As we all know, there is only one issue in the news right now: the novel coronavirus (COVID-19), its varied impacts upon global societies, and the increasingly extraordinary measures being taken by nations, states and local governments to minimize the adverse health consequences to vulnerable populations.
If you are a New Yorker reading this article, you are no doubt seriously worried about the possibility of contracting the virus. Even for the relatively young and healthy among us, the fear of community spread to family and friends who may be elderly or immunocompromised is very real, as they are at heightened risk of serious health complications.
Here in New York City, as public schools and many businesses have been closed for the foreseeable future, people are wondering how this constantly evolving situation may impact their livelihoods, and are looking for ways to survive what may be a potentially long and painful period of economic pain.
This article will provide some helpful information for employees and employers looking for some relief in these difficult times.
Information for Affected NYC Employees
Many businesses in the service and hospitality sectors have already been ordered to close by city and state governments. Additionally, many other businesses have either been forced to shutter or have vastly reduced staffing levels due to serious decline in customers and revenues as most New Yorkers begin to shelter in place.
If you have been laid off or furloughed by your employer, you should immediately apply for unemployment insurance benefits, as New York has waived the normal seven-day waiting period before filing a claim.
This means that workers who lose their jobs or experience a reduction in their work hours can immediately receive partial income replacement. To file a claim, visit labor.ny.gov or call 888-209-8124 during regular business hours.
Due to a very high volume of claims being filed, the state Department of Labor has experienced some slowdown issues and website crashes in recent days due to an overloaded server, so you may have to try several different times before completing a successful application.
Remember, unemployment benefits currently last up to 26 weeks and for most workers only provide a partial income replacement, but they may be a crucial lifeline for those looking to meet basic needs during this pandemic.
If you are fortunate enough to still have a job at this time, please do your best to practice social distancing to the greatest extent practical during your commute and in the workplace, keeping at least six feet away from other people if at all possible. Wash your hands frequently and avoid touching your face or physical contact with coworkers and customers.
Should you begin to feel symptoms of an illness, you should inform your employer immediately and cease working right away. Most New York City employees are guaranteed at least 40 hours per year of job-protected sick leave, which are also paid sick days for those working for employers with five or more employees. Workers should not hesitate to use such paid leave if needed, in order to protect their fellow New Yorkers from possible transmission.
If you are healthy, but are unable to work because you must provide care for a family member who is ill, you may be entitled to receive partial wage replacement for up to ten weeks through New York’s paid family leave program.
In order to qualify, the person requiring care would have to be certified by a health practitioner as having a “serious health condition.” For more information about filing a claim for paid family leave benefits, visit paidfamilyleave.ny.gov or call 844-337-6303 during regular business hours.
Information for Affected NYC Employers
If you are a business owner fortunate enough to still be operating at this precarious time, you are likely to face a number of very difficult choices as you try to stay afloat over the coming months.
In order to keep your employees healthy and working, your best bet is to regularly clean and disinfect all workplace surfaces, and to physically separate employees as much as possible to limit opportunities for disease transmission. While employers could require employees to wear personal protective equipment, such as respirator masks and disposable gloves in the workplace, these items are in extremely short supply and thus difficult to obtain, and their use by healthy individuals is not recommended by the Centers for Disease Control.
In industries where it is feasible to do so, employers should strongly consider allowing employees to work from their homes. However, before doing so, employers should carefully review their policies and procedures for remote work to ensure that they are in full compliance with all employment laws and regulations, including having appropriate procedures in place to track the time worked by hourly, non-overtime-exempt employees.
Perhaps the most difficult decisions that employers may have to make will involve balancing the desire to financially assist struggling, furloughed employees with the need to ensure that a business remains viable through what many experts now expect to be a lengthy economic recession.
The federal government is currently working on coronavirus stimulus legislation, which hopefully will include assistance for businesses in the form of tax credits, filing extensions, and other economic relief.
In the meantime, small businesses that have seen a dramatic drop in revenues and which lack access to credit may be able to obtain low interest working capital loans of up to $2 million from the United States Small Business Administration. Visit sba.gov/disaster or call 800-659-2955 for information on eligibility and to apply.
City businesses with fewer than 100 employees who have seen sales decreases of 25 percent or more will be eligible for zero interest loans of up to $75,000 to help mitigate losses in profit, while the smallest city businesses with fewer than five employees may be eligible for grants to cover 40 percent of payroll costs for two months. For more information and to apply, visit nyc.gov/sbs.
