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WITNESSING SEXUAL HARASSMENT AT WORK

In a previous blog post we addressed what next steps you may want to take if you witnessed your coworker being sexually harassed. Keep in mind that this blog is addressed only to coworkers who witnessed sexual harassment. If you are a supervisor or manager, you must report it.

If you sense the victim of harassment is reluctant to report it on their own, then give them an avenue to contact you later on to talk about this further. If the reluctance persists, it should be suggested that the victim consult with an employment lawyer before reporting it to the company. Tell them that you would be willing to speak to any lawyer they consult with about what you witnessed.

The bottom line is coworkers who stand together thrive together. By looking out for one another in your workplace, you can really build a sense of comradery that boosts morale and maybe even productivity. The main benefit, of course, is knowing you will have someone there to support you in case of sexual harassment because you will be there for them in a similar situation.

IF YOU SAW SOMETHING, SHOULD YOU SAY SOMETHING?

People who hold traditional jobs might think that the physical boundaries of the work environment exist only within their office building or place of employment. However, in some jurisdictions, courts have held that the work environment may extend to hotels, bars, clubs, and company outings, such as sports events in certain circumstances. Indeed, if employees have gathered in a specific place for a work-specific reason, it is quite possible that they can be considered to be within a work environment.

This extension of the work environment’s definition raises an important question. What can and should you do if you witness a colleague being sexually harassed in the workplace, whether in an office setting or not?

What to Do If You Witnessed Employee Harassment

After witnessing another employee being sexually harassed in a work environment, you should wait until they are no longer fully in public to talk to them about it. When you are in a quieter or more private setting, approach them and let them know that you observed and witnessed the conduct. Be supportive and offer to create a report with your employer.

Going directly to them to discuss the situation is generally the best course, as most companies have policies and procedures in place for reporting sexual harassment that shield them from liability. By coming to them to discuss the incident in an aside, you can give them power over the situation, the assailant, and their employer, hopefully to hold them accountable. It is important to support your colleague in the capacity you would want them to support you, a relative, or a close friend in the same situation.

From all of us at Bonnaig & Associates, LLC, we wish you a fun holiday season, but we also want to remind you to say something if you see something, like sexual harassment at a company holiday party. Along the same lines, if you have been sexually harassed while at work, then you should seek the help of our sexual harassment lawyers in New York right away. Going to Human Resources first can be a mistake, as they are paid to protect your employer from litigation, not you. If it is safe to do so, contact our law firm first to discover your rights and to take appropriate legal action.

HOW EMPLOYMENT LAWYERS CAN HELP SOLVE CONFLICTS & MAINTAIN HARMONY IN THE WORKPLACE

Employers and employees do not necessarily need to be adversaries in the workplace. The two groups do not have opposing interests and should be able to get along. The shared goal of an enterprise is to be successful, and once that goal has been achieved, everyone will benefit.

There are ways to build workplace relationships that are non-adversarial. In particular, you should use mindfulness and emotional intelligence early on when small disputes that can cause a crack in workplace relationships arise.

Still, some relationships somtimes head south, and when they do, and there are violations of rights, recourse is available.

Cracks in trust and misunderstandings in the workplace are poisonous and can ruin relationships that were carefully built over the years. Having an experienced employment lawyer handle workplace disputes can repair the cracks and smooth out misunderstandings, so the parties can decide if they want to continue working together or part ways.

One typical workplace conflict that arises is employers or employees complaining about the other side behind their back. In this situation the right thing to do is to find out what is actually going on:

* What went wrong?

* Who is responsible?

* How do we move forward?

This approach to address the typical situation of complaining behind each other’s backs has the benefit of saving time by getting to the truth of the situation. It also saves energy by cutting off the tiresome process of complaining and creates the opportunity to come up with the best way to move forward.

By starting with the premise that employers and employees should always get along, it allows both parties to dedicate time towards maintaining the relationship in a way that is effective and productive.

Employment Law Lawyers Serving New York

At Bonnaig & Associates, LLC, we are committed to serving workers throughout the state of New York who have been wronged by their employers. If you have an employment dispute that needs immediate attention, you should get in touch with our law firm to discuss the details of your case. We can build a strong legal strategy and ensure that your rights and interests are fully protected.

