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Memphis Cheddar’s Settles EEOC Sexual Harassment Lawsuit for $450,000

Male Managers at Memphis Restaurant Sexually Harassed a Class of Female Employees, Federal Agency Charged

MEMPHIS – Mint Julep Restaurant Operations, LLC, an independent restaurant company and franchisee of the casual dining chain Cheddar’s Casual Café, will pay $450,000 to 15 individuals and furnish other relief to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

EEOC’s lawsuit charged Cheddar’s violated federal law by maintaining a hostile work environment at its Winchester Road restaurant in Memphis by permitting sexual conversations and jokes and by allowing a general manager and bar manager to subject several female employees to sexual harassment. According to EEOC’s lawsuit, among other things, Cheddar’s managers made requests for sexual favors and explicit sexual comments, and subjected female employees to unwelcome touching. EEOC further alleged that despite having received complaints from its female employees, Cheddar’s did not respond to those complaints in a prompt and appropriate manner.

Sexual harassment violates Title VII of the Civil Rights Act of 1964. Title VII’s prohibition against sexual harassment applies to all employees, including management officials. EEOC filed suit (EEOC v. Mint Julep Restaurant Operations, LLC, d/b/a Cheddar’s Casual Café, Civil Action No. 2:15-cv-02650) in U.S. District Court for the Western District of Tennessee, Western Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

Besides the monetary relief, the consent decree settling the suit includes:

  • mandatory anti-harassment training;
  • maintenance of workplace cameras;
  • monitoring workplace behavior;
  • notice of the settlement to Cheddar’s employees in its Memphis restaurant; and
  • reporting future complaints of sexual harassment to EEOC for three years.

“Having and disseminating an anti-harassment policy does not satisfy federal prohibitions against sexual harassment,” said Regional Attorney Faye Williams of EEOC’s Memphis District Office, which serves Tennessee, Arkansas and Northern Mississippi. “Employers must also enforce it. When an employer allows its managers to abuse its female employees in these ways and allows a sexually hostile work environment to persist, it is obviously not enforcing its anti-harassment policy. An unenforced policy is tantamount to having no policy at all.”

Mint Julep Restaurant Operations, LLC is the franchisee of at least 42 Cheddar’s Casual Cafés in Kentucky, Ohio, Indiana, Tennessee, Virginia, West Virginia and North Carolina. Its West Tennessee restaurants are located in Memphis, Cordova, and Jackson, Tenn.

EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its website at .

BLACK HISTORY MONTH: Clarence Mitchell Jr.’s Pivotal Role in the Passage of Title VII of the Civil Rights Act of 1964

Most people know of the role the National Association for the Advancement of Colored People (“NAACP”) and the legendary Thurgood Marshall played in knocking down “separate but equal” laws in public education via the landmark 1954 Brown v Board of Education U.S. Supreme Court decision, but how many know the role played by the NAACP’s Clarence Mitchell Jr. in getting Title VII passed?   We at Reid Kelly, P.C. find it particularly important to explore the life of this great lawyer, lobbyist, and strategist for civil rights, and how his work impacts the work that we are all currently engaged in.

Born in Baltimore, Maryland, on March 18, 1911, he led the struggle in Washington for passage of the civil rights laws, including Title VII.  He joined the national staff of the NAACP in Washington as Labor Secretary in 1946. From 1950 to 1978 he was Director of the NAACP Washington Bureau, as well as Legislative Chairman of the Leadership Conference on Civil Rights.  Working the halls of Congress, and the Executive Branch, Mitchell worked tirelessly behind the scenes ensuring that Title VII got the votes it needed to pass.

This was a very difficult time in the nation’s history.  Among other things, these incidents occurred while Title VII legislation was working its way through Congress:  Dr. Martin Luther King Jr. wrote his letter from a Birmingham jail on April 12, 1963; “Bull” Conner unleased fire hoses and police dogs on anti-segregationist demonstrators on May 2, 1963; Governor Wallace of Alabama literally stood in the door of the University of Alabama in an attempt to block integration of the school on June 11, 1963; Medgar Evers was assassinated on June 12, 1963; the March on Washington happened on August 27, 1963; The 16th Street Baptist Church in Birmingham, Alabama was bombed on Sunday, September 15, 1963, killing 4 little girls and injuring 22 others; and President Kennedy was assassinated on November 22, 1963.  Yet still Mr. Mitchell and the NAACP pressed on, now with new President Johnson, against the odds to get the law passed.   Indeed “[s]o legendary was Clarence Mitchell, Jr., as a civil rights lobbyist in Congress that he was popularly called the “101st senator.” See

