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Posts Tagged ‘New York’

New York Passes Sexual Harassment Laws and Issues Employer Guidance

Posted on: September 11th, 2018

By: Will Collins

By October 9, 2018, New York employers must adopt a sexual harassment prevention policy and must provide training on that policy to all employees by January 1, 2019. Last week, New York launched a website that will serve as a hub for all resources related to the state’s new sexual harassment laws. The site contains key guidance setting the baseline for employer compliance. Among the resources, the website provides employers with a:

  • Model Sexual Harassment Policy & Complaint Form;
  • Model Sexual Harassment Prevention Training; and
  • FAQs section addressing the requirements of New York’s sexual harassment laws.

At this point, all guidance on the site is only proposed and subject to change following the close of the public comment period on September 12, 2018. Once final, the model policies and training may be adopted by employers as their own.

Model Sexual Harassment Policy and Complaint Form

At a minimum an employer must adopt a sexual harassment policy that meets or exceeds the standards set by the New York Department of Labor.  The Model Policy expounds on those requirements and:

  • Contains a broad statement of coverage, including “all employees, applicants for employment, interns, whether paid or unpaid, contractors and person conducting business with” an employer;
  • Requires “[a]ll employees, including managers and supervisors,” comply and cooperate with any investigation of sexual harassment;
  • Mandates that any manager or supervisor is “required to report any complaint that they receive, or any harassment they observe” to a designated individual;
  • Outlines the investigation procedure, indicating that the investigation should be complete within 30 days;
  • Contains a document retention component, requiring that an employer maintain documentation memorializing the details of the investigation, including the timeline, facts learned during the investigation, and any witnesses; and
  • Requires that the employer notify the complainant of the employer’s determination at the end of the investigation, including notification of the complainant’s right to file a complaint or charge externally.

Model Sexual Harassment Prevention Training

Employers must provide training to all employees by January 1, 2019. After January 1, 2019, employees must receive training on the employer’s sexual harassment policy annually and new employees must receive training within the first 30 days of their employment. The Model Training guidance:

  • Provides that all employees who work in the state of New York must receive training, even if the employee “works for just one day in New York;”
  • Requires that training be offered in the spoken language of employee; and
  • Tracks the Model Policy language, but contains details of specific examples of conduct illustrative of sexual harassment.

Again, employers do not have to use the training and materials provided by the New York Department of Labor. However, if developing their own training, employers must meet the minimum requirements.

FAQs Section

Among several key topics in the FAQs, this section of the website provides guidance on non-disclosure agreements and arbitration.

  • Non-Disclosure: Beginning July 11, 2018, the law prohibits agreements preventing the disclosure of facts of any alleged sexual harassment unless the NDA is the preference of the individual making the Complaint. The FAQs clarify that the parties must enter into two separate agreements—one setting out the complainant’s preference and a second containing the non-disclosure provisions.
  • Arbitration: The FAQs again reiterate that the law prohibits employers from mandating arbitration to “resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.”

Bottom Line

These are just a few of the developments in New York’s sweeping response to the #MeToo movement, pushing employers to adopt robust and comprehensive sexual harassment policies and training. Given the broad coverage of the requirements and the fast approaching deadlines, employers should take this opportunity to work with counsel to review their policies, including provisions of their handbook and any arbitration agreements to ensure compliance.

The attorneys in the FMG Labor and Employment Nation Practice Section are available to assist your organization, determine your obligations under New York law, and help you navigate day-to-day compliance as other states, counties, and cities enact similar regulations.

If you have any questions or would like more information, please contact Will Collins at [email protected].

How Can The Trump-Cohen Tape Be Public?

Posted on: July 31st, 2018

By: Greg Fayard

A lawyer and client talk. The lawyer records the conversation. The recording is made public. How can this be?

