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IN THE SECOND CIRCUIT, SEXUAL ORIENTATION DISCRIMINATION IS PROHIBITED BY TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

 

On February 26, 2018, the Second Circuit Court of Appeals (which covers the states of New York, Connecticut and Vermont) held that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination See  Zarda v. Altitude ExpressNo. 15-3775 (2d Cir. Feb. 26, 2018).   In a 10-3 decision, the full Second Circuit reversed an April 2017 decision in which a three-judge panel of the Court declined to recognize sexual orientation discrimination under Title VII.

In the Zarda case, a skydiving instructor named Donald Zarda alleged he was fired by his employer, Altitude Express, because he is gay.    In 2010, Zarda filed suit in federal district court in New York arguing, among other things, that the firing violated Title VII.    According to Zarda, Title VII’s prohibition against workplace discrimination on the basis of “sex” also prohibits sexual orientation discrimination.

A district court judge ruled against Mr. Zarda, applying the Second Circuit’s then-current precedent. Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).   The Second Circuit in Simonton declined to hold that discrimination based on sexual orientation was prohibited under Title VII.

Mr. Zarda brought a motion to reconsider before the district court, when, during the pendency of the district court action, the Equal Employment Opportunity Commission (EEOC) issued a decision in Baldwin v. Foxx, No. 01220133080 (July 16, 2015).   In Baldwin, the EEOC decided that discrimination based on sexual orientation is prohibited by Title VII.

The district court denied Mr. Zarda’s motion, holding Simonton was binding precedent.   Mr. Zarda appealed to the Second Circuit.   Mr.  Zarda passed away in 2014, during the pendency of the appeal.   His estate carried on the action, arguing Simonton should be reversed.

The Second Circuit’s majority opinion in the Zarda case, written by Chief Judge Robert Katzmann and joined either in full or in part by eight other judges, ruled that discrimination on the basis of sexual orientation was illegal for three reasons. The first, is that sexual orientation is partly defined by one’s sex and Title VII explicitly prohibits discrimination on the basis of sex.  The second reason is that the category of sexual orientation discrimination is based on stereotypes about how members of a given gender should behave or, in this case, who they should be attracted to.  This reasoning pulls on a precedent set by the 1989 case Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which found employers could not discriminate against individuals who do not conform to conventional gender norms.  Third, the court classified discrimination on the basis of sexual orientation as associational discrimination, found to be unlawful in the case Holcomb v. Iona College, 521 F.3d 130 (2008) which stated, “Where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.”

In Zarda, three members of the Second Circuit dissented. Four members of the court issued concurring opinions, including José A. Cabranes, who wrote just seven sentences the in the 163-page document, culminating in the following:

“Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII. That should be the end of the analysis.” 

 Among the circuit courts, the Seventh Circuit of Appeals was the first to rule that sexual orientation discrimination is prohibited by Title VII, as we previously blogged. See Hively v. Ivy Tech Cmty. College of Ind.,853 F.3d 339, 362 (7th Cir. 2017) (en banc).

The Second Circuit has now joined the Seventh Circuit in holding that Title VII prohibits sexual orientation discrimination.

Note that the Eleventh Circuit also recently considered this issue and ruled that Title VII does not expressly protect against sexual orientation discrimination.

This circuit split, could result in the issue being reviewed by the United States Supreme Court.

Stay tuned.

 

DACA – WILL IT END- OR WILL IT CONTINUE? WE MAY FIND OUT SOON

 

We have previously blogged about the Deferred Action For Childhood Arrivals (DACA) program that was implemented in 2012 by an executive order signed by former President Barack Obama.   DACA protects young, undocumented immigrants from deportation, and provides them with corresponding employment authorization.   Around 800,000 individuals were granted deferred action under the program.

Many DACA recipients have lived most of their lives in the U.S., and graduated from college.  Some were high school valedictorians.    Many own homes,  and are the parents of U.S.-born children, who are American citizens.

If you’re keeping up with the news, you must be aware that President Donald Trump, had previously selected March 5, 2018, as the deadline for Congress to work out a solution to prevent DACA recipients from facing deportation.

In the U.S. Congress, there were a series of votes that took place in February 2018, all of which did not come up with a solution acceptable to President Trump.

However, the temporary good news is that two separate federal court injunctions have halted the Trump administration’s rescission of the DACA program with the judges ordering the Department of Justice to maintain the current program as it was before President’s Trump’s announcement to end the program.  In January 2018, the first federal judge, William Alsup in California, granted an application by California, the University of California system, and several California cities to block President Trump’s decision to end the DACA program while their lawsuit challenging the program’s termination plays out in court.   Judge Alsup ruled that those already approved for protection and work permits must be allowed to renew them before they expire.  He found the Trump administration’s decision to end DACA “arbitrary and capricious,” and that the Plaintiffs would be harmed in part through economic disruptions and the loss of revenue caused by their change in status.

In February 2018, a second federal judge, Nicholas Garaufis in New York, also ruled that the Trump Administration’s decision to rescind DACA is arbitrary and capricious.  In his decision, Judge Garaufis noted that more than 100 DACA recipients a day had been losing their protected and all of the DACA recipients could face deportation.      Employers would be hurt as DACA recipients lost their jobs, that could include up to $800 million in lost revenue.

The Trump administration filed a petition on January 18, 2018, with the U.S. Supreme Court to review Judge Alsup’s order, which the Supreme Court denied on February 23, 2018.  The Supreme Court decided to allow the California case to run its normal course through the United States Court of appeals for the Ninth Circuit.    “We tried to get it moved quickly because we’d like to help DACA,” President Trump said. “I think everybody in this room wants to help with DACA, but the Supreme Court just ruled it has to go through the normal channels.”

