New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

The case was brought by Howard Hoffman, a former employee of Parade Publications, the publisher of a nationally syndicated Sunday newspaper insert, with headquarters in New York City. Hoffman, however, worked in the company’s Atlanta, Georgia office and resided in that state. He attended quarterly meetings at the company’s New York City headquarters, but otherwise had no contact with New York and did not service any accounts in New York.

In October 2007, the company’s president contacted Hoffman by phone from New York City and told him the Atlanta office was being closed and that he was being terminated. Hoffman subsequently sued Parade Publications alleging age discrimination in violation of the New York State and New York City Human Rights Laws.

The trial court dismissed the complaint, holding that neither the State nor City Human Rights Laws applied to Hoffman, because the impact of the termination decision was not felt within the City or State of New York. The Appellate Division reversed and concluded that a non-resident plaintiff need only establish that the discriminatory decision was made in New York. The Court of Appeals then reversed the Appellate Division.

The Court of Appeals reviewed the City and State Human Rights Laws and noted that the statutory language expressed an intent to protect “inhabitants” of the City, “the people” of the State and those “individual[s] within” the State. According to the Court, it would be inconsistent with the statutory intent to extend the protection of those laws to non-residents who have at most “tangential contacts” with the City or the State. By focusing on whether the impact of the decision is felt within the State or the City, the Human Rights Laws will provide protection to non-residents who work in New York. At the same time, the impact analysis excludes non-residents from “forum shopping” their claims to take advantage of New York’s and New York City’s broader Human Rights Laws. Had Hoffman sued Parade for age discrimination under Georgia state law, his maximum recovery would have been a fine of $250.

After Hoffman, it is clear that the mere fact a termination decision was made in New York will be insufficient, standing alone, to assert a cause of action under the State or City Human Rights Laws with regard to a non-resident employee who does not work in New York and/or New York City. What remains unclear is how courts will assess the “impact” requirement going forward. In many ways Hoffman was an easy case because Hoffman clearly did not work in New York. But other situations may prove more difficult, such as the employee who reports to multiple offices, including one in New York. Or an employee who travels frequently on business within New York, but is otherwise based at a location outside of the State.

 

     1.     Does My Policy Prohibit All Forms Of Unlawful Harassment?

We occasionally come across policies that prohibit sexual harassment, but are silent as to other types of illegal harassment. This is usually a tell-tale sign that the employer’s policy urgently needs to