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Considerations for New York Companies Before the Next Office Holiday Party

The holiday season is quickly approaching, and with it come holiday parties and end-of-year celebrations. While these festivities are traditionally a fun way for coworkers to bond, celebrations outside the office can lead to inappropriate behavior and even sexual harassment claims.

Workplace harassment can be misunderstood as limited to the location where a job is performed. However, sexual harassment or inappropriate conduct can apply outside of the physical workspace as well. Whether it occurs inside the office or at the restaurant down the street, misconduct among colleagues, as well as between supervisors and staff, is harmful to employees and organizations alike.

Given the overlap between work and socialization that occurs during the holidays, employers should review sexual harassment training and policies with their teams before the festivities get underway.

Sexual harassment that can occur at holiday gatherings comes in many forms, both physical and verbal:

• Sexually offensive remarks or jokes
• Unwanted touching
• Coerced acts of a sexual nature
• Requests for sexual favors
• Complimentary or derogatory comments about a person’s gender or sexual preferences
• Sexual gestures
• Exchange of inappropriate sexual materials via text messaging or other mobile platforms during or after the celebration

It’s an employer’s responsibility to create an inclusive, non-hostile environment for employees, even at work events outside of the office.

Proactive Steps Employers Can Take:

A company’s anti-harassment policy, as required by New State, should spell out what constitutes sexual harassment, include examples, and describe investigation procedures. Policies should also emphasize that retaliation against employees who file complaints involving sexual harassment is prohibited.

Refresher Training on Sexual Harassment Prevention

In addition to the requirement for New York employers to have a sexual harassment policy, companies that have one or more employees are required to provide sexual harassment prevention training. Employers can use training developed by the Department of Labor and Division of Human Rights or their own, provided the training meets or exceeds minimum standards.

Click here to view New York state guidance as well as a model policy and training on sexual harassment prevention.

While New York requires that training must be held at least on an annual basis, training should ideally be conducted more regularly, with potential refresher training held closer to holiday events to reiterate what constitutes proper and improper conduct. With boundaries established, everyone can remain comfortable when the eggnog begins flowing.

Ensure Employees Have the Proper Reporting Resources

The steps for reporting and filing a complaint should be laid out clearly both in training sessions and in the employee handbook. Employees should also be aware of the New York State Division of Human Rights’ toll-free, confidential sexual harassment hotline, which launched in July 2022. Signed into law by Gov. Kathy Hochul in March, the hotline provides counsel and assistance to individuals experiencing workplace sexual harassment.

Guidance

Bleakley Platt & Schmidt recommends seeking legal guidance from experienced attorneys on anti-harassment policies and creating – then regularly reviewing – an effective training plan. Our Sexual Harassment Practice Group possesses a wealth of experience in harassment and discrimination matters.

The Sexual Harassment Practice Group is available for consultation regarding sexual harassment prevention policies. Click here or contact us at (914) 287-6161 to learn more about how our expertise can help your organization stay compliant.

Monkeypox and Employment Law: Legal Considerations for New York Employers

On August 4, 2022, President Biden declared a national public health emergency in response to the ongoing monkeypox outbreak. The announcement follows New York and other states having declared emergencies in the days prior. Already weary from the Covid-19 pandemic, New York employers now have to navigate the possibility of monkeypox spreading in their workplaces, as well as manage their already skittish employees who have faced workplace shut-downs and alternative working arrangements as a result of Covid-19. Even though at present monkeypox as an infectious disease seems to present less risk than Covid-19, employers still need to be prepared to address potential outbreaks in their workplaces.  Company managers need to consider both the health and legal impacts of this new virus in the months ahead.

Monkeypox and its Spread:

According to the U.S. Centers for Disease Control and Prevention (CDC), Monkeypox is a disease caused by infection from the same family of viruses as the variola virus, which causes smallpox, although health officials report that it carries milder symptoms and is rarely fatal.  The CDC advises that the virus can be spread through direct or intimate contact, such as with an infectious rash, scabs, or with body fluids. The virus is also spread through respiratory droplets during “prolonged, face-to-face contact, or during intimate physical contact, such as kissing, cuddling, or sex.”

