Bill Horwitz Article Published in New York Law Journal

An article by Florham Park counsel Bill Horwitz titled, “Second Circuit Adopts New Standard Involving Harassment by Non-Employees,” was published in the New York Law Journal.

Bill discussed the case of Summa v. Hofstra University, in which the U.S. Court of Appeals for the Second Circuit addressed the question of whether an employer is liable when non-employees harass its personnel and adopted a standard for answering it.

The case involved claims of sexual harassment and retaliation by a former part-time manager of Hofstra University’s football team, a graduate student named Lauren Summa. Bill says the decision, however, has implications “beyond the world of college sports and applies to harassing conduct by vendors, customers and other third parties.”

The Second Circuit held that Summa could not pursue her sexual harassment claims against the university because it promptly responded to her complaints about football players’ conduct and took appropriate remedial action. The court, however, allowed her retaliation claim to continue because Summa provided sufficient proof that her complaints about the football team influenced the university’s decision to ultimately terminate her employment.

Bill says the decision “serves as a reminder to employers that: (1) ensuring that employees do not engage in inappropriate conduct will not necessarily shield an employer from civil liability for harassment; and (2) preventing retaliation against an employee who complains about harassment may be as important as preventing harassment in the first place.”

New York City Expected to Pass Expansive Paid Sick Leave Law

By: Lynne Anne Anderson

The New York City Council has reached a compromise that will enable it to pass a paid sick leave law.  Although Mayor Michael Bloomberg objects to the legislation, news outlets are virtually unanimous in predicting that the City Council has enough votes to override his veto.  While federal law does not require employers to provide paid sick leave, Connecticut and some cities (including San Francisco, Seattle and Portland) have adopted paid sick leave laws.  Other cities (including Philadelphia) are considering doing so.  In New York City, even employers that already provide paid sick leave will have to take a close look at the new legislation and reconcile their current sick leave policies with the city’s mandates.  For example, New York City’s proposed law includes anti-retaliation provisions that would prohibit employers from firing employees for using their paid sick leave.

What employers are covered by the proposed law and when would it go into effect?

Under the proposed New York City law, as of April 1, 2014, companies with 20 or more employees would have to provide at least five paid sick days a year.  The law would be extended to apply to companies with 15 or more employees as of October 1, 2015.   Earlier versions of the legislation had required nine paid sick days, so five days was part of the compromise lawmakers reached in response to small business owners’ very vocal objections.  The New York City law is not as expansive as some other city laws.  For example, paid leave obligations in San Francisco, Seattle and Portland apply to companies with as few as five employees.

Notably, the New York City law will also require companies of any size to provide five days of sick leave as of April 1, 2014, but the time off may be unpaid.

What employees would be eligible?

To be eligible for paid leave, employees working within the borders of New York City would have to be employed for at least 4 months.  The law applies to full-time and part-time workers, although seasonal workers and student interns would not be eligible.

Other details include that the New York City Department of Consumer Affairs would have enforcement authority and there is a safety net provision that would delay implementation of the law if New York City’s economy slows down.

Advocates of the legislation claim that the law will provide paid sick leave for one million workers.  It is clear that this law will have a significant impact on small businesses.  The Society for Human Resource Management reports that only 32% of small businesses (50 or less employees) currently offer paid sick leave, and an advocacy group, A Better Balance, reports that over 80% of restaurant workers and 60% of retail workers in New York City do not receive pay when they miss work due to sickness.  As noted above, this law will also impact larger employers to the extent that they do not already provide five days of paid sick leave or only offer benefits to full-time employees or employees employed for longer than four months.  And, as with any new law, it is important to track implementation to comply with notice requirements, both in terms of posting and adoption of compliant company policies prior to the April 2014 and October 2015 effective dates.

