New York employers have until Wednesday, Oct. 9, 2019, to train each of their employees on sexual harassment prevention. The training must be conducted annually thereafter, and must satisfy all of the statutory requirements for content and interaction. Employers who have not yet conducted training should do so as soon as possible. For more information, including training parameters, see our October 2018 GT Alert here.

Contact your Greenberg Traurig attorney to schedule training or for guidance on compliance with these training requirements and related employment laws.

For more on laws and other legal developments related to sexual harassment in the workplace, click here.

New York State and New York City have passed new legislation in an effort to strengthen prohibitions against sexual harassment in the workplace. Last month, we reported on those new developments (See GT Alert, “New Anti-Sexual Harassment Compliance Mandates for New York State and New York City in Full Swing,” September 2018).

By Oct. 9, 2018, all employers must adopt the state’s model anti-sexual harassment policy or a customized version meeting the state’s minimum standards. After issuing draft documents in August, the state issued, on Oct. 1, final model policy and training documents. As detailed below, many of the changes made last week to the draft policies and documents are worth noting.

To read the full GT Alert, click here.

For New York employers who may not have closely monitored legal developments in the human resources and sexual harassment sphere over the summer, now is a good time to become familiar with the significant legal changes in effect, especially those with pressing deadlines.

With increasing national media coverage of sexual harassment claims, both New York State and New York City have passed new legislation in an effort to strengthen prohibitions against sexual harassment in the workplace.

The laws place new mandates on New York employers, and in some cases, require compliance within a tight timeframe. It is therefore critical for New York State and New York City employers to be aware of these requirements and to develop an action plan for timely and strategic compliance.

As detailed below, the most pressing deadline is for the requirement that New York City employers must display a new sexual harassment prevention poster and distribute to new employees a sexual harassment fact sheet. That deadline is Sept. 6, 2018.

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Marvin A. Kirsner authored an article in Corporate Counsel titled “Sexual Harassment Settlements With Nondisclosure Agreement No Longer Deductible.” The article explores a provision in the new Tax Cuts and Jobs Act which updates the tax code so that payments made for sexual harassment or abuse claims are no longer tax deductible if the settlement includes a nondisclosure agreement.

To read the full article, click here.

A provision in the Tax Cuts and Jobs Tax Act will increase the “after-tax cost” for companies to settle “sexual harassment” or “sexual abuse” claims if they wish to maintain a “nondisclosure agreement” of the details. The law will disallow a business deduction for the amounts paid to settle such claims (including attorneys’ fees) if the settlement contains a nondisclosure agreement. This provision addresses the use of nondisclosure agreement terms to possibly prevent public disclosure of sexual harassment allegations or reports.

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In a unanimous decision due to be published on May 15, the Connecticut Supreme Court has ruled that employers can be held liable for failing to protect employees from harassment based upon sexual orientation. 

In Patino v. Birken Manufacturing Company, a former employee of the jet engine component maker Birken Manufacturing, Co. accused the company of failing to take reasonable steps to prevent his coworkers from harassing him based on his sexual orientation over a period of many years.  The state’s highest court rejected the employer’s argument that hostile work environment claims are limited to sexual harassment cases.  Importantly, the decision appears to be the first supreme court decision from any state to expressly hold that harassment based on sexual orientation is actionable to the same extent as sexual harassment or racial harassment.  The court also rejected the company’s claim that the jury’s award of $94,500 in damages was too high.

Employers in all states should take notice of this significant decision.  Connecticut is one of 20 states, along with the District of Columbia, whose anti-discrimination laws cover sexual orientation.

On August 12, 2019, New York Governor Andrew Cuomo signed new legislation amending the New York State Human Rights Law (the “NYSHRL”), changing the State law’s previous adherence to certain fundamental principles of federal law concerning employment harassment generally, including the standard for determining employer liability for “hostile work environment” discrimination claims and the availability of punitive damages, among other issues. Whereas New York courts have historically interpreted the NYSHRL based on interpretations of claims filed under Title VII of the federal Civil Rights Act of 1964, the new amendments will alter the applicability of many significant precedents.

The amendment addresses workplace harassment, including but not limited to sexual harassment, against employees in any protected group. Claims of harassment based on age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or claims based on an employee’s opposition to such misconduct, are subject to the new provisions.

To begin with, the revised NYSHRL will now cover employers of all sizes, and even includes new protections for domestic workers, who will now be protected on the same grounds as other types of employees. Some of the law’s provisions take effect immediately, others within 60 days or 120 days of the law’s passage. Broadly stated, the law purports to provide “increased protections for protected classes and special protections for employees who have been sexually harassed.”

Click here for the full GT Alert, “Attention New York Employers: When It Comes to Workplace Harassment, Times Are Changing.”

The holidays are upon us, NYC is bustling with tourists, and, with the typical surge in business this time of year, employers may be thinking about adding a few employees to their December and January schedules. This GT Alert provides important considerations with respect to those seasonal employment offers, including minimum wage, sexual harassment training, NYC’s Paid Safe and Sick Leave Law, New York’s Workers’ Compensation Law, disability benefits, and child labor laws.

Click here to read the full GT Alert.

 In certain organizations, particularly non-profit organizations, volunteers perform services for the organization. In a recent case in the Northern District of Illinois (Volling v. Antioch Rescue Squad, 1:11-cv-04920 (N.D.Ill. Dec. 4, 2012)), the court was faced with the question of whether members of a volunteer rescue squad could sue the relevant service organizations for sexual harassment, discrimination and retaliation. The two organizations moved to dismiss the complaint contending that the plaintiffs were volunteers and therefore excluded from coverage under Title VII.

The court examined several factors in making its determination including “the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989). The court determined that “[n]o one of these factors is determinative,” thus rejecting the defendant organizations’ contention that the absence of remuneration should control. The court stated that remuneration is but one factor in the totality of the circumstances. “The question and degree of remuneration are simply factors to be considered, along with many others, in assessing whether a worker is an ‘employee’ for purposes of Title VII.”

After examination, the court found that the workers “appear to be subject to the strictures of a typical workplace and – importantly – to the control exercised by an employer over paid employees.” Thus, the court determined that the workers qualified as employees who could bring suit under Title VII.

Notably, other courts have imposed a “significant remuneration” requirement when seeking to bring suit under Title VII and that an absence of remuneration can be the determinative factor as to whether a volunteer qualifies as an employee under Title VII.

Nevertheless, although this issue is far from settled, employers should be aware that Title VII may extend to cover volunteers in the workforce and provide volunteers the opportunity to bring suit alleging harassment and discrimination.