New York Employment Lawyer Blog

As much as this is a festive and joyous time of the year for your holiday office party, it can be a legal nightmare if you are not prepared. The holiday party can lead to sexual harassment complaints as well as social host liability suits. The following is a list of precautions you can take to minimize your risk of liability:

• The biggest way to avoid trouble at your party is to skip the alcohol. Alcohol clearly lowers inhibition and impairs judgment and makes employees act in a way that they normally would not act at work. Consider serving apple cider or non-alcoholic beer. If you must serve alcohol, hire a bartender to mix and serve the drinks. Instruct the bartender to "water down" the drinks as well as offer plenty of non-alcoholic drinks. Make sure the bartender will stop serving to anyone who appears intoxicated. Another option is give everyone drink tickets to limit consumption. Also stop serving alcohol at least an hour before the end of the party.

• Food is an important factor if you will be serving alcohol. Serve plenty of appetizer so that employees are not drinking on an empty stomach.

• Remind employees before and at the party not to drink and drive. Before the party, designate supervisors and managers to stay sober and arrange for car pools. Inform your employees well before the party that if they appear drunk, they will not be allowed to drive home. Also ask your managerial staff to watch out for who appears intoxicated and make sure that they do not drive home. Arrange a head of time to have taxis take anyone home who has had too much to drink.

• Inviting spouses is also a great way to keep the party sober. Inviting spouses tends to keep employees more sober and encourage appropriate behavior.

• Holiday parties tend to bring out the office romance and sexual harassment. The alcohol tends to encourage the shy, fearful employee to ask out a colleague or engage in unwanted sexual conduct. Before the party, inform all your employees about the company's anti-harassment policy and that it applies to the holiday party. Let them know that any complaints will be investigated and disciplinary action will be taken for harassment. Have your supervisors watch for any inappropriate conduct and be ready to cut it off. Don't hang mistletoe or allow anyone to dress up as Santa. This only encourages sexual behavior which can lead to unwanted advances.

• Confirm with your insurance carrier that you have enough coverage in the event of an alcohol related accident.

Keep in mind that the holiday party is still an office party and remind your employees to enjoy themselves but to remain professional. They shouldn't do anything that they normally wouldn't do while at work. Our attorneys have helped many businesses make sure that they have minimized any potential liability that may arise. If you're planning a holiday party, call our experienced attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your company from any holiday related liability.

Continue reading "Do's and Don'ts for Your Office Holiday Party - Sexual Harassment and other Employment Law Risks and Considerations" »

Republican front runner Herman Cain is on the hot seat this week for allegations that he engaged in sexual harassment with one to possibly three female employees who worked for him while he was head of the National Restaurant Association. Cain has stated that in his "40 years of business experience," he has "never sexually harassed anyone." Cain has also responded that he has been falsely accused. One of the women signed a non-disclosure agreement ("NDA")where she agreed to keep all the facts and details regarding the settlement confidential.

Confidentiality Agreements or NDAs are often used during settlements as well as mediation to resolve disputes between employees and employers. Both parties basically agree not to speak or disclose to any person any of the terms used in making the agreement or the facts or circumstances related to any asserted or potential claims against the employer. In exchange for the employee not bringing a lawsuit against the employer and not speaking about the charges, the employer usually agrees to a monetary payment. For example, if an employee had alleged that he was discriminated against because of his race, he would be agreeing to never file a lawsuit based on those allegations. Our attorneys have reviewed and drafted many such agreements to ensure that our clients' rights are protected and that they received the highest possible settlement.

Most agreements will also prohibit both the employee and the employer from speaking about the charges and in the event that either party breaches the confidentiality clause, a well drafted agreement will contain a liquidated damages clause imposing penalties for violating the agreement. In other words, if the employee tells a friend, a co-worker, or the media about the circumstances pertaining to the confidentiality agreement, the employee would in breach of the contract and have to pay the amount called for in the contract.

The agreement will also contain a non-disparagement or non-interference clause which provides that both parties will not make any written or oral statements or remarks which are disparaging or damaging to the integrity, reputation or good will of the other. For example, if an employee had alleged that her supervisor had sexually harassed her, this clause would prohibit the employee from making any negative comments about the supervisor. The employee cannot sign this document and than tell her friends that her supervisor is a pervert who wouldn't promote her because she didn't sleep with him. Once you sign this, you cannot bad mouth or make any negative comments about your employer.