Clarence Mitchell NAACP

Picture featuring Joseph Rauh, Clarence Mitchell Jr., and Roy Wilkins conferring about lobbying strategy on August 7, 1963.  Credit:

“His work encompassed the contributions of eight presidents, from Franklin D. Roosevelt to Jimmy Carter, in a mission to build a legacy of advocacy that won him the popular tribute of “101st senator,” and the Presidential Medal of Freedom. Every civil rights law from the 1957 Civil Rights Act to the 1968 Fair Housing Act, plus their strengthening provisions and constructive executive policies, bears his imprimatur.” IdClearly, as we celebrate Black History Month, and the ground breaking Civil Rights Act of 1964, and specifically Title VII, we must also celebrate the legacy and contributions of this great man, Clarence Mitchell Jr.  For more on his remarkable life, read Dr. Henry Louis Gates Jr.’s excellent piece HERE

*On a related note, we are all no doubt familiar with the contentious nature of the passage of the Civil Rights Act of 1964 in Congress, including the 14 hour filibuster by conservative Senator Robert C. Byrd.  However, did you know that among those that went to Capitol Hill to hear debate on the law were none other than Dr. Martin Luther King Jr. and Malcolm X? In fact, it was the only time that the two ever met, and lasted only a few minutes.  It was captured in this now famous photograph.

 King Meets X






Don’t Get Snowed In by Snow Day Pay Questions | #HR #EmpLaw

“It reminded me of what Dad said after every snail’s crawl home from Albany when snow hit. “It’s New York, people. It’s winter. We get snow. If you aren’t prepared to deal with it, move to Miami.”― Kelley Armstrong, Dangerous

Like it or not, the winter is upon us, and around here winter usually means snow is on the way.  Since we’re not moving to Miami, we have to deal with it.  Part of dealing with it in HR is answering the question that always comes up when snow days arrive: Do we have to pay employees for snow days?  For inclement weather in general, the answer depends on a number of factors, including whether the office is closed, the status of the employee in terms of being exempt or non-exempt from overtime pay under wage and hour laws, and whether the employee actually performs any work during the snow day.

  1. Snow Pay for Non-Exempt Employees: No Work, No Pay

sad-confused-snowmanThe Fair Labor Standards Act (FLSA) is the federal wage and hour law that covers employee pay, including minimum wage and overtime, and governs the question of in which situations employees must be paid for time missed at work because of bad weather.  For employees who are not exempt from the overtime provisions of the FLSA (commonly referred to as “hourly” employees) , the answer is clear: Absent an employer policy or agreement to the contrary, those employees do not have to be paid for any time they did not work, regardless of the reason.   This also holds true under New York law.

Despite this, to be competitive, we find that some larger employers elect to pay non-exempt employees for a half-day or more, even if those employees are only at work for a few hours.  Some choose to pay employees for all hours missed because of an office closing due to poor weather. Others choose to allow employees to use accrued paid time off during an office closure. However, again, these payments are not required by law and are entirely up to company policy. Ultimately, the law regarding non-exempt employees is simply that absent a company policy or agreement to the contrary, they only need to be paid for time in which they actually perform work.

  1. Snow Pay for Exempt Employees: It Depends

Unlike hourly non-exempt employees, the question of whether exempt employees who miss work because their employer was closed or the weather prevented them from coming into the office should be paid is somewhat complicated.

Office is Closed: Pay Full Week Unless Closed for a Full Week

Assuming that you have already consulted with experienced labor counsel and properly determined that the particular employees are exempt under FLSA and NY law, FLSA regulations require that an exempt employee receive their full salary for any week in which they perform any work, regardless of how many hours or days they actually work.  An exception exists where the employee performs no work during an entire week.   Therefore, if the office is closed due to poor weather (or other emergency), the employer must pay all exempt employees their full salary and must not deduct any pay for time not worked.  FLSA regulations provide that if exempt employees are “ready, willing and able to work, deductions may not be made for when work is not available” [29 C.F.R. § 541.602(a)]. Again, the only exception to this is where the office is closed for an entire workweek, thereby enabling the employer to deduct the entire workweek from the employee’s pay.