Employers should regularly check for new Monkeypox information as it becomes available from the CDC and the World Health Organization. You can learn more about the virus by clicking here.

Workplace-Specific Guidance:

Although monkeypox is very different from Covid-19, there are similarities in its implications for employers. As with Covid-19, one of the first steps employers can take to reduce risk of transmission is to educate their employees on the monkeypox virus and precautions they can take to slow its spread.

Employers can also proactively adopt disinfection procedures similar to the procedures used against Covid-19. Routine cleaning and disinfecting of common surfaces and items touched by employees is recommended. In order maximize cleaning measures, the CDC recommends using “EPA-registered disinfectant in accordance with the manufacturer’s instructions.” CDC guidance also suggests that companies may want to encourage employees to consider vaccination against the virus. Frequent hand washing by employees is also recommended.  Up to date guidance can be found here:  https://www.cdc.gov

If an employee tests positive for monkeypox or starts exhibiting symptoms, the CDC recommends that the employee should immediately exit their place of employment, isolate, and contact a healthcare provider. If an employee tests positive or is presumed positive, the communicable period is from the time symptoms start until the bumps have healed and a new layer of skin has formed.  According to the CDC, a person should isolate until their rash has completely healed and all scabs have fallen off, forming a fresh layer of skin, which unfortunately will impact the workplace and productivity at companies already weary from the economic impact of the Covid-19 pandemic.

Awareness of potential legal claims:

Similar to COVID-19, stigmas surround the virus and those infected make monkeypox not only a public health crisis but a potential harassment and discrimination issue for employers. While precaution should be taken for employees exhibiting monkeypox symptoms or who have come in close contact with infected individuals, employers should be aware of anti-discrimination laws and remain compliant with Title VII well as state and local discrimination laws. As with COVID-19, discrimination against employees in protected categories who exhibit monkeypox symptoms or who have contracted the virus should be avoided.

While a company may inform other employees in the workplace about a positive case of monkeypox in the office, the employer cannot disclose the employee’s identity or other identifying information (i.e., only essential information should be shared).

Employers should also be mindful of the American with Disabilities Act (ADA) as well as state and local laws while addressing any potential cases of monkeypox in the workplace. These laws may require a company to provide reasonable workplace accommodations for an employee with monkeypox. Employers will likely have to engage in an interactive dialogue to determine whether an employee is entitled to a reasonable accommodation and what the accommodation may look like, such as additional leave or a remote work accommodation.

Whether an employee is entitled to paid or unpaid leave under state or local laws, or the Family and Medical Leave Act (FMLA), will also be a consideration under circumstances where an employee tests positive and is required to isolate or quarantine. Employers may need to revisit their policies regarding leave and consult with an attorney about requirements for leave in circumstances where an employee tests positive for monkeypox as the spread continues in the United States.

Update Employment Policies:

For these reasons, employers should take the necessary steps to remain compliant with relevant laws while providing a safe, hazard-free environment for their employees. We strongly recommend that employers seek the advice of legal counsel to create strategies in compliance with local, state and federal laws. Companies should also consider updating their employee handbook or policies to include a response to infectious/communicable diseases and include monkeypox in the policies as well as guidance on reducing transmission, and a response plan if there is a spread of the virus in the workplace.

The employment law attorneys in our Labor and Employment Practice Group are always available for consultation regarding implementing new workplace policies. Contact us today at (914) 287-6161 or click here to learn more about how our expertise can help guide you through this latest health crisis.

Remote Work: Laws NY Employers with Out-of-State Workers Must Consider

Remote work is here to stay. According to Forbes, 61% of employees preferred working in a fully remote setting. 97% of employees also preferred to maintain flexibility between remote and office work (Click here, to read the article). The modern employee can work from nearly anywhere for a company across the country or on the other side of the world. This has led some companies to experiment with hybrid work arrangements or forego the office completely. As remote work and related laws continue to be normalized, New York employers with out-of-state employees must remember that they may be subject to laws beyond the Empire State. Here are several variables they must consider.

