Why Employers Choose Demotion Over Termination

As an alternative to termination, some employers may choose to demote employees as a method to retain employees who fit in well with the company but are under-performing.  While employee demotion certainly poses risks for employers, there are a many reasons for an employer to choose demotion over termination.  For example, a newly promoted employee may be under-performing in the new role as manager and instead of firing the longtime employee, the employer wants to re-position the employee to his or her former role.  Demotion may also be the correct decision for an employer based on organizational restructuring that results in the elimination of an employee’s current position or to simply find a better fit for the employee’s skill set.  Whatever reasons an employer may have to demote an employee, it is of the utmost importance that all demotions are handled with extreme caution.

A poorly-handled demotion can easily result in the same legal liabilities that accompany employee termination.  This is because when an employee is demoted, the employer is adversely changing an employee’s terms and conditions of employment.  This means that employers are still subject to employment discrimination laws as if the employee was being fired when an employee is demoted.  For this reason, it is important for employers to thoroughly determine the purpose behind a potential demotion and examine if a demotion can truly achieve the desired purpose.  It is not appropriate to implement a demotion as a means to punish an employee or only as a temporary measure before the employee is eventually fired.  Further, demotion should not be used as a method to coerce an employee to quit.  If the end goal is to fire the employee or hope they quit instead of accepting the demotion, save the time and effort required to demote the employee and simply fire them.  A disciplinary demotion is not likely to correct the problem and could send the wrong message to employees that the employer does not take acts of misconduct seriously.

Ultimately, the question of whether or not to demote an employee must be decided on a case-by-case basis.  Employers should answer the following questions first to determine whether to demote an employee:  Does the employee have the skill set to be successful in the demoted role?  If the demotion is the result of performance-related issues, was the employee afforded all opportunities to improve performance prior to the demotion?  How will the demotion affect the employee’s team or department?  Is the employee responsible to supervise others in their current role?  Will the employee suffer a reduction in pay as a result of the demotion?

If an employer decides to demote an employee, there are inherent challenges the employer may face.  For example, if the employee’s former position included supervisory responsibilities, it is likely issues may arise when the employee is placed back working alongside employees they previously managed.  It is also possible that before the employer chooses to demote the employee, the employee’s former position may have already been filled, or the position was eliminated.  Another common challenge an employer could face is that a demotion normally results in a pay reduction, which could be difficult based on the length of time the employee spent in the previous role.  Employers also face risks associated with consistency of organizational policies, questions of fairness, and possible discrimination.  Prior to choosing to demote an employee, employers must ensure that all disciplinary policies and performance review policies are consistently enforced throughout the company.

When an employer chooses to demote an employee over firing the employee, the following tips will help the make the discussion with the employee and their transition to the lower position less disruptive and awkward.

  • During the demotion discussion, be respectful of the employee’s feelings. Explain that this step in the employee’s career is being taken by the organization’s desire to keep the employee at the company and that the employee is expected to be successful in the new position that is better suited for his or her skill set.  Relieve some of the burden from the employee and place blame on the company for making a mistake when the employee was given tasks that he or she was not prepared to successfully complete.
  • Honestly explain to the employee the reasons for the demotion, whether it is performance-related or based on organizational restructuring. Be sure to explain that this action is being taken as opposed to terminating the employee.
  • Outline how the employee will transition into the new position, what the responsibilities will be, when he or she will start the new role, and who he or she will report to.
  • If the demotion results in a pay reduction, address this point and do not avoid it or gloss over it.
  • Be ready to receive an emotional and likely negative response from the employee. This is why the discussion should be held in private, generally at either the beginning or end of the workday.
  • Be prepared to answer the employee’s questions such as: “Can I have more time to improve?”; “Can I have a few days to think about it?”; “What if I don’t choose to take the lower position?”; “Can I move to a different team/department?”
  • Should the employee choose to accept the demotion, use the meeting to work out a plan to decide who needs to be notified of the employee’s demotion, what information will be shared, and when that communication will take place.

Most employers will tell you that the choice to demote an employee is the exception rather than the norm.  Although the process to demote an employee can be difficult to navigate and requires extensive risk management, the choice to demote an employee under the right circumstances can allow an employer to retain a valuable employee while placing the employee in a role better suited to his or her abilities.



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Hosting a Holiday Party? What Employers Need To Know To Avoid Liability

With the holidays just around the corner, many employers plan to host a holiday party for their employees.  Holiday parties are a great way to show appreciation for employees, enhance teamwork and allow employees to form a different type of bond aside from what they do on a day-to-day basis in the 9-to-5 world.  Whereas these events intend to enhance workplace spirits, holiday parties can land employers in hot water if they are not careful.  Before planning your holiday party, consider the potential liabilities that could accompany your event.

 

More often than not, many situations that could result in liability for your company can easily be prevented with some additional foresight.