That’s what happened to then candidate Donald Trump and his New York lawyer Michael Cohen. The conversation occurred in September 2016. Trump was not aware Cohen recorded the discussion. The recording is a few minutes long and encompasses several topics, including reference to a possible payment to a Playboy model with whom Trump allegedly had an affair in 2006, although this is never expressly discussed. At one point a cash or check payment is referenced. The two speak in a verbal shorthand.

The FBI, as part of an investigation by the U.S. Attorney’s Office for the Southern District of New York, confiscated the recording in April 2018 (see earlier blog discussing this here) while investigating attorney Cohen. The recording was made public in July 2018, but it is unclear by whom.

The conversation between Cohen and Trump is ordinarily protected by the attorney-client privilege, although it is clear other people were around Trump and Cohen, calling into question whether Trump waived the privilege by speaking openly to his lawyer in front of others. Nevertheless, a special master, working under United States District Judge Kimba Wood in New York determined the tape to be privileged. Trump, as Cohen’s client, “owns” the privilege.

However, the President’s legal team “waived” the attorney-client privilege, permitting the tape’s disclosure. The question is why? Four possible reasons come to mind:

  1. The tape had already been leaked, leaving the President no other viable option but to waive the privilege;
  2. Waiving the privilege permits the President’s advisors to discuss the tape openly;
  3. Discussing the tape without officially waiving the privilege might open the door to a broader waiver of communications between Cohen and Trump; and/or
  4. If Trump’s team asserted the privilege over the tape, the government could try to overcome the privilege by asserting the “crime/fraud exception.” Simply put, a client’s communication to an attorney cannot be privileged if the communication was made with the intention of committing or covering up a crime or fraud.

At worst, if a payment to the model was actually made (not yet confirmed), such a payment might have to be reported under federal campaign finance law. The failure to do so could be a campaign finance violation. Trump allies, however, would argue any such payment was not campaign-related, but a common occurrence for a celebrity dealing with the tabloids. In any event, failing to report a campaign-related payment is not a ordinarily a crime.

Lastly, why would an attorney record his privileged conversations with a client? Only attorney Cohen can answer that (and he has not). It could be innocuous—instead of taking notes, he recorded conversations. But not advising Trump of the recording is problematic. Nevertheless, under New York law, one party recording another party without his consent is legal. (N.Y. Penal Law §§ 250.00, 250.05.)  If Cohen, however, leaked the tape when it was still considered privileged, and before Trump waived the privilege, he could face discipline from the State Bar of New York for breaching an attorney’s duty of confidentiality. (New York Rule of Professional Conduct 1.6.)  Regardless, the President was certainly not pleased with Cohen’s secret recording:

If you have any questions or would like more information, please contact Greg Fayard at [email protected].

Georgia Employers Must Become Familiar With State’s New Paid Leave Law

Posted on: July 9th, 2018

By: Will Collins

Across the country, there are an increasing number of state laws requiring that employers provide paid sick leave, including paid leave for the care of a family member. For instance, under the Georgia Family Care Act, which went into effect in July of 2017, employees who work at least 30 hours per week and receive a paid sick leave benefit may use up to five (5) days per calendar of that paid leave to care for “immediate family members.”  This includes the employee’s child, spouse, grandchild, grandparent, parent, or “any other dependents as shown on the employee’s most recent tax return.”

To be clear, the Act, which applies to the State of Georgia and all of its political subdivisions and instrumentalities as well as all employers with twenty-five (25) or more employees, does not create an obligation to provide sick leave, but instead requires covered employers that elect to provide paid sick leave to allow their employees to use a portion of that leave to care for immediate family members.

Georgia is just one of several states, including New York, expanding paid family leave obligations. While Georgia stopped short of mandating paid sick leave, eleven (11) other states have laws addressing paid leave policies. As a result, employers must be mindful of state law requirements as well as unpaid leave obligations under the Family Medical Leave Act (FMLA).

If you have questions about your leave policy or leave obligations, please contact one of the attorneys in our National Labor and Employment Practice Group to help you navigate the state and federal regulations and answer questions as they arise.