Employment Laws

Employers may be  required to comply with the employment laws of the State or city from which a remote employee works if that employee is either not working in New York or is regularly assigned to work from a location outside of New York. Of course, employees who are temporarily assigned to work from a non-New York location (e.g., a contiguous State) as an accommodation to that employee for health or personal reasons (e.g., childcare) would most likely be subject to NY employment laws.   Otherwise, considerations should be taken for the family, medical, pregnancy, and sick laws of the State in which the remote employee is regularly assigned to work outside of NY. More specifically, New York’s wage and hour laws may come into effect when paying wages and overtime to non-exempt remote employees working in another State which offer employees less favorable minimum wage and overtime provisions.  The determination of which laws apply to remote employees is therefore factspecific and requires legal review and analysis.

 Tax Laws

If a remote worker is employed in a location other than the employer’s state, it creates a tax nexus for the company in terms of income tax withholdings. This can be an obstacle as companies become subject to taxation in another State, even if only one employee works there.  In general, employers should withhold applicable state and local income taxes based on where an employee primarily performs services – meaning their physical location. Some states have reciprocity agreements which permit withholding in a single state. However, New York does not have a reciprocity with either Connecticut or New Jersey.

Wages

Remote work has complicated wage and hour compliance for some employers. Organizations must monitor a state’s minimum wage and overtime requirements to adequately compensate a remote employee. Business expenses also must be properly compensated per each state’s laws. For example, California state law requires that employees be reimbursed for work-related expenses. It creates a gray area for employers attempting to determine whether an expense was a matter of convenience or essential to performing job duties.

Accommodations

Employers are still obligated to comply with anti-discrimination and anti-harassment laws regardless of an employee working remotely. These include protections such as tthe Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Age Discrimination in Employment Act.

Monitoring

As remote work continues, employers have begun to increase monitoring practices, whether to monitor productivity or to maintain security. A recent New York law went into effect on May 7, 2022, requiring employers to notify employees of electronic monitoring practices, the legalities of which can vary by state. Texas considers electronic communication monitoring an invasion of privacy but allows supervision of phone systems for appropriate use after the employee is informed. The laws of some states don’t address employee monitoring but have recording laws that create speculation over what constitutes a violation of privacy.

Conclusion
Coordinating work policies with multiple state laws puts companies at risk of excessive fines and unnecessary litigation. Employers should make note of local, state, and federal labor laws to remain compliant with emerging remote work policies. It is strongly recommended that employers seek legal guidance while developing policies in compliance with all relevant laws.

The employment law attorneys of our Labor and Employment Practice Group are available for consultation, if you have any questions regarding establishing new policies. Contact us today at (914) 287-6144, or click here to learn more about how our expertise can help you stay on the right side of the law.

The Americans with Disabilities Act: Does your website need to comply?

By Adam Rodriguez, Esq.

Should you care if your business’ website is ADA compliant?

Absolutely. Litigating a website accessibility case can be expensive, even if you are ultimately successful on the merits. This is particularly true because the ADA provides for an award of attorneys’ fees to a prevailing party. It may be best to proactively address your website’s accessibility to ensure meaningful access for persons with disabilities. But, if you are sued, there are strong arguments that can be marshalled to defeat the claim or negotiate a favorable settlement. The lawyers at Bleakley Platt can help.

What does the ADA say?

The ADA states that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases . . . or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The statute provides several examples of public accommodations, all of which are physical places, including an inn, a restaurant, a movie theater, etc. 42 U.S.C. § 12181(7).

Does the phrase “place of public accommodation” include your website?

Unfortunately, the answer may depend on what court you are in.

Notwithstanding the plain text of the ADA, Courts are split on this issue. For example, the Third Circuit has interpreted “places of public accommodation” narrowly, concluding that the ADA only applies to physical locations. In Peoples v. Discover Financial Services, Inc., 387 F. App’x 179 (3d Cir. 2010), the plaintiff—a blind man—sued a credit card company alleging fraud after he used his credit card for a prostitute’s services at her in-home business, resulting in her allegedly overcharging him and the card company refusing to credit his account for the disputed amounts. The Third Circuit held that, because the alleged discrimination did not happen on the defendant’s physical property, the claim was not cognizable.