Here are some steps you can take to protect both yourself and your employees:

  • Limit the hours. Start the event right after work so employees don’t have the chance to pre-party before they arrive.  The party should also be limited to about three hours to avoid letting any guest become so intoxicated.
  • Make the party voluntary. While it would be nice for all of your employees to attend the holiday party, don’t make it a requirement.  Remember that some employees may already have plans or other commitments.  It might be a good idea to make the party during the week so it is less likely employees will have conflicting plans and because employees are less likely to drink excessively on a weeknight.  Also, there is the possibility of creating confusion and problems regarding compensation if the party is mandatory for employees to attend.
  • Limit the alcohol. Although this might sound obvious, many people do not know what limiting alcohol looks like at a party.  While completely nixing alcohol at your party will minimize a lot of risk, employers do not have to go that far to reduce liability.  One suggestion is to prohibit executives from drinking or limit them to just one alcoholic beverage.  This isn’t to say that executives can’t have fun, but employers want executives to be the eyes and ears of your company to ensure everyone else is safe and on their best behavior.  Another idea is to hire professional bartenders or work with your vendor to set parameters for serving alcohol.  It might be a good idea to instruct bartenders not to serve shots, serve light pours, or have a designated cut-off time.  Employers may choose to host a cash bar where employees purchase the alcohol.  A cash bar can reduce consumption and can reduce the risk of a claim that the employer directly provided alcohol to employees.
  • Provide rides. Employers should think about ways to get their employees home safely.  Arrange for designated drivers or work out an arrangement with a local hotel with a shuttle service or a car service to offer discounted rates to all employees.  Even if you don’t plan to or want to provide a taxi service, don’t think twice about calling and paying for one if an intoxicated employee plans to drive himself home.  From a cost-benefit point of view, the cab fare may be the best money your company has ever spent.
  • Instruct leaders of your company to set the example. Leaders and executives of your company should set the tone for the holiday party.  It is important that they understand that they set the example of professional behavior at your holiday party.  Additionally, someone should monitor the party to stop problems and make sure nothing gets out of hand.=
  • Communicate expectations ahead of time. It is a good idea to send an office wide memo a few days before the party to let employees know you look forward to a fun party and reminding them that it is still a work setting in which they are expected to exhibit decorum and professionalism.  This memo should also include the company’s policies on harassment as well as the dress code.
  • Invite the spouses. Many employers choose to allow employees to bring their spouse or a guest to the holiday party.  A spouse or partner can act as someone’s “better half” and can help employees to make better decisions.
  • Do more than serve drinks. Planned activities can keep guests from making constant trips to the bar and can keep a party from spinning out of control.  An activity, such as a white elephant gift exchange, can let employees interact in a way they normally wouldn’t interact with each other.  In addition, a planned activity can use up forty-five minutes to an hour of the party.
  • Excluding the mistletoe, decorations are okay. Holiday decorations can create a festive atmosphere at your party, but forget about hanging mistletoe.  This could lead to all sorts of harassment issues and potential complaints.
  • Consider an alternative. Some employers may altogether want to reduce risks associated with evening events by throwing a casual party during the day or by doing something more low-key such as volunteering together for a charity or holding a family-friendly affair at a bowling alley.  These kinds of activities still allow employees to get into the holiday spirit without having to endure the higher-risk party atmosphere.


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Ensure Compliance With Pay Equity Laws During Year-End Compensation Practices

During this time of year, it is common for employers to conduct employee performance reviews and make decisions about employee raises and year-end bonuses.  Many employers fail to consider the federal and state pay-equity laws, and the level of heightened scrutiny surrounding compensation decisions, when making these decisions about employee bonuses and raises.  This is why employers must review their year-end compensation practices.

 

 

An Employer’s Legal Obligations

Under the federal Equal Pay Act (“EPA”), employers are required to equally compensate men and women who perform similar or equal work in the same establishment.  This means that employees performing substantially similar work in the same workplace, under similar working conditions, which require equal responsibilities, efforts, or skills, must be compensated equally.  These factors are summarized below:

  • Skills are measured by factors such as the education, training, ability, and experience to perform the job. This issue at hand is the type of skills required to perform the job, not what skills the individual employees have.  For example, two bookkeeping jobs could be considered equal under the EPA, even if one of the employees has a master’s degree in psychology, since that degree would not be required for the job.
  • Efforts are defined by the amount of mental or physical exertion needed to perform the job. For example, consider the scenario where both men and women work next to each other on a line assembling machine parts.  The employees in the middle of the line are only piecing certain components of the machine part together.  The employees at the end of the line complete the assembly of the machine part and then must lift the assembled product onto a board.  The employees at the end of the assembly line are required to exert more effort than the other assembly line jobs, if the extra effort of lifting the assembled product onto the board is a substantial and regular part of the job.  It would not be a violation to pay the employee at the end of the assembly line more, regardless of whether the job is held by a woman or a man.
  • Job responsibilities are measured by the degree of accountability required to perform the job. For example, a salesperson who is responsible to determine whether to accept a customer’s personal check has more responsibility than other salespeople.  That is not the case where there is a minor difference in responsibility, such as the responsibility to turn on the lights in the morning and turn off the lights at the end of the day.
  • Working conditions encompasses two factors: (1) physical surroundings, including fumes, ventilation and temperature; and (2) workplace hazards.
  • Workplace or work establishment is defined as the distinct physical place of business and not an entire business or enterprise consisting of several locations of businesses. However, if a central administrative unit hires employees, sets their compensation, and assigns them to separate work locations, those separate work sites can be considered to be part of one work establishment.