PHYSICAL, EMOTIONAL & FINANCIAL HARM CAUSED BY WORKPLACE SEXUAL HARASSMENT

Sexual harassment is a civil rights violation that should be met with prosecutions and administrative penalties. However, it is much more than an employment law issue that should be recorded, reported, and addressed. It is a devastation that can leave lingering marks on every aspect of a person’s life.

People who have been victimized by sexual harassment in the workplace often experience lasting trauma that makes going to work a frightful proposition. The disbelief and terror that strikes a person who receives a lewd text message, or a request for sexual favors, from a co-worker or supervisor is unimaginable. Unwelcome touching or sexual assault can trigger nightmares that take years to dissipate.

The wreckage of workplace sexual harassment often manifests in a person’s life in three ways:

* A person can get physically sick by sexual harassment, such as through sexually transmitted diseases, unwanted pregnancy, and/or physical injuries inflicted during the acts of sexual assault. Psychosomatic illnesses can also develop due to the anxiety triggered by the sexual harassment.

* Any sexual interaction that is not consensual will negatively impact the victim’s emotional state and their personal relationships. The ability to be vulnerable and intimate with significant others, family, and friends can be compromised due to a misplaced feeling of shame about being violated, which taints every future intimate interaction.

* Lastly, sexual harassment causes financial harm. The victim may feel so traumatized by what is happening at work that they abruptly leave their job and lose their only source of income.

Seeking Justice & Closure with an Attorney’s Help

An experienced employment lawyer can help put an end to workplace sexual harassment by advising how to report it through the appropriate channels. Your lawyer will counsel you on how to cooperate with any investigators assigned to your sexual harassment complaint. They can also help prevent or address any retribution you may face in case your employer or a supervisor is the harasser or knows the harasser on a friendly basis.

While working with an employment law attorney cannot turn back time and undo the events that occurred, they can be instrumental in preventing future acts of workplace sexual harassment. If the company or employer takes corrective action against the harasser, as a result of the lawyer’s involvement and representation, other employees may be also be spared from similar incidents. When a victim of sexual harassment helps themselves by taking a stand, they are investing in creating a more equal employment opportunity workplace for everyone at the company and beyond.

Come to Bonnaig & Associates, LLC and our New York employment law attorneys if you need legal guidance and moral support after being sexually harassed in your workplace. You deserve to feel safe and confident at work, and it is our goal to make that happen through our representation.

ALERT: NEW YORK CITY EMPLOYERS OF ALL SIZES- REMEMBER TO ABIDE BY KEY REQUIREMENT UNDER THE NEW YORK CITY HUMAN RIGHTS LAW

Are you an employer located in Manhattan, Bronx, Staten Island, Brooklyn, and/or Queens?

If yes, please be advised that on August 10, 2018, the New York City Commission on Human Rights created an English-language poster that must be displayed in your workplace, regardless of how large or small your workforce is.

This poster, titled “Stop Sexual Harassment Act Notice,” must be displayed in your workplace starting on September 6, 2018.  You may locate this poster at this link:

https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Notice-8.5×11.pdf

In addition, you must provide this poster as an information sheet to new employees, at the time of hire.

Stay tuned for additional developments and compliance requirements.

LEGAL IMMIGRANTS AND NATURALIZED U.S. CITIZENS – BEWARE!

 

The Trump administration is supposed to issue a proposal in coming weeks that may make it more difficult for legal immigrants to become citizens or secure permanent residence (green cards) if they have ever used a range of popular public welfare programs, including Obamacare.

This measure, which would not need Congressional approval, is part of White House senior adviser Stephen Miller’s plan to limit the number of individuals who obtain legal status in the U.S. each year.
The fine points of the rulemaking proposal are still being ironed out.

What we know, is that it could have serious repercussions on immigrants living legally in the U.S. who have ever used or whose household members have ever used Obamacare, children’s health insurance, food stamps and other public benefits. Immigration advocates and public health researchers state this could affect more than 20 million immigrants.

Note that currently, the government may reject immigrants if they are likely to become public charges or primarily dependent on the government. The last time Congress defined the term “public charge” was in 1999, when it excluded from the definition, access to services like health care and nutrition programs.