Editor’s Note:

On May 8, 2013, the New York City Council passed the Earned Sick Time Act by a 45-3 vote.  New York City Mayor Michael Bloomberg had vetoed the bill on June 7, 2013, but the New York City Council overrode the veto on June 27.   New York City now joins San Francisco, Washington, D.C., Seattle, Portland, and the State of Connecticut to pass mandatory sick leave laws.

 

EEOC Warns Employers Against Domestic Violence Discrimination

By: Alejandra Lara

In its recent guidance titled “Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” the EEOC cautions employers against unwittingly violating Title VII and the ADA in addressing employment-related issues involving victims of domestic violence.

The EEOC reminds employers that while Federal law does not expressly protect domestic violence victims from employment discrimination, such victims may still be entitled to protection under federal employment discrimination laws.

In its guidance, the EEOC provides examples of situations where employers may violate Title VII by engaging in disparate treatment, or applying sex-based stereotypes to victims of domestic violence.  For example, an employer that terminates an employee victimized by domestic violence due to fear of the potential “drama battered women bring to the workplace” may engage in discrimination based on sex in violation of federal law.

The EEOC further warns employers to exercise caution before transferring or discharging domestic violence victims based on general concerns that they may pose greater workplace safety risks.  Instead, employers should seek alternate resolutions before taking adverse action, such as paying for workplace security or getting a temporary restraining order.  Even if such options are not effective, an employer should take adverse action against an employee only based on specific and concrete facts showing that the employee poses a threat to other employees.

Further, the EEOC guidance highlights situations in which an employer may violate the Americans with Disabilities Act (“ADA”) in treating employees and applicants adversely based on actual or perceived impairments resulting from domestic or dating violence.  An example of this includes refusing to hire a domestic violence victim “based on a concern that she may require future time off for continuing symptoms or further treatment of depression.”  The ADA may also require an employer to provide employees reasonable accommodations; such as where a victim of sexual assault requests unpaid leave to get treatment for depression and anxiety, but has no accrued sick leave and is not covered by the Family and Medical Leave Act.  In certain situations the employer may have to modify its leave and attendance policies to accommodate the leave request, or risk violating the employee’s rights under the ADA.

Many of the scenarios discussed in the EEOC’s Q&A’s are straightforward and may surprise few employers.  Yet the guidance highlights the agency’s interest in protecting victims of domestic violence, and signals to employers that the EEOC will be paying close attention to these issues.  Finally, while Federal law offers limited protection to domestic violence victims, a handful of States have specific laws either directly protecting victims of domestic violence from employment discrimination, or requiring employers to give employees time off to attend court proceedings, obtain protective orders and/or seek services for the effects of domestic violence.  Employers are well advised to consult the laws of their individual States and otherwise tread lightly when dealing with victims of domestic violence.

 

The DOL’s Made Some Changes to the FMLA; Is Your Policy in Compliance?

By: Amy Lauricella

Effective March 8, 2013, the Department of Labor (“DOL”) began enforcing a new Final Rule for interpreting the Family and Medical Leave Act of 1993 (“FMLA”).  The DOL’s new Final Rule (published February 6, 2013) makes effective expanded military caregiver and qualifying exigency leave rights created by the National Defense Authorization Act of 2010.   The Final Rule also incorporates an hours of service eligibility requirement created by the Airline Flight Crew Technical Corrections Act of 2009, a federal law which modified FMLA eligibility requirements for airline flight attendants and flight crew members, who largely had been excluded from protected leave due to their unconventional work schedules,

The bulk of the DOL’s Final Rule clarifies military qualifying exigency and service member caregiver leave.  Significant changes to the FMLA regulations resulting from the Final Rule include the following:

Extension of Military Caregiver Rights to Veterans:  The Final Rule implements statutory amendments to the FMLA that extend military caregiver rights to family members of veterans with serious injuries or illnesses.  Specifically, the regulations define a covered veteran as a member of the Armed Forces who has been discharged or released under conditions other than dishonorable within five years prior to the date the employee’s leave.  The Final Rule adopts a flexible definition of a serious “injury or illness” for purposes of veteran military caregiver leave coverage.  Additionally, the Final Rule expands the definition of serious injury or illness for current service members to include preexisting conditions aggravated by service in the line of active duty.