Employers are obliged to ensure all forms of compensation, including base wages or salaries, bonuses, overtime, benefits and other perks, are allocated to employees equally regardless of gender.  Aside from an employee’s gender, the EPA allows for disparities in pay among employees with substantially similar job duties if justified by bona fide factors, such as an employee’s education, sills, seniority, qualifications, objective merit, or level of responsibility.

In addition to the EPA, employers are subject to the Lily Ledbetter Fair Pay Act.  The Lily Ledbetter Fair Pact was passed in 2009 after the Supreme Court denied a claim of unequal pay because the statute of limitations had run out, despite the fact that there was clear evidence of unequal and discriminatory pay practices.  The Lily Ledbetter Fair Pay Act explicitly remedies the statute of limitations issue by rendering each new paycheck an employee receives to be deemed a new instance of pay discrimination.  An employer’s original pay decision will no longer be protected by the statute of limitations because whether employees are paid daily, weekly, or bi-weekly, employees may have a potential claim for discriminatory pay practices if their employer violates the EPA.

However, an employer’s review of their compensation practices cannot stop after ensuring their policies comply with federal law.  Nearly every state has enacted pay equity laws that prohibits discrimination in wages based on gender, and some states, including California, Oregon, New Jersey and New York have expanded their pay equity laws to extent to other legally protected groups, including race, ethnicity and religion.

As of October 8, 2019, New York expanded its pay equity laws among all protected groups-not just between male and female employees.  The following classes are protected under New York’s pay equity laws: race, color, creed, age, gender identity or expression, disability, predisposing genetic characteristics, military status, familial status, domestic violence victim status, or any other employee or intern protected from discrimination under the New York State Human Rights Law.  New York employers are required to ensure equal pay for employees based on (a) equal work on a job, the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions, or (b) substantially similar work, when viewed as a composite of skill, effort, and responsibility, performed under similar working conditions.  Like the EPA, New York’s pay equity laws provide factors for wage differentials based on (i) seniority, (ii) merit, (iii), a system measuring an employee’s earnings by quantity or quality of production, or (iv) a bona fide factor that is job-related and satisfies a specific business purpose other than the employee’s protected status, such as experience, education, or training.  However, employers may not rely on any of the factors stated above if it results in disparate treatment of any of the protected classes and the employer refuses to adopt an alternative that would not produce a pay differential.

Employers must also note that many state pay equity laws provide greater reaching remedies and higher monetary awards than those provided under the EPA.  For example, New York awards treble damages to plaintiffs as a result of violating New York’s pay equity laws.  This is why employers must review their compensation practices to ensure compliance with both federal and state pay equity laws.

Review Compensation Policies and Practices

Before employers make final decisions regarding employee year-end bonuses and raises for next year, employers must critically examine their compensation practices and policies to ensure that any pay disparities among employees with substantially similar or equal job duties are not perpetuated into next year.  The following questions should be considered during a review of an employer’s compensation policies and practices:

  • Are compensation decisions for year-end bonuses and raises based on objective or subjective criteria?
  • What, if any, documentation was used to justify the pay decisions? And, is the documentation based on objective or subjective criteria?
  • If a pay differential is based on job performance, does the performance appraisal and documentation justify the pay treatment?
  • Are there legitimate, bona fide factors, other than gender or another protected category, that substantiate unequal compensation between employees performing substantially similar work?

After reviewing your compensation policies and answering these questions, you should make any adjustments to your compensation practices before any decisions on bonuses and raises are decided to ensure any pay disparities among employees performing substantially similar work fall within the bona fide reasons set by the EPA and state law.

If a review or your compensation policies and practices, you notice red flags of pay inequities among employees performing substantially similar work that are not justified by any of the above-stated bona fide factors, there are ways for employers to cure the pay inequities.  Year-end bonuses or raises can be offered to remedy any pay disparities to bridge the gap going into 2020, without drawing attention to a possible pay disparity claim.

Steps Employers Can Take Before Making Year-End Compensation Decisions

While employers may only make compensation decisions on a yearly basis, the issue of pay equity is ongoing and should be vigilantly and constantly monitored.  One way to determine potential pay disparities in an organization is to conduct a full fledged pay audit.  An audit will allow employers to identify and correct any pay disparities going forward if there are no legal explanations to justify those disparities.