The Trump administration requested that the 9th Circuit Court of Appeals hold an expedited hearing concerning Judge Alsup’s ruling.  Accordingly, a three-judge panel of the Court will hear arguments in May 2018.

Judge Stephen Reinhardt of the 9th Circuit Court of Appeals (known as a liberal stalwart) passed away recently, at the age of 87, which will enable President Trump to fill yet another vacancy on the 9th Circuit.   (As of today, the vacancy result from Judge Reinhardt’s death is one of eight vacancies on this appeals court).

If President Trump is successful in ‘reshaping’ the 9th Circuit, then DACA recipients have much to fear.

We will keep you posted about additional developments concerning DACA, on this blog.

REPORTING ACTS OF SEXUAL HARASSMENT YOU HAVE WITNESSED

 

In our recent blogs, we have addressed what to do if you’re a victim of sexual harassment, or if you are accused of sexual harassment.

 

What if you are not a victim of sexual harassment, but have personal knowledge of acts of sexual harassment other employees were subjected to?

 

In today’s blog we will address what to do if you are a witness to sexual harassment and wish to report what you have personal knowledge of, to the employer.

 

Perhaps you saw a co-worker sexually assaulted by another co-worker, or a supervisor.

 

Perhaps you are aware that another employee succumbs to a supervisor’s sexual advances in order to keep his or her job.

 

Perhaps you know that an employee is surreptitiously videotaping employees as they change their clothes or use the toilet.

 

You know the conduct that is taking place is wrong, and perhaps even against the law, and  you wish to put an end to what is happening, because you are concerned that if the conduct goes unreported and no corrective action is taken, other employees’ rights will also be violated next.

 

In New York City, the New York City Human Rights Law (City HRL) protects the rights of employees who aid other employees in the exercise or enjoyment of their rights.  In relevant part, the City HRL states, that “It shall be unlawful discriminatory practice for any person to coerce, intimidate, threaten or interfere with, or attempt to coerce, intimidate, threaten or interfere with, any person in the exercise or enjoyment of, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected pursuant to this section.”

 

In other words, if you decide to report the sexual harassment to the employer on behalf of the victim of sexual harassment, you should not be subjected to any retribution, and if you are, you would have a cause of action against the employer.

 

If you are going to report the acts of sexual harassment you have personal knowledge of, to your employer, first locate the policies and procedures, or any handbooks and carefully review the sections concerning reporting sexual harassment (or any acts of discrimination) to the employer.

 

In my view, it is best that you report the acts of sexual harassment with specificity, and send it via email or some form or trackable mail (such as priority mail or certified mail).   Make sure you keep a copy for yourself.   If you are in two minds about whether you are reporting this correctly, or fear of retribution is imminent, based on how others who have lodged similar complaints have been treated, it’s in your best interest to consult with an experienced employment lawyer, beforehand.  The nela.org lawyers’ directory is a great resource to locate an employment lawyer and obtain advice on how to protect your rights and interests.

 

Once you have lodged your complaint, you will be called in for meetings with manager and/or Human Resources during which you will be asked additional questions about your knowledge of the sexual harassment you have witnessed.

 

Be truthful and be specific.

 

After that, be very alert to what is happening in the workplace.  If you notice any changes to your working conditions, such as receiving less favorable assignments, a decrease in workload, exclusion from meetings or company events, or any change in how you are treated, then keep a careful record of the same, in a private journal at home, or using your handheld (provided the handheld is not your employer’s property.)

 

You will have to report this to the company as well to place them on notice that your rights under the City HRL (if you work within the five boroughs of New York City) are being violated as a result of you complaining about sexual harassment on behalf of other employees.

 

Before reporting the violations of your own rights, it is best to schedule a consultation with an experienced employment lawyer, so that you have the benefit of sound legal advice and a strategy in place as to what the next steps are, based on how the company may react.  Sometimes it may make sense to have your employment lawyer make an appearance to your employer and lodge the complaint on your behalf.

 

Over the years, I have represented individuals who have demonstrated courage in aiding other employees in the exercise of their rights.     While some of them suffered acts of retribution, all of them were able to successfully resolve their claims.

 

The most rewarding aspect of them coming forward was a change in the workplace culture, and a greater respect for the rights of employees.

YOU HAVE BEEN ACCUSED OF SEXUAL HARASSMENT. NOW WHAT?

 

It can happen to anyone in the workplace. You can be blindsided by allegations against you, lodged by a co-worker or subordinate that you sexually harassed them.

 

You might find out about the allegations during a meeting that you’re called into by Human Resources.

 

You might receive a call before you leave home for work, that you should stay home until further notice, because allegations of sexual harassment lodged against you are being investigated.

 

You might not even find out until you are suspended and/or terminated abruptly, and the reason being given for such an action is that an investigation was conducted (without even speaking with you) and the company found some merit to the allegations of sexual harassment, of an employee at the company.

 

Though the first reaction upon learning of the allegations lodged against you, may be to curse, slam the table, or to start verbally attacking the alleged victim, it’s best to stay calm and collected and LISTEN to what is being said. If you’re in a position to take notes, take careful notes and make sure you do not misplace them. Do not use the employer’s handheld device or computer to take notes.

 

Do not talk to anyone at the company or outside the company, about what you just learned. Keep everything confidential and to yourself, until you have received legal advice concerning your predicament, what information may be disclosed, and at what juncture it may be disclosed.

 

Next, promptly take steps to secure legal representation promptly from an experienced employment lawyer. You can find suitable lawyers through your local bar association’s referral service, or by searching the lawyers’ directory at www.nela.org/ Even if your schedule does not permit you to visit the lawyer’s office in person, it’s imperative that you at least seek counsel over the phone, to protect your rights and interests.