Cain first denied knowledge of the settlement, then admitted that there was an agreement which included payment, and also talked about one of the woman's work performance as being "not up to par." He has commented that these women made up the charges and that they were baseless. By speaking about the sexual harassment and the settlement payment, Cain may have violated the terms of the non-disclosure agreement. On the other hand, one of the women who claimed that Cain had sexually harassed her has not said anything. In fact, her attorney has stated that the NDA she signed is stopping her from speaking and has asked the Restaurant Association to waive the agreement so that she can tell her side of the story.

It is crucial to have an attorney represent you if you have suffered from any type of employment discrimination or sexual harassment and your employer is trying to settle the charges with you. Before you sign a settlement or a confidentiality agreement, you need to know what rights you are giving up. For example, it might be important for you tell a prospective employer why you left your old job, which an NDA might prevent you from doing. Before you limit your rights, call our attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your rights.

Continue reading "Avoid Violating Confidentiality Agreements and Non-Disclosure Agreements by Knowing What Rights You're Giving Up" »

An Australian woman, Susan Spiteri, recently filed a lawsuit alleging sexual harassment against computer giant IBM for $1.13 million. Spiteri, a top sales executive at IBM's Melbourne office, has alleged that her senior manager bullied her and sexually harassed her for almost 2 years. She has alleged that he engaged inappropriate touching, remarks, intimidation and unreasonable requests and even told her to "get her breasts out" to get more sales.

Spiteri started working at IBM in 1999 and has stated that prior to the harassment, she loved working at IBM. However, beginning in 2007 when a new senior manager was appointed, and for almost two years thereafter, her entire work environment changed. She has alleged in her complaint that "he groped me. He rubbed himself against my backside when he walked past me. He touched me, put his hands up my dress, asked me to expose my breasts to get more sales . . . He called me names to may customers and . . . yelled at me consistently." Spiteri has alleged that he harassed her at work and at work functions in front of colleagues, customers and managers.

Spiteri has alleged that she complained about the harassment many times to her managers, colleagues as well as to IBM's human resources department. However, her complaints were ignored. Spiteri has stated that she hopes her complaint will "encourage other victims of sexual harassment to be strong and come forward and stick up for themselves."

IBM's website regarding its policies clearly sets forth its global employment standards which specifically state that IBM "will create a work environment free of discrimination or harassment based on race, color, religion, gender, gender identity or expression, sexual orientation, national origin, disability, age or veteran status. The policies page also states that it "will treat all employees with respect and dignity" without using "threats" or "harassment." IBM has a detailed policy committed to a workplace free from harassment. An IBM spokesperson has stated that IMB did not tolerate any type of sexual harassment and that it would defend the lawsuit.

Clearly, every company, no matter how large or small, should have a sexual harassment policy and procedure in place. However, just having a policy in place is not enough. Even though IBM is a huge, global company with a human resources department, it turned a blind eye and allowed Spiteri to be sexually harassed and bullied for almost 2 years! As important as it is to have a policy, it is equally important to enforce it. Make sure you investigate any claims of workplace harassment quickly and efficiently. Make sure that the alleged harasser is not threatening or intimidating the alleged victim or witnesses not to speak. Our firm has encountered many instances of the harasser bullying the victim as well as witnesses to the harassment. Our attorneys can help you properly investigate any complaints of sexual harassment.

If your company does not have a sexual harassment policy in place, call our Workplace Harassment Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you set up a policy and procedure to avoid the high cost of defending workplace harassment.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

The EEOC entered into a settlement recently with American Laser Centers ("ALC") for $125,000 as well as other relief for allegations of sexual harassment and retaliation. ALC is the country's largest provider of laser based skincare services, including laser hair removal, cellulite reduction and skin rejuvenation treatments. The company opened in 2002 and now has over 150 clinics nationwide.

The lawsuit alleged that the landlord of the facility was sexually harassing the female staff in one of ALC's clinics in Fresno, California since at least 2006. The landlord's harassment included leering, unwelcome touching, sexual advances and showing up at work visibly aroused. One employee felt threatened to that extent that she brought her brother to work for protection. The clinic manager and female employees complained to which ALC conducted a superficial investigation, finding no wrongdoing on the landlord's part and still left the women employees exposed to the landlord's sexual harassment. After reporting the landlord's harassment, the female clinic manager was fired. Our attorneys have helped many women as well as men who have faced sexual harassment and retaliation at the workplace. If you are being sexually harassment at your workplace, call us to discuss how we can help you.

EEOC filed a lawsuit in January 2010 alleging that ALC did not address the women's sexual harassment complaint and that the female clinic manager who complained about the sexual harassment was fired in retaliation, in violation of Title VII of the Civil Rights Act of 1964. The EEOC's investigation showed that ALC conducted a "superficial internal investigation with no finding of wrongdoing on the part of the landlord."