When conducting a pay audit, consider what data and documentation will be used.  It may be helpful to pull a snapshot on each employee that includes job information, age, and productivity information to help fully understand the data.  Decide what job positions will be compared.  Review job descriptions and only compare jobs that have a common core of tasks.  It is a good idea to take into consideration the skills, efforts, job responsibilities, working conditions and workplace establishment of the positions being compared.  Also, employers must decide whether certain employees will be excluded.  For example, should sales employees who have differing quotas or regions be included?  Should executives or union employees be included in the audit?  Employers should also determine what type of compensation will be compared in the audit.  Will the audit be based solely on base wages or salaries?  Or will the audit include bonuses, commissions, and other benefits and perks offered?  The ultimate goal of the audit is to determine what could pose the most risk to the employer and to analyze those factors.

The data used in the audit must be objective and reliable.  Otherwise, the time and effort spent to conduct the audit will be wasted and the results will be useless.  Further, any attempts to re-mediate a pay disparity based on bad information would be futile.  By ensuring the data used is accurate in the audit, employers will be able to protect their organizations from potential claims of pay discrimination.



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The Importance of Documenting Verbal Discussions with Employees

Small businesses typically do not have a full time, in-house human resources manager or other advisors on staff to handle employee complaints, nor are they equipped to deal with investigating allegations.  However, regardless of the size of the organization, the standards of proof under the law are no less stringent when an employee files a claim against the company.  In the eyes of the law, it is clear that if there is no documentation, it didn’t happen.  Documenting verbal discussions can provide employers with potential defenses in the following situations: when protecting against an employee’s allegations in common “he said, she said” scenarios; refuting discriminatory and retaliatory practices; and demonstrating that counseling was provided to an employee with poor performance history prior to termination.  Hence, business owners must understand that no matter how busy their managers and supervisors are, they must learn which verbal conversations to document and the best way to do so.

The purpose of documenting verbal discussions with employees is to justify that at the time in question your company’s communications and actions were based on a legitimate need and were taken out of business necessity.  Determining which kinds of discussions should be documented is important for managers and supervisors to understand so that the business can later justify why certain decisions were made if an employee brings a claim.  For example, any verbal warning or counseling session must be documented.  However, not all types of communication, such as a conference call, voice mail, or in-person meeting needs to be documented.  If that was the case, managers and supervisors would not have any time to complete their work.  A critical conversation regarding an important project, an action item requiring employees to meet certain benchmarks on a project, a follow-up with an employee after the company took corrective actions after an employee made a complaint, or any review of an employee’s performance should be documented.

Managers and supervisors must also learn how to effectively document these verbal conversations.  The business should provide a base form of what is expected of managers and supervisors to report when documenting verbal discussions with employees.  Although it is not always practical to expect a manager or supervisor to fill out a form every time they need to document a discussion, sending an email with a receipt of notification to the employee involved in the conversation, confirming what was discussed, or sending the email to another manager confirming the conversation with the employee are effective ways to document the discussion.  Regardless of how the conversation is documented, it is important to include the following information: the date and approximate time when the conversation occurred; exactly who was present and participated in the discussion; a clear summary of the key issues discussed; any responses given by the employee; and any solutions or action plans agreed upon by the employee and manager.  Documentation of the conversation must also be timely to be effective.

Managers and supervisors should remember to prepare the documentation of the verbal discussion with the employee as if a third party (internal or external) were going to review it.  This requires that all information regarding the conversation is reported objectively without any personal bias or subjective comments and to avoid using vague language and ambiguous phrases.  Managers must include enough information in the report so that a third party could not question what happened, what steps were taken to put address the issues or the employee on notice, and what was required of the employee in the future.

It is also a good idea for employees to confirm that what is contained in the written documentation of the discussion is accurate and that the employee understands what is expected of them.  This may include providing the employee with a copy of the report to review and sign.  By requiring the employee to confirm the report is accurate, the employee is afforded the opportunity to address any misunderstanding in order to avoid later confusion or disagreement.  Further, the employee cannot later dispute that what was included in the report of the conversation was not accurate because the employee signed the report stating it was accurate.



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How Employers Can Protect Against External and Internal Violence in the Workplace

Although violence in the workplace is never a topic employers want to discuss, employers are responsible for keeping their employees and customers safe.  Regardless of an employer’s size, location or type of industry, workplace violence is a realistic concern.  According to the Occupational Safety and Health Administration (OSHA), approximately 2 million American workers are victims of violence in the workplace each year.  Hence, it is crucial that employers not only take actions to protect against external threats of workplace violence to employees, but also develop and implement a workplace violence policy and workplace violence prevention training to protect against internal threats of workplace violence.

