On July 22, 2014, Governor Cuomo signed a bill that amends the New York Human Rights Law by adding a new Section 296-c entitled, “Unlawful discriminatory practices relating to interns.”  The amendment prohibits employers from discriminating against unpaid interns and prospective interns on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, with respect to hiring, discharge, and other terms and conditions of employment.  The amendment further prohibits employers from retaliating against unpaid interns who oppose practices forbidden under the Human Rights Law or who file a complaint, testify, or assist in a proceeding brought under the Human Rights Law.  The amendment also makes it unlawful for employers to compel an intern who is pregnant to take a leave of absence, unless the pregnancy prevents the intern from performing the functions of the internship in a reasonable manner.  The amendment also prohibits employers from subjecting interns to sexual harassment or any other type of harassment based on a protected category. This legislation was introduced following a 2013 case in which the United States District Court for the Southern District of New York dismissed a sexual harassment claim asserted by an unpaid intern who alleged that her boss had groped her and tried to kiss her.  In that decision, the Court was bound by the language of the statute that existed at that time and the court decisions interpreting that language, which provided that the Human Rights Law only applied to paid employees and did not apply to unpaid interns.  The purpose of the legislation is to give unpaid interns the same right to be free from workplace discrimination and harassment as paid employees. Employers who have unpaid interns or expect to have unpaid interns in the future should consider revising their anti-discrimination and anti-harassment policies to explicitly provide that discrimination and harassment against interns will not be tolerated, and that complaints made by interns regarding alleged unlawful harassment will be investigated in the same manner as complaints made by employees.  In addition, as we noted in a 2010 blog post, employers should also make sure that unpaid interns truly qualify as unpaid interns, and would not be considered "employees" who are entitled to the minimum wage and overtime protections of the Fair Labor Standards Act and New York wage and hour laws.

On June 24, 2013, the U.S. Supreme Court issued its decision in Vance v. Ball State University, which addressed the issue of who is a "supervisor" under Title VII of the Civil Rights Act.  Under Title VII, an employer can be held liable for harassment perpetrated by a non-supervisory employee only if it was negligent in controlling working conditions.  If the harassment is perpetrated by a "supervisor," and the harassment results in a tangible adverse employment action, the employer is strictly liable.  If the harassment is perpetrated by a "supervisor," but no tangible adverse employment action is taken, the employer can avoid liability by establishing that it exercised reasonable care to prevent and correct harassing conduct and that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that were provided.

In a 5-4 majority opinion authored by Justice Alito, the Supreme Court affirmed a decision rendered by the Seventh Circuit Court of Appeals granting summary judgment to Ball State University in a claim filed by an employee alleging that a co-worker had created a racially hostile work environment. Both the District Court and the Seventh Circuit had held that the co-worker was not a supervisor because she lacked the authority to hire, fire, demote, promote, transfer, or discipline the plaintiff. Accordingly, the District Court and the Seventh Circuit analyzed the case under the standards for non-supervisory harassment under Title VII, and determined that Ball State University could not be held liable, because it was not negligent with respect to the alleged conduct by the plaintiff's co-worker.

The Supreme Court specifically held that "an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" The Supreme Court also held that the "ability to direct another employee's tasks is simply not sufficient" to establish an employee as a supervisor for purposes of Title VII liability. According to the Supreme Court, what makes a person a supervisor is the ability to function as an agent of the employer "to make economic decisions affecting other employees under his or her control."

The Supreme Court majority explicitly rejected the definition of "supervisor" set forth by the Equal Employment Opportunity Commission ("EEOC") in its Enforcement Guidance, finding that definition to be "a study in ambiguity." The EEOC's Enforcement Guidance provides that an employee, in order to be classified as a supervisor, must have a level of authority "of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment." The Supreme Court majority declared that it was adopting a more workable standard that could be more easily applied, so that parties would know early in the litigation which employees will be considered "supervisors" under Title VII.

The Supreme Court's decision significantly curtails the universe of employees whose actions may be imputed to employers for purposes of Title VII liability. This decision will certainly have a profound effect on Title VII litigation in the future.

This article, authored by Mark Moldenhauer, originally appeared in the December 10, 2012 issue of the Buffalo Law Journal.

With calendars flipped to December, many companies are putting the final touches on holiday party plans.  These celebrations offer an opportunity to unwind, socialize, and reflect on the achievements of the past year, all outside of the hectic business environment.  Employers need to be aware, however, that holiday functions also raise a host of potential legal problems, especially when alcohol is served.  So while the trimmings and trappings deserve due attention, prudent employers should also consider ways to minimize the chance for a legal hangover.

1.  Boughs of Holly Are Fine -- Forget the Mistletoe!

Some people tend to exude an excessive amount of cheer during the holiday season.  Stories abound about executives dancing provocatively with interns or messengers flirting with the CEO’s spouse.  While no one wants to bah-humbug the festivities, it is important for employers to keep in mind that many of the same rules that apply in the workplace must be enforced at holiday parties.  This includes policies that prohibit sexual and other forms of harassment.

