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New York Employer Law Blog

How employers should deal with workplace harassment

Companies in New York can take steps to protect themselves against harassment suits by strengthening their anti-harassment policies in a number of ways. For example, a policy should clearly state that reports can be made not just by people who are harassed but by those who witness harassment as well. Furthermore, employees should understand that work harassment is not always sexual in nature but could also be based on factors such as a person's religion, race and national origin.

If a supervisor is a person's only contact for reporting harassment and that supervisor is doing the harassing, a victim has nowhere to turn. Therefore, employers should provide multiple options for reporting and might consider a third-party reporting system. Employees should understand what actions constitute harassment and from whom. For example, harassment may happen at offsite company events, and it may involve not just employees but customers, suppliers and vendors. Harassment may also occur via channels such as social media and email.

How employers can approach sexual harassment issues

Some New York employers might have an issue with sexual harassment in the workplace and not realize it. According to the results of one survey conducted by CareerBuilder, almost three-fourths of people who are sexually harassed at work never report it.

This failure to report harassment can ultimately hurt the employer. A pattern of misconduct can develop and the employer may be liable. Employers must make sure that they do not have a workplace culture in which employees believe they will face retaliation or will not be believed if they report harassment.

Court says that workweeks can be used for FLSA calculations

The Fair Labor Standards Act requires most employers in New York and around the country to pay their workers at a rate at least equal to the federal minimum wage, but the landmark 1938 law does not provide clear instructions for calculating wages and hours. Several federal courts have ruled that employers may base these calculations on workweeks rather than determining compensation on an hour-by-hour basis, and the Department of Labor, which is the federal agency tasked with administering the law, has not objected to this method being used.

Congress has been content to leave these decisions to the court, and lawmakers have voiced no objections to using workweeks to calculate hourly pay. However, two customer service representatives employed at a call center operated by Xerox filed a lawsuit claiming that basing their pay on workweeks violated the FLSA. The plaintiffs argued that Xerox should have used the hour-by-hour method when preparing their paychecks.

New workplace rights for 2018

As sure as that football team from New England always seems to be in the Super Bowl, New York will always have new labor laws. When you’re a smaller employer, you are wearing a number of hats and it can be difficult to keep up with workplace legislation.

Here’s an overview of the workplace requirements for 2018:

FLSA defense based on failure to mitigate damages

The case of a disgruntled ferry boat operator in another state illustrates a potential defense strategy for employers in New York confronted by accusations of retaliatory discharge. Someone citing the Fair Labor Standards Act when suing a former employer could pursue damages that include back pay, front pay while unemployed, legal costs and reinstatement to a position. To control the potential costs of a settlement, an employer might exploit an angle known as failure to mitigate damages resulting from the termination.

In the lawsuit filed by the ferry boat operator, the man alleged that he was fired after complaining about unpaid overtime. The trial resulted in a jury award that granted him $114,848. The employer sought to reverse the judgment by explaining to the court that the man had failed to mitigate his damages. Evidence revealed that he had turned down two job offers for potentially equivalent positions. In view of these actions, the court lowered the judgment to a token amount of $1 plus $8,961 in legal fees.

Federal appeals court allows arbitration for FLSA claims

A decision from the U.S. Court of Appeals for the 2nd Circuit, which includes New York, has affirmed the legality of employer-imposed arbitration requirements for claims involving the Fair Labor Standards Act. Although a previous ruling from the 2nd Circuit had required court supervision of settlements reached through arbitration, the panel of judges did not view this requirement as a ban on arbitration. The judges did not link judicial review of settlements with a prohibition on alternative dispute resolution methods.

The case before the appeals court had drawn upon the previous decision regarding court supervision of arbitrated settlements. The court rejected the argument of the plaintiff because the goal of supervision was to promote fairness within a settlement claim and not dictate the forum for reaching the settlement agreement.

Why NY banned credit checks for most hiring processes

New York is a leader in fighting discrimination through passing laws to help encourage fairness and equality. The same is true when deciding who to hire for your business. In an attempt to gain as much information on a possible candidate, you may find yourself infringing upon state legislature that prohibits certain interview questions and procedures. This includes requiring credit checks for non-government employees or applicants who are seeking a position within a financial institution where large amounts of funds will be handled regularly.

Motives for making this decision

How employers should handle sexual harassment reports

With sexual harassment frequently in the news, some employers may wonder if they are taking sufficient measures to protect themselves if an employee alleges that harassment is taking place. There are several dos and don'ts for employers in addressing sexual harassment in the workplace.

First, employers need to have a sexual harassment policy. Employees should be informed of the policy during their first day on the job, and it should be clear that harassment will not be tolerated. The company also has a responsibility to protect a person who has reported sexual harassment from further harassment or retaliation. This might involve separating the person from the accused harasser. Employees should be reassured that they have done the right thing in coming forward and that they should report any retaliation they experience.

Poll finds disagreement on sexual harassment definition

Sexual harassment in the workplace has become a major issue with film producer Harvey Weinstein facing allegations and a "me too" hashtag on social media in which people recount their own experiences with being sexually harassed. Among employees, there could be disagreement about what constitutes sexual harassment, and this could lead to problems for New York employers who are trying to develop a sexual harassment policy. Reuters/Ipsos conducted an online opinion poll from Dec. 13 to 18 and found that most people agreed that kissing and groping without consent was sexual harassment but were divided on other acts.

For example, 47 percent of people said unwanted comments about a person's appearance did not constitute sexual harassment compared to 38 percent who said it was. Respondents were split nearly equally regarding dirty jokes with 41 percent calling it harassment and 44 percent saying it was not. There was a similar split regarding nonconsensual hugging, which 44 percent felt was harassment while 40 percent did not.

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