Workplace Violence Defined:  OSHA defines workplace violence as an act or threat of hostility, harassment, physical violence, intimidation, or any threatening behavior that disrupts the workplace.  Workplace violence can occur within or outside the workplace and can range from verbal abuse to threats of outright physical assault.  Regardless of the form, external and internal workplace violence is a growing concern for both employees and employers.

Preventing External Violence

Conducting a Security Assessment:  To address potential external threats to your business, employers should conduct a security assessment to identify and address any security issues your workplace may have in order to provide workplace violence training specific to your business and reduce risk to your employees in the future.

When assessing your business’s security vulnerabilities, ask yourself the following questions:

  • What kind of neighborhood is your business located in? Is your office located in a building that provides security guards, or is it located in a warehouse in an industrial district, for example?
  • Is your office surrounded by other businesses that may make your office more vulnerable? Are you located next to a bank that could be robbed?
  • Do your employees handle cash? Do these workers also interact with the public?
  • Is your business open to the public? Does your business require employees to access the building with a key or a code?
  • Are people able to cut through your parking lot for convenience?
  • Do all employees wear a visible badge or identification card?
  • Do your employees work late at night or early in the morning?

What Employers Can Do To Protect Employees:  After conducting a security assessment, employers can take the following steps to protect against potential outside threats to your business and increase employee safety in the workplace:

  • Ensure the building and parking lot are well lit. Street lights may not provide enough illumination for an employee to see if someone is lurking in the dark.  Adding additional exterior lights and providing a well-lit path for employees to walk from the building to the parking lot will deter attacks on employees.  If employees are arriving at or leaving work before sunrise or after sunset, employers should encourage employees to walk in groups or to consider hiring security to walk employees to and from their cars.
  • Where appropriate, it may be a good idea to install video surveillance and alarm systems, and to make those systems visible. The presence of a security camera is normally enough to discourage a person from targeting your business.  Employers should determine where the most likely danger zones are (i.e., entrances and exits to the building, the reception area, anywhere money is stored or handed, in the IT server room, and in parking lots) and should install security cameras in especially visible places.
  • Set strict guidelines for employees handling cash. Employers should limit the amount of cash on hand in registers and post signs stating that employees have no access to safes.  This will likely deter any potential attacks because it will make clear that employees only have a small of amount of money on hand.
  • If employees are required to travel to different locations throughout their workday, provide those employees with a cell phone and require them to prepare and circulate a daily work plan stating where the employee is set to go for that day and requiring the employee to report to a contact person their location throughout the day.
  • Encourage employees to report any security vulnerabilities. It is likely that an employee would notice a potential security threat to the building or office before you do.  Instruct employees to report the following: unsecured rooms that contain valuable machinery, equipment, or inventory; lights that need to be replaced; suspicious behavior, workplace bullying or significant changes in a co-worker’s personality; and an employee’s domestic issue that may have already or has the potential to spill into the workplace.

Implement a Workplace Violence Prevention Training Program:  After assessing the potential external threats to your business and taking proactive steps to deter outside attacks, employers should then develop a workplace violence prevention training program and policy specific to your business and provide training to employees to protect employees from violence within the workplace.

First, establish a clear, no-tolerance workplace violence policy.  Often, it is likely the case that a violent employee or customer is not a first-time offender.  Many times, they will display a warning sign or act out on a smaller scale first.  It can be detrimental to your business if these incidents go unnoticed and without consequences.  The policy should clearly state that it applies to all employees, customers, clients, visitors and anyone else who may come into contact with employees.  Further, the policy should provide examples of specific acts or behaviors that will not be tolerated and the consequences of non-compliance with the policy.

Second, train employees on the warning signs of potential workplace violence to stop an incident before it starts.  Potential warning signs of violence may include the following: behavioral changes, including poor job performance; depression or withdrawal; excessive use of drugs or alcohol; violation of company policies; mood swings; overreactions to performance reviews or evaluations; and complaints about unfair treatment.  Employers should designate a person employees can notify to report signs of potential workplace violence.

Third, develop an action plan to handle violence in the workplace and implement workplace violence drills.  Although no one wants to think about the worst-case scenario, it is important that employees are trained on exactly what to do if violence arises in the workplace.  Employees should be told who to report any violent acts to and how to notify the police, how to safely exit the office or building, and where employees should report to once they have exited the building.  Practicing this plan is important; however, it is important to let all employees know that it is just a drill.

Although workplace violence prevention training may not be the most fun or interesting training you provide to your employees, it is likely the most important training you will provide.  Take the time to assess the potential external threats to your workplace and implement a workplace prevention training program and policy to protect against internal workplace violence because no business is safe from workplace violence.



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Changes to the Paid Voting Time Law in New York State

In anticipation of the upcoming elections taking place next month, employers must ensure their policies comply with New York’s new voting leave law.

On April 1, 2019, New York State passed a new budget including a provision revising the amount of paid voting time employees may take to vote.