According to U.S. Department of Labor opinion letters (USDOL), established bona fide company policies may require exempt employees to use paid leave time (personal, sick, vacation) for the missed days when the office is closed (U.S. Department of Labor Opinion Letter FLSA2005-41) (*New York City’s Paid Sick Leave Law likely prohibits requiring employees to use paid sick time in this manner).  However, if the employee has no accrued leave, they must “still receive the employee’s guaranteed salary for any absence(s) occasioned by the employer or the operating requirements of the business.”  In short, snow days become paid days off from work for those exempt employees without accrued paid time off.

Office Stays Open: Deduct Full-Day Absences

NoSnowDayOn the other hand, if the office stays open, but the employee does not make it to the office due to bad weather or related transportation issues, deductions may be made from the employee’s pay for each full-day absence.  This is because the USDOL deems such absences to be “personal” in nature such that a deduction may be made for any full day missed without jeopardizing the exemption (DOL Opinion Letter FLSA2005- 46).  However, in cases where exempt employees work less than a full day due to bad weather, the employee must still be paid as if a full day was worked, because salary deductions for less than full-day absences are prohibited under the FLSA (Id.).  Nevertheless, in the case of an exempt employee not reporting to work when the office is open, or working less than a full day, if the employee has accrued paid leave, the employer may require that it be taken (DOL Opinion Letter FLSA2005-41).

There you have it.  Now you can weather the impending flurry of employee questions regarding snow day pay and not feel like you’re skating on thin ice!

DISCLAIMER: This site and any information contained herein, including this Blog entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Planning the Company Holiday Party: An Employment Law Guide for HR | #EmpLaw #HR

*If you found this page because you searched whether your Company can force you to attend its holiday party, read #4 below or click here: Mandatory Company Holiday Party?

5 Tips for HR to Help Employers Avoid

Holiday Party-related Legal Liability

 “Angela drafted me into the party planning committee. Her memo said that we need to prepare for every possible disaster.  Which to me, seems… excessive”.

– Ryan Howard, in a holiday episode of The Office.

OfficePartyThe good news is that the holidays are here!  The bad news is that Angela is right!  So, if you are in HR, and you are tasked with planning the annual company holiday party, you should plan for all sorts of possible trouble.  Aside from the usual challenges of party planning (choosing the party favors, decorations, menu items, music, liquor choices, etc.), company holiday parties also come with an additional list of potential headaches that can lead to significant legal liability for the company if they are not adequately planned for.  This article will identify some of those issues, and give you tips on how to plan for them and limit or avoid liability for your company.

Let me start by saying that this is NOT an article about how to avoid destroying your career at the company holiday party.  The internet has some excellent materials offering advice on proper company party etiquette.  Needless to say though, don’t drink if you can’t hold your liquor, avoid telling edgy jokes, stay away from politics and religion, and don’t talk your boss’s ear off with shop talk.  Oh, and don’t be the creepy person hanging out under the mistletoe! (more on the mistletoe later).  This may seem like common sense, but every year you will see one or more of your co-workers violating some or all of these unwritten rules.  It looks especially bad when the offending employee works in HR.  Don’t let that employee be you this year!

Now, let’s get to the serious business of protecting the company from holiday party-related liability.  As much as I detest the current proliferation of “10 Tips” styled articles, I have distilled this information into 5 helpful tips for you.  Here goes:

1.  Control the Holiday Spirits:

By this I mean, to the extent that you choose to serve any alcohol, you should limit how much alcohol any one person can have.  So-called “dram shop” laws hold companies liable for the acts of their intoxicated patrons/employees who drink and later caOffice Drinkinguse injury to another.  So, controlling alcohol consumption is key to avoiding such liability.  A good way to accomplish this is by issuing 2 drink tickets per person (watch for employees getting extra tickets from their co-workers!).  You can also close the bar a few hours before the end of the party.  In addition, try to see to it that at least finger foods are consumed prior to opening the bar.  It will help reduce the effects of the alcohol once people start drinking.  Also, have a clear policy for servers not to serve alcohol to visibly intoxicated employees.  Lastly, have a plan to arrange cab service or carpooling for intoxicated employees.

2.  Company Holiday Party, NOT Company Holy-Day Party:

  Be wary of religious discrimination issues.  While the EEOC and courts take the position that certain holiday decorations are secular in nature (i.e., wreaths, Christmas trees, and Santa Clause), and that employers do not have to put up decorations associated with other religions, the EEOC also says that if an employee objects to particular mandatory holiday customs or practices on religious grounds, the employer may have to offer a Michael Scott as Jesusreasonable accommodation to the objecting employee.