The Trump administration’s proposal would not make it illegal to use public benefits programs, but it would authorize government officials to deny applications for permanent residence or citizenship if anyone in the applicants’ households has been a recipient of public benefits.

This proposal targets legal immigrants and their families, and plays into stereotypes and biases about immigrants, how they are all on welfare, how they are a burden on the country, and that they play a system, when the research shows otherwise. Apparently, poor immigrants use public benefits at a lower rate than native born U.S. citizens, and they also pay more into Medicare and Social Security than they withdraw.

Forcing immigrants to choose between permanent residence/citizenship, and the well-being of their families is draconian. Children need proper nutrition, and adults and children need access to proper health care. Children who don’t obtain proper nutrition, will function less optimally in school, and children and adults forced to do without healthcare, can endanger those around them with communicable diseases.

Can you rest easy if you are already a naturalized U.S. citizen? Not quite. The Trump administration has announced a denaturalization initiative. The USCIS Director announced the hiring of attorneys to form a task force to review records of those who became U.S. citizens since 1990, in order to identify people who deliberately lied on their citizenship applications. The Director wants to get to the bottom of these cases and start denaturalizing individuals who in his words, should not have been naturalized in the first place.

The last time denaturalization was a priority was during McCarthyism when the Internal Security Act of 1950 added provisions that stripped away citizenship based on political and antigovernment beliefs.

The Office of the Inspector General (OIG) has recommended that the Department of Homeland Security establish a plan for evaluating the denaturalization eligibility of naturalized citizens whose fingerprint records reveal deportation orders under a different identity. It is reported that the USCIS is going beyond the OIG’s recommended parameters and referring thousands of cases to denaturalization.

Revocation cannot just take place ‘automatically.’ The law sets a high standard for denaturalization- for civil revocation of naturalization, the burden of proof is clear, convincing, and unequivocal evidence which does not leave the issue in doubt.

Still, by signaling that it will go beyond the parameters recommended by the OIG, the Trump administration is making it clear to all naturalized citizens that they are under review and they are vulnerable.

If you have any concerns for yourself, your family members, or friends, after reading this blog, it’s crucial to seek legal advice.

CANCELLATION OF REMOVAL FOR NON-PERMANENT RESIDENTS

 

Are you a person without immigration status, who has lived in the U.S. for ten years continuously?

Have you kept out of trouble with law enforcement? (This means you don’t have criminal convictions that could get you deported or not admitted again into the U.S.)

Are you a person of good moral character?

Do you have a U.S. citizen relative (spouse, child or parent) that would experience exceptional and extremely unusual hardship if you were deported or removed from the U.S.?

If you said yes to all of the above questions, you may be eligible for cancellation of removal pursuant to the Immigration and Nationality Act (INA).

Cancellation of removal is a form of relief from being deported or removed from the U.S. You may only apply for cancellation of removal if you have an open case in deportation or removal proceedings in Immigration Court. If you don’t have a scheduled appearance in Immigration Court, you can’t apply for cancellation of removal.

Let’s say you already appeared in Immigration Court and now your case is closed because you have a final order of removal or deportation from an Immigration Judge. You can’t apply for cancellation of removal unless you convince the Immigration Court to grant a motion to reopen your case.

Cancellation of removal is a discretionary form of relief. So even if you can show that you meet all eligibility requirements, the Immigration Court could still decide that you don’t deserve to be granted cancellation of removal.

Numerous cancellation of removal cases have been denied on the grounds that the applicant was unable to show that their deportation or removal would cause “exceptional and extremely unusual hardship” to the U.S. citizen relative.

If you are considering applying for cancellation of removal, schedule a consultation with an experienced immigration lawyer.

PERSONAL EVENTS MUST SOON BE ACCOMMODATED BY NEW YORK CITY EMPLOYERS

 

I had previously blogged that on December 6, 2017, The New York City Council passed the “Fair Workweek Law” which protects employees who seek temporary changes to work schedules for personal events. It went into effect on January 1, 2018. That law provides that New York City employees could 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. Procedures are established for employees to request temporary work schedule changes and employer responses. Not all employees are protected by the Fair Workweek Law. As of January 1, 2018, if the employees were covered by a collective bargaining agreement; or were employed for fewer than 120 days; or worked less than 80 hours in the city in a calendar year; or work in the theater, film, or television industries, then they could not avail themselves of the protections of Fair Workweek Law.