New York’s previous law on voting leave provided that if an employee had four consecutive hours either between the opening of the polls and the beginning of their working schedule, or between the end of their working schedule and the closing of the polls, they shall be deemed to have sufficient time outside of their working hours within which to vote and they did not require paid time off from work to vote.  If an employee’s work schedule did not permit them to have this four-hour window of time to vote, the employee could take up to two hours of paid time off either at the beginning or end of their schedule to vote.  In order to take the two hours of voting leave, the employee would need to notify their employer not more than ten nor less than two working days prior to the day of the election.

New York’s new voting leave law took effect immediately as of April 1, 2019, and includes several changes from the previous law.  First, the law now requires employers to provide up to three hours of paid time off that the employer will designate at the beginning or end of the employee’s working schedule.  Second, this new voting leave law removed the requirement that employees could not notify their employer to request voting leave prior to ten days before the election.  The new law now only requires that employees notify their employer of the need to take voting leave not less than two working days before the date of the election.  Perhaps the most important change to the previous law is that the new law eliminates the presumption that an employee has sufficient time to vote if they have four consecutive hours outside of their work schedule to vote.  This last change essentially guarantees employees requesting time off to vote that they will be granted ample paid time off to enable them to vote, up to a maximum of three hours.

Employers should also note that not less than ten days before every election they must conspicuously post, where it can be seen as employees come or go in their place of work, a notice setting forth the provisions of the new voting law.  This notice can be found on the New York State Board of Election’s website (https://www.elections.ny.gov/).

Employers should note that the new voting law specifically applies to any election, which can undoubtedly be interpreted to include paid time off for employees to vote in all federal, state and local elections.  Employers must be sure to update their handbooks to comply with New York’s new voting leave law.



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Ensuring Your Website and Job Listings Comply with the Americans With Disabilities Act

Company websites are designed to be accessible to all because; they drive business, create and retain customers, nurture client relationships and increase search engine optimization.  In our April 2019 e-blast (click here for full article), PMP wrote about the need to ensure that websites are compliant with the Americans with Disabilities Act (ADA), specifically accessible to the visually impaired.

For the same reasons, businesses should ensure career websites and pages are accessible to those with vision, hearing or other impairments.

In today’s tough market for talent, employers already use various strategies and online tools to attract qualified applicants to fill open positions.  A company website that is not accessible to those with an impairment, who cannot even learn about or apply for any job opening, is ineffective and, when individuals cannot access content or apply for jobs, can lead to lawsuits.

The Web Content Accessibility Guidelines (WCAG) 2.0AA defines how to make Web content more accessible to people with disabilities.  Accessibility involves a wide range of disabilities, including visual, auditory, physical, speech, cognitive, language, learning, and neurological disabilities.  Even though this has not yet been adopted by the ADA as the legal standard to determine whether a website violates the ADA, the WCAG 2.0 AA has been applied by most courts as the ADA standard.

Companies send a positive message to customers, clients, existing employees and all potential applicants when the websites and careers pages are useable by those with impairments and disabilities.  Expanding your talent pool with accessibility to your career pages can have a positive impact on business.



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New York Expands Data Security and Breach Requirements for Employers Under the SHIELD Act

On July 25, 2019, the Stop Hacks and Improve Electronic Data Security Act (the “SHIELD Act”) was signed into law by New York Governor Andrew Cuomo.  The SHIELD Act aims to ensure that New York residents are afforded greater protections against cybersecurity breaches from companies with which they do business.  The SHIELD Act takes effect on March 21, 2020 and imposes key changes to New York’s cybersecurity and data breach notification laws.

Scope of the SHIELD Act

The SHIELD Act provides strong safeguards to protect against identity theft and data breaches for all New York Residents.  Not only will all New York businesses be required to comply with the SHIELD Act, but the SHIELD Act has far-reaching effects because it applies to out of state businesses that maintain the private information of New York residents.  Any business or employer holding a New York resident’s private information must understand the new changes to New York’s data security laws, they must be aware of what personal and private information is protected under the SHIELD Act, and they must know what steps employers need to take to be deemed in compliance with the SHIELD Act’s safeguards.

Expanded Definition of “Private Information” and “Breach”

The SHIELD Act expands the definition of “private information” and sets forth specific personal information that, if breached, could trigger a notification requirement.  “Private information” that is to be protected by the data breach law includes the following: Social Security number; credit, debit or account card number, in combination with any required access or security code, password, other security questions and answers; driver’s license number or non-driver identification card number; username or e-mail address with a password that permits access to an online account; and biometric information, meaning any data that is used to authenticate an individual’s identity by electronic measurements of the individual’s unique physical characteristics, including a fingerprint, retina or iris image, or a voiceprint.