New York High Court Narrows Statute of Limitations Under Martin Act

Posted on: June 22nd, 2018

By: Ali Sabzevari

New York’s primary weapon aimed at fraud entitled the Martin Act was drastically hindered by New York’s high court, which found that the law’s statute of limitations was three years, not six years.  The case is People v. Credit Suisse Sec. (USA) LLC, 2018 NY Slip Op 04272, ¶ 1 (New York State Court of Appeals).

The Martin Act has been used to police the securities markets since the 1920s. This Act regulates the advertisement, issuance, exchange, purchase or sale of securities, commodities and certain other investments within or from New York.  It is one of the country’s oldest anti-fraud laws and is used by the New York Attorney General to file both civil suits and criminal charges against alleged violators of the Act.

In the Credit Suisse Sec. (USA) LLC opinion, the Court of Appeals noted that it had never before considered the law’s statute of limitations. Contemplating whether claims were governed by a three-year period or a six-year period, the Court ultimately held that the three-year term applies because of the fraudulent nature of the claims brought under the Martin Act.

This decision will have a big impact on claims brought under the Martin Act as well as the defense of such claims.  If you have any questions or would like more information, please contact Ali Sabzevari at [email protected].

Philadelphia’s “Salary History Ban Law” Gets Banned!

Posted on: May 7th, 2018

By: Jen Ward and John McAvoy

More than a half-century after President JFK signed the Equal Pay Act, the gender pay gap is still with us. Women earn 79 cents for every dollar men earn, according to the Census Bureau.  What will it take to bridge that stubborn pay gap? Well, some believe we can and will reduce the impact of previous discrimination by not asking new hires for their salary history. Several cities and states agree with this approach and have passed legislation that prohibits employers from asking questions about an applicant’s salary history. In the cities and states where such laws have been passed, they are not without controversy.

Philadelphia passed a similar law last year. In response, Philadelphia’s Chamber of Commerce, backed by some of Philadelphia’s biggest employers, including Comcast and Children’s Hospital of Philadelphia (CHOP), filed suit against the City of Philadelphia challenging the constitutionality of the salary history ban law, arguing the portion of the law that prevents companies from inquiring about an applicant’s wage history violated an employer’s free speech rights.

On Monday, April 30, 2018, the Eastern District of Pennsylvania made two rulings with respect to Philadelphia’s salary history ban law in the matter of Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, docket no. 2:17-cv-01548-MSG (E.D. Pa. Apr. 30, 2018) (Goldberg, J.).

First, the court found that the law as written violated the First Amendment free speech rights of Philadelphia employers. In sum, the court’s ruling is that employers can ask salary history questions.

Second, the court upheld the ‘reliance provision’ of the salary history ban law, which makes it illegal to rely upon that wage history to set the employee’s compensation.  This means that Philadelphia employers can ask salary history but cannot use it as a basis to set salary.  The purpose of this is to encourage employers to offer potential candidates what the job is worth rather than based on prior salary which could have been set based on discriminatory factors.

There is a prevailing trend nationwide for salary history ban laws. To date, California, Delaware, Massachusetts, Oregon, Puerto Rico, New York’s Albany County, New York City, and San Francisco have enacted salary history ban laws, and at least 14 other states are considering following suit.  Although we anticipate future and continued legal challenges, it seems likely that laws banning salary history inquiries will continue to gain ground, particularly in more progressive states or areas where the pay disparity directly impacts a large segment of eligible voters. As such, prudent employers should prepare themselves to address this new workforce right through smart planning and proper training of employees, including managers, supervisors and HR personnel responsible for ensuring a lawful hiring process.

Want to learn more about what Philadelphia’s salary history ban law means for your business? Let us help you by analyzing your hiring practices. Please call or email the employment experts Jen Ward (267.758.6012 [email protected]) and John McAvoy (215.789.4919 [email protected]). Our firm motto and goal is “Your Problem Solved!”