Come July 18, 2018, when an amendment to the Fair Workweek Law will take effect, all New York City employers with a few exceptions will be required to accommodate “personal events.” Also, New York City employers will be required to grant employees two temporary changes to their work schedule when those requests relate to (1) the need for a caregiver to provide care to a minor child or a care recipient; (2) an employee’s need to attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member or the employee’s care recipient is a party; or (3) any reason that is permitted under the New York Earned Sick and Safe Time Act (ESTA). These three reasons are referred to as a “personal event.”

Employees may receive the temporary schedule change for up to one business day per request. An employer may accommodate an employee’s request for a schedule change through paid time off, working remotely, swapping or changing work hours, and using unpaid leave.

Retribution against employees availing themselves of the law’s protections is strictly prohibited.

It’s too soon to say what problems may arise in enforcing and implementing this law, since there are no agency decisions or court orders adjudicating disputes arising under this new law yet.

Stay tuned.

Asylum cases involving victims of domestic abuse and gang violence have become much more difficult

 

Matter of A-B- involves a case for asylum filed by a woman from El Salvador who entered the United States illegally in 2014. She alleged she was escaping from an ex-husband who had physically and emotionally abused her for years, even after she moved elsewhere in El Salvador. The woman alleged that her ex-husband had raped her and that his brother, a police officer, had threatened her.

In 2015, a Charlotte-based immigration judge denied the woman asylum. She appealed to the Board of Immigration Appeals (BIA). The BIA is an administrative branch of the United States Department of Justice. The BIA accepts appeals, of decisions made by immigration courts throughout the country, filed by either government attorneys or immigrants.

In 2016, the BIA overturned the immigration judge’s 2015 decision and ruled in her favor, saying it was clear that the Salvadoran government was unable to protect her even after she moved to another part of the country. The BIA found the denial of asylum was “clearly erroneous” on the grounds that A-B- had proven she was persecuted based on membership in a “particular social group”; specifically, “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Her case was returned to the immigration judge who initially denied her asylum.

Jeff Sessions, as head of the Justice Department, which includes the immigration courts, intervened before A-B-’s asylum status was formally granted by the immigration judge that the BIA returned her case to.

Mr. Sessions’ intervention placed A-B-’s case in limbo. This intervention consisted of referring the BIA’s decision to himself. The practice of intervention gives a political appointee, and the head of a law enforcement agency, absolute power to overturn the decision of an independent and neutral tribunal of administrative judges. Mr. Sessions’ decision on June 11, 2018, vacates the BIA’s grant of asylum as “wrongly decided.” The decision states in relevant part:

“The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

The ruling doesn’t flat-out say that an immigrant can’t be granted asylum on the basis of having faced domestic violence or gang violence in her home country. But it makes it clear that suffering either of those things — or having a credible fear that you might suffer them if you are forced to return to the home country- is not enough to count as persecution and allow you to stay in the United States.

“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” Sessions declared. Immigration judges and asylum officers need to adjust the criteria of qualifying for asylum, because Sessions’ decision is now law.

The attorney general’s ruling said it is still possible that crime victims could win asylum in the United States, but they would have to pass a tougher test in the courts, including showing that their home government is unable or unwilling to protect them, and that they cannot safely relocate to another part of their country.

A.B.-‘s lawyers have stated in the media, they plan to challenge Sessions’ decision in federal court.

Stay tuned.

THE UNITED STATES SUPREME COURT UPHOLDS TRAVEL BAN 3.0

 

Last year, in this space, I blogged about the Trump administration’s Travel Ban 3.0 implemented on September 24, 2017. To recap, Travel Ban 3.0 involved Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. The Travel Ban 3.0 had been partially blocked by two preliminary injunctions issued by the U.S. District Courts in Hawaii and Maryland, but those injunctions were lifted by the Supreme Court on December 4, 2017. The bars on North Korea and Venezuela were not included in either order, and have been continuously in effect. Since December 4, 2017, the government was fully enforcing Travel Ban 3.0 on all 8 countries while The Trump administration appealed the District Court orders.