The SHIELD Act also amends the definition of a “breach of the security of the system” by providing that a “breach” includes incidents where private information was accessed, regardless of whether that private information was acquired.  Under New York’s current data breach laws, a breach occurs only when there was acquisition of the private information and excludes incidents involving mere access.  Employers should note that the SHEILD Act does include the “good faith employee” exception to the definition of “breach.”  When an employee, in good faith, accesses or acquires private information in conjunction with the purposes of the business and the private information is not subject to an unauthorized disclosure, the access or acquisition of the private information will not be considered a “breach.”

Requirements for Employers Under the SHIELD Act

While the SHIELD Act does not impose a specific list of safeguards that businesses and employers must comply with, the SHIELD Act does provide that a business that licenses or owns computerized data that includes a New York resident’s private information will be in compliance with the law if it develops, implements, and maintains reasonable safeguards to protect the security, confidentiality and integrity of maintaining and disposing of private information.  The following include some of the key reasonable safeguards that employers should implement to adhere to the law:

  • Designate one or more employees to coordinate the security program;
  • Identify reasonably foreseeable internal and external risks;
  • Assess the sufficiency of safeguards in place to control the identified risks;
  • Provide training and oversight for employees involved in the security program practices and procedures; and
  • Provide training to employees involved in the security program on the disposal of private information, after it is no longer needed for business purposes, by erasing electronic media, so that the private information cannot be reconstructed or read.

The SHIELD Act’s list of reasonable safeguards highlights the important role that a company’s human resources professionals and senior management must fulfill to comply with the new law.  A company’s human resources professionals and senior management should provide the required training of employees to implement the security program.  Further, they will be able to provide critical assistance to investigations of a data breach to determine whether the disclosure of an employee’s private information was inadvertent and, if so, whether it is likely that the private information will be misused.

Employers should note that two types of businesses may satisfy the reasonable safeguards requirement without having to implement a data security program as described above.  First, a business will be deemed compliant with the SHIELD Act if the business is in compliance with other laws requiring information security, such as the health Insurance Portability and Accountability Act Security Rule (“HIPPA”), the Gramm-Leach-Bliley Act (“GLBA”), or the New York State Department of Financial Services’ Cybersecurity Requirements for Financial Services Companies.  Second, a small business, meaning a business employing fewer than 50 employees and earning less than $3 million in gross annual revenue or earning less than $5 million in year-end total assets, is only required to ensure that their data security safeguards are appropriate when taking into consideration the size and complexity of the small business, the nature of the scope of the small business’s activities, and the sensitivity of the personal information collected from or about the small business employees.

The SHIELD Act also amends New York’s current existing data breach notification requirements, will take effect on October 23, 2019.  Since a “breach” will now consist of an unauthorized access to private information, regardless of whether any private information is acquired, an inadvertent disclosure of private information that is not likely to result in the misuse of information only requires the employer: (1) document its determination that the inadvertent disclosure is not likely to result in misuse; and (2) retain that documentation for a period of 5 years.  If the inadvertent disclosure involved private information of more than 50 New York residents, the employer must submit its documentation to the New York State Attorney General within 10 days of the employer’s determination.

Employers should also be aware that if their business is required to provide notice of a data breach under another regulatory scheme such as HIPPA or the GBLA, the SHIELD Act only requires that the New York State Attorney General, the New York Department of State, and the New York State Office of Information Technology Services be notified as to the timing, content and distribution of the notices of the breach and the approximate number of affected persons, and must provide a copy of the template of the notice sent to the affected persons.

Violations of the SHIELD Act

Although New York residents are not provided with a private right of action or the right to litigate a violation by a class action, the SHIELD Act does permit the Attorney General to bring an action against a business for violations of the law and may recover civil penalties.  Courts may award damages for actual costs or losses incurred by a person entitled to notice for data breach notification violations that are not reckless or knowing.  Courts may impose the greater of $5,000 or up to $20 per instances, with a cap of $250,000 for knowing and reckless violations.  Employers must also note they may incur penalties of up to $5,000 per violation for failure to comply with the reasonable safeguard requirements.



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How to End Workplace Bullying

In the wake of the growing #MeToo movement, many employers recently focused their efforts to implement anti-sexual harassment policies and procedures.  However, many employers fail to realize that their attention must also be placed on the related behavior to sexual harassment: workplace bullying.  Most forms of civil rights violations and discrimination, including sexual harassment, include bullying.  Like the effects that sexual harassment have on a company’s work environment, workplace bullying will likely lead to a decrease in employee morale, productivity, and efficiency, and an increase in employee attrition.  Hence, employers should develop policies and programs to eliminate workplace bullying.

Defining Workplace Bullying

In order to create a framework to prevent workplace bullying, employers must learn and understand what workplace bullying entails.  Although there are various forms of bullying, many forms of bullying may involve behaviors such as the following:

  • Making derogatory or intimidating comments towards an individual, their work, or their ability to perform their work;
  • Attempts to negatively impact an individual’s work, or prevent an individual from performing work;
  • Attempts to incite others to engage in the bullying of an individual; and
  • Spreading gossip or rumors designed to negatively impact an individual, or cause others to question that individual’s professionalism, capability, and skills.