Expansion of Qualifying Exigency Leave:  The DOL’s Final Rule extends qualifying exigency leave to eligible employees who are family members of military personnel of the Regular Armed Forces that are deployed to a foreign country.   The DOL Final Rule also expands qualifying exigency leave to add a “parental care” category.  Under this new category, an eligible employee may take qualifying exigency leave to care for a service member’s parent, who is incapable of self-care, in order for the eligible employee to:

  1. arrange for alternative care;
  2. provide care on an urgent, immediate need basis (but not on a routine, regular or everyday basis);
  3. admit or transfer the parent to a care facility; or
  4. attend meetings with staff at a care facility (but not for routine or regular meetings).

The need to provide parental care must arise directly out of the military member’s active duty status.  Additionally, under the DOL’s new regulations, eligible employees now may take up to fifteen (15) days, instead of five (5), for qualifying exigency leave related to their rest and recuperation.

Clarification of Leave Certification Process:  Prior FMLA regulations allowed certification of a service member’s serious injury or illness to be obtained only from representatives of the Departments of Defense or Veterans Affairs.  Other health care providers were excluded from certifying a service member’s serious injury or illness.  Under new FMLA regulations, any health care provider, even those unaffiliated with the Department of Defense, Department of Veterans Affairs or TRICARE, may provide required certification for an eligible employee to take military caregiver leave.

New FMLA Poster and Certification Forms:  The Final Rule approves a revised FMLA Employer Rights and Responsibilities poster and new certification forms for FMLA leave, including a new form for military caregiver leave to care for veterans.  The FMLA poster and certification forms, which are available on the DOL’s website, have been revised and updated to incorporate the new language of the FMLA regulations.

In light of these significant changes to FMLA regulations, employers need to revise their current FMLA policies and replace outdated posters and certification forms to bring them into compliance.  Employers can also expect an uptick in the number of employees requesting military–related FMLA leave, as the DOL’s new regulations have expanded existing leave rights to cover a greater number of eligible employees.

Yahoo’s Ban on Working from Home: Does it Raise Red Flags For Other Companies?

By: Lynne Anderson

Yahoo’s widely reported decision to require its remote workforce to physically report to one of Yahoo’s office locations – or face termination of employment – has caused a social media stir. Here are some of the common questions, and our thoughts about whether Yahoo’s decision signals a trend applicable to other companies.

Q: Can Yahoo fire its remote workforce if they refuse to return to the office?

A: For the most part – yes.  If employees are employed “at-will,” then they can be fired with or without cause, and without notice. In other words, Yahoo’s statement that they feel the business is best served by the regular, spontaneous interactions resulting from having employees in the office is a legitimate non-discriminatory reason to require employees to return to the offices.  Therefore, any employee who refuses to physically report to a Yahoo office location can be lawfully fired for his/her refusal. Exceptions are generally limited to a circumstance where Yahoo had agreed, in writing, that the employee was guaranteed the ability to work from home.  Another limited exception is if the employee is allowed to work from home for a specified period of time, as a reasonable accommodation for a verified disability.

Q: Does Yahoo’s decision signal that the other industries should re-evaluate the use of remote workers?

A: While it is always productive to re-evaluate the effectiveness of workforce models, a wholesale rejection of the remote worker model does not necessarily serve an industry’s business needs, or risk management objectives.

First, Yahoo’s action is perceived as providing an opportunity to pare down a “bloated” workforce in an effort to limit the need for extensive reductions in force.  Yahoo is betting on there being less morale and legal risk associated with an employee’s resignation vs. an involuntary termination.  While companies may face the business need to ramp down certain departments depending on where they are in the approval process, targeted restructurings are generally a more appropriate response.