On April 10, 2018, by presidential proclamation, Chad was removed from the list of countries subject to Travel Ban 3.0, because “Chad has made improvements and now sufficiently meets the baseline. . . ”

The Supreme Court of the United States agreed to review Travel Ban 3.0, and oral arguments before the Court were held on April 25, 2018.

On June 26, 2018, the U.S. Supreme Court in a 5-4 decision has held that President Donald Trump’s “Travel Ban 3.0,” can stand. Chief Justice John Roberts delivered the opinion for the Court, joined by Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch. Justices Kennedy and Thomas also filed a concurring opinion. Two dissenting opinions were filed: one by Justices Stephen Breyer and Elena Kagan, and one by Justices Sonia Sotomayor and Ruth Bader Ginsburg. This resulted in a final vote of 5-4. The case is remanded to the U.S. Court of Appeals for the Ninth Circuit.

Writing for the majority, Chief Justice Roberts stated that President Trump had ample statutory authority to make national security judgments in the realm of immigration.

In her dissent, Justice Sotomayor argues that the decision was no better than Korematsu v. United States, the 1944 decision that endorsed the detention of Japanese-Americans during World War II. She praised the court for officially overturning Korematsu in its decision but by upholding the travel ban, Justice Sotomayor said, the court “merely replaces one gravely wrong decision with another.”

As of now, certain individuals from Yemen, Iran, Syria, Libya, North Korea, Somalia, and Venezuela will continue to be subject to the ban. Here are the restrictions that will continue to be upheld:

• Syria and North Korea: Entry as immigrants or nonimmigrants 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 these individuals should be subject to enhanced screening and vetting).

• Libya and Yemen: Entry as immigrants and nonimmigrants in business and tourist status is suspended.

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

• 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. Nationals of Venezuela who hold visas should be subject to additional measures to ensure traveler information remains current.

As of now, the restrictions contained in Travel Ban 3.0 will not be applied to:

• Refugees already admitted to the U.S.
• Individuals granted protection under the Convention Against Torture
• Individuals paroled or admitted to the U.S.
• Current lawful permanent residents (Green Card Holders)
• Current visa holders
• Dual nationals travelling on a passport from an unaffected country
• Those travelling on diplomatic or diplomatic-type visas
• Asylees

If one of the above exemptions does not apply, a Consular Officer should consider whether a waiver might be appropriate. There are no categorical or blanket waivers, but the ban itself provides some examples of when a waiver might be appropriate:

• Applicant is traveling as a U.S. government-sponsored exchange visitor.
• Applicant is traveling at the request of a U.S. governmental department or agency for law enforcement, foreign policy, or national security purposes.
• Applicant has previously been admitted for work, study, or other long-term activity and plans to continue that activity.
• Applicant previously established significant contacts with the U.S. for work, study, or other lawful activity.
• Applicant seeks to enter the U.S. for significant business or professional obligations and denial of entry would impair those obligations.
• Applicant seeks to enter the U.S. to visit or reside with a close family member (e.g., spouse, parent, or child).
• Applicant is an infant, young child, or adoptee, or an individual needing urgent medical care.
• Applicant has been employed by or on behalf of the U.S. government.
• Applicant is traveling for purposes related to an international organization under the International Organization Immunities Act (IOIA), travelling for purposes of conducting meetings or business with the U.S. government, or travelling to conduct business on behalf of an international organization not designated under the IOIA.
• Applicant is a Canadian permanent resident who applies for visa in Canada.

 

SEPARATING KIDS FROM THEIR PARENTS AT THE U.S. BORDERS- THE LATEST DEVELOPMENTS

If you have paid attention to the news with any regularity for the past four years, you are aware that hundreds of thousands of children and families have fled to the United States because of rampant violence and gang activity in Central America. The Central American refugee crisis developed during President Barack Obama’s administration and continues under President Trump’s administration. The two administrations have taken different approaches to address the problem. The Justice Department under President Obama prioritized the deportation of individuals who had committed felonies and were a threat to national security. In January 2017, President Trump, in contrast, issued an executive order which does not include a priority list for deportations, and refers only to “criminal offense,” which is broad enough to encompass felonies and misdemeanors.