If you rely on a vendor or banquet facility to coordinate the event, be explicit that you intend this to be a professional function (yes, ask the DJ for a set list).  While gag gifts and "roasting" speeches might be popular, a fine line exists between good-natured ribbing and public humiliation.  Ideally, any gifts and planned remarks should be vetted and approved in advance.  Few things ring in the New Year worse than a hostile work environment or discrimination lawsuit.

2.  Take It Easy on the Eggnog

Whether it is loosening inhibitions or causing problems after-the-fact, alcohol is frequently the cause of holiday party problems.  As the sponsor, an employer must be keenly aware of the risks posed by serving alcohol and consider different options to reduce those risks.

In New York and several other states, “social hosts” are generally not liable for alcohol-related accidents or injuries suffered off-premises by third parties.  This is not the case in every state, so an employer should familiarize itself with the applicable law where the function is being held.  Also keep in mind that when revelers cross state lines, a claim might arise in one jurisdiction even though the host would not be liable to third parties in the state where the party actually occurred (for instance, a party in New York followed by an accident in New Jersey).  In addition, employees and guests under the age of 21 must never be served alcohol.  Many states, including New York, specifically allow claims against social hosts when alcohol is served illegally.  For this and other reasons, employers should insist that bartenders check ID or use some other system to ensure that they are not giving alcohol to underage attendees.

As for injuries suffered after the party by inebriated employees or guests, courts will typically find that a person’s voluntary intoxication caused his or her injury.  This includes situations where an employee or guest gets hurt in a motor vehicle accident.  Of course, this does nothing to lessen the non-legal consequences of someone becoming injured or worse while driving home from a holiday party.

On-premises injuries are a different story.  An employer has a duty to prevent harm to those on its property and in areas under its control, which could include an off-site facility that the employer leases for its holiday party.  If the employer learns that an employee or guest is intoxicated or otherwise acting inappropriately, reasonable steps should be taken to prevent the situation from escalating.

An employer-sponsored holiday party will almost certainly be considered as relating to employment, even if attendance is voluntary.  As a result, the exclusive remedy for an employee who suffers an injury at the party will normally be workers’ compensation benefits.  That said, injuries caused solely by alcohol consumption are normally deemed non-compensable under most workers’ compensation laws, including New York’s.  Also, injuries suffered in a car accident during an employee’s drive home will not likely be covered since commuting is generally considered outside the scope of employment for workers’ compensation purposes.

3.  Make Your List . . . and Check it Twice

 Without a doubt, holiday parties have their advantages, including the positive impact on employee morale.  Employers are encouraged, however, to do some advance planning in order to at least reduce potential risks.  Taking proactive steps will hopefully allow everyone to enjoy themselves, both during and after the party.

In addition to the measures discussed above, consider taking the following steps to help ensure that your festivities remain safe and jolly:

• Arrange transportation to and from the event or notify employees and guests that the company will cover cab fare;
• Coordinate discounted rates for employees and guests with nearby hotels;
• If the party is on the employer’s premises, hire a professional bartender or caterer and confirm that they carry sufficient liability insurance;
• Instruct bartenders to serve conservatively, “cut off” anyone who appears intoxicated and prohibit employees and guests from serving drinks;
• Limit the amount of alcohol served by providing non-alcoholic options, reducing the hours of open bar, giving attendees vouchers for drinks or using a cash bar;
• Recruit spotters to watch for excessive drinking and other inappropriate behavior;
• Serve foods that are rich in starch or protein to slow the absorption of alcohol and avoid salty foods that encourage people to drink;
• Contact your insurance carriers to discuss whether current policies provide sufficient coverage and, if not, purchase a product that will;
• Consider alternative formats which discourage heavy drinking, such as a breakfast or lunch function or a party with significant others and children;
• Advise employees that attendance is strictly voluntary and refrain from activities that can be viewed as compensable work under the Fair Labor Standards Act;
• Schedule the party on a day that will not conflict with any employee’s religious observances; and, last but not least,
• Remember:  “Holiday Party” not “Christmas Party”!  Most workplaces are incredibly diverse and comprised of individuals who celebrate a variety of religious and secular holidays.  Do not engender feelings of exclusion by emphasizing one particular set of traditions or beliefs.

As previously reported in this blog, on July 30, 2012, in the Banner Health System case, the National Labor Relations Board (“Board”), issued a 2-to-1 decision holding that a hospital violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by asking employees who make a complaint not to discuss the matter with co-workers while the investigation is pending.

Shortly after the Board issued that decision, the Buffalo, NY regional office of the United States Equal Employment Opportunity Commission (“EEOC”) took a similar position that a confidentiality instruction to an employee making a complaint of discrimination would, in that office’s view, constitute unlawful interference with the complaining employee’s efforts to oppose discrimination.

According to the EEOC's Buffalo office:

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition.  It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination.  So, discussing one’s complaints of sexual harassment with others is protected opposition.  An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial.