Of course, the employee must have a sincerely held religious belief before a duty to accommodate would be triggered, and the requested accommodation must be reasonable and not cause the employer undue hardship.  What that accommodation could look like is case-specific, but if your holiday party is mandatory for employees to attend, and includes religious readings or a religious play, the accommodation could include allowing the employee not to attend the holiday party (or that part of it), or allowing them to have a separate (perhaps smaller) party or gathering if the numbers warrant it.  It is clear that you cannot force employees to participate in a religious activity, regardless of what the activity is called.   If the party is not mandatory for employees to attend, you can simply tell the employee that they do not have to attend.

If you find yourself grappling with this issue in the planning stage, then refocus on the purpose of the holiday party.  Since the thought behind company holiday parties is usually to foster a sense of togetherness and boost the morale of the staff, it would seem wise that if your workforce has a number of different religions, you should find a way to incorporate the symbolism of each in small ways, or alternatively, reduce the references to each so as not to put religion as the central focus of the gathering.  After all, you want as many employees to attend and enjoy the party as possible.

3.  No Place for “The Forbidden Dance”: 

Every year it seems party planners are stressing out on how to make this year’s festivities better than the year before.  There are many ways to achieve this ever-illusive goal.  However, I beg of you! In your quest to create the most awesome holiday party ever, please DO NOT include a “dance-off” or “dancing with the stars” competition to the party!  Unless you want ruptured Achilles tendons, pulledWC risk partying employee muscles, groin pulls, herniated discs, and/or heart attacks, I would strongly advise against including or allowing such competitions in the party, whether formal or informal.  Not only would any medical emergency sustained in the dance-off effectively kill the holiday spirit and bring an abrupt end to the party, but the resultant injuries will most likely implicate your workers compensation coverage, and could also cause FMLA and/or ADA issues to arise.  So, instead of the dance-off, opt for less physical activities, like singing, and/or board or computer games (not Wii Fit though!).

 4.  Paid to Party if Made to Party:

Simply put, most wage & hour laws say that if you require employees to attend the holiday party, you must pay them for the time they spend there.  This comes up in situations where the company president plans to make a speech or presentation about the past year’s performance and upcoming year’s goals, and so OfficePaycheckdeems that attendance at the party is mandatory.   If the party occurs during normal work hours, the employees are being paid anyway.  However, in many companies the party is scheduled after work hours.  In those situations, if attendance is mandatory, the employees that attend must be paid.   For non-exempt employees that work more than 40 hours that week, including time spent at the mandatory party, this will mean they get overtime pay.   My advice?  Make attendance optional.  Most will attend anyway because . . .  it’s a party!

 5.  Say NO to Mistletoe:

While a playful holiday kiss under the mistletoe can be just the thing needed to kick off the holidays at home with your spouse, it can also be the start to something unlawful at a company holiday party.  Joe from accounting may see this mistletoe moment as his best chance to show Susan from marketing how good of a kisser he is.  Why? Because if it doesn’t work out well, he can always point to the “tradition” of kissing under the mistletoe as an excuse for his conduct.  It’s not just about the mistletoe though.  Something about company holiday parties seems to bring out the romantic (or creep, depending on the situation) in some people. Whether it’s the title “party” or the alcohol, some peopleToddMistletoe get the idea that the company holiday party is the perfect setting for them to act on their attractions.

Thus, the weeks leading up to the holiday party is a great time to refresh the staff’s memory regarding the company anti-harassment policy, and dress code policy.  Emphasize to them that the company has a zero tolerance for any sort of harassment, and remind them that inappropriate touching, jokes and remarks are included within that.  As for dress code, while employees should be permitted to dress up for the party if they choose, they should be guided to dress in clothes that are not too revealing.  Examples of appropriate clothing should be shown to them if it is different from what is commonly understood to be “business casual”.  Make it clear that the company reserves the right to refuse anyone entry to the party if they are in violation of the dress code.  In addition, make it clear that employees that violate the anti-harassment policy can be disciplined for their conduct at the party the same as if it occurred while working.