 

In April 2018, Attorney General Jeff Sessions rolled out the zero tolerance policy. When families or individuals are apprehended by the Border Patrol, they’re taken into Department of Homeland Security (DHS) custody. Under the zero-tolerance policy, DHS officials refer any adult “believed to have committed any crime, including illegal entry,” to the Justice Department for prosecution. If they’re convicted, they’re usually sentenced to time served. The next step would be deportation proceedings.

 

Illegal entry is a misdemeanor for first-time offenders and a conviction is grounds for deportation. Because of President Trump’s executive order, DHS can deport people for misdemeanors more easily, because the government no longer prioritizes the removal of dangerous criminals, gang members or national-security threats.

 

This means that the Trump administration is splitting up children from their parents when families get apprehended because children go into a process in which they eventually get placed with sponsors in the country while their parents are prosecuted and potentially deported.

 

Though President Trump has said that U.S. laws or court rulings are forcing them to separate families that are caught trying to cross the southern border, these contentions are false. No law or court ruling mandates family separations. Immigrant families are being separated primarily because the Trump administration in April 2018 began to prosecute as many border-crossing offenses as possible. The Justice Department can’t prosecute children along with their parents, so the natural result of the zero-tolerance policy has been a sharp rise in family separations. Nearly 2,000 immigrant children were separated from parents during six weeks in April 2018 and May 2018.

 

The American Academy of Pediatrics Statement (AAP) issued a statement dated May 18, 2018, concerning the issue of separating children and parents. The statement contains quotes from Colleen Kraft, M.D., M.B.A., FAAP, a pediatrician for over thirty years, who has cared for thousands of children, including children pediatric engagement in school and child care for children with special health care needs:

“Separating children from their parents contradicts everything
we stand for as pediatricians – protecting and promoting children’s
health. In fact, highly stressful experiences, like family separation,
can cause irreparable harm, disrupting a child’s brain architecture
and affecting his or her short- and long-term health. This type of
prolonged exposure to serious stress – known as toxic stress –
can carry lifelong consequences for children.”

 

Protests took place around the country in an effort to spur the Trump administration to stop separating children from their parents. Republican senators, who have rarely crossed President Trump head-on, worked to defuse the growing crisis. “All of the members of the Republican conference support a plan that keeps families together,” Majority Leader Mitch McConnell, a Republican senator from Kentucky, said Tuesday, endorsing a plan to keep parents and children together while their cases are going through the court system. House Democrats, including Zoe Lofgren of San Jose and Jimmy Panetta from Monterey, introduced a “Keep Families Together Act” to end family separations at the border.

 

On June 20, 2018, President Trump, facing enormous political pressure, signed an Executive Order to end the separation of families at the border by detaining parents and children together for an indefinite period.

 

Did it resolve this serious humanitarian crisis? How does this impact the families who are already separated from their children? Will they be reunited? How? When?

 

For now, there are more questions than answers. Stay tuned for further developments.

THE NEW YORK CITY COUNCIL AND NEW YORK STATE LEGISLATURE PASS NEW LEGISLATION TO TARGET GENDER DISCRIMINATION AND SEXUAL HARASSMENT IN THE WORKPLACE

 

The #Metoo movement has spurred additional protections to be implemented by the legislatures of New York City—and New York State relating to gender discrimination and sexual harassment.

New York City

On April 11, 2018, the New York City Council passed key legislation pertaining to sexual harassment, which Mayor Bill de Blasio is expected to sign into law in the coming weeks.

Employers of all sizes are bound by the New York City Human Rights Law with respect to sexual harassment claims

Previously, employers with four or more employees could be liable for sexual harassment under the New York City Human Rights Law (City HRL).

Now, employers of all sizes can be held liable for sexual harassment under the City HRL.

Mandatory Sexual Harassment Training

Within 90 days of hiring an employee, employers must provide interactive anti-harassment training, which includes information about the prohibition against retaliation. New York City will create and provide a complimentary online training program that employers may use if they wish. Employers must maintain records of training, including signed employee acknowledgments, which must be maintained for three years.

The mandatory sexual harassment training requirement is supposed take effect on September 1, 2018.