 

Before your first appointment with the employment lawyer (whether it’s in person or over the phone), do your best to create a thorough day by day account of the time frame in question of the alleged sexual harassment, such as where you were, who was with you, what happened, and whether you were even present at work. Also create a separate dossier concerning all the information you have concerning the alleged victim, and the nature of your interactions with him or her, to the best of your recollection.

 

It’s likely that an outside investigator or the company’s Human Resources department will conduct a meeting or a series of meetings with you, during the course of investigating the alleged victim’s allegations. It’s in your best interests to fully cooperate in the company’s investigation.

 

You should, after consulting with your employment lawyer, also put forward your position as to why the allegations are untrue (if they are untrue), and provide names of witnesses that are privy to what actually occurred.

 

It’s possible the company’s lawyer will want to speak with you, after the alleged victim brings his or her allegations to the company’s attention.

 

You should not mistakenly assume that the company’s lawyer represents your interests. It is best that you retain your own counsel, before speaking with the company’s lawyer, and have said counsel be present with you, during your conversation with the company’s lawyer.

 

What rights does an individual accused of sexual harassment have? In New York City, you may have a claim under the New York City Human Rights Law, depending on how you are treated after allegations are made by the alleged victim.

 

For example, in a lower court case, in New York State Supreme Court, a female employee accused a male employee of sexually harassing her in the workplace. The Human Resources department of the company investigated the female employee’s allegations, but failed to investigate the male employee’s defense that the conduct was initiated by the female employee.

 

The Human Resources department interviewed the female employee’s witnesses, but refused to interview the male employee’s witnesses. The male employee was fired. The female employee was not. The male employee filed a lawsuit against the company for gender discrimination, because the company credited a female employee’s account over a male employee’s account, and failed to conduct a fair investigation of the female employee’s sexual harassment complaint. The case survived dismissal.

 

You may also be able to bring other types of discrimination claims under the NYC Human Rights Law, as well. For example, if the accuser is treated more favorably than the accused on the basis of being of a different race, or any other category, and as a result, receives preferential treatment, then the accused may assert a claim of differential treatment.

 

If you oppose gender discrimination (or any other type of discrimination) after you after you learn of the accusations of sexual harassment, that is a protected activity under the New York City Human Rights Law, for which you should not be subjected to any employment actions that disadvantage you, i.e. retaliation. Of course, you must show a causal connection between the protected activity (opposing discrimination) and the employment actions (such as termination), that disadvantaged you.

WHAT SHOULD YOU DO IF YOU ARE SEXUALLY HARASSED AT WORK?

You are aware by now, that sexual harassment in the workplace is a violation that can take numerous forms that may or may not involve touching or even being in the same room as the perpetrator.

In this blog, we will focus on what constitutes sexual harassment, and how to report it. In future blogs, we will address how to report sexual harassment that another employee is being subjected to, and the rights of those wrongly accused of sexual harassment.

The worst forms of sexual harassment might be sexual assault by a co-worker, or a manager, or even a client or vendor.

Other forms of sexual harassment include verbal and written comments about a person’s physical appearance, lewd jokes, viewing pornographic material in another employee’s person’s presence, displaying pornographic photos/images, invading or blocking a person’s physical space and thereby preventing them from moving, without touching the perpetrator, sending sexually inappropriate text messages, voice mails, and emails. This list is not exhaustive, unfortunately- and the problem is as old as the hills.

Men, women, and transgender employees are victims of sexual harassment in the workplace, although women appear to be impacted in larger numbers.
What should you do, if you find yourself subjected to sexual harassment in the workplace?

Express it———– Record it——-Report it right away.

• Express a clear objection to the sexual harassment. Tell the harasser to stop it, immediately and unequivocally.

• Record what happens as it happens, using your own personal notebook that only you have access to, or your own personal handheld device. Don’t use the employer’s computer, or other equipment. If possible, do this during an approved break (such as a lunch break), outside the office.

• Report it, with the help of counsel, so that the employer may investigate the problem, and put an end to it, i.e. take corrective action.

Reporting sexual harassment is a loaded subject. You have probably been told that if you are being sexually harassed, you should immediately report the event to your company’s Human Resources Department.

Even if you are not in a life-threatening situation, it’s best to immediately contact an experienced employment lawyer about your situation, and discuss what happened, before reporting the acts of sexual harassment to Human Resources.

Human Resources staff are often well-spoken, and have received extensive training on resolving disputes in the workplace. Though they may behave like advocates for employees, it’s certainly not their job to advocate for employees. The allegiance of Human Resources lies firmly with your employer, who pays their salaries. Their ultimate goal is to avoid potential litigation and protect the company from any legal trouble. They are not paid to represent you or to protect your interests and rights in the workplace.

In the many cases I have handled, when an employee goes to Human Resources to report sexual harassment, without having obtained legal advice from an experienced employment lawyer, some Human Resources personnel will blame the employee, the victim, for having behavioral or performance problems, and sometimes will cover up the fact that the employee scheduled an appointment to report sexual harassment.

Another reason to obtain legal advice first, is that anything you disclose to Human Resources is not going to be kept confidential, and will be reported to your supervisors, and to other managerial employees. To avoid distortion of the facts disclosed verbally to Human Resources, during a meeting, sometimes (depending on the circumstances), it is best to have your lawyer write to Human Resources about the acts of sexual harassment.

If the employment lawyer senses that the acts of sexual harassment might be criminal in nature, he or she can also advise you on how to timely report it to the police with all accompanying evidence.