Although this position taken by the Buffalo office has not officially been adopted by the EEOC as a whole, the fact that two federal authorities are attacking the validity of confidentiality instructions is cause for concern.  At a minimum, employers should take a step back and review their investigatory process to ensure that no undue restraint is being placed on employees.  We offer the following practical pointers employers should keep in mind in conducting this review:

• Preserving the integrity of an investigation by keeping harassment/discrimination complaints confidential is a laudable objective.  However, official EEOC guidance requires that employers maintain the confidentiality harassment/discrimination complaints to the extent possible.  Employers are not required or expected to, nor can they, guarantee that harassment/discrimination complaints will be kept strictly confidential.  The Board’s Banner Health System decision also states that a generalized desire to protect the integrity of an investigation will not justify a general policy that matters be kept confidential.
• It does not matter whether employees are unrepresented or unionized in determining whether their rights under the NLRA have been violated.  Regardless of whether covered employees are represented by a union, they are protected by the NLRA.  However, supervisors are not considered covered employees under the NLRA and therefore supervisors are not entitled to its protections.  Consequently, notwithstanding the Board’s Banner Health System decision, an employer could request a supervisor, as opposed to a non-supervisory employee, not to discuss matters with co-workers without fear of violating Section 8(a)(1).
• Consider only “asking” an employee to keep things confidential or “suggesting” the employee be “discreet” about the “sensitive issue,” rather than “instructing,” “ordering,” or “directing” an employee to maintain confidentiality.  Explain to the employee the benefits of confidentiality and how the employer does not want any information leaked that could potentially hinder its ability to complete a thorough investigation or to gather accurate, untainted evidence.  Confidentiality could also be suggested to the employee without an express directive by mentioning the “sensitive” nature of the matter and how he/she would not want allegations made against him/her to be publicly discussed.  By ultimately leaving some choice with the employee, the employer should still be able to argue it did not violate the employee’s rights under the NLRA or interfere with the employee’s Title VII rights to oppose discrimination.
• Employers should analyze each case on an individual basis before asking an employee not to discuss the matter with co-workers, specifically taking into account the factors enumerated by the Board in Banner Health System:  (1) Are there witnesses in need of protection? (2) Is evidence in danger of being destroyed? (3) Is testimony in danger of being fabricated? and (4) Is there a risk of a cover-up?  Although Banner Health System involved a “request,” not a directive, that the employee maintain confidentiality, the Board did not take issue with the request itself but rather with the employer’s blanket practice of requesting confidentiality of all employees without making an individualized assessment as to whether a request was appropriate in any given case.  The Board ultimately viewed this blanket practice as effectively prohibiting any discussion of investigations amongst employees and therefore violative of Section 8(a)(1).  Blanket requests or instructions to maintain confidentiality in all, or virtually all, investigations will likely not be upheld.
• Employers should also consider other intangible factors, such as whether the individual is likely not to discuss the matter on his/her own accord even without any request from the employer to keep it confidential.  If the employee would likely maintain confidentiality without any direction from the employer, why risk potential liability by issuing a request?
• If a decision is ultimately made to issue a confidentiality instruction or directive, notwithstanding the potential risk of liability in doing so, all of the reasons underlying this decision should be clearly and promptly documented, in writing, in case the decision is ever challenged in the future.
• Once the investigation is complete, consider affirmatively lifting any confidentiality instruction that was issued. Doing so could potentially limit the time period for which an employer could be held liable for the confidentiality instruction if it is ultimately held unlawful.

As challenging as 2010 was, 2011 promises to be even more challenging for employers trying to remain in compliance in an ever-changing legal and regulatory environment. While coming into full compliance may seem daunting, addressing the ten concerns discussed below will be a meaningful step in that direction.

1.  Meal Periods. New York State requires employers to provide employees who work shifts in excess of six hours a meal period of not less than 30 minutes. Penalties for noncompliance start at $1,000 per offense and increase with each offense. In addition, if an employer automatically deducts meal periods from working time and such deductions do not accurately reflect the meal periods taken, the employer may not be paying employees for all time worked – resulting in far greater legal exposure.

What To Do: Employers should develop and enforce a meal period policy, requiring employees to take their meal periods (which cannot be waived). Employers should also require employees to leave their work area and prohibit employees from performing any work during meal periods. If employees’ meal periods are frequently interrupted, they should be paid for the entire meal period. Employers should also maintain accurate records demonstrating that they are complying with meal period obligations. Employers who automatically deduct for meal periods should have a policy notifying employees of this practice, a mechanism for employees to report when they have worked during a meal period, and should require employees and their supervisors to certify the accuracy of time records. Employers should also train supervisors on the legal obligations associated with meal periods.
 

2.  Exempt Status. With Fair Labor Standards Act litigation outpacing discrimination suits, and New York’s recently enacted Wage Theft Prevention Act taking effect in April 2011, overtime compliance is essential.

What To Do: Before classifying a position as exempt, employers must insure the duties test, salary basis test and salary level test are satisfied. Because many employers give little thought to exempt classifications, employers should review all positions currently classified as exempt and insure these tests are satisfied. If an employer discovers it has misclassified a position as exempt, legal counsel should be sought.

3.  Other Wage and Hour Concerns. Employers must also be mindful of limits on deductions from wages (e.g., overpayment of wages, debts to the employer), the need to pay nonexempt employees for all hours worked, including those worked remotely (e.g., via Blackberry or other mobile device), and the proper way to calculate regular rate of pay for overtime purposes.

What To Do: Employers should review their wage and hour practices and work with legal counsel to develop appropriate guidance on each of these subjects.