It has been over 100 years since the last viral pandemic of this magnitude, the Spanish Flu outbreak of 1918. Because of this, there is no appropriate modern-day precedent for what we will face over the coming weeks and months.
It is vital that employers and employees throughout New York City all do their best to work with one another to ensure our common safety and survival. We will get through this crisis together, and there will be better days ahead.
Read more: Queens Ledger – COVID 19 Response Employment Impacts for New York Workers and Businesses
Could You Be Liable If a Customer Harasses Your Employee?
Employers must address sexual harassment by customers in addition to harassment by other employers. Courts can hold employers accountable if they fail to take reasonable actions to prohibit a hostile work environment and protect an employee. While the “customer is always right” is a maxim that people in business try to follow, under these circumstances the customer is not right.
EEOC v. Costco Wholesale Corp.
A case in point is the EEOC v. Costco Wholesale Corp. case. The U.S. Court of Appeals for the Seventh Circuit reviewed the case and in 2018 ruled in favor of the EEOC.
A customer stalked a Costco employee for over a year. The employee reported the stalking to her managers. However, because the managers did not believe the harassment was severely sexual in nature, they did not take stronger actions quickly enough to prevent it. After some time, Costco did tell the customer to leave the employee alone. In fact, Costco eventually banned the customer from the store where the employee worked. However, these actions were taken after constant encounters that lasted over more than a year where the customer repeatedly stalked the employee. He constantly asked her personal questions, touched her on several occasions and then came in disguise to observe her and later on, even took a video of her.
After her third interaction with the customer, the employee filed a police report about the stalking. Subsequently, the police called the Assistant General Manager about the report, and as a result he yelled at the employee and told her to be nice to the customer. The police interviewed the customer but did not charge or arrest him. Even so, a report was filed about the customer’s stalking. More than a year later, after numerous encounters, the employee secured a Stalking No Contact Order against the customer that prohibited him from approaching her at her residence or place of employment for 21 days. When the order expired she renewed it, and the order was in effect for a year.
After more than a year of stalking, the employee went on medical leave, at which point the general manager investigated and sent the customer a notification that they were aware of the employee’s complaints. The general manager directed the customer to shop at a different Costco store, one that was equidistant from his home.
The Appellate Court’s Finding
Under the Illinois Stalking No Contact Order Act, the appellate court concluded that the customer had violated the act through his behavior and had caused “emotional distress” and “significant mental suffering, anxiety or alarm.” The customer had in fact also violated the no-contact order. (Keep in mind that New York also has a stalking law that prohibits stalking.)
Costco did not argue that it failed to take reasonable steps to bring the harassment to an end, and therefore, the court did not address it.
Our attorneys at Stephen Hans & Associates have decades of experience representing employers in work-related issues.
More Potential Penalties for Employers
Potential penalties for employers are likely to result from the amendments to the New York State Anti-Harassment Law. As the repercussions of the amendments become clearer to employers, more businesses will establish anti-discrimination work policies. Revised anti-harassment policies and stricter enforcement of them may help prevent lawsuits.
Potential Penalties that Employers Face Financially
The recent amendments enable an employee, who wins an employment discrimination case against an employer, to receive punitive damages.
What are punitive damages? A court can award punitive damages in a civil lawsuit to punish the defendant or deter the defendant’s future engagement in the same type of conduct. These are monetary amounts that the defendant must pay to the plaintiff and are also called exemplary damages. Courts award such damages in addition to other damages awarded in a case. In most cases, courts award punitive damages when the conduct is willful and intentional. (Cornell Law)
Recovery of Attorney’s Fees
Another potential monetary penalty that employers face if the plaintiff wins the case is a penalty of having to pay the plaintiff’s attorney’s fees. However, the same is not true if the employer (as the defendant) wins the case. The court will only have the employee pay the employer attorney’s fees if it can be proven that the action or proceeding filed by the employee was a frivolous lawsuit.
Seek Legal Advice and Representation
Employers can often avoid disputes and lawsuits. At Stephen Hans & Associates, our attorneys advise employers about making changes in employment agreements and other employment related policies. We also represent employers in employment litigation.
The New NY Anti-Sexual Harassment Law: What Employers Should Know
Additional New York State anti-sexual harassment law protections came into existence in August 2019.
Under the new law, sexual harassment only has to rise above the level of “petty slights or trivial inconveniences,” which is a much lesser burden of proof. This change will make it much easier for victims to come forward and file a lawsuit against employers. By comparison, under the previous law, the plaintiff would have to prove that sexual harassment was “severe or pervasive.”