Whereas the First Circuit, in Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, 37 F.3d 12, 19 (1st Cir. 1994), held that public accommodations are not “limited to actual physical structures.” In Carparts, the plaintiff brought an action against the defendant health plan, alleging that a lifetime cap on health benefits for individuals with AIDS instituted by the health plan represented illegal disability discrimination. The First Circuit reversed the district court, holding that Congress did not intend for the ADA to apply only to physical structures.

The recent trend of federal caselaw seems to favor the defendants. For example, the Eleventh Circuit recently held in Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021), vacated as moot, No. 17-13467 (11th Cir. December 28, 2021), that the definition of “public accommodation” does not include websites, but instead only includes physical places. In that case, the plaintiff had a visual impairment, and used screen reading software to browse websites. But plaintiff’s screen reader software didn’t work with Winn-Dixie’s website’s prescription refill functionality.

The Second Circuit Court of Appeals has not squarely addressed the issue, and the district courts are split. For example, in Winegard v. Newsday LLC, 2021 U.S. Dist. LEXIS 153995, at *2 (E.D.N.Y. Aug. 16, 2021), Judge Komitee concluded that the “ADA excludes, by its plain language, the websites of businesses with no public-facing, physical retail operations” from the definition of “public accommodations.” But a few months later, Judge Wood held that “that websites qualify as places of ‘public accommodation,’ albeit electronic ones, and, as such, are required to provide equal services to visually impaired and sighted people.” Romero v. 88 Acres Foods, Inc., 2022 U.S. Dist. LEXIS 9040, at *16 (S.D.N.Y. Jan. 18, 2022).

If the ADA Applies, Does Your Website Comply?

Maybe. If the ADA does apply to your website, it does not require conformity with any specific standard. In fact, the U.S. Department of Justice (“DOJ”) has made it very clear that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” Letter from Stephen E. Boyd, Asst. Atty. General, to Hon. Ted Budd, U.S. House of Representatives (Sep. 28, 2018).

Some courts have used the Web Content Accessibility Guidelines (“WCAG”) version 2.0 and 2.1 Level AA standards as a remedial measure for non-compliance. For example, in Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 907 (9th Cir. 2019), the Ninth Circuit held that “the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.” The consensus is that if a website adheres to this standard, it is sufficiently accessible to individuals with disabilities.

In addition, DOJ has taken the position that covered entities with inaccessible websites may comply with the ADA “by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their Web site.” Nondiscrimination on the Basis of Disability, 75 Fed. Reg. at 43466. So, if your website provides keyboard accessible 24-hour chat and phone lines, for example, to address any accessibility issues that arise, you can mitigate the risk of potential non-compliance.

Adam Rodriguez focuses his practice in the areas of commercial litigation, municipal law, intellectual property and real estate. He currently serves as the Yorktown Town Attorney, acting as legal counsel to the Town, its elected officials, department heads, and its various boards. Before joining Bleakley Platt, Mr. Rodriguez was the Director of Real Estate for Westchester County, where he negotiated complex commercial real estate transactions valued at over $100 million. Prior to his appointment as Director of Real Estate, Mr. Rodriguez defended the County of Westchester in one of the highest-profile HUD enforcement actions in United States history. He has also served as a law clerk to two federal judges, and has worked as a litigator at a large law firm in New York City.

To read Mr. Rodriguez’s attorney profile, click here.

Can the Law Regulate the Internet? How Government Agencies Seek to Regulate Big Tech

In comparison to radio, television, and telephone, newer technologies – particularly those involving the internet and social media – have remained largely unregulated by federal or state governments, with the tech industry relying on self-governance even as their influence has significantly expanded. As tech plays an increasingly large role in daily life and tech companies grow in size and number, however, a legal framework to curb such power is taking shape. Can the government regulate an industry famous for rapid change? The federal government has now turned its attention to answering that question.

How Medical Testing Laboratories Must Comply with the Federal Ban on “Surprise Billing”

The “No Surprises Act” (“NSA”), which became effective on January 1, 2022, is federal legislation designed to protect patients from “surprise medical billing” that occurs when a patient receives services from a facility or provider which, unknown to the patient, is outside of his or her health plan’s network, resulting in unexpected out-of-network charges. Much of the discussion surrounding surprise medical billing has been focused on emergency services/treatment where the patient is unable to choose the medical provider.