4.  Misclassification of Workers. The United States Department of Labor has identified combating employee misclassification as a priority in 2011 and with a recent study finding 1 in 10 private sector New York employers having not properly classified workers, the potential exposure is clear. Misclassification of an employee as an independent contractor carries with it a broad range of liability, including: unemployment insurance, workers’ compensation, social security, tax withholding, temporary disability, and minimum wage and overtime.

What To Do: Employers should review their relationship with any worker identified as an independent contractor. In doing so, particular attention should be paid to whether the individual is in the business of providing these services, the duties performed, the control exercised over the work performed, the method of payment, and how payments are reported. These relationships should be memorialized in a written agreement (while understanding that labeling an individual an independent contractor does not end the analysis) that has been reviewed by counsel and accurately reflects the relationship between the parties.

5.  Reasonable Accommodations/Leaves. With the recently adopted Americans with Disabilities Act Amendment Act (ADAAA) and employers still working toward complying with the last round of regulatory changes to the Family Medical Leave Act (FMLA), reasonable accommodations and leaves will remain a focal point in 2011.

What To Do: Covered employers should review their FMLA policy and forms and, if necessary, update them. Employers should also adopt a policy detailing the reasonable accommodation obligation and the procedure for requesting accommodation, and insure supervisors can identify accommodation requests. Finally, employers must be aware that an employee requiring leave for a medical condition may not be limited to the 12-week FMLA entitlement given the availability of leave as a reasonable accommodation under the ADA and New York Human Rights Law.

6.  Caregiver Discrimination. As women now outnumber men in the U.S. workforce and mothers of young children are twice as likely to be employed as their counterparts 30 years ago, caregiver discrimination has gained greater attention and, in 2010, was described as an issue that would be “front and center” for the EEOC.

What To Do: Employers should educate supervisory personnel on what constitutes caregiver discrimination and insure those involved in the hiring process know what can and cannot be asked about caregiving responsibilities. In addition, parental/caregiving leave policies should be reviewed to ensure they do not discriminate on the basis of gender.

7.  Harassment. While harassment has been a long standing concern for employers, recent statistics demonstrate that workplace harassment is evolving - with more than 50% of harassment claims based on a protected status other than gender (e.g., disability, race, national origin) and sexual harassment charges filed by men increasing significantly.

What To Do: Employers should review their harassment policy to ensure it covers to all forms of harassment, describes/provides examples of what constitutes harassment, references conduct outside the work environment (including on social media), provides multiple avenues of complaint (directing victim to someone other than the harasser), presents an overview of the complaint procedure, and insures that the parties will be notified of the outcome of investigations. Employers should also train all those identified as avenues of complaint, as well as supervisors and managers, and should consider training all personnel.

8.  Retaliation. With EEOC charges alleging retaliation increasing 45% from 2006 to 2009 and retaliation now tied with race as the most common form of discrimination alleged, concerns related to retaliation are self-evident.

What To Do: Employers should develop or review their policy on retaliation and insure it accurately reflects recent legal developments and provides a complaint mechanism. Employers should educate supervisors on what constitutes retaliation and, when a complaint of harassment or discrimination or other violation of law is received, employers should address retaliation concerns with the source of the complaint, the person about whom the complaint was made, and any witnesses. Employers should also show sensitivity to the timing of adverse actions in relation to employee complaints and involve human resources and/or legal counsel in decisions impacting employees who recently engaged in protected activity.

9.  Employee Relations. While the Employee Free Choice Act (“EFCA”) appears to be dead, the underlying goal of EFCA – to increase unionization of the private sector workforce - will be advanced through National Labor Relations Board decisions and regulatory action. These potential changes -- commonly referred to as “EFCA 2.0” -- include narrowing the National Labor Relation Act’s definition of supervisor, expanding the protection of employee use of employer provided e-mail to solicit support for unionization, accelerating the speed of union elections, expand union access to employer property, and banning “captive audience” employee meetings.

What To Do: Given the likelihood at least some of these changes will be implemented, employers should pro-actively take steps to assess and, if necessary, improve employee relations. Employers should confirm that their supervisors satisfy the NLRA’s definition of supervisor (and are therefore excluded from NLRA protection and cannot unionize), educate supervisory personnel on the importance of open communication and positive employee relations and give supervisors the tools to succeed in this area. Employers should also take steps to address employee concerns that might otherwise lead to widespread employee dissatisfaction.

10.  Technology-Related Issues. With technology evolving at an unprecedented pace and social media use expanding rapidly, technology-related concerns are vast and problematic. While not every technology-related concern can be anticipated, let alone avoided, there are common sense steps employers can take to limit potential exposure.

What To Do: Employers should adopt, and distribute a policy concerning the use of the employer’s technological resources, and obtain employee consent to accessing, intercepting and monitoring of their use thereof. Employers should also adopting a policy addressing social media use, both at and outside work, and ensure that social media concerns are addressed in other non-technology policies (e.g., workplace harassment, references). Finally, employers should determine if and how they will use social media in the hiring process and put policies and procedures in place to ensure hiring managers do not inadvertently gain access to applicants’ protected status (e.g. age, national origin) in the process.