So there you have it.  While eliminating excessive consumption of alcohol, wild dancing, and awkward pick-up behavior may reduce the entertainment value for some employees, your primary goal as someone responsible for planning the party is to make it a safe and appropriate company holiday party.  Parties don’t have to be wild and crazy to be enjoyable, and those that are wild and crazy are, for good reason, typically not company- sponsored ones.  With these 5 tips, you can now make sure that everyone has a great party, and the start of your company’s new year is not blighted by having to defend a lawsuit born out of a poorly planned company holiday party.

With that, I am sure you will have a have a happy holidays, and a superb new year!

DISCLAIMER: This site and any information contained herein, including this Blog entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Tis the Season for Holiday Cheer, . . . and Layoffs

Calm GoodbyeAh, the holidays!  Like most people, this is my favorite time of the year.  A time when we think of others, spend time with family and friends, and probably eat too much.  For many, it’s also a time when they might even get a decent bonus at work! What’s not to like about the holidays?  Well, layoffs, for one!

For the purposes of this post I use the term “layoffs” loosely because I include run of the mill terminations in the definition, despite the fact that layoffs typically are forced due to economic reasons or a shift in business strategy, while terminations are not.

Layoffs tend to spike at this time of the year (except in retail), probably due in large part to year end considerations, including bonuses, and planning for the New Year (See Here for a deeper look at this issue).   So, for employment lawyers like me, this is the time of year when we see an increase in demand for our services in advising businesses and employees on how to navigate layoffs.  Why some businesses don’t conduct these layoffs earlier, say in September or October, is not clear to me.

There’s no disputing that December layoffs suck worse than perhaps any other, second only to maybe a birthday layoff, or one occurring during or shortly after a medical procedure.   The person laid off will unquestionably hate the company for the rest of their life, and the morale of the remaining employees  will be rock bottom.  You can see it in their faces during that “inspirational” CEO speech at the holiday party.  It will not matter what the CEO says in his speech.  He will appear to the employees as Ebenezer Scrooge, or the Grinch.

But I digress.  Assuming that the layoffs are actually a business necessity, they simply have to be done.  So, here are a few tips to help you anticipate issues that may arise during the severance negotiations.  The list is good for both businesses and employees.  Of course, each person’s situation is different, and factors such as years of service, job function, performance history, company finances, etc., may be weighed differently from case to case.  The list is meant only to stimulate thought and discussion on items typically addressed in severance and/or separation agreements.

Of course, I do not recommend that you go it alone.  Businesses and employees should consult with experienced employment counsel prior to engaging in severance discussions.  A proper analysis of potential exposure under labor and employment laws should be done as relates to the particular employee being considered for layoff/termination, and for the big shots out there be sure to comply with Section 409A of the Internal Revenue Code.  *It should also be noted that not all layoffs or terminations result in a severance payment to the former employee.

Severance Negotiations Prep Checklist

A.  Consider Commitments Made in the Following Documents:

Hire/Promotion Documents

  • Offer Letter
  • Welcome Package
  • Employee Handbook
  • E-mails
  • Stock Option Grants, Plan Documents

Company Policies

  • Vacation Pay
  • Sick Pay
  • Personal Days
  • Bonuses
  • Commissions
  • Expenses
  • Company Equipment

B.  Anticipate Separation Agreement Language on:

  • Non-compete/Solicitation
  • Non-Disparagement
  • Non-Admission
  • Reference Letters/phone calls
  • Description of the termination

C.  Know Company Severance Precedent

  • Seniority
  • Average time between jobs
  • Lump sum
  • Insurance
  • Voicemail

DISCLAIMER: This site and any information contained herein, including this Blog entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Free Queens Small Business Employment Law Seminar #HR: Hiring Right 11/6


Employment law seminar: Hiring Right! Join Labor & Employment attorney Shaun C. Reid, Esq. of Reid Kelly, P.C., along with NYC Business Solutions on November 6, 2015, for a free seminar on hiring, managing, and firing employees in compliance with today’s labor and employment laws. Attend in person or via webinar.


Do you want to avoid making mistakes in hiring that can expose your business to lawsuits? In this class, you will learn about the many laws affecting how you manage employees, from hiring to firing.

You will learn about: 

  • Laws covering the hiring process
  • Job posting and Sourcing
  • References and background checks
  • 10 Tips to Avoid Lawsuits


Friday, November 6, 2015 from 10:00 AM to 12:00 PM (EDT)


NYC Business Solutions Center
168-25 Jamaica Ave, 2nd Floor, Jamaica, NY 11432


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FREE Brooklyn Small Business Employment Law #HR Seminar: Hiring Right Oct. 21st



Hiring Right! Join Labor & Employment attorney Shaun C. Reid, Esq. of Reid Kelly, P.C., and NYC Business Solutions on October 21, 2015, for a free seminar on hiring, managing, and firing employees in compliance with today’s labor and employment laws.


