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New York Employer Law Blog

Preventing sexual harassment in the health care sector

Research reveals that sexual harassment is worryingly common at health care facilities and medical schools in New York and around the country, and hospital policies generally do little to address the root causes of the problem because they are implemented primarily to avoid litigation. Health care organizations that wish to tackle the problem head-on are encouraged by experts to start by gathering as much information about sexual harassment as they can using tools such as anonymous employee surveys.

Once the true scope of the challenge becomes apparent, organizations should use the data they have collected to draft proactive sexual harassment policies that encourage victims to come forward yet protect the reputations of the accused while investigations are ongoing. Experts say that a more vigorous approach to workplace harassment is more likely to be taken seriously by senior executives when their compensation is tied to outcomes in some way. Sample policies that health care organizations can use as a foundation are available from the National Council of Non-Profits and the Association of Title IX Administrators.

Different rules exist for independent contractors and employees

Among the many decisions a business owner must make, whether to treat workers as employees or independent contractors is a fundamental one that can have significant repercussions down the road. Opting for independent contractors is typically viewed as a cost savings approach, but if a legal action to that classification is made through a worker's challenge and upheld by a government ruling, the cost to the employer will be far greater.

Wage and hour legal experts suggest evaluating employment classification options as the government does when processing a claim. An essential element to be considered is that independent contractors are in business for themselves, which means establishing their own hours and paying their own expenses among other specifics. In contrast, an employer has the right to specifically direct an employee in terms of hours worked, duties performed and exclusivity of work arrangements.

Avoiding workplace age discrimination

Age discrimination lawsuits are filed every year in New York. Many employers do not realize they are making decisions with age bias. There are several important steps that employers can take to avoid an accusation of age-based discrimination.

Age discrimination predominantly affects older employees although it can affect both older and younger workers. Age discrimination is prohibited by the Civil Rights Act of 1964. An employer can avoid hiring a potential worker based on objective or subjective skills possessed by the worker, but they must be demonstrated and not related to an applicant's age. An employer cannot make hiring decisions by assuming that a person does or does not possess certain skills based on age.

More companies are filling job vacancies with ex-cons

A tight job market in New York and other parts of the country means more companies are turning to former felons to fill vacancies. While the unemployment rate specific to ex-convicts isn't officially tracked, one estimate puts it at 27 percent. Other figures suggest as many as half of all released inmates fail to find jobs or participate in the labor force. About a third of U.S. adults have an arrest record, so that's definitely a lot of available labor.

Part of the reason for the reluctance to hire ex-cons may be because of unintentional workplace discrimination that's not entirely fair to former felons. However, a Society for Human Resource Management survey of more than 2,000 HR execs and corporate managers suggests attitudes may be changing. Fourteen percent of HR managers said they wouldn't hire individuals with a prison record, but more than 80 percent of employers and HR executives surveyed believe ex-con hires are just as successful as average hires with no records.

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.

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