A version of this post was previously published in the Saratoga Business Journal.

A recent decision by the New York Court of Appeals will significantly impact New York City employers. On May 6, 2010, New York’s highest court held that employers covered by the New York City Human Rights Law ("NYCHRL") can be held strictly liable for discriminatory acts or harassment by an employee who “exercised managerial or supervisory responsibility.”

In Zakrzewska v. The New School, the Plaintiff alleged that her “immediate supervisor” subjected her to sexually harassing e-mails and conduct for over a year. She sued her employer in United States District Court, alleging violations of the NYCHRL. The New School moved for summary judgment arguing that it could not be held liable for the supervisor's actions because it had a strict policy against sexual harassment and the Plaintiff waited more than one year to come forward before making her complaint. The District Court held that the claim would indeed by barred under the affirmative defenses articulated in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, applicable to federal law Title VII claims, if those affirmative defenses applied under the NYCHRL.  In those cases the United States Supreme Court held that an employer is not liable under Title VII for sexual harassment committed by a supervisory employee if it proves that: (1) no tangible employment action was taken as part of the alleged harassment; (2) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (3) the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer.

The District Court also concluded, however, that the language of the NYCHRL suggested that these affirmative defenses were not available for NYCHRL claims and so denied the New School’s motion for summary judgment.  The case was then certified for appeal to the United States Court of Appeals for the Second Circuit, which in turn certified the question of whether the defenses were available to the New York Court of Appeals.
 

The New York Court of Appeals unanimously concluded that the affirmative defenses were not available under the City Law. It noted that the statute provides that: "[a]n employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision one or two of this section only where: (1) the employee or agent exercised managerial or supervisory responsibility. ..."  Based on this language, the Court held that “the plain language of the NYCHRL precludes the Faragher-Ellerth defense.” In other words, any discriminatory act by an employee or agent who exercised managerial or supervisory responsibility will result in employer liability.

In reaching its decision, the Court also reviewed more broadly the language of the NYCHRL and found that its “legislative scheme simply does not match up with the Faragher-Ellerth defense.” The Court noted that the statute not only states that there is employer liability for acts of individuals exercising their supervisory responsibility, it also provides that an employer's anti-discrimination policies and procedures may be considered only “in mitigation of the amount of civil penalties or punitive damages” recoverable in a civil action (see NYC Admin Code § 8-107 [e]). The Court also reviewed the legislative history of the statute and concluded that it was the intent of the City Council for employers to be held strictly liable for acts of discrimination by supervisors.

Strict liability for employers is arguably poor public policy because it creates the wrong incentive for employees and is unfair to employers who take their legal responsibilities seriously. For employees, it creates a disincentive to report harassment which can then unnecessarily increase damages and delay the employer’s ability to comply with its non-discrimination obligations. Further, employers who are unaware of such conduct, but have provided training and strictly enforced their non-discrimination policies, will still be liable for random and unauthorized acts committed by someone who “exercised managerial or supervisory responsibility.” The Court recognized these concerns but ultimately concluded that such policy judgments were properly made by the legislature, in this case the City Council.

The decision will surely lead to more, and lengthier, litigation. Cases that could have been dismissed at the summary judgment stage on a motion will now proceed to trial and in some cases, employers may now have summary judgment granted against them based on conduct of even low level supervisors. In addition, employers who have operations both within and outside of New York City will be subject to two different standards of liability in harassment cases.
 

On May 12, 2010, the New York State Senate, in a 45-16 vote, passed a bill that would establish a civil cause of action for employees who are subjected to an "abusive work environment." (S.1823-B). This bill would permit employees who have been harmed psychologically, physically or economically by being deliberately subjected to an "abusive work environment" to sue their employers. Currently, no state has passed a workplace bullying law, but similar legislation has been introduced in at least 16 other states.

New York's workplace bullying bill contains a provision that would allow an employer to avoid liability if it exercised reasonable care to prevent and promptly correct the abusive conduct, essentially permitting a Farragher affirmative defense to such claims.

Although the idea of a civility law might seem reasonable at first blush, such legislation would almost certainly create a new wave of employment litigation against employers, at a time when most employers can least afford it. Given the amount of litigation that has occurred over what constitutes sexual harassment, it would appear to be a foregone conclusion that defining actionable "abusive conduct" under this legislation would result in similar widespread litigation.
 

New York's legislation defines "abusive conduct" to include "verbal abuse such as the use of derogatory remarks, insults, and epithets ... that a reasonable person would find threatening, intimidating or humiliating ... or the gratuitous sabotage or undermining of an employee's work performance." The reality is that "derogatory remarks" are probably made in most workplaces. Indeed, some workplaces, like law firms, are notorious for having "yellers." Seemingly almost any employer might have exposure under this legislation.

New York's workplace bullying bill provides for broad remedies including punitive damages unless the employer is found to have caused or maintained an abusive work environment that did not result in a negative employment decision, in which case damages for emotional distress would be limited to $25,000 with no opportunity for punitive damages.