If the acts of sexual harassment have made you sick, obtain medical attention right away. If the medical provider recommends time off of work due to your illness, an experienced employment lawyer can assist you in applying for the appropriate type of medical leave, depending on the size of the employer, and the local laws of the jurisdiction you are in.

Under no circumstances should you remain quiet about sexual harassment, even if you are undocumented and worried about retaliation or concerned that people will not believe you. You must take action. Attorneys that concentrate in immigration law and employment law can help you navigate the legal process in a way that is protective of your interests.

Seeing an attorney immediately also means that you are not only protecting your rights, but also possibly preventing the sexual harassment of others in the workplace. If your employer knows you are already consulting with an attorney to protect your rights in the workplace, your employer will be hesitant to threaten you or fire you in response to your coming forward. If you come forward in asserting your rights, the employer will also be more likely to respect the rights of other employees who come forward.

WHY PREVENTION OF SEXUAL HARASSMENT IS SO IMPORTANT TO PRESERVATION OF HUMAN CAPITAL AND THE COMPANY’S FINANCIAL HEALTH

The topic of sexual harassment probably has not received this much media coverage and attention, since the confirmation hearings of Supreme Court Justice Clarence Thomas in the early 1990’s.

It’s the topic that is consuming us during our commutes, during lunch breaks, and during conversations with friends and family.

Still, it seems that despite the spotlight on sexual harassment, (a spotlight that has never shined more brightly on this violation of civil rights in the workplace), the problem seems to be under-reported or not taken as seriously within small businesses in the U.S.

The majority of the workers in the United States private sector, are employed by small businesses. The EEOC estimates that in recent years, roughly 25%-85% of American women have experienced harassment on the job. Even at the low end of 25%, that is a staggering number of women.

The impact on the employees (not just the victim), but those who are also victimized by the fact that other employees are being sexually harassed, and the cost to the businesses show that the damage that sexual harassment can inflict.
Can sexual harassment be prevented or minimized? Yes.

First, companies should provide live training either on-site at the workplace or using video-conferencing. For the training to be effective, it must considered to be realistic to the circumstances of the workplace culture, it should be administered live, and is best if it is interactive, so workers can have their specific questions and concerned responded to. There are laws in place in different jurisdictions that either require training or penalize employers who don’t provide training.

Second, companies should create and distribute handbooks which contain clear written policies on non-tolerance of sexual harassment, provide clear avenues for reporting it, and explain how the company will investigate sexual harassment complaints, and take corrective action.

Third, posters in visible places reflecting the laws of the appropriate jurisdiction, is also very helpful in showing that sexual harassment will not be tolerated, and that the company will do all it can to prevent it, and/or put an end to it.

Companies are more likely to thrive when employees don’t work in an environment of fear, and employers are not liable for something as preventable as sexual harassment.

Our next blogs are going to address how employees should best go about reporting acts of sexual harassment they have been, or are being subjected to, and also about the rights of those employees who are wrongly accused of sexual harassment.

IMPORTANT DEVELOPMENT REGARDING DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)

DACA is the Obama-era program that protects young, undocumented immigrants from deportation.

Many DACA recipients have lived most of their lives in the U.S., and graduated from college. Some were high school valedictorians. Many own homes, and are the parents of U.S.-born children, who are American citizens.

On September 5, 2017. Attorney General Jeff Sessions announced that the Trump administration would terminate the program starting in March 2018. California Attorney General Xavier Becerra brought the San Francisco lawsuit, joined by the attorneys general for Maine, Maryland and Minnesota, as well as the University of California, DACA recipients and others.

California is home to the largest group of DACA recipients — about 200,000 people. On January 9, 2018, U.S. District Judge William Alsup, issued a preliminary injunction, finding that the plaintiffs — a collection of DACA recipients, universities and states — would suffer irreparable harm if the administration moved forward with plans to terminate the program in March 2018 before the case is resolved. In his 49 page order, Judge Alsup did not rule on the merits of the case, but he said that the plaintiffs were likely to succeed on their claims that the decision was “arbitrary and capricious” and would suffer irreparable harm — immigrants could lose their jobs, and companies and universities could lose valuable students and workers — if the Trump administration ended DACA before the legal dispute is resolved.

Judge Alsup opined, “We seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended,” the judge wrote. “For the reasons DACA was instituted and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation.” The tweet from President Donald Trump, that Judge Alsup was referring to, is as follows:

Donald J. Trump ✔@realDonaldTrump Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!….. 5:28 AM – Sep 14, 2017

Homeland Security official rescinded DACA in the fall of 2017, stating that it suffered from “constitutional defects” that were similar to problems federal judges had pointed out in rulings blocking a related Obama-era program, Deferred Action for Parents of Americans (DAPA). Based on those decisions, the Trump administration reasoned that DACA was illegal from the outset and that President Obama exceeded his authority when he rolled it out the program 2012. Judge Alsup called that reasoning “flawed,” “post hoc” and “capricious.” The Obama administration hadn’t overreached, he wrote in his 49 page order. In fact, he wrote, the Trump administration’s position wasn’t even based on a policy change but a “mistake of law.” “The main, if not exclusive, rationale for ending DACA was its supposed illegality. But determining illegality is a quintessential role of the courts,” Judge Alsup wrote. In other words, it’s not up to the administration to decide whether one of its predecessor’s policies is illegal. That’s the U.S. Supreme Court’s job, and the high court hasn’t ruled on DACA’s legality.

