Welcome (almost) to the New Year: a time of renewal, a fresh start, a clean slate, and a time to make and hopefully keep resolutions. A “New Year’s Resolution” is, of course, a commitment in the coming year to change an undesired trait or behavior, to accomplish a goal or otherwise make a material improvement.

Toward this end, we thought it appropriate to launch a mini-series of some compliance-related resolutions employers might consider for 2018. In fact, we can’t think of a better way to close out 2017 than with a series devoted to a collective resolution to make 2018 a year devoted to cleaning out the cobwebs and achieving (better) employment law compliance.

We recognize, given the complexity of our legal landscape and the challenges of managing human relationships in the workplace, complete employment compliance is a worthy but perhaps unattainable goal. But that doesn’t mean 2018 can’t begin on the right foot.

We thought it appropriate to start our resolutions mini-series with this headline: Don’t let your workplace BE the next headline.

Continue Reading An Employer’s Resolutions for the New Year – A Mini-Series from the Employment Matters Blog. Resolution #1: Don’t let your Workplace be the Next Headline: Review and Refresh your Non-Harassment Policies and Training.

Over the next two weeks we will release our Year in Review segment, which will look at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California while offering our thoughts about 2017.  Today we kick off this segment with New York.  In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017.  Register here

2016 brought big changes for New York State and City employers, including expansive new discrimination protections and substantial increases in the minimum wage and exempt salary thresholds.  While New York employers who successfully navigated 2016’s rush of legislative, regulatory and judicial obstacles might feel they’ve earned the right to shift their focus back from compliance issues to running their businesses, they should not lose sight of the additional challenges expected in 2017.

Continue Reading 2016 New York Employment Law Year In Review

The Second Circuit recently adopted the “Cat’s Paw” theory of liability in Title VII cases.  This was hardly a surprise as other Circuit Courts had done the same after the United States Supreme Court endorsed Cat’s Paw in a USERRA case.  But the Second Circuit went even further, allowing for the use of the Cat’s Paw argument in Title VII retaliation cases and in cases where a non-supervisory employee’s discriminatory actions lead the employer to take an adverse employment action against that employee’s co-worker.  Until now, Cat’s Paw had mostly focused on employer liability based on the actions of misbehaving supervisors in hostile work environment cases.  The decision puts additional pressure on employers to identify and eliminate discriminatory behavior in their workplaces. This post will briefly examine the Cat’s Paw doctrine and explain how the Second Circuit’s expanded its use in Vasquez v. Empress Ambulance Service, Inc., No. 15-3239 (2d Cir. Aug. 29, 2016).

Continue Reading Negligent Employers May Be Held Liable For a Non-Supervisory Employee’s Discriminatory Actions Under “Cat’s Paw” Theory Says Second Circuit

Just last month, two federal district courts reached different conclusions, further contributing to the confusion as to whether notes taken during a Human Resources department investigation of a discrimination or harassment complaint are protected from disclosure in subsequent litigation. Continue Reading Are Your HR Investigation Notes Protected Against Disclosure? Maybe, Maybe Not.

Beginning April 1, 2016, new California regulations (§11023 specifically) will require all California employers with more than five employees to have written policies regarding harassment, discrimination, and retaliation.  For some employers, this may mean drafting a specific policy for the first time; for others, it may require some tinkering with an existing policy.  Below we address the new regulations.

Continue Reading Notice to California Employers: New Rules Dictate Precisely What Must Be in Handbooks Regarding Harassment, Discrimination, and Retaliation

As many employers know, one of the first steps in responding to an EEOC charge filed by a current or former employee is to put together a position statement to refute the complainant’s allegations and otherwise support the employer’s position.  Though the practice varied widely across the nation, employers in many jurisdictions had an expectation that their position statements remained confidential and were not shared with complainants.  That all changed last week, as the EEOC unveiled new nationwide procedures—retroactive to January 1, 2016—providing for the release of employers’ position statements (and non-confidential attachments) to complainants and their representatives, upon request, during the investigation of a charge of discrimination.  The Nationwide Procedures and related Q&A’s can be found here.

Continue Reading A One-Way Street: EEOC Unveils Nationwide Procedures for Releasing Employers’ Position Statements

The EEOC’s Select Task Force on the Study of Harassment in the Workplace recently held the third in a series of public meetings, a two-part panel aimed at understanding the different and evolving nature of harassment in the workplace and potentially new methods for addressing harassment.  The Task Force was created early this year by EEOC Chair Jenny R. Yang.  The Task Force co-chairs, Commissioners Chai R. Feldblum and Victoria A. Lipnic, anticipate making recommendations to Chairwoman Yang in early 2016.  We quickly revisit the highlights from the Task Force’s December 7 public meeting below.

Continue Reading The Times They Are A-Changing: EEOC Task Force Focuses on Evolving Harassment in the Workplace and New Ways to Combat It

As a major national company learned recently, employers cannot shirk their obligations to investigate employee complaints of a hostile work environment simply because the identity of the harasser is unknown.  Failure to investigate all good faith complaints of harassment can result in serious liability for the employer under the anti-discrimination statutes.

Continue Reading Federal Court Says Employer Can Be Liable for Acts of Anonymous Harasser

Out with the old and in with the new.  In a decision issued last week, the 4th Circuit Court of Appeals held that a single incident of harassment was sufficient to move a harassment claim forward.  This decision is certainly a win for employee-plaintiffs, and marks a stark departure from the state of the law in the Fourth Circuit for the past decade.

Continue Reading Lowering the Bar: Fourth Circuit Rules Single Incident Sufficient to Trigger Title VII Hostile Work Environment Claim

Written by Erin C. Horton

Last week, the NLRB took an exceptionally broad view of what constitutes “concerted activity” and what kind of efforts are aimed at “mutual aid or protection” under the National Labor Relations Act. For employers, this could mean increased Board scrutiny of internal investigations into employees’ complaints of harassment.

Continue Reading National Labor Relations Board Majority Holds That Seeking Co-Worker Assistance with an Individual Harassment Complaint is Protected Activity Under the Act; Overrules Holling Press, Inc.