If the legislation is enacted, it would also essentially destroy any lingering notion that New York remains an employment at-will state. There is little doubt that plaintiff attorneys will be able to draft allegations that would easily meet the broad definition of abusive conduct. The legislation also provides for the recovery of attorneys' fees, thus, laying the groundwork for actions brought against employers for "nuisance" settlements by disgruntled employees. Bullying of any type, whether on the school ground or in the board room, should not be tolerated. However, employers have a right to question whether this type of legislation is necessary or warranted.

Employers who "look the other way" to known bullies in the workplace, particularly supervisors, could potentially face liability under various laws, including a negligent retention cause of action. Bullying in the form of verbal abuse that involves any type of protected characteristic could be actionable under existing discrimination laws.

Furthermore, employers would be wise to ensure they have implemented an appropriate workplace violence policy. Indeed, OSHA has issued a fact sheet on workplace violence suggesting that failure to take appropriate measures to prevent workplace violence may violate OSHA's general duty clause. Arguably, the general duty clause would also apply to severe and repeated verbal abuse.

Not surprisingly, there has already been strong opposition to the bill including from Mayor Bloomberg's administration. In addition, Susan John, the head of the Labor Committee of the State Assembly, where the bill is currently sitting, says it would create a disincentive for companies to relocate to New York and believes it may result in others leaving the state.

Whether the legislation eventually becomes law still remains to be seen, however, employers have a right to be concerned about the potential consequences of this landmark legislation.

A version of this post was previously published as an article in the May 24, 2010 edition of Law360.
 

Too often employers take for granted that their anti-harassment policies are sufficient to prevent and remedy inappropriate workplace conduct, as well as mitigate legal liability. But failure to regularly update those policies can create significant (and expensive) problems down the road. To limit the risk presented by stale and outdated anti-harassment policies, employers should periodically review them to ensure that they are legally compliant and accurate. When conducting that review, consider in particular three important questions:

     1.     Does My Policy Prohibit All Forms Of Unlawful Harassment?

We occasionally come across policies that prohibit sexual harassment, but are silent as to other types of illegal harassment. This is usually a tell-tale sign that the employer’s policy urgently needs to be updated. Sexual harassment was first recognized by the courts as a form of discrimination in the mid-1980’s. Since that time, the various federal and state anti-discrimination laws have been interpreted to prohibit harassment on the basis of other protected categories, including but not limited to race, religion, national origin, disability, and age. In states such as New York – where the New York Human Rights Law includes no less than fourteen distinct protected categories (and counting) – employers must be sure to amend their policies as necessary to remain current with changes in the law.

     2.     Does My Policy Provide Accessible – And Alternative – Avenues Of Complaint?

Effective anti-harassment policies must provide reasonable methods for employees to bring alleged inappropriate conduct to their employer’s attention. A policy which requires that a complaint be made to a single person, for example the employee’s supervisor, is inadequate because it creates the potential for forcing the employee to complain to the very person accused of wrongdoing. To avoid this obvious chilling effect, employers should make available several avenues of complaint. At the very least, the employee should have the option to present a complaint to someone in his or her immediate chain-of-command, as well as someone outside his or her direct line of authority, such as a human resources manager. Never create the impression (express or implied) that the employee is required to lodge a complaint through a single individual. The more alternatives the better.

Employers should also publish contact information so that employees know exactly how to reach the persons to whom they can complain. Appropriate contact information (e.g., telephone number, e-mail address and/or mailing address) for each avenue of complaint should be included in the written policy and posted prominently in the workplace. That way, an employee has little excuse for not bringing a complaint of harassment to the employer’s attention.

     3.     Does My Policy Provide Reasonable Assurances Against Retaliation?

Just as employers have a legal obligation to implement reasonable measures to prevent and correct workplace harassment, employees have a duty to take reasonable steps to avoid or mitigate the effects of unwelcome conduct. This means generally that an employer can expect an employee to take advantage of an internal complaint procedure provided by the employer. An employee’s failure to lodge an internal complaint may be excused, however, if he or she can show a reasonable fear of retaliation. To minimize this possibility, it is critical that an employer’s policy clearly explain that retaliation against complaining employees will not be tolerated. This message should be reinforced at the time of a complaint. Moreover, the policy statement must also be enforced as necessary.

Of course, these are not the only issues to consider when assessing the effectiveness of your company’s anti-harassment policy and procedures. Keep in mind that the most comprehensive, water-tight, anti-harassment policies are only as good as the manner in which they are implemented and enforced. Courts and administrative agencies are increasingly looking at whether supervisors and employees are given training to reinforce written policies and to otherwise ensure that all employees understand the employer’s internal complaint procedure. While these measures are not technically required by law, it is advisable that such additional steps be taken to enhance the protections afforded by written anti-harassment policies.

 

In our August 18, 2009 blog, we provided best practice recommendations for conducting workplace investigations generally. This post follows up on the earlier post by focusing in greater detail on best practices for questioning the employee accused of misconduct.

An internal investigation of employee misconduct serves multiple functions. It fosters compliance with corporate policies by ensuring that alleged instances of misconduct are not ignored. It promotes fairness by ensuring that any disciplinary action is based on fact rather than rumor. And it enhances morale by communicating to the workforce that the employer enforces its policies but takes disciplinary action only after giving the accused employee an opportunity to be heard. Proper questioning of the accused employee is essential to achieving all these purposes. Some best practice suggestions for conducting that questioning are provided below.
 