What to Know About New York’s Green Amendment  

On November 2, 2021, New York residents voted to amend the State’s constitution to enshrine into law each person’s “right to clean air and water, and a healthful environment.” N.Y. Const., Art. 1, Sec. 19. With the adoption of this amendment, New York becomes the third state in the nation to include environmental rights in its Bill of Rights, following Pennsylvania (1971) and Montana (1972. Four other states – Hawaii, Illinois, Massachusetts and Rhode Island – have constitutional provisions regarding environmental protections, although not in their Bill of Rights.

Baffling Issues that Arise in Insurance Mediations (and How to Get Past Them!)

Partner John Diaconis will be a panelist on this informative program presented by the Insurance Dispute Resolution Committee of the New York State Bar Association, to be held at 5:30 PM on December 15, via Zoom.

The No Surprises Act and How Medical Providers Must Comply with the Federal Ban on Surprise Billing

The “No Surprises Act” (“NSA”), new federal legislation intended to protect patients from “surprise medical billing”, goes into effect on January 1, 2022. While most states have already enacted laws to address surprise billing, limited protections and various loopholes permitting balance billing at the state level compelled federal action to address the need for greater consumer protection.

As Deadline Looms, New York Municipalities Decide Whether To Prohibit Retail Cannabis Dispensaries and On-Site Consumption Sites

Under New York’s Marijuana Regulation and Taxation Act (MRTA), which became law on March 31, 2021, the State’s cities, towns and villages have until December 31, 2021 to decide whether to “opt out” of allowing retail marijuana dispensaries and on-site consumption sites within their jurisdictions. The deadline has prompted considerable public debate as residents of Westchester County and across the State make their views known to their local government leaders and representatives. The Rockefeller Institute for Government has created a searchable online “Marijuana Opt-Out Tracker,” showing the current status in each municipality.

Investigating Employee Misconduct and Defending Claims of Wrongful Termination

With wrongful termination lawsuits on the rise across many industries, it has become more important than ever for employers to conduct thorough and well-documented investigations of alleged employee misconduct before deciding whether to impose disciplinary measures against an employee. This point was recently confirmed by the Second Department’s decision in Daniel Hutting v. Independent Living, Inc., _ A.D.3d _ (2d Dep’t Oct. 13, 2021), an appeal successfully argued on behalf of the defendant employer by Bleakley Platt partner Joseph DeGiuseppe, Jr.

The Intersection of NYS and Westchester County Sick and Safe Leave Laws-One Year Later

New York State’s paid sick leave law (“PSLL”), which went into effect on September 30, 2020, mandates the payment of both sick and safe time leave to employees effective January 1, 2021. Also included within the purview of the PSLL is the availability of paid leave for “safe time” which includes absences from work when an employee or his/her “family member” has been the victim of domestic violence as defined by the State Human Rights Law (“SHRL”), a family offense, sexual offense, stalking, or human trafficking. As discussed below, the Westchester County Safe and Sick Leave Law, which went into effect on October 30, 2019, already required sick and “safe time” for Westchester County employees. As of September 30, 2020, Westchester County adopted the sick leave provisions of the NYS law but made it clear that it did not preempt the County’s Safe Time Leave Law (“STLL”). Unfortunately for employers, Westchester County has not issued any further guidance on the intersection of the two laws which differ in certain material respects as to the use of paid leave and the definitions of certain key terms under the respective laws.

Trademark Modernization Act Signed Into Law for Federal Trademark Owners in New York and Beyond

The United States Patent and Trademark Office signed the Trademark Modernization Act (“TMA”) into law last year, prompting future changes for federal trademark owners in New York state and nationally. The Act will formally be implemented on December 27th, 2021. Although the TMA offers trademark owners additional tools, it also expands trademark cancellation mechanisms that might cause some trademark holders to lose their federal trademark.