Title VII makes sexual harassment based on a hostile working environment illegal. At ALC, the women were harassed with the hostile work environment that was created by the landlord. This type of harassment results when a supervisor, co-worker, customer, vendor, or anyone that the employee comes in contact with engages in unwelcome and inappropriate sexually based behavior which makes the workplace severe or pervasive enough to create an abusive working environment. In other words, Title VII also prohibits an employer form allowing a third party to harass one of its employees. The EEOC's regional attorney, Anna Y. Park, commented that "We encourage employers to be vigilant about addressing complaints of harassment by third parties as well as employees. . . proactive action is important to prevent liability."

The settlement agreement, which involves a 3 year consent decree, provides for ALC to correct the sexual harassment as well as prevent future instances, discrimination and retaliation at not just the location in question, but in ALC's clinics around the bay area region as well. ALC must correct and implement anti-harassment and anti-retaliation policies and complaint procedures, annual training for staff, designation of an internal EEO officer,

Sexual harassment is a serious workplace problem faced not just be women but also men. It is illegal for a man to sexually harass a woman and vice versa. If any of your employees file a complaint or even verbally report sexual harassment, you should promptly and thoroughly investigate the matter. Keep a record of the complaint, the investigation, and everything you did to remedy the matter. Anyone found to be harassing another employee should be dealt with appropriately. If the harasser is not an employee, you still need to stop the harassment. Any failure on your part to investigate and stop the harassment can cause you unnecessary and costly litigation as well as negative publicity.

If you don't have an anti-harassment policy and a complaint procedure set up in your office, call our Sexual Harassment Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you prevent and deal with any instances of sexual harassment.

Continue reading "Employer Responsibility: Make Sure You Investigate Complaints of Sexual Harassment and Retaliation " »

FAQ: I am a nanny and I live with a family in New York City taking care of their two young children and performing light housework. Because of their busy work schedules, I have often worked over 40 hours a week without being paid for the overtime. What are my rights?

Because you live in the great State of New York, you have rights and benefits which domestic workers in the other states do not have. On August 31, 2010, then Governor David Patterson signed the Domestic Workers' Bill of Rights, which became effective on November 29, 2010. New York is the only state in the county that has a law providing labor protection and certain benefits to domestic workers employed directly by a family or household. The law does not cover workers employed by a third party or an agency. If you are a nanny, housekeeper, baby-sitter, cook or caretaker, this new law gives you the same basic protection that other non-domestic workers take for granted. Our Employment Lawyers have represented many nannies and domestic workers assert their rights and can help you too.

Under the new Bill, you have the following protection and benefits:

• Overtime pay at 1½ times the regular hourly rate for hours worked in excess of 40 hours in a week;

• If you work and live at the home of your employer, your overtime wage of 1½ times your pay rate starts after you have worked 44 hours in one workweek;

• One day off for every seven days you work or overtime pay if you choose;

• 3 paid days off annually after one year of employment;

• Right to sue for sexual harassment and discrimination on the basis of race, religion, gender and national origin; and

• Disability benefits for part time and full time domestic workers under the New York Workers' Compensation Law.

Domestic workers perform an essential function in our society enabling the families they work for to perform their jobs. They shouldn't be taken advantage of for taking care of our young and elderly. New York's lead in passing this great legislation should encourage other states to also protect their domestic workers. This bill provides protection to over 270,000 domestic workers, of whom 200,000 are in New York City. According to the Domestic Workers United advocacy group, 99% of domestic workers are foreign-born, 95% are people of color and 93% are women. Clearly, these are the people in our society who are at the greatest risk of being taken advantage of and need the protection. Regardless of your immigration status, you are still covered under the bill. If you are a domestic worker and feel that your rights have been violated, call our experienced Labor Law Attorneys at Villanueva & Sanchala at (800) 893-9645 for a consultation to determine if any of your rights have been violated.

Continue reading "Employee Rights for a Nanny and Domestic Worker in New York State " »

FAQ: Every year at our office holiday party, there are several people who become intoxicated and behave inappropriately. As an employer, can I be held liable if one of my employees sexually harasses another employee or becomes intoxicated at the office holiday party and then gets into an automobile accident and injures an innocent party?