The Setting

The questioning should take place in a private location, such a windowless conference room. Discretion is fair to the accused, and minimizes the spread of distracting rumors.

Except in the most informal and straightforward investigations, a management-friendly observer should be present in addition to the investigator. This helps avoid disputes about what the accused admitted and how fairly the investigation was conducted. The observer can also take notes, enabling the investigator to focus on the questioning.

If the accused is represented by a union, the accused has the right to request that a union representative be present.  The union representative should be permitted to observe the questioning, but not to interfere with it.

Introductory Statement

The investigator should begin by introducing herself and the observer, and explaining the general purpose of the interview. Unless the accused already knows the subject of the investigation, no details should be provided at the outset. If the allegations are disclosed prematurely, the accused will be better able to invent a false story, limit a confession, and deduce the identity of the accuser(s).

The investigator should assure the accused of the following:
 

• The investigation will be conducted fairly.
• No firm conclusions have yet been reached.
• If the accused cooperates and answers the questions truthfully, that will be considered in his favor when determining any penalties.
• The investigation will be kept confidential. Managers and employees will be told about the matter only on a need-to-know basis.

The interview should not be electronically recorded, but you may later ask the accused to sign a written statement confirming what he has said. Open electronic recording hinders candid conversation. Secret electronic recording is likely to be perceived as unfair if it later comes to light, and may violate state law . Handwritten notes are the least distracting way to keep a record of the interview.

Questioning Techniques

If the accused does not already know who has made the accusation against him, it is often helpful to begin the questioning by asking him whether he can think of anyone who has any reason to make up a lie about him. If the answer is no, this makes it more difficult for the accused to claim later that the accusation is the product of an unfair vendetta. If the answer is yes, and the accused presents a motive for the accuser to lie, then the accused’s credibility will be enhanced.

Start with general and open-ended questions. Leading questions tip the accused off as to the nature of the allegations, and help him to craft a false “story.” The following are examples of good ways to start the questioning:

• Did anything unusual happen at the sales conference last week?
• Are you aware of any violations of the Company’s policy on XYZ?
• Where were you last Friday?

If the accused denies knowledge of any unusual events, ask gradually more narrow questions. When the accused starts talking about the incident you are investigating, follow up with open-ended questions starting with the 5 W’s (who, what, when, where, why):

• Who else was there?
• What happened next?
• When did that happen?
• Where did that happen? 
• Why did you do that?

Gradually narrow the scope of your questions to fill in the details.

Don’t be adversarial or judgmental. Make it easy for the accused to give you relevant information. Ask questions like:

• Is there anything you might have said that may have led someone to falsely conclude that XYZ occurred?
• Can you think of any way that someone may have gotten the false impression that you did XYZ?

You can gain more information by being deferential than by being self-righteous. Don’t be Perry Mason; be Columbo. In lawyer’s terms, an investigation should be more like a deposition than a cross-examination.  Your purpose is to find out what the accused has to say, not to embarrass or demean him. After all, the accused may be innocent. Even if he is guilty of misconduct, the accused may still be a valuable employee, and may provide you with more useful information if he feels he is being treated with courtesy and respect.

If a claim is likely to be disputed, ask who else witnessed the disputed events, so you can interview them later. You should also ask if there are any documents, emails, or other evidence that will support the accused’s version of events.

One of the biggest mistakes that investigators make is to follow a script rather than listening to what the accused says and adjusting accordingly. It is helpful to have an outline of the points you want to cover, but it is important to be flexible. Listen to the answers to your questions. Ask follow-up questions. Make sure you fully understand the accused’s story, and make sure you have all the details you need to confirm whether that story is true.

Insist on facts, not conclusions. If the accused says, “So and so was flirting with me,” ask: “What did she say?” “What did she do that makes you say that?”

Make sure you distinguish between what the accused knows from first-hand observation and what he thinks he knows from hearsay. Ask: “How do you know that?” “Did you ever see that happen?”

Make sure you are eliciting everything relevant that the accused has to say, not just narrow answers to particular questions. After the accused answers a question, make sure the question has been answered in full before you move on. This will not only increase the amount of information you obtain; it will also make it difficult for the accused to change his story or add more details later:

•  Were there any other times when that happened?
• Is there anything else I should know about that?
• Did anything else happen that day?

Use silence to your advantage. You will be astonished how much information you can obtain by simply looking at someone after he answers a question, or by sitting quietly, catching up with your note-taking.

Be open to the accused’s version of the events. Do not jump to conclusions. The accusation may be incorrect, and the accused may be innocent. Suspend judgment until you have given the accused an opportunity to tell his side of the story.

If you have questions that may embarrass or antagonize the accused, save them for the end of the interview. Such questions may stifle cooperation, and diminish the amount of information you obtain.

After the Questioning

At the end of the interview, ask the accused if there is any reason why he was not able to fully answer all your questions. This avoids later false challenges to the fairness or reliability of the investigation. It is also helpful to ask the accused if there is anything else he would like to add, or that he thinks you should know.

The investigator should also direct the accused not to retaliate against any other employee for making an accusation against him or cooperating with the investigation.