Usually workplace bullying is verbal in nature rather than physical; the above list is far from comprehensive to describe what could be considered as workplace bullying.

Workplace bullying may be difficult to spot because the bully may take discreet actions to bully their target.  Examples of workplace bullying include the following:

  • During a meeting, an employee is continually interrupted or mocked by another individual who speaks over or belittles them, or the individual makes exaggerated facial expressions such as rolling their eyes to discourage the employee from participating in the meeting.
  • An individual aggressively berates another employee at a staff meeting or in a group e-mail.
  • An individual makes negative comments or disparaging jokes about another employee either whether the employee is present or not, and/or encourages other co-workers to do the same.
  • An individual who has the responsibility to delegate tasks to an employee deliberately chooses not to notify the employee of the task and deadline until such a time as the employee will be incapable of completing the work, likely causing the senior management or the boss to question the employee’s work ethic.
  • An employee is intentionally excluded from department or team meetings or events, to make the employee appear unimportant or disengaged.
  • An individual physically intimidates an employee by invading the employee’s personal space or disrespecting their privacy.

Employers should also understand that workplace bullying is likely to be repetitive and may escalate over time.  Victims of workplace bullying are made to feel powerless or too embarrassed to defend themselves or seek redress to end the bullying.  This is why employers must also implement an anti-bullying policy in the workplace.

Drafting an Anti-Bullying Policy

The only way an employer can protect its employees from workplace bullying is to adopt a robust anti-bullying policy that clearly sets forth that any form of bullying will not be tolerated and identifies and provides examples of unacceptable bullying behaviors.  The policy should also set forth procedures for how employees at any level may report incidents of bullying, even if the employee may want to report it anonymously.  An anti-bullying policy should include a framework where an employee may be able to bypass having to report the bullying in a specific sequence or up through a specific chain of command, if the bully in question is the victim’s direct supervisor or manager.  Further, employers should encourage an open-door policy for employees to report workplace bullying in a safe, supportive environment without penalty or judgment.

An effective anti-bullying policy will set forth the procedures for how an allegation of workplace bullying will be dealt with, including who will be responsible for investigating the complaint and what steps will be taken to investigate the complaint to promptly address the complaint.  The policy should also explain that if an investigation corroborates the allegation of bullying, immediate corrective actions will be taken to redress the bullying.  Additionally, the policy should explain the consequences and disciplinary steps that will be taken against the aggressor based on the severity, duration and scope of the bullying.

Providing Anti-Bullying Training

Implementing a policy is not enough to protect your employees.  All employees should be trained and educated on the nature of workplace bullying and how to recognize it – whether as a victim, witness, or bully, and how to report it.  Further, all managers and supervisors must be trained not only to recognize the signs of workplace bullying and how to respond to bullying complaints, but also be trained on effective management skills and techniques, since managers and supervisors may tend to display bullying behaviors as a result of their position.  The key to protecting employees from workplace bullying is to avoid a disrespectful and negative work environment and to establish and continually support a corporate culture that impedes the inclination to bully before the behavior can start.  Training all senior management, including all managers and supervisors, on anti-bullying in the workplace will begin to set a positive corporate culture that will trickle from the top of the company down to all employees.



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New York State Prohibits Discrimination Based on Hairstyle

On July 12, 2019, Governor Andrew Cuomo signed into law a bill amending New York State’s Human Rights Law by prohibiting racial discrimination based on “traits historically associated with race,” such as natural hair texture and hairstyles including, but not limited to, as braids, locks and twists.  The purpose behind this amendment is to remove an individual’s hairstyle from being used as a proxy for racial discrimination.  New York is now the second state, after California, to ban discrimination based on hairstyle.  This legislation piggybacks off of the New York City Commission on Human Rights’ ban on any workplace appearance or grooming policy that restricts, bans or limits natural hairstyles or hair textures associated with race. (Link to our article on NYC Deems Race Discrimination on the Basis of Hair is Illegal)

What does this mean for employers?  First, employers should note that they were already prohibited from engaging in any type of race-based discrimination.  This new amendment, which took immediate effect when signed into law, only codifies the connection between race and certain hairstyles that were common targets for discrimination.

Second, this new law does not prohibit employers from having a grooming or appearance policy in place.  However, in accordance with the new amendment, employers are not permitted to directly target hairstyles or natural hair textures that are traditionally associated with particular races through an appearance or grooming policy.  This means that employers must review their grooming and appearance policies to ensure that hairstyles commonly associated with a person’s racial identity, such as cornrows, locks, twists, Afros, fades, braids, or other hairstyles that are disorderly or inherently messy, are not prohibited.  In addition, any appearance or grooming policy must be uniformly applied among all employees and must have a valid, nondiscriminatory basis.

PMP is here to help with all employee handbooks and any appearance and grooming policies to make sure they do not conflict with this new law.



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