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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


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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

BREAKING: NYC Bans Employer Use of Credit Checks in Employment Decisions

Credit BillOn May 6, 2015 Mayor De Blasio signed into law Intro. 261-A, a Bill that prohibits employers, labor organizations, and employment agencies from using or requesting an applicant’s consumer credit history, and prevents them from discriminating against an applicant or employee based on their consumer credit history.  The law provides several exemptions, including the following: Law-enforcement personnel, employees who have to be bonded, and financial-service workers.  The law takes effect 120 days from signing.  A NYC government press release regarding the new law can be found here: Link

HR Implications:  A review of job descriptions should be conducted to assess whether any positions are covered by the exemptions. Candidate/employee screening for positions not covered by the exemptions must immediately cease using credit screening as part of the hiring/review process for job applicants and emplyees in NYC.  While we have mentioned in past blogs (see here) that a large number of federal courts have held that private employers may use applicant bankruptcy history in making employment decisions, HR would be wise to do an individualized assessment for each candidate subject to such screening to avoid a disparate impact violation under federal and state law for jobs outside of NYC.  Inside NYC such screening are now illegal under local law.

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

NYC Mayor Signs Bill to Resume Investigating Employment Discrimination Using Testers | #EmpLaw

042015_MayorBillSigningUPDATE: The mayor signed the bill described below on April 20, 2015, thus making it law.  A link with video is here.

BREAKING:  On March 31, 2015, the New York City Council (“Council”) passed a bill requiring the New York City Commission on Human Rights (“CHR”) to conduct, over a 12 month period, at least five (5) investigations of discrimination in employment using testers.  The bill is being touted by lawmakers as one strengthening the CHR.  However, the right to conduct such investigations already exists in the NYC Human Rights Law, to be exercised at the discretion of the CHR.  If signed by Mayor Bill de Blasio, the bill will have the effect of forcing the CHR to actually exercise its authority in this area for at least 5 times per year.  The bill was introduced by the Council’s Chair on Civil Rights, Councilwoman Darlene Mealy of Brooklyn.

The bill specifically requires that:

the commission shall use pairs of testers to investigate local employers, labor organizations or employment agencies and employees or agents thereof. Such investigations shall include but not be limited to using matched pairs of testers who shall apply for, inquire about or express interest in the same job and who shall be assigned similar credentials but who shall differ in one of the following characteristics: actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status, or other characteristic protected pursuant to title 8 of the administrative code of the city of New York. The first of the investigations shall commence on or before October 1, 2015.

The bill also requires the CHR to submit a report to the Speaker of the Council detailing the investigations conducted during the 12 month period.  The full text of the bill can be found here.  A similar bill requiring testing in housing discrimination was also passed.  It was introduced by Councilman Landers.  A summary of both bills can be found here. Both bills will be sent to the mayor for his signature.

HR Implications

Now more than ever, all staff involved in the hiring process must be trained on how to  draft lawful job ads, how to review credentials and applications, and/or how to conduct lawful interviews under New York City, State, and federal law, depending on their role in the process.  Testers from the NYC Commission on Human Rights will have as their mandate to see whether job candidates are treated differently due to their protected status. Therefore, knowledge of the specific protected classifications under the laws, and how to handle potential reasonable accommodation issues, is vital.  Document the training of staff involved in interviewing.

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.

Oral Pay Complaints To Supervisors Are Now Protected From Retaliation Under The FLSA In The Second Circuit.

show-me-the-money (1)Just a quick note to update THIS old post and indicate that employees in New York are now protected from retaliation under the Fair Labor Standards Act (FLSA) if they make an oral complaint to a company supervisor.

Back in 2011 I blogged on the U.S. Supreme Court decision Kasten v. Saint-Gobain Performance that said that oral employee complaints warrant retaliation protection under the FLSA.  It was significant in that it resolved a split at the federal circuit court level between circuits that held that the complaint had to be written and those that had said complaints could be oral.  However, at the time I noted that the decision was not a big change in New York because the Second Circuit decision in Lambert v. Genesee Hospital, 10 F. 3d 46, 55– 56 (CA2 1993) held that FLSA complaints had to be filed with the government in order to be protected under the statute. Complaints to company supervisors were not protected under the retaliation provision.    As I said in 2011, “[t]he Court specifically refused to decide the issue of whether a complaint needs to be filed with the government or whether filing it with the employer would suffice.” Thus, HR departments in New York had nothing to do in response to the Kasten decision (unless they heard that an employee had filed a FLSA complaint with the government).  However, yesterday this all changed when the Second Circuit reversed its Lambert decision and held that FLSA complaints to the employer warrant retaliation protection under the statute.  The case is Greathouse v. JHS Security.

HR Implications

The practical impact for HR and employers in general is that supervisors must be trained to notify HR when an employee has made a complaint about pay, and that they are not to take any actions against the employee that may be viewed as retaliatory without consulting HR first.  HR should create protocol of documenting oral complaints so that any cases that arise where the employee claims to have made an oral complaint when in fact no such complaint was made, the employer can show that it has a policy of consistently documenting oral complaints and that no document exists in that particular case because no oral complaint was ever made.

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