If the allegation is serious enough, and if there is likely to be a dispute about the facts, consider writing up your notes in the form of a written statement for the accused to sign. This avoids claims that you have mischaracterized the accused’s version of events. If you plan to do this, you should inform the accused in advance, so he does not feel sandbagged. Writing the statement yourself is preferable to asking the accused to write it, so that the statement can be written in a clear manner, without hedging or evasion. However, you should make it clear that you do not want the accused to sign the statement unless and until he has read it carefully, corrected any errors, and feels fully comfortable with its contents. These instructions should be in writing, on the same document as the statement itself.

The questioning of the accused is just one part of a workplace investigation. If there are disputes about relevant facts, you will want to interview other witnesses, examine documents or other evidence, and perhaps even question the accused a second or third time. If the initial questioning of the accused is done using best practices, your investigation will be off to a good start. The company will be more certain that it is taking the proper steps, and everyone involved will be satisfied that the process has been fair.
 

Few human resource professionals look forward to workplace discrimination investigations. They can be contentious and uncomfortable, and often reveal the uglier side of individuals and, sometimes, even entire segments of the company.  Of course, allegations of workplace discrimination cannot be ignored. In fact, a proper and complete investigation can be critical to an employer’s defense of such claims, and a poor or incomplete investigation can be almost as harmful as no investigation.  Below are a few tips for conducting good investigations.

 

1. Select an Appropriate Investigator.  The person assigned to investigate should have a few critical qualities: a thorough understanding of the issue being investigated; an ability to command the respect of the individuals to be interviewed; the ability to maintain confidentiality; and a lack of personal involvement in the situation under investigation.  Often, a human resources professional will fit this bill.  However, there are situations where a third-party with greater investigatory experience is a better option.  For instance, in-house or outside counsel may be better equipped to navigate potentially serious harassment or other allegations which may result in litigation.  If counsel is involved, there is also a possibility that certain communications may be protected by the attorney-client or attorney work-product privileges.

2. Make the Investigation a Priority.  As a general rule, a prompt investigation is key.  If inappropriate or illegal conduct is occurring, it is imperative to stop it as quickly as possible.  Even if the investigation shows that the allegations are unfounded, a prompt investigation lets the workforce know that the company takes such matters seriously, and has the additional benefit of supporting certain legal defenses to harassment claims.

3. Prepare the Topics/Questions in Advance.  The interviewer should prepare thoroughly for the interview. At a minimum, make an outline of the topics to be covered.  Whether to prepare a set of specific interview questions is a judgment call which depends, in part, on the expertise of the investigator.  Writing out key questions in advance minimizes the risk the investigator will miss something.  If many individuals will be interviewed, a list of questions may result in more consistent and controlled interviews.  On the other hand, it is a mistake to become so wedded to written questions that you cannot deviate from them.  If a witness offers relevant information which you did not anticipate, be flexible. Set your prepared questions aside and ask follow up questions tailored to the new information.

4. Interview All Necessary Witnesses.  Failure to interview all persons who may have relevant information is a common mistake.  Employers often have a natural inclination to “keep a lid” on the investigation by interviewing only one or two employees.  While no one wants a sensitive issue to be the topic of employee scuttlebutt, you should not allow fear of employee gossip to result in an incomplete or imbalanced investigation.  Limiting the investigation unnecessarily can yield uninformed conclusions and leave the adequacy of the investigation and the efforts of the investigator open to legal challenge.

5. Use Two Management Representatives.  As a general rule, you should have another management representative with you during each interview.  Occasionally a person interviewed later claims to have been threatened or bribed, or otherwise claims that the interview process was mishandled.  A team interview approach will provide two witnesses to contradict those claims, and has the advantage of allowing one representative to take thorough notes while the other asks questions.

6. Start With the General and Move to the Specific.  In most cases, your opening question should not be to narrow:  for example, “Did you see John Smith walk up behind Mary Jones on Thursday in the lunch room and slap her on the back?”  A good investigator starts with open-ended questions instead.  This approach increases the likelihood that you will receive a witness’ best recollection instead of a recollection influenced by someone else’s version of events, and that you will receive more information.  Of course, if the open-ended questions do not elicit sufficient information about the relevant events, ask direct questions about specific incidents.

7. Consider Interim Protective Measures.  In extreme situations the company may need to take steps to protect the alleged victim while the investigation is ongoing.  If a witness may be physically harmed or intimidated, it may be necessary to remove the accused from the workplace until the investigation is over.  In other situations, it may be relatively easy to switch employees’ work assignments so that the accused and accuser do not interact while the investigation is proceeding.  Keep in mind, however, that moving the alleged victim could be considered unlawful retaliation.  It is therefore better to move the accused, not the accuser.

8. Guard Against Retaliation.  An employer may not retaliate against an employee who complains about unlawful harassment or discrimination.  Recently, the U.S. Supreme Court ruled in Crawford v. Metro. Gov’t of Nashville & Davidson County that Title VII’s prohibition against retaliation extends to a witness who corroborates allegations of unlawful conduct.  You should warn the accused that he or she may not engage in retaliation and, remind each witness that, if he or she experiences retaliation, to report it to the company immediately.