If the Supreme Court were to rule on DACA and find that it was constitutionally sound, “then a policy supported as high up as our chief executive has been the victim of a colossal blunder,” the judge wrote, again referencing the president’s tweets. If nothing else, Judge Alsup wrote in his ruling, the plaintiffs were entitled to “learn of all flaws, if any more there be, lurking” behind the DACA decision. He noted that the plaintiffs had suggested the administration had terminated the program so it could be used as a bargaining chip to demand funding for a border wall. And again, he cited the president’s Twitter feed as evidence. “A presidential tweet after our hearing gives credence to this claim,” Judge Alsup wrote.

The December 29, 2017 tweet from Trump is: “The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc.”

Finally Judge Alsup ordered that safeguards against deportation must remain in place for the nearly 690,000 people in the DACA program, while a legal challenging to ending the program, proceeds. While while the lawsuit is pending, anyone who had DACA status as of September 5, 2017, can renew it.

The Trump administration, not surprisingly, has indicated that it will challenge Judge Alsup’s ruling. Meanwhile, Massachusetts, New York, Washington and other states are seeking a similar preliminary injunction in federal court in Brooklyn, part of a separate lawsuit on behalf of DACA recipients.

THE NEW YORK CITY COUNCIL PASSES BILLS MANDATING PROCEDURES ON REQUESTING FLEXIBLE WORK SCHEDULES AND REASONABLE ACCOMMODATIONS

FLEXIBLE SCHEDULES

On December 6, 2017, The New York City Council passed the “Fair Workweek Law” which protect employees who seek temporary changes to work schedules for personal events.

This amendment entitles New York City employees to request temporary schedule changes twice per calendar year, without retaliation, in certain situations, e.g., caregiver emergency, attendance at a legal proceeding involving subsistence benefits, or safe or sick time under the New York City administrative code.

The bill establishes procedures for employees to request temporary work schedule changes and employer responses.
Not all employees are protected by the Fair Workweek Law. If the employees are covered by a collective bargaining agreement; or have been employed for fewer than 120 days; or work less than 80 hours in the city in a calendar year; or work in the theater, film, or television industries, then they may not avail themselves of the Fair Workweek Law.

REASONABLE ACCOMMODATIONS

The New York City Human Rights Law defines “reasonable accommodation” as “such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity’s business. The covered entity shall have the burden of proving undue hardship.”

On December 19, 2017, the New York City Council amended the New York City Human Rights Law to require covered organizations to engage in a “cooperative dialogue” with individuals who may be entitled to a reasonable accommodation.

Covered organizations include employers, providers of public accommodations and providers of housing accommodations.
The term “cooperative dialogue” means the process by which a covered entity and an individual who may be entitled to an accommodation engage in a discussion to identify what reasonable accommodations are available to assist the individual. The bill requires the covered organization to provide the individual requesting an accommodation a written final determination identifying any accommodation granted or denied.

This determination may only be made after the parties have engaged, or the covered entity has attempted to engage, in the “cooperative dialogue.”

New York City employers should be prepared to comply with the new requirements.

If You are Traveling Outside of the U.S. During the Holidays, This One’s for You

Travel warnings, extreme vetting, and the latest travel ban have made travel abroad more rife with concerns and challenges this holiday season.

If you will be carrying electronic devices during your travels, keep in mind that:

• At many airports, all electronic devices larger than a cell phone have to be inspected at security and must be taken out of your carry-on bags. This can lead to delays, so make sure you have plenty of time to clear the security checks.

• Even if you are a US citizen, your bags and electronic devices are subject to search upon returning to the US.

• Warrantless searches of electronic devices have increased greatly—by 125% since 2015, according to the American Civil Liberties Union (ACLU). The number of electronic device searches at the border began increasing in 2016 and has grown under the Trump administration. [The ACLU, the Electronic Frontier Foundation, and the ACLU of Massachusetts have filed a lawsuit in the U.S. District Court, for the District of Massachusetts, against the Department of Homeland Security, on behalf of 11 travelers whose smartphones and laptops were searched without warrants at the U.S border.

Be mindful about whether your passport is signed, and contains emergency information, and be comfortable with the safety and stability of the places you are visiting, especially if you are a U.S. citizen:

• Make sure your passport is signed, that the emergency information is completed, and that you have the appropriate visa to enter the country you are traveling to.

• Frequently visit the Department of State website to stay on top of the travel alerts and travel warnings.

If you have to apply for a new U.S. visa, while abroad, in order to return to the U.S., keep the following in mind:

• Under the U.S. Supreme Court’s new ruling, President Trump’s Travel Ban 3.0 is in effect (at least until the lower courts finish issuing additional rulings). Individuals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen may be affected. On December 22, 2017, a three A three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled unanimously that the ban exceeds the constitutional authority of the executive branch, and that the Trump administration has failed to prove that “nationality alone renders entry of this broad class of individuals a heightened security risk or that current screening processes are inadequate.” The Court of Appeals for the Fourth Circuit is considering a similar ruling out of Maryland. The U.S. Supreme Court has requested that both the Ninth and Fourth Circuit courts rule expeditiously to enable it to take up the case. It will likely wait on the Fourth Circuit opinion before it decides whether it will hear the appeal concerning the Travel Ban 3.0.

• Extreme vetting means more administrative processing. Administrative processing can result in delays of several days, weeks, or even months. Employees should inform their supervisors regarding their planned travel and have back-up plans for travel, lodging, and work should they experience a lengthy delay.

• Consulates are dealing with new guidance and procedures. This means that delays may occur just as a matter of course especially because the holidays are busy times at the Consulates.

• Make sure to check with the relevant Consulate and your airline to find out if you may need a transit visa to board your aircraft.

• Make sure to book an appointment at the Consulate as soon as possible before leaving the United States. Consulates may not have appointments available and may have limited holiday hours.

• Carry a signed employment verification letter along with other required documentation.