Do you want to avoid making mistakes in hiring that can expose your business to lawsuits? In this class, you will learn about the many laws affecting how you manage employees, from hiring to firing.

You will learn about: 

•         Laws covering the hiring process
•         Job posting and Sourcing
•         References and background checks
•         10 Tips to Avoid Lawsuits


Wednesday, October 21, 2015 from 5:00 PM to 7:00 PM (EDT)


NYC Business Solutions Brooklyn Center
9 Bond Street, 5th Floor
Brooklyn, NY 11201


2014 midyear

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Halloween Office Party?  Avoid Horrific Lawsuits

Just a short note about office Halloween parties.  Pretty much everyone I know likes to party, including me.  So, I’m not writing this to be a party pooper or discourage partying in general.  However, as with other office holiday parties, Halloween parties in the office are very different to private holiday parties amongst friends.  Along with the usual caveats about serving alcohol to employees (don’t do it! or at least set real controls), here are some things to consider prior to holding an office Halloween party.

Offensive Costumes: Who invited Hitler?

Don’t assume your employees will exercise good judgment in picking their costumes.  Adolf Hitler, Ku Klux Klan, black face, scantily dressed characters, costumes making fun of employees specific protected characteristics (age, handicap, race, religion, etc.), should all be strictly prohibited.  Im not making this stuff up.  These are all cases involving allegations about halloween behavior and/or costumes: Taylor v. Renfro Corp., 84 F. Supp. 2d 1248, 1250 (N.D. Ala. 2000) (male employee made inappropriate comments on the “tail” on female employee’s cat costume); Devane v. Sears Home Improvement Products Inc., 2003 Minn. App. LEXIS 1514 (Minn. Dec. 23, 2003) (male employee gestured to his groin telling female employee in a doctor costume “it hurts”); Tindle v. Caudell, 56 F.3d 966, 968 (8th Cir. 1995) (employee wore blackface, an afro wig, and carried a watermellon).

And watch out for the cheeky Austin Powers costume.  He’s surely a walking sexual harassment lawsuit (see Panelli v. First American Title Insurance Company, 704 F.Supp.2d 1016 (Dist. Court, D. Nevada 2010) (managers would “grab their nipples and dance like Austin Powers”).  Who would wear such things, you ask?  Well, that’s the point.  You don’t want to find out at your office Halloween party.  I recognize that it’s difficult to specifically list all of the banned costumes, and that broad prohibitions on offensive costumes won’t provide clear guidance to your employees.  So what’s one to do?

Well, if you’re more risk tolerant than I am, you can do your best to give your employees notice of the type of costumes that are not permitted, then go ahead and have a great party (See! I told you I’m not a party pooper!).  Alternatively, you can have a particular theme to your Halloween party – such as Star Trek, Star Wars, kids’ cartoons, etc.  Add a general prohibition on body suits and revealing clothes, and go for it.  You can also have the party without costumes.  A Halloween party without costumes?! Yes.  Studies show that employees would still enjoy music, food, and not doing work.  I’m joking about the studies but have no doubt they would show what I say.    Of course, you can simply not have the party.

There in Spirit: Attendance Optional

As with other holiday parties, attendance at the office Halloween party should be optional (see Morales v. PNC Bank N.A., 2011 U.S. Dist. Lexis 86918 (E.D. Pa. August 4, 2011)(employee JehovaWitness should not be forced to attend halloween party against their religious practice). In addition, if attendance is mandatory, you must pay employees for their time, and you should reasonably accommodate the requests of employees who object to attending the party on religious grounds.

The End is Near

No, not YOUR end.  I mean the end of this post.  Sorry to fill your head with thoughts of scary lawsuits, but unlike the ghosts and ghouls of Halloween, employee lawsuits based on harassment and/or hostile environment are very real and can haunt your business for years.  See what I did there? Until next time, have a frighteningly good time.

With the experience and expertise of a large law firm, and the flexibility and lower costs of a small law firm, Reid Kelly, P.C. is committed to ensuring that small companies, and not-for-profits, have access to competent representation in labor, employment, and immigration law matters at rates that are reasonable and affordable.  For more information, call us at (718) 412-8452.

