Caitlin Delaney, Author at The Nilson Law Group, PLLC

Caitlin Delaney
May 14, 2018
No Comments

Sexual Harassment in the Workplace: New York Legislation in the Wake of the #MeToo and #TimesUp Movements

Sexual Harassment in the Workplace: New York Legislation in the Wake of the #MeToo and #TimesUp Movements https://nilsonlaw.com/wp-content/uploads/2018/05/Sexual-Harassment-in-the-Workplace-New-York-Legislation-in-the-Wake-of-the-MeToo-and-TimesUp-Movements.jpg 1920 1080 Caitlin Delaney Caitlin Delaney https://secure.gravatar.com/avatar/457b3c89dce0f79d254b23e5f9aeb923?s=96&d=mm&r=g May 14, 2018 December 16, 2021

In the United States, the concept of implementing policies and procedures to prevent sexual harassment in the workplace is not new. However, the #MeToo and #TimesUp movements, which were sparked by disturbing revelations about top executives across a range of industries, have mobilized the public to demand more protections for employees in the workplace. Indeed, lawmakers across the country have reacted to these demands, in part, by enacting legislation aimed at preserving employees’ rights to a workplace free from sexual harassment and discrimination.

On April 12, 2018, New York Governor Andrew Cuomo signed into law the 2019 New York Budget, creating new obligations for New York employers (the “Law”). The following is a summary of what the Law does with respect to sexual harassment in the workplace and how it will affect employers.

Prohibits Mandatory Arbitration Agreements for Sexual Harassment Claims

The Law amends the New York Civil Practice Law and Rules (“CPLR”) to prohibit, except where inconsistent with federal law, any provision in an employment-related contract which requires a party to submit claims of sexual harassment to mandatory and binding arbitration. For employment-related contracts entered into as of July 11, 2018, such mandatory arbitration clauses will be rendered null and void. The exception to this prohibition will be arbitration clauses included in collective bargaining agreements, which will still be enforceable.

Prohibits Confidential Settlement Agreements for Sexual Harassment Complaint without the Complainant’s Consent

The Law further amends the CPLR and New York General Obligations Law to prohibit employers from including confidentiality provisions in any settlement agreement for sexual harassment unless the confidentiality provision is the complainant’s preference. The Law requires that the confidentiality clause must be provided to all parties. The complainant must be given (i) 21 days to consider the provision and (ii) 7 days in which to revoke his or her acceptance of the provision. This prohibition will be effective July 11, 2018.

Extends Sexual Harassment Protection to “Non-Employees”

Effective immediately, an employer can be held liable under the New York State Human Rights Law for permitting the sexual harassment of non-employees (including contractors, vendors, consultants, service providers, etc.) in the employer’s workplace.

Requires Employers to Implement Sexual Harassment Policies and Training Program in Accordance with State Standards

The Law amends the New York Labor Law to require employers to have a written sexual harassment policy and to provide employees with annual training on this topic. The New York Department of Labor and the New York State Division of Human Rights will work together to create a model sexual harassment prevention policy (the “Model Policy”) and a model sexual harassment prevention training program (the “Model Training Program”) that employers can use.

The Model Policy must include the following elements:

• A statement prohibiting sexual harassment including examples of conduct that would constitute unlawful sexual harassment;
• Information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims, and with a statement that there may be additional applicable laws;
• A standard complaint form;
• A procedure for timely and confidential investigation of complaints that ensures due process for all complaints;
• A statement informing employees of their rights of redress and available forums for adjudicating sexual harassment complaints administratively and judicially;
• A clear statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals engaging in sexual harassment and against managers and supervisory personnel who knowingly allow such behavior to continue; and
• A clear statement that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding is unlawful.
The Model Training Program must be interactive and include:
• An explanation of sexual harassment and examples of conduct that would constitute unlawful sexual harassment;
• Information about the federal and state statutory provisions concerning sexual harassment and remedies available to victims;
• Information addressing supervisor conduct and additional responsibilities for such supervisors; and
• Information concerning employees’ right of redress and all available forums for adjudicating complaints.

New York employers must either (1) adopt the Model Policy and Model Training Program or (2) develop their own policies and training programs that equal or exceed the minimum standards set forth by the state agencies. Employers will have until October 9, 2018 to distribute their written harassment policies to their employees, and to implement and present their training program.