Second, many companies, such as Life Sciences companies that are paring down costs as they await FDA approval, use remote workers as a cost-savings method, to reduce office overhead costs. In contrast, it has been reported that Yahoo has “excess” office space that presumably would not be cost-effective to offload or sublease.  Also, the majority of Life Sciences companies are clustered in the areas of metro NY/NJ, Boston, the Bay Area and LA. Clearly, traffic is a significant issue in these areas and working remotely can offset the loss of productivity caused by lengthy daily commutes.

Remote work is also a necessity for many Life Sciences companies.  For example, clinical trials are conducted at investigator sites in the U.S. and around the world.  Employees in clinical operations must not only travel on a regular basis, but the ability to work remotely for much of the time when they are not traveling is valued.  Also, using a remote workforce is a common response to growth and expansion, especially when there is a need to locate your sales force in states outside of company headquarters and manufacturing facilities.

Fourth, most industry jobs do require a Bachelor’s degree, and workforce studies indicate that approximately one-fifth of Life Sciences jobs require an advanced degree.  Clearly, the ability to attract and retain a highly skilled and well-trained workforce has been recognized as a necessity to remain competitive – and that applies to small start-ups and large multi-national pharmaceutical companies.  The ability to work remotely, at least part of the time, can be an effective recruiting and retention tool.

Q: What are the emerging HR issues with regards to the use of remote workers?

A: While mobile technology is a tremendous asset in terms of collaboration, the law does not always keep pace with the cross-over intersection of business and personal use of mobile technology.  As a result, it is a “new frontier” and employers are faced with having to anticipate the potential legal liability. For example, to the extent that your company is monitoring employees’ e-mail/text and other use of mobile technology to ensure productively, it is critical to warn employees that they are being monitored, and they should have no expectation of privacy.  We are also seeing an increasing rise in litigation and employer-adverse agency decisions resulting from employers’ use of information about employees’ non-work activities gleaned from review of their personal Facebook accounts as a basis to discipline or terminate employees.  Also, many states have enacted or proposed legislation that makes it unlawful for an employer to directly or indirectly obtain access to an employee’s Facebook account.  As a result, we recommend that concerns about employee abuse of telecommuting are best addressed by routine and regular performance management, rather than social media spying.

We also recommend proactive management of concerns relating to data confidentiality and network security.  This includes review of existing restrictive covenant agreements to insure that enforceable non-disclosure, non-solicit and, if warranted, non-compete agreements are in place, tailored to protect those assets most critical to your business.  Choice of law provisions also need to be considered when the employee is in a different state or country than the HQ location.  In addition, we recommend providing the equipment used by the remote employee (phone/laptop, etc.), so that equipment – and all the programs and data contained on those devices – can be legally recovered at the end of the employment relationship.  Protocols should also be in place to restrict access to proprietary and other confidential information, to demonstrate that your company has a legitimate need to protect certain information.

Finally, we urge caution when allowing non-exempt employees to work remotely.  Wage and hour laws require that the hours non-exempt employees work are accurately tracked, and that they receive overtime for extra hours recorded, including for hours that the Company was on notice that the employee was working, even if those extra hours were not recorded.  Employers are being deemed as “on notice” when they are aware that the employee is e-mailing or texting supervisors about work during “off-hours” based on the access provided by mobile technology that might not be otherwise available to a non-exempt employee who is not working remotely.

(Editor’s note – This post was distributed as a Drinker Biddle Client Alert on February 27, 2013.  To read other Drinker Biddle alerts and publications click: http://www.drinkerbiddle.com/resources)

Second Circuit Rejects Application of McDonnell Douglas to New York City Human Rights Law – But Grants Summary Judgment Under More Lenient Analysis

By: William R. Horwitz

The U.S. Court of Appeals for the Second Circuit recently affirmed a district court’s summary judgment dismissal of a lawsuit that an attorney filed against her former employer alleging race discrimination under federal, state and New York City law.  In Simmons v. Akin Gump Strauss Hauer & Feld, LLP, 2013 U.S. App. LEXIS 1571 (2d Cir. 2013), the Court explained that the trial court had erroneously applied the McDonnell Douglas analysis to a New York City Human Rights Law claim, rather than only to the federal and state claims.  Nonetheless, the Second Circuit concluded that the trial court properly dismissed all of the claims.