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel in your jurisdiction for advice on any legal matter.

Domestic Violence Awareness Month: Employment Law Protections for Victims


October is National Domestic Violence Awareness Month.  As a labor & employment law firm, Reid Kelly, P.C. writes this entry to raise awareness of some of the employment law protections afforded victims of domestic violence.

Domestic violence is a huge problem in our society.  It crosses all lines, including economic, political, cultural, and racial.  Some significant facts are that:

  • Every 9 seconds in the US a woman is assaulted or beaten.
  • Around the world, at least one in every three women has been beaten, coerced into sex or otherwise abused during her lifetime. Most often, the abuser is a member of her own family.
  • Domestic violence is the leading cause of injury to women—more than car accidents, muggings, and rapes combined.
  • Studies suggest that up to 10 million children witness some form of domestic violence annually.
  • Nearly 1 in 5 teenage girls who have been in a relationship said a boyfriend threatened violence or self-harm if presented with a breakup.
  • Every day in the US, more than three women are murdered by their husbands or boyfriends.
  • Ninety-two percent of women surveyed listed reducing domestic violence and sexual assault as their top concern.
  • Domestic violence victims lose nearly 8 million days of paid work per year in the US alone—the equivalent of 32,000 full-time jobs.
  • Based on reports from 10 countries, between 55 percent and 95 percent of women who had been physically abused by their partners had never contacted non-governmental organizations, shelters, or the police for help.
  • The costs of intimate partner violence in the US alone exceed $5.8 billion per year: $4.1 billion are for direct medical and health care services, while productivity losses account for nearly $1.8 billion.
  • Men who as children witnessed their parents’ domestic violence were twice as likely to abuse their own wives than sons of nonviolent parents.

A typical domestic violence scenario involves the victim having to flee his/her home to escape life threatening abuse to themselves and/or their children.  In many cases, the victim is economically dependent on the batterer, making it that much harder for the victim to flee.  Given the disruption domestic violence brings to the lives of victims, it should come as no surprise that its effects often spill over into the workplace.  In the employment context, victims of domestic violence are often victimized twice.  Once by their batterer, and once more by an unsympathetic employer that terminates their employment.  This often happens because victims of domestic violence may need to take time off from work to get a restraining order, medical attention, or to get emergency housing situated.

Sadly, many employers see this time off as an abuse of their time and attendance policies, or view the victim as creating an acute safety issue at the workplace, fearing that the batterer may show up and become violent at the worksite.  Recognizing the unique circumstances facing victims of domestic violence, legislatures around the country have enacted laws specifically targeted at providing victims of domestic violence with employment protections.  These laws are designed to protect the jobs of the victims, and to provide them with the necessary time to get the medical, judicial, and housing assistance they need to enable them to flee their batterer and protect their lives and that of their children.

While this article focuses on the law in New York City, the following jurisdictions have similar laws providing employment protections for victims of domestic violence:  California, Colorado, Connecticut, District of Columbia, Florida, Miami-Dade County, Fla, Hawaii, Illinois, Kansas, Maine, New Mexico, New York, Westchester County, NY, North Carolina, Oregon, Philadelphia, Pa, Rhode Island, and Washington.

New York City has a Commission on Human Rights that is responsible for enforcing the New York City Human Rights Law (“NYCHRL” or the “Law”). The Law applies to employers with 4 or more employees, and prohibits discrimination in hiring and firing as well as work assignments, salary, benefits, promotions, performance evaluations, and discipline based upon race, color, creed, age, national origin, alienage or citizenship status, gender (including gender identity and sexual harassment), sexual orientation, disability, arrest or conviction record, marital status, or partnership status.  The Law also prohibits your employer from making statements, asking questions during interviews or circulating job announcements that suggest a preference for or prejudice against hiring individuals based on the groups listed above. The Law also applies to employment agencies and labor organizations.   See N.Y.C.  Admin. Code §8-107.

In 2001, the Law was amended to add status as a victim of domestic violence to the above list of protected classes with regard to employment.  The law was amended again in December 2003, protecting victims of domestic violence, sex offenses, and stalking in the workplace.  Essentially, the Law now requires all employers provide reasonable accommodation to victims of these crimes.  Under this provision, the NYCHRL prohibits an employer from refusing to hire, discharging, or discriminating against an individual because the individual is or is perceived to be a victim of domestic violence, sex offenses or stalking. As such, unlawful discrimination includes taking actions against a victim or perceived victim.  An employer is required to make reasonable accommodations for a victim to permit her or him to perform the “essential requisites” of the job, unless doing so would be an “undue hardship” for an employer.