How Biden’s Executive Order Could Impact Healthcare Law in New York

On July 9th President Biden signed an expansive executive order aimed at promoting competition in the American economy, prompting possible changes to healthcare laws in New York. This order established 72 initiatives involving more than a dozen federal agencies to tackle some of the most pressing competition problems in the US economy, with a specific focus on medical and pharmaceutical companies.

New York’s Marijuana Legalization from the Perspective of DWI Attorneys

With Governor Cuomo recently signing the Marijuana Regulation and Taxation Act into law, many legal professionals speculate whether New York will see an increase in impaired driving arrests following the legalization of recreational marijuana. Although possession of a small amount of marijuana for recreational use in now legal, a person can still face criminal prosecution for operating a motor vehicle while his or her ability to do so is impaired by the use of marijuana pursuant to New York’s Driving While Ability Impaired by Drugs (DWAI Drugs) statute. The team of attorneys at Bleakley Platt & Schmidt is experienced in defending clients charged with driving under the influence of alcohol or drugs (such as marijuana). Please read below for the possible charges a person could face in New York for driving a car after consuming alcohol or drugs.

Legalization of Cannabis: What This Means for Employment Law in New York

Several years after legislation was first introduced, New York Governor Andrew Cuomo signed the Marijuana Regulation and Taxation Act into law on March 31st, 2021, making New York the state to have most recently legalized recreational marijuana use by individuals who are at least 21 years old. This act has been several years in the making, with medical cannabis use having been legalized in 2014 and minor marijuana related offences having been decriminalized in 2019. The Marijuana Regulation and Taxation Act goes into effect immediately, raising crucial questions about its implications for employment law in New York.

Commercial Finance Law and New York’s Truth in Lending Act

In July 2020, the State of New York passed the Truth in Lending Act, designed to improve transparency in borrowing costs. The bill requires clearer language from lenders so that businesses can more easily compare financing offers. According to the Responsible Business Lending Coalition, the bill requires all lenders to disclose annual percentage rate and repayment terms for loans. This law has important ramifications for lenders and has triggered further changes to State law regarding commercial finance.

How Biden’s Labor Department Pick Could Affect Construction Law in New York

Amidst many changes in the transition from a Trump to Biden presidency, one that stands out in particular is the nomination of Boston Mayor Marty Walsh as labor secretary. Mayor Walsh, a former leader of the Boston Building and Construction Trades Council and former head of the Laborer’s Union, boasts widespread union support and mirrors Biden’s agenda for a worker-friendly labor department. This nomination could have widespread impact on current construction law standards for New York builders.

New York’s Infrastructure Investments Spotlight Importance of Environmental Law

In the next few years, infrastructure and construction are expected to be among the most promising sectors contributing to post-pandemic economic recovery. Their prominent role is due, at least in part, to the $275 billion funding plan introduced by Governor Andrew Cuomo in February 2020. In order for these projects to receive funding and approval to begin, however, they will have to comply with environmental laws and regulations.

Recession and Vaccine Outlook Likely to Spur Private Mergers and Acquisitions Activity in 2021

As 2020 draws to a close, many private companies in our region are struggling to maintain profits and remain viable during the severe recession caused by the pandemic.  With several promising vaccines for the COVID-19 virus becoming available now, most business leaders believe that the pandemic will end this summer and the economy will rebound sharply in the second half of 2021. For many businesses, however, this may be too late. Private mergers and acquisitions activity in the Hudson Valley likely will accelerate in 2021 as local business owners evaluate the viability of their companies as currently structured and operated in the post-pandemic business environment. Some will be able to reconfigure business operations and others will seek to enter into corporate restructurings with competitors to survive, or to  salvage remaining assets and good will value.

Corporate Compliance Plans Protect Long-Term Care Facilities & Their Caregivers

As health care workers and long-term care facilities prepare to brave winter, the flu season, a possible resurgence of COVID-19 infections and regulatory scrutiny, enforcement and possible litigation, they can prepare by reviewing their corporate compliance plans and updating them as necessary to ensure compliance with applicable laws and regulations and to mitigate liability risks. It is particularly important to review and update corporate compliance plans this year for compliance with extensive federal and state health guidelines during COVID-19.