• Employees who have pending change-of-status or advance parole applications should not travel until after their case has been adjudicated. Under new guidance, travel during the pendency of an advance parole application can lead to a denial.

Be alert, be cautious, and have a safe and memorable holiday trip.

New York City Paid Sick Leave Law Has been Expanded to include safe time for victims of family offense matters, sexual offenses, stalking and human trafficking, and their family members

The “Earned Safe and Sick Time Act,” which is an amendment to New York City’s Paid Sick Leave Law, was signed into law by New York City Mayor Bill de Blasio. It enlarges the list of covered reasons for which paid sick leave can be used when “when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking.” The law takes effect on May 5, 2018.

The general definition of a “family member” has been amended to include an individual related by blood and an individual whose close association with the employee is the equivalent of a family relationship:

• Child (of an employee, spouse or domestic partner);
• Spouse;
• Domestic partner;
• Parent (of an employee, spouse or domestic partner);
• Sibling;
• Grandchild; or
• Grandparent.

As per the amendment, an employee may utilize accrued sick and safe leave when the employee or a family member is the victim of a family offense matter, sexual offense, stalking, or human trafficking. Leave related to “safe time” can be taken for the following reasons:

• To receive services from a domestic violence shelter, rape crisis center, or other shelter or services program;

• To take part in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or family member;

• To meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in, any criminal or civil proceeding, including but not limited to matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit;

• To file a complaint or domestic incident report with law enforcement;

• To meet with a district attorney’s office;

• To enroll children in a new school; or

• To take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or family member or to protect those who associate or work with the employee.

Reasonable notice of a foreseeable absence may be required—up to seven days before leave will begin—and notice must be provided as soon as practicable for unforeseeable absences. Employees can be required to provide written confirmation that leave was used for a covered purpose. For an absence of more than three consecutive work days, reasonable documentation that leave was used for a covered purpose can be required.

The amendment states that the following constitutes reasonable documentation:

• Documentation signed by an employee, agent, or volunteer of a victim services organization, an attorney, a clergy member, or a medical or other professional service provider from whom the employee or a family member sought assistance;

• A police or court record; or

• A notarized letter from the employee explaining the need for leave.

As with sick leave, employers cannot require that employees furnish documents specifying the details of covered reasons for the leave. Information concerning victim status obtained solely for taking leave must be treated as confidential and cannot be disclosed, unless the employee provides permission to do so, in writing.

Employers should update their paid sick leave policies to include paid safe leave. They should also begin providing a revised Notice of Employee Rights to new hires as of the amended law’s effective date (May 5, 2018) and should maintain accurate records of distribution. On or before June 4, 2018, employers should also distribute the revised Notice of Employee Rights to all of their employees working in New York City, who did not previously receive the revised Notice, and maintain records evidencing distribution.

The law permits the Department of Consumer Affairs’ Office of Labor Standards Director to take necessary measures to implement the law, including creating rules.

THE UNITED STATES SUPREME COURT ALLOWS THE TRAVEL BAN TO TAKE EFFECT

On December 4, 2017, the U.S. Supreme Court issued two orders, that allow the Presidential Proclamation of September 24, 2017 (“The Travel Ban”), to go into effect, while appeals continue in the lower courts.

A. The First Order

The effect of the first order is that the Travel Ban is fully in effect, as follows:

• Somalia: All immigrant visas are suspended. Additional screening is required for all other types of visas.

• Iraq: No suspensions, but additional screening is required for all visas and entries.

• Chad / Libya / Yemen: All immigrant visas and all B-1 business and B-2 tourist visas are suspended.

• North Korea / Syria: All immigrant and nonimmigrant visas are suspended.

• Iran: All immigrant visas are suspended, as well as all nonimmigrant visas except F and M student visas and J exchange visitor visas, for which additional screening is required.

• Venezuela: All official and B-1/B-2 visas for employees of certain government agencies and their dependents are suspended. These agencies include the Ministry of the Popular Power for Interior, Justice and Peace; Administrative Service of Identification, Migration and Immigration; Scientific, Penal and Criminal Investigation Service Corps; Bolivarian National Intelligence Service; and Ministry of the Popular Power for Foreign Relations. Additional screening is required for all other types of visas.

The Travel Ban exempts the following classes of individuals, among others, from the above restrictions:

• Those whose visas were marked canceled or revoked under the initial Travel Ban (January 27, 2017)

• Nationals of Iran, Libya, Syria, Yemen and Somalia who have a credible claim of a bona fide relationship with a U.S. person or entity, but only until October 18, 2017

• Dual nationals who are traveling on a passport from a non-designated country

• Those who seek, or have already been granted, asylum or withholding of removal

• Those who seek admission, or have already been admitted, as refugees

• Those who already held valid visas on September 24, 2017

• Those who hold other travel documents – such as transportation letters, boarding foils, or advance parole documents – that were valid on September 24, 2017 or are issued after that date

B. The Second Order

With respect to the Supreme Court’s second order, the US government’s request for full enforcement of the travel ban while the Fourth and Ninth Circuits consider the government’s appeals (filed in October 2017) of the lower courts’ (Maryland’s and Hawaii’s) injunctions in these Circuits, was granted by the Supreme Court. Both Circuits have agreed to expedite their decisions so that the Maryland and Hawaii cases may move forward quickly.

If either or both Circuits eventually rule against the government, thereby leaving the lower courts’ injunction in place, the government could ask the Supreme Court to review those rulings. If that happens and the Supreme refuses to hear the government’s request for review, then the Supreme Court’s orders will terminate, thereby putting the Travel Ban on hold yet again, until final decisions are made in the Maryland and Hawaii federal courts.