It is clear in the legislative history of the law that the New York City legislature intended that reasonable accommodations under this provision could include providing victims with time off or a modified work schedule.  Employers presented with a request for accommodation under this provision may require the employee to provide certification that he or she is a victim. Such certification may come in a variety of forms, including: documentation from a victim services agency, attorney, clergy member, medical or other professional services provider; a police or court record; or “other corroborating evidence.” The request for accommodations and any documentation provided, including the fact of the domestic violence, must be kept confidential by the employer.  Simply put, the law provides that if they are a victim of domestic abuse:


•             Entitled to unpaid leave for medical appointments/social services, attorney consultations, and court dates.

•             Entitled to unpaid leave to move and get settled in a new residence.

•             Entitled to a transfer to another worksite away from the batterer.

•             Required to provide proof that they are a victim.


•             Release any of the information the victim provides except when disclosure is required by applicable federal, state, or local law.

•             Fire the victim, refuse to hire them, or otherwise discriminate in terms or conditions of employment based on their status as a victim.

See N.Y.C Admin. Code §8-107.

How this can play out in application is illustrated in an actual matter that I counseled a client on.  The employee/victim worked in one of my client’s locations in the NYC borough of The Bronx.  She fled her abuser, and was concerned that he may try to find her at her job.  She asked for a transfer to one of my client’s locations in the borough of Queens, the closest to the domestic violence shelter that she was assigned to.  My client called to get my advice on what they should do, and we discussed the meaning of “reasonable accommodation” and “undue hardship” under the Law.  In my client’s case, it was not an undue hardship to grant the transfer, because he had an opening in a Queens store.  It is important to note that my client is not unionized.  I imagine it could get a little more complicated in a unionized environment if seniority governs transfers and the union is unsympathetic.   However, that is for discussion at another time!

As you can see from the above, laws like the NYCHRL give victims of domestic violence much needed employment protections at the critical time period when they are experiencing serious trauma and disruption in their private lives.  It requires the employer to pause, look at the employee’s predicament, and grant any requested reasonable accommodation that would enable the employee to remain employed while he/she flees their batterer.  Remaining employed is sometimes the only way for the victim to avoid having to return to the batterer for economic means.  This can be a life saver.

Also mentioned above is the fact that many local jurisdictions have laws similar to the NYCHRL.  However, many jurisdictions do not.  As blogged here ( by my friend Eric Meyer, there are some federal legislative efforts to enact national employment protections for victims of domestic violence.  We shall pay close attention to these developments.  In the meantime, while this article focuses on laws that specifically protect victims of domestic violence, be aware that most states also have laws protecting victims of crimes from being terminated for cooperating with investigations, and/or testifying in court.  In addition, existing federal laws covering medical and family leave (“FMLA”), and disability leave (“ADA”), may also apply to protect the jobs of victims of domestic violence in certain circumstances.  Still, even combined, none of these laws provide the type of relief that laws that are specifically drafted to protect the jobs of domestic violence victims provide.  Employers in jurisdictions with these laws should include policies in their employee handbook, and make sure that managers are trained on the policies.  From a compliance standpoint, as with all situations, employers should look at the facts and then determine which laws may apply.  Consultation with experienced labor and employment counsel is strongly advised.

If you, or anyone you know is a victim of domestic violence, log onto, or call 1-800-799-SAFE for referrals to local resources for victims of domestic violence.

With the experience and expertise of a large law firm, and the flexibility and lower costs of a small law firm, Reid Kelly, P.C. is committed to ensuring that small companies, and not-for-profits, have access to competent representation in labor, employment, and immigration law matters at rates that are reasonable and affordable.  For more information, call us at (718) 412-8452.

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

BREAKING: NYC Passes “Ban the Box” Legislation Limiting Criminal Background Checks for Job Applicants

On June 10, 2015 the NYC Council passed “ban the box” legislation limiting NYC employers from conducting criminal record checks of candidates for employment prior to making a conditional offer of employment.  The bill has been forwarded to the Mayor for his signature.  More details on the bill can be found here.  The bill’s text is here.

Ban Box

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