When Does the New Law Go into Effect? Read More
Who Does the New Law Affect and How? Read More
How Do the Changes Affect Employment Agreements? Read More
How Are All Individuals in the Workplace Protected?
The new law extends protection beyond private company or government employees and offers protection to the following people in the workplace:
- Other individuals providing services pursuant to contract
- An employee of such a contractor (contractor, subcontractor, vendor, consultant or other person providing services)
How Does the New Law Affect an Employer’s Liability and Responsibilities?
All employers will need to investigate complaints and take corrective action or face liability for the failure to do so.
The extent of the employer’s control over the harasser in cases involving non-employees is also a consideration when reviewing the case.
In addition, all state contractors when submitting bids for work most also submit certification that written policy addressing sexual harassment prevention in the workplace has been implemented. Contractors must also show that all employees receive annual sexual harassment training.
(References: New York State Bar Association article, New York Post)
Stephen Hans & Associates assists employers in complying with employment laws and represents them in employment disputes.
Important Reasons for Employers to Avoid Retaliation
Retaliation in the workplace is unlawful. Therefore, as a business owner it is important to understand what it is and to avoid it. Employers violate the law if they retaliate against an employee who has engaged in “protected activity” under the New York City Human Rights Law or forbidden activities under the Law.
What Does Retaliation Mean?
“Retaliation” in a legal sense refers to “punishment of an employee by an employer for engaging in legally protected activity such as making a complaint of harassment or participating in workplace investigations. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction or job or shift assignment.”
Examples of protected activity include:
- Filing a formal written complaint about discrimination (within the company through its management or Human Resources or with any anti-discrimination agency)
- Testifying or assisting in a Human Rights Law proceeding regarding discrimination
- Making a verbal or informal discrimination complaint to management
- Making a complaint that another employee has been subjected to discrimination
- Encouraging another employee to report an occurrence of discrimination
Even when the employee has left the company, if the employer provides an unreasonable negative reference about the former employee, such behavior can fall under retaliation. However, the employee would have to show that the negative reference was based on retaliation.
Potential Penalties for Retaliation
Under New York Law, the New York State Department of Labor can assess potential penalties for retaliation, including:
- Penalties ranging from $1,000 to $20,000
- An order to pay lost compensation to the employee
- An order to pay liquidated damages
If a New York court finds an employer guilty of retaliation it can impose the following:
Reinstatement of the employer to the former position
- Restoration of seniority
- Payment of lost compensation
- Damages of up to $20,000 per employee
- Payment of reasonable attorney’s fees
At Stephen Hans & Associates, we help employers comply with employment laws, avoid retaliation, offer legal advice and represent them in employment issues.
The Underlying Causes of FRD Lawsuits
Statistics show that Family Responsibilities Discrimination (FRD) lawsuits are on the rise. This means that courts are seeing an increase in lawsuits brought against employers by caregivers. Caregivers include single parents, pregnant women, breastfeeding women, parents of young children, and employees who are taking care of sick children, spouses, relatives or other disabled dependents.
According to an article on FRD published in Working Mother, FRD cases increased 269 percent between the years of 2006 and 2015. This fact is based on a report done by the Center of Worklife Law, a research and advocacy organization at the University of California, Hastings College of Law.
During the past three years, FRD decisions averaged more than 400 decisions, which was an increase over the previous years. Furthermore, this statistic only included cases where courts issued a decision. It did not include all court complaints or charges filed by the EEOC (Equal Employment Opportunity Commission).
Here are some other statistics that employers should also note:
- Women file an estimated 88 percent of FRD cases
- Of these women, about 50 percent received a settlement, judgment or favorable court ruling
Cases that went to trial saw success rates at 67 percent
Why is this significant? Typically, employees lose discrimination cases and their winning cases range between 16 and 33 percent. But, as you see, that is not the recent trend.
Contributing Factors to the Rise in Families Responsibilities Discrimination Cases
Contributing factors to the increase in lawsuits are the following:
- Childcare becoming increasingly expensive
- Families taking on more caregiving themselves
- Stagnating wages
- Cultural shift from #MeToo movement on inequality for women in the workforce
- Employers still basing decisions on 1950’s era models of one household adult (woman) at home
When companies can hang onto employees so they do not have the costs involved with turnover and hiring/training new employees, it is more financially feasible. Keep in mind, employers who can make it known that they support workers who are caregivers may see lower turnover rates.
If you are unsure about whether your company policies are free of FRD, seek legal advice. Our attorneys at Stephen Hans & Associates are glad to advise you.