SEXUAL HARASSMENT IN THE WORKPLACE- EVERYONE IS VULNERABLE AND EVERYONE CAN DO SOMETHING TO MAKE IT STOP

For over two decades now, my firm has been representing workplace victims of sexual harassment in vindicating their rights both inside and outside the State of New York.

If you work in the United States, you are likely to be fortunate to have rights in the workplace that must be respected by your employer, supervisors, and co-workers.

You are up to date with the news and have probably participated in company trainings or workshops to know that sexual harassment is a form of gender discrimination, it is against the law, and it happens to employees of different genders.

You know that sexual harassment is a violation that can take numerous forms that may or may not involve touching or even being in the same room as the perpetrator. The worst forms of sexual harassment might be sexual assault inside the workplace or even outside the workplace—by a co-worker, manager, or even a client or vendor. Just as damaging can be acts of sexual harassment conducted over text messages, phone calls, voice mails, and emails. Watching pornography in the office, in the presence of others is also not so rare an occurrence of sexual harassment. This list is not exhaustive.

You have probably been told that if you are being sexually harassed, you should immediately report the event to your company’s Human Resources Department or even march right up to the police station to report it.

If your circumstances permit, and you are not in a life-threatening situation, it’s best to consult with an experienced employment lawyer about your situation, before reporting the acts of sexual harassment to Human Resources, or to the police.

Human Resources staff are often well-spoken, and have received extensive training on resolving disputes in the workplace. Though they may behave like advocates for employees, it’s certainly not their job to advocate for employees. The allegiance of Human Resources lies firmly with your employer, who pays their salaries. Their ultimate goal is to avoid potential litigation and protect the company from any legal trouble. They are not paid to represent you or to protect your interests and rights in the workplace.

In many cases, when an employee goes to Human Resources to report sexual harassment, without having obtained legal advice from an experienced employment lawyer, some Human Resources personnel will blame the employee, the victim, for having behavioral or performance problems, and sometimes will cover up the fact that the employee scheduled an appointment to report sexual harassment.

You need an advocate that represents you, and is vested in protecting your interests. This is why you need to consult with an employment lawyer before complaining to your Human Resources Department, if your circumstances permit.

As for going to the police, of course going to the police promptly is the right thing to do, when the conduct is criminal. Still, it’s best to consult counsel first, about the timing of the police complaint, and to be prepared with the appropriate evidence going into the police so that the prosecutor’s office is more likely to evaluate the case seriously. It’s unfortunate that the police sometimes treat the victims with disrespect because they think the victim is trying to build a civil case later, by first reporting criminal conduct. All the more reason not to go unprepared (psychologically or otherwise) before visiting the police station.

Under no circumstances should you remain silent about the problem. Even if you are worried about retaliation or concerned that people will not believe you, you must take action. Attorneys like myself have a great deal of experience fighting difficult sexual harassment cases – and very often we can help you put an end to it.

You might be worried about the fact that you are undocumented, or that you are here legally, but are not a green card holder or a U.S. citizen. You still have rights, and you can be helped. Attorneys that also concentrate in immigration law, like myself, can help you navigate the legal process in a way that is protective of your interests.

Seeing an attorney immediately also means that you are protecting your rights and the rights of others. If your employer knows you are already consulting with an attorney, your employer will be hesitant to threaten you or fire you in response to your coming forward – in other words, retaining an experienced lawyer to assist you in reporting the sexual harassment is like putting on a bullet-proof vest. If you come forward in asserting your rights, the employer will also be more likely to respect the rights of other employees who come forward.

Sexual harassment unfortunately remains a serious problem facing employees in virtually all lines of work today. If you are a victim of this behavior, stand up and act. You will have done your part towards resolving a humanitarian crisis.

THE DIVERSITY IMMIGRANT VISA LOTTERY IS IN PROGRESS TILL NOON ON NOVEMBER 7, 2017

The U.S. Department of State opened the Immigrant Diversity Lottery program on October 3, 2017. It will end on November 7, 2017 at 12 noon Eastern Standard Time.

This lottery program makes 50,000 immigrant visas available to citizens of nations with low rates of immigration to the U.S.
President Donald Trump has indicated his intention to eliminate the Diversity Lottery. For this year though, the program remains intact.

The lottery registration and application process is conducted online, and the eligibility requirements are few.
There is no fee to register for the lottery. Random selection of qualified lottery applications will begin on May 1, 2018.

Eligible individuals must have:

• At least a high school education or its equivalent; or
• Two years of work experience within the past five years in an occupation that requires at least two years of training or experience to perform.

Individuals cannot apply if they were born in the following nations, because more than 50,000 natives from these countries have immigrated to the U.S. in the past five years.

• Bangladesh
• Brazil
• Canada
• China, mainland-born (those born in Hong Kong SAR, Macau SAR, and Taiwan are eligible)
• Colombia
• Dominican Republic
• El Salvador
• Haiti
• India
• Jamaica
• Mexico
• Nigeria
• Pakistan
• Peru
• Philippines
• South Korea
• United Kingdom (except Northern Ireland) and its dependent territories
• Vietnam

If you were not born in a qualifying country, you might still be eligible to register for the lottery, if:

• Your spouse was born in an eligible country.
• Neither of your parents was born or legally resident in the country of your birth at the time of your birth, in which case you could claim eligibility based upon one of your parents’ countries of birth.

WHEN BAD NEWS BEFALLS YOU IN THE (ACADEMIC) WORKPLACE- WHAT YOU DO (NOT!) DO NEXT

Scenario 1:

You work in the administration of an academic institution, as a Vice President of a department, and are in a meeting with the Provost or President. Out of nowhere, you receive devastating news that is going to impact your standing at the institution- you are being demoted and will be forced to report to someone you cannot stand.