Extended Statute of Limitations

Employees will now have three years to file a claim of “gender-based harassment” with the New York City Commission on Human Rights, under the City HRL. Previously, the statute of limitations to file a claim with the New York City Commission on Human Rights, was a year from the date of the alleged conduct.

Required Handout and Poster

New York City employers will be required to post an “anti-sexual harassment rights and responsibilities” poster in both English and Spanish in a workplace common area. The city will issue an approved poster that employers can post.

Employers will also be required to issue an information sheet to all new hires.

Alternatively, an employer can comply with the City HRL through their handbooks issued to all employees.
New York State

Mandatory Sexual Harassment Training and Policy

Starting October 9, 2018, the New York State Labor Law will require that all New York employers, regardless of their size, provide sexual harassment training every year to all employees and provide them with a written non-harassment policy.

The New York State Department of Labor is charged with developing a model non-harassment policy as well as a model training program, in consultation with the New York State Division of Human Rights, though there is no stated timetable for the publication of these model documents.

Employers may either adopt the state’s forthcoming model policy, once available, or, revise their own policies to meet the specified threshold requirements of the New York State Labor Law.

Protections for Non-Employees

As of April 12, 2018, the New York State Human Rights Law has new protections for non-employees, providing that an employer may be liable for sexual harassment of contractors, subcontractors, vendors and consultants where the employer knows or should know that harassment is occurring in its workplace and fails to take immediate and appropriate corrective action to stop unlawful conduct.

Arbitration Clauses will have carveouts

Starting July 11, 2018, arbitration clauses will not apply to sexual harassment claims. Specifically, the state bill prohibits “any clause or provision in any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.”

This measure seeks to enable employees to pursue private actions related to sexual harassment, as it both applies to future contracts and purports to declare existing arbitration clauses “null and void,” except where there is a conflict with a collective bargaining agreement or an inconsistency with federal law, i.e. to the extent that it is found to be pre-empted by the Federal Arbitration Act (FAA).

The FAA generally applies to arbitration contracts involving interstate commerce unless the parties have agreed otherwise.

Pre-emption is not self-enforcing. Usually, the party seeking to arbitrate (most often employer) is required to make a motion to compel arbitration on the basis of preemption.

Non-Disclosure Agreements

Settlements of sexual harassment claims often include non-disclosure or confidentiality clauses limiting disclosure of the terms of the agreement, and in certain cases even the fact of the agreement.

The new state budget legislation prohibits non-disclosure agreements (NDAs) within any written settlement agreement of a sexual harassment claim unless it is the expressed preference of the employee.

In order to demonstrate this preference, the employee must be provided with a non-waivable 21-day waiting period as well as a seven-day revocation period. After the 21 days have passed, the employee must specifically affirm a preference for confidentiality.

This section will take effect on July 11, 2018.

UPDATE ON TRAVEL BAN 3.0

 

As you may be aware from the news, the Trump administration’s Travel Ban 3.0 implemented on September 24, 2017, involved Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. The Travel Ban 3.0 had been partially blocked by two preliminary injunctions issued by the U.S. District Courts in Hawaii and Maryland, but those injunctions were lifted by the Supreme Court on December 4, 2017. The bars on North Korea and Venezuela were not included in either order, and have been continuously in effect.

Since December 4, 2017, the government has been able to fully enforce Travel Ban 3.0 on all 8 countries while The Trump administration appeals the District Court orders.

A new development is that a presidential proclamation of April 10, 2018, removed the nation of Chad, from the list of countries subject to Travel Ban 3.0, effective April 13, 2018, because  “Chad has made improvements and now sufficiently meets the baseline.”

President Trump’s announcement was based on the first of an ongoing series of reports issued on March 30, 2018, by the Secretary of the Department of Homeland Security.

The Secretary’s report set forth that Libya had made progress toward compliance but that lifting of the restriction for that country could not be recommended at this time.

The Supreme Court of the United States has agreed to review Travel Ban 3.0, and oral arguments before the Court were held on April 25, 2018.  A decision from the Court is anticipated to be issued in June 2018.

Until then, Travel Ban 3.0 will remain in effect for Iran, North Korea, Somalia, Syria, Venezuela and Yemen.

Stay tuned.

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.