Next Steps for New York Employers

Employers should take several measures to ensure that they comply with the obligations and prohibitions created by the Law. First, employers should review existing sexual harassment prevention policies (including those set forth in employee handbooks) and training programs and consult an attorney to determine what revisions should be made. Employers should also review their standard settlement and arbitration agreements and revise them in accordance with the limitations set forth in the Law.
For assistance in crafting a compliant sexual harassment prevention policy or training program, or revising your standard employment-related agreements, please contact our office.

Disclaimer: No Legal Advice or Attorney-Client Relationship
The information and materials available in this article are for informational purposes only and are not intended to and do not constitute legal advice, a solicitation for the formation of an attorney-client relationship, or the creation of an attorney-client relationship. The information provided may not apply to your particular facts or circumstances; therefore, you should seek legal counsel prior to relying on any information that may be found in this article. Furthermore, information provided in the article may not reflect the most recent and/or all developments in the law.

Caitlin Delaney
September 18, 2017
No Comments

Questions at the Border: Preparing for Your Next Business Trip to the US

Questions at the Border: Preparing for Your Next Business Trip to the US https://nilsonlaw.com/wp-content/uploads/2017/09/Questions-at-the-Border-Preparing-for-Your-Next-Business-Trip-to-the-US.jpg 1920 1080 Caitlin Delaney Caitlin Delaney https://secure.gravatar.com/avatar/457b3c89dce0f79d254b23e5f9aeb923?s=96&d=mm&r=g September 18, 2017 December 16, 2021

In light of recent U.S. policy changes with respect to immigration enforcement and border control, it is important to be prepared for heightened questioning when entering the United States. Citizens of countries participating in the Visa Waiver Program (“VWP”) can generally enter the United States without a visa for stays of ninety days or less, as long as the individual has been authorized under the Electronic System for Travel Authorization (“ESTA”) (Visit https://www.cbp.gov/travel/international-visitors/esta or consult an immigration attorney for more details). Therefore, if you are traveling to the U.S. as the employee of a foreign (i.e., non-U.S.) company to check on the operations of that company’s U.S. subsidiary, and you are authorized under the VWP and ESTA, you are entitled to enter the United States without a visa.

However, when a U.S. Customs and Border Protection (“CPB”) officer asks you questions about your purpose for traveling to the United States, it is best to limit your answer to (1) inspecting the U.S. subsidiary’s operations and/or (2) attending meetings. Other employment-related activities may trigger the CPB agent to mistakenly conclude that you are an employee of the U.S. subsidiary, and therefore, that you require an employment visa. To ensure that you can answer a CPB officer’s questions correctly and without confusion, we have outlined below what you should not say when being questioned by a CPB officer:

(1) that you have authority to supervise, hire or fire employees of the U.S. subsidiary
(2) that you are an employee of and/or are paid a salary by the U.S. subsidiary
(3) that the U.S. subsidiary is covering the costs of your trip, lodging, etc.

One way to facilitate the entry process is to present to the CPB officer an attorney letter confirming the purpose of your U.S. visit (only present the letter if he/she asks about your business activities in the United States). If you will be traveling frequently to the United States for the purpose discussed above, it would be prudent to have such a letter on hand.

Please contact our office if you would like us to provide you with an attorney letter for the next time you visit the United States to check on the activities of your U.S. subsidiary. If you have additional questions related to visas and other immigration matters, please consult your immigration attorney or allow us to make a referral.

Caitlin Delaney
November 16, 2016
No Comments

What Every Employer Should Know About Family and Medical Leave in the United States

What Every Employer Should Know About Family and Medical Leave in the United States https://nilsonlaw.com/wp-content/uploads/2016/11/What-Every-Employer-Should-Know-About-Family-and-Medical-Leave-in-the-United-States-2.jpg 1920 1080 Caitlin Delaney Caitlin Delaney https://secure.gravatar.com/avatar/457b3c89dce0f79d254b23e5f9aeb923?s=96&d=mm&r=g November 16, 2016 December 16, 2021

Unlike Europe, Canada, Japan, and most economically advanced nations around the world, the United States is an outlier when it comes to paid family or medical leave. The U.S. is one of the only economically advanced countries without some type of legislation mandating paid family or medical leave for employees. Despite this anomaly, there is a growing trend among U.S. states and municipalities to require paid family and/or medical leave to certain employees. This trend builds upon the unpaid leave laws in the U.S., namely, the Family Medical Leave Act, and the expansions thereof implemented by state and local governments. The topic of paid leave has recently made headlines with respect to the U.S. presidential election, as both Democratic and Republican candidates have proposed their own paid leave plans should they be elected in November. As an employer, it is vital to understand the current federal and local leave laws as they apply to your business, and to be aware of potential changes in the law. Without delving into the intricacies of the FMLA, its state and local counterparts, and perhaps the hairiest subject of them all, politics, here are some general questions you should be asking yourself as an employer:

1. What is the FMLA, and how does it apply to my business?

The Family Medical Leave Act (“FMLA”) is a national law that provides up to twelve weeks of unpaid, job-protected leave during a twelve-month period to (1) care for the employee’s newborn, adopted or foster child; (2) to care for the employee’s family member; or (3) to care for the employee’s own serious medical condition. The law provides a base-line requirement for family or medical leave, and allows states to set more expansive standards. The “job-protected” feature of the FMLA means that employers cannot fire an employee for taking such leave, and cannot take any other adverse employment action on that basis. After an employee returns from leave, he or she must be restored to the same or an equivalent position, except in limited circumstances. The FMLA applies to private employers with fifty or more employees within a seventy-five mile radius.

2. Has my state expanded the FMLA standards for unpaid leave?

This question will depend on where you and your employees conduct business. Therefore, consulting an attorney who understands your state’s employment law is key. Some states that have expanded the standards for unpaid leave are California, Connecticut, Rhode Island, Maine, New Jersey, and Vermont. These states and others who have expanded the standards for unpaid leave have done so by either (1) increasing the amount of leave-time, (2) including more people for whom an employee may take leave, (3) setting additional standards for businesses with more or less than fifty employees, or (4) a combination of some or all of the above expansions. For example, Maine’s unpaid leave laws applies to employers with only fifteen or more employees, and also provides for leave to be an organ donor. Connecticut allows up to sixteen weeks of family or medical leave in a span of two years for employees of businesses with seventy-five or more employees. With so many variations on how federal unpaid standards are expanded, it is important to consult counsel to ensure that your business is complying with all of your state’s leave laws.

3. Which state or local governments have implemented paid leave laws?

Currently, three states have implemented paid family and medical leave laws. California, New Jersey, and Rhode Island all offer paid family and medical leave. In 2018, New York’s Paid Family Leave Benefits Law will go into effect and join the growing wave of updated family leave laws. With respect to paid sick leave, California, Connecticut, Massachusetts, Oregon, and Vermont have implemented legislation requiring employers to provide paid sick leave to their employees. In addition, Seattle, Washington, New York, New York, several cities in New Jersey, and number of other municipalities have established laws mandating paid sick leave. Similar to unpaid leave laws, each state or city has its own rules regarding the application of such laws, so consulting an attorney is integral to understanding your rights and obligations as an employer.

4. What changes should I look out for in the near future with respect to leave laws in the U.S.?

It is always important stay up to date when it comes to the laws that affect your business and your employees. Recently, the media has focused on the 2016 U.S. presidential campaign and the proposals (and colorful attributes) of each candidate. In the realm of family and medical leave, each candidate has a plan that involves federally funded leave for certain employees. Hillary Clinton’s plan guarantees up to twelve weeks of paid family and medical leave to care for a new child or a seriously ill family member, and up to twelve weeks of medical leave to recover from a serious illness or injury of their own. The Democratic candidate further proposes that an employee on paid family or medical leave will earn at least two-thirds of his or her current wages, capped at a certain amount. Her plan for funding paid leave is to reform taxes.
On the Republican front, Donald Trump’s plan provides for six weeks of paid maternity for employees whose employers do not offer paid maternity leave. He proposes that the plan will implemented by amending the existing unemployment insurance that companies are required to carry, and paid for by offsetting reductions in the program.

5. What’s the takeaway?

No matter the outcome of the 2016 election, it is likely that the U.S. will undergo significant changes with respect to family and medical leave laws in the coming years. The key is to stay informed: consult an attorney to know which federal and local laws apply to your business and understand your rights and obligations underneath them, as well as the rights and obligations of your employees. Keep abreast of new laws on the horizon and make sure that your business is prepared.
This article provides only a basic summary of the various aspects of family and/or medical leave under U.S. law. Consult an attorney for specific and individualized advice tailored to the needs of your business.

Disclaimer
No Legal Advice or Attorney-Client Relationship
The information and materials available in this article are for informational purposes only and are not intended to and do not constitute legal advice, a solicitation for the formation of an attorney-client relationship, or the creation of an attorney-client relationship. The information provided may not apply to your particular facts or circumstances; therefore, you should seek legal counsel prior to relying on any information that may be found in this article. Furthermore, information provided in the article may not reflect the most recent and/or all developments in the law.