Scenario 2:

You work in the administration of an academic institution, as a Dean or the equivalent, and you are also a tenured professor. You are suddenly told during a meeting with the Provost or President that you will be removed from your role as a Dean, and you know that you will find it unbearable to just go back to teaching and nothing more, and you will be politically powerless as well.

Having counseled clients who have experienced both scenarios, the most important thing that should happen next is what the clients MUST NOT do, if they are to protect their interests.

They must not:

• Insult the decisionmaker;
• Have an outburst or curse;
• Storm out of the room;
• Abruptly resign;
• Sign any documents;
• Start negotiating their separation package.

Individuals in both scenarios should listen very carefully to the bad news. If it’s possible to maintain composure, they should engage the decision maker to learn about the institution’s justification for the employment action.

Once the meeting is over, it would be an excellent idea to contact an experienced employment lawyer about what happened and schedule a consultation promptly. The employment lawyer will probably want to see any handbooks, rules, executive plans, or contracts that may govern the terms and conditions of your employment along with your reviews, and any documents that can shed light on why you are currently in the position that you are in.

If the individuals insult the decision maker or have an outburst or storm out of the room, the decision maker will confirm to them, that said conduct is precisely why they took a particular action, i.e. the employees lack fitness for the role they have been in.

If the individuals abruptly resign, from an employment law perspective (with rare exceptions), resignations are excellent for employers, because the employers will owe the employees nothing. Even if institutions pay out severance monies to those who have resigned, based on formulas set forth within their policies and procedures, you can be sure that the payouts are not as high. Of greater significance, if there’s a claim of discrimination that the employee could have brought, that claim will be weakened substantially.

Why not sign documents? During a meeting when emotions are most likely running high, most employees cannot read and clearly understand the document that they are being asked to sign. A danger is that signing what is in front of them, may kill any protections that may be present in documents they signed earlier, when they began their employment. If handed a document to sign, it is best to tell the decision maker that it needs to be reviewed outside the presence of the decision maker first.

As far as negotiating a separation package, employees usually do not fare well when they start negotiating on their own, because they don’t understand how negotiations in the employment arena work. They make a demand that is too low, or not reasonable, or does not ask for items that they need to be amicably able to separate. They may make concessions they should not make. They may not properly employ their negotiating leverage, if they don’t even know what it is.

If the employees sit tight and contact an employment lawyer, the lawyer has more options to present to the employee to arrive at the destination that the employee would be better off at, including but not limited to:

• Filling the demoted role, and filing a charge of discrimination and/or a lawsuit, if the demotion was an act of discrimination;
• Negotiating a transfer before the demotion takes effect—at the same or higher title and salary;
• Negotiating an extension on the Deanship followed by a sabbatical and then a transition into teaching;
• Negotiating a separation package for the Dean based on the amount of time left on the contract term, in addition to other items of value, for the employee.

Employees should avoid making hasty decisions because a wrong move can ruin one’s ability to get another job within a specific university system (for non-tenured administrative employees). For tenured employees, hastily leaving a university altogether, because of political issues, can make it difficult to obtain a similar job at another university, because employed professors are always more attractive than unemployed ones.

Pausing rather than reacting upon receiving terrible news, can be protective, career-saving— and ultimately increase the probability that your employment lawyer can help you negotiate a solution that is in your best interests, even if it might take a little time.

PRESIDENT TRUMP’S NATION-SPECIFIC TRAVEL BAN

President Trump just issued a proclamation titled, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry in to the United States by Terrorist or Other Public-Safety Threats.” You may review it in full, here: https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attempted-entry

Five of the eight countries were included in the previous travel ban.

The new restrictions were issued on September 24, 2017, just as the old 90-day travel ban expired. The new restrictions will go into effect on October 18, 2017.

Until then, by virtue of the proclamation, the “old” travel ban will continue to be in effect, for those countries still on the list, who do not have a bona fide relationship with a U.S. person or entity.

The restrictions are based on a review of the identity management practices and information sharing on national security and public threats practices of countries worldwide and tailored to match them.

Syria and North Korea

-Entry as immigrants or nonimmigrants is suspended.

Venezuela

-Entry in tourist or business visitor status is suspended for officials of certain government agencies involved in screening and vetting practices and their immediate family members.

Somalia

-Entry as immigrants is suspended and decisions regarding entry as nonimmigrants will be subject to additional scrutiny.

Chad

-Entry as immigrants and nonimmigrants in business and tourist status is suspended.

Libya

-Entry as immigrants and nonimmigrants in business and tourist status is suspended.

Yemen

-Entry as immigrants and nonimmigrants in business and tourist status is suspended

Iran

-Entry as immigrants and nonimmigrants is suspended, except for those in valid student (F and M) or exchange visitor (J) status.

Although Iraq is not technically covered by the new restrictions, the proclamation states that Iraqi nationals will be subject to additional scrutiny.

It is now clear how long these restrictions will be implemented. Countries may be removed or added to the list depending upon further review of the effectiveness of their security practices. Waivers will be available on “undue hardship” grounds if a Consulate determines the entry would not pose a threat to national security and the admission would be in the national interest. This could include individuals who have already been admitted to the U.S. for extended periods of time.

The new restrictions will not be enforced against:

• Current lawful permanent residents
• Current visa holders
• Dual nationals travelling on a passport from an unaffected country
• Asylees
• Refugees already admitted to the U.S.
• Individuals granted protection under the Convention Against Torture

The United States Supreme Court was scheduled to hear the travel ban case on October 10, 2017. The Justices have cancelled that hearing and asked the parties to submit new briefs by October 5, 2017 on the effect of the new proclamation on the old travel ban.