Plaintiff Tameka Simmons worked as an associate for defendant law firm, Akin Gump Strauss Hauer & Feld, LLP (“Akin Gump”), from 2007 to late 2009.  In 2009, the firm was “experiencing significant economic difficulties.”  For economic reasons, Akin Gump laid off forty-seven attorneys in March 2009.  In April 2009, the firm announced deferred start dates for incoming associates.  In June 2009, the firm converted a full-time associate to an hourly employee.  At the end of 2009, the firm discharged Simmons.

Simmons filed a lawsuit against Akin Gump in the U.S. District Court for the Southern District of New York.  Her claims included race discrimination in violation of:  (1) Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981; (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (3) the New York State Human Rights Law, N.Y. Exec. Law § 296; and (4) the New York City Human Rights Law, NYC Admin. Code § 8-101 et seq.  After discovery, Akin Gump filed a motion for summary judgment.  The district court granted the motion, dismissing the lawsuit in its entirety.  Simmons appealed.

The Second Circuit analyzed the federal and state claims under the “burden-sifting framework” of the McDonnell Douglas case.  In so doing, the Court considered whether Simmons could establish a prima facie case of discrimination by showing:  (1) that she was a member of a protected class; (2) that her job performance was satisfactory; (3) that she experienced an adverse employment action; and (4) “circumstances giving rise to an inference of discrimination” based on her membership in the protected class.

The Court concluded that Simmons could not establish the fourth prong of the analysis, because no evidence gave “rise to a reasonable inference of discrimination due to her race.”  According to the Court, the evidence demonstrated that Akin Gump terminated her employment solely for economic reasons.

In any event, the Court explained, even if Simmons had been able to establish a prima facie case of discrimination, she could not have satisfied the next step in the McDonnell Douglas analysis, which was demonstrating that the firm’s proffered reason for her termination was pretextual.  To satisfy this burden, Simmons would have had to present “sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by [the firm] were false, and that more likely than not discrimination was the real reason for the employment action.”  The Court acknowledged that Simmons provided “some evidence” – such as the “low percentage of African-American associates” in her department of the firm – but it was insufficient.  According to the Court, “[n]o reasonable jury could have found, on this record, that Simmons was selected for the reduction-in-force at least in part because of her race.”

The Second Circuit then turned to Simmons’ claims under the New York City Human Rights Law.  The Court explained that the New York City law “was intended to provide a remedy reaching beyond those provided by the counterpart federal civil rights laws.”  Accordingly, under the City law, Akin Gump could only obtain summary judgment by “showing that, based on the evidence before the court and drawing all reasonable inferences in [favor of Simmons], no jury could find that [Akin Gump] treated Simmons ‘less well’ than other employees at least in part because of her race.”

The Second Circuit observed that the district court had erred in failing to apply this more lenient analysis.  Nonetheless, even under this analysis, the Second Circuit concluded that Simmons could not maintain her claim.  The Court concluded that “Simmons failed to raise a triable issue as to whether she was treated less well than other employees based in whole or in part on discrimination, and not because of the non-discriminatory reasons proffered by [Akin Gump].”

As the Simmons v. Akin Gump case makes clear, the analysis that courts apply to discrimination claims under the New York City Human Rights Law is more lenient than the analysis under federal and state anti-discrimination laws.  Employers with New York City employees should be aware of the more liberal analysis, but understand that – even under this analysis – courts will dismiss claims as long as employers can provide adequate support for their decisions.  The keys to this effort include maintaining clear policies and documenting reasons for employment decisions.