This is a great question this time of the year when employers are holding office holiday parties. As you plan your office holiday party, you probably have the best of intentions for the party. This is your way of showing your employees your appreciation and a way for your staff to unwind and socialize. However, the potential for liability is enormous between sexual harassment claims and the dangers of drunk driving. If one of your employees sexually harasses another employee at your holiday party, it is still a work related incident. Similarly, any discriminatory conduct or unwelcome racial jokes or obscenities at the holiday party can also be used against you in a discrimination lawsuit.

You could face great potential liability if you are serving alcohol and one of your employees drives home intoxicated and injures a third party. Although the potential for employer liability varies from state to state, all employers should be aware of the following case.

An Illinois Appellate Court recently found that Korean Airlines could be vicariously liable for its employee's negligent and intoxicated conduct which lead to a deadly car accident after a dinner party. The Court held that employer liability "can arise from acts, omissions or, in the case of respondeat superior, the employer-employee relations, so long as the employee's negligence is within the scope of employment." Accordingly, Korean Airlines could be held liable if it can be shown that the employee was acting within the scope of her employment at the time of the accident. Accordingly, if you make employees come to your holiday party as part of their employment or if you have the party during working hours, you could be potentially liable for your employee's acts caused by intoxication.

Continue reading "Employer Liability FAQ on Holiday Office Party " »

Q: I am a female investment banker at Goldman Sachs. Although I have been generating more revenue than my male colleagues and doing a better job than most of them, they are getting more pay, receive better bonuses and are promoted. What can I do?

Our Sex Discrimination Attorneys at Villanueva and Sanchala have been following gender discrimination lawsuits on Wall Street for many years going to back to the outrageous days of Boom Boom Room at Smith Barney and well before. Like you, many women working on Wall Street have been victims of gender discrimination. In fact, just recently, three former female employees filed a complaint against Goldman Sachs ("Goldman") alleging gender discrimination. The women are seeking class status on behalf of all former and current female managing directors, vice presidents, and associates over the past 6 years.

The complaint alleges that Goldman pays its female employees less at all levels compared to males with the same positions and similar job duties. It also alleges discrimination in promotions, business opportunities, as well as uneven distribution of benefits favoring male employees. The female employees have also alleged that Goldman gives its managers discretion to assign responsibilities, accounts and supervise associates. Since a great majority of the managers are males, this ends up disproportionately benefiting the males.

Plaintiff, H. Christine Chen-Oster, who became a vice-president, was bringing in more revenue than her male colleague but he was paid 50% more than her. To add insult to injury, another male colleague groped her after an outing at a New York City topless bar. After she complained of the incident, she was further penalized while he was promoted. Plaintiff, Shanna Ortich, who has a combined a JD/MBA from Columbia University, has alleged that she was assigned clerical work and a senior analyst asked her to set up his blackberry and to answer calls from his wife.

Goldman is one of the largest global investment banking, securities and investment management firms. In 2009, its revenue totaled $45 billion. A Goldman representative has responded that the lawsuit is without merit and that "People are critical to our business, and we make extraordinary efforts to recruit, develop and retain outstanding women professionals." However, according to Goldman's own data, only 29% of its vice-president's are females, 17% are managing directors, and only 14% are partners.

Continue reading "Sex Discrimination on Wall Street and in New York Q&A" »

Our New York Sexual Harassment Attorneys have been following this issue and were asked for their comments. The Association for Women in Sports Media recently filed a complaint alleging sexual harassment with the National Football League ("NFL") and the New York Jets. The complaint seeks an investigation into the team's behavior during practice and in the locker room with Inez Sainz, a female reporter for TV Azteca, a Mexican television network. The complaint was made in response to another reporter who witnessed the events in the locker room and heard comments made about Sainz.

The complaint alleges sexual harassment based on several incidents that occurred during practice and in the locker room. During the practice session, coach Rex Ryan and defensive coach Dennis Thurman allegedly overthrew footballs in the vicinity where Sainz was standing. As soon as she entered the locker room, members of the team started talking about her and making jokes. While Sainz was waiting to interview Mark Sanchez, they whistled, looked at her and made "embarrassing" remarks.

Sainz said on Twitter that she was "dying of embarrassment." However, she has stated that she was "focused on her job" and that she acted professionally. Sainz, who has now been a sports reporter for 8 years, is a former Miss Universe contestant. She is claimed to be the "hottest reporter in Mexico" as well as reputed to be one of the world's sexiest reporters. She has a personal website with sexy and provocative pictures. On the day of the incident, she was wearing jeans, a white shirt, and boots.

Sainz was not at the Jets practice or in their locker room as a fan. She was doing her job at her workplace by reporting on the practice and then interviewing players in the locker room. Even if she is considered to be the "hottest reporter," has a website with provocative pictures, and dresses "sexy," it is not an invitation for sexual harassment at her workplace. If a woman is attractive or dresses outside of traditional customs, that does not allow her employees to sexually harass her in the workplace. Too often, women fear that if they look too attractive at work, they won't be taken seriously or they will be sexually harassed.

Continue reading "New York Sexual Harassment in the Workplace: Did the New York Jets Cross the Line?" »

Can I be held liable as an employer if one of my employees who is a supervisor sexually harasses another employee?

Yes. You can be held vicariously liable for sexual harassment committed by your supervisors. This liability also extends to you if your supervisor or manager commits harassment based on race, color, sex, religion, national activity, age, protected activity, and disability. The two basic reasons behind this are that employers are responsible for the acts of their employees and employers should be encouraged to prevent workplace harassment. If the harassment leads to a tangible employment action, i.e., the employee gets fired, demoted, or is denied a raise or promotion, you will be held liable.

However, if no tangible employment action is taken, you can avoid liability if you exercised reasonable care to prevent and correct your supervisor's harassing behavior, and your employee unreasonably failed to complain or follow office procedures. For example, if your employee was subjected to sexual harassment which resulted in a hostile work environment, but your employee unreasonably failed to complain to you or someone designated in your policy and you exercised reasonable care to prevent and quickly correct the harassment, then you will not be liable. The key to your avoiding liability is for you to take reasonable care to prevent harassment. If you don't take reasonable care, you will be liable even if your employee unreasonable failed to complain and you took corrective action after you found out about the harassment.

The recent sexual harassment case against pharmaceutical giant Novartis has shown that that if your company doesn't create and implement policies and procedures to prevent and deal with workplace harassment, a judge will force it upon you. Clearly, to show that you took reasonable care to prevent sexual harassment at your workplace, you must have an anti-harassment policy and complaint procedure set up in your office. This policy cannot be sitting quietly on a shelf. You must distribute it to all your employees and management and encourage them to read it and report any harassment. It is also important to hand this out to any new employees as well as redistribute this policy periodically. Your policy should explain what sexual harassment is and that it will not be tolerated. The policy should also set forth a detailed procedure on how employees can make complaints and to whom. You should ensure that if an employee complains, it will be kept confidential to the extent possible. Your policy should encourage employees to report sexual harassment without fear of retaliation. For example, every employee should have someone other than his or her own supervisor to complain about the harassment.

When an employee files a complaint or verbally reports sexual harassment, it should be promptly and thoroughly investigated. Moreover, once you know about the harassment, you have a responsibility to take immediate action to quickly stop it and make sure it does not happen again. A written record should be kept of everything complained of and the entire investigation. Any employee who is found to have been harassing another employee should be disciplined.

Continue reading "New York Sexual Harassment FAQ: Employer Liability and Prevention" »

My boss keeps talking about his sexual activities, calls me "babe" and "honey" everyday, and keeps commenting on my body but he has never touched my body. Could this be considered sexual harassment and what can I do?

Yes. The situation you describe could be considered a hostile work environment which is a form of sexual harassment. If you think you are being sexually harassed, the first thing you can do is tell your boss that the conduct is unwelcome and must stop. This will prevent any misunderstandings and prevent your boss from later claiming that he didn't know he was "sexually harassing" you or that the conduct was somehow welcome. If that doesn't work or you are concerned about retaliation and afraid to complain to your supervisor, you should follow your company's policies or procedures for reporting or complaining about sexual harassment. Most companies have a complaint mechanism and are prohibited from retaliating against you if you report a complaint of sexual harassment in good faith. Our Sexual Harassment Lawyers have helped protect the rights of many victims of sexual harassment and can help you.

Title VII of the Civil Rights Act of 1964 provides two legal grounds for sexual harassment. The above question refers to a sexual harassment claim which is based upon a hostile work environment. This is the more common form of sexual harassment. A hostile work environment results when your supervisor, co-worker, customer, vendor, or anyone with whom you come in contact with on the job engages in unwelcome and inappropriate sexually based behavior making the workplace intimidating, hostile or offensive. Courts look at the some of the following factors in determining a workplace is hostile:

• Verbal or physical conduct;

• Frequency of the unwelcome discriminatory conduct;

• Discussions concerning a sexual nature;

• Comments about your physical attributes;

• Use of demeaning or inappropriate terms; and

• Use of profane and offensive language.

Continue reading "New York Sexual Harassment FAQ: Hostile Work Environment" »