person's culture linked to appearance are not protected if they are not immutable.

A proactive workplace harassment policy pays dividends

The New York media is full of stories chronicling the latest allegations of sexual harassment claims. However, these high-profile cases are but the tip of the iceberg. Businesses of all sizes need to be aware of the potential pitfalls of workplace harassment, and not just sexual harassment. By establishing and continuing to monitor a comprehensive policy, an employer will be better defended against legal action by a disgruntled employee. More importantly, the employees will likely be happier and more productive as well.

While a basic workplace harassment policy is a good beginning, it's not a final remedy. A written policy, perfunctory training of personnel and established channels for reporting alone may provide a false sense of security that does not address the real issue.

Creating a culture that everyone can be part of

When hiring employees, companies in New York and throughout the country need to find people who fit their cultures. However, it is important to create a culture that doesn't discriminate against certain groups of people. When a company is first created, its founders often look for employees that are as similar to them as possible. This is because they feel like those types of people are the best choices to help the business succeed.

To prevent this from happening, a company should use a group of people during the hiring process. Ideally, this group will be made up of people from a variety of cultures and backgrounds. When deciding how well a person meshes with a company's culture, a candidate should be measured against a series of objective indicators. Doing so helps to ensure that candidates are being hired on an objective basis as opposed to an emotional one.

Changes in New York City's sexual harassment laws

Employers in New York City should be aware of the expansion of the New York City Human Rights Law. The Stop Sexual Harassment Act was signed into law on May 9 by Mayor Bill de Blasio and deals with gender-based harassment. Sept. 6 was the deadline for employers to post anti-sexual harassment notices in the workplace in both Spanish and English.

The City Commission on Human Rights is using a Facebook ad campaign to help keep attorneys, recruiters and business owners informed about the changes. The CCHR will also be traveling to all the boroughs to visit businesses and make sure they are aware of and are following the law.

Court rules in favor of employers in minimum wage case

According to a ruling from the 9th Circuit Court of Appeals, employers can average hours worked throughout the week in an effort to comply with minimum wage rules. Similar rulings have been issued by the 2nd Circuit, which covers New York state. The ruling was issued in a case involving two Xerox employees who performed varying tasks with no set pay rate for some tasks.

If the workers received a rate equivalent to minimum wage or higher in a given week, their paychecks remained unchanged. However, if their pay was less than minimum wage for the week, they received additional compensation equal to minimum wage. The employees contended that they should be paid at least the minimum wage for each hour worked. However, it was found that the Fair Labor Standards Act (FLSA) doesn't call for a set time period in which wages need to be computed.

Understanding Title VII in the workplace

Employers in New York need to develop a clear understanding about what it means to deal with employees in protected classes, especially in matters related to promotions, hiring or firing. Human resources professionals work to protect their companies from legal liabilities by protecting employee rights under the law and ensuring compliance with existing legislation. By adhering to clear policies, companies can help to protect themselves from potentially costly litigation.

Title VII is part of the Civil Rights Act of 1964, and it lays out five categories or protected classes in which employers are prohibited from discrimination. The original five protected classes are race, color, religion, sex and national origin, but subsequent amendments have prohibited discrimination on the basis of age over 40, physical or mental disability, sexual orientation or reprisal. At first, the law may seem to come in conflict with at-will employment policies. It is legal for companies to hire or fire workers at any time for any reason except, of course, for the prohibited forms of discrimination outlined here.

Court finds that cumulative liquidated damages not allowed

A decision that will apply to New York employers found that cumulative liquidated damages may not be awarded to plaintiffs when the same conduct violates several wage and hour laws. This means that employers will not face the potential for being assessed triple damages for wage and hour violations. However, it is best for companies to take steps to ensure that they are complying with the wage and hour laws so that they can protect themselves.

The case involved a Bangladeshi man who was lured by the promise of a job in the home of a Bangladeshi diplomat to New York. When he arrived, the diplomat and his wife took away his passport and made him work like a slave from morning until night each day. The man was eventually able to escape and reported what happened to the police. He then filed a lawsuit against the diplomat and his wife under New York labor laws and the Fair Labor Standards Act.

Companies address discrimination with clear policies and training

Employers concerned with staying up to date with laws about discrimination and harassment might need to review their policies and training programs. New York and other jurisdictions have added new laws that companies need to comply with. In addition to staying informed about current workplace standards, employers should focus on preparing clear policies that describe unacceptable behavior and develop training programs that effectively engage staff members.

Reducing the possibility of employee complaints that could lead to lawsuits starts with a company leadership that makes it clear that discrimination will not be tolerated. Written policies that use plain language should emphasize that people can file complaints without fear of retaliation and that the perpetrators will face consequences for unlawful conduct. Managers and supervisors need to understand that complaints should be taken seriously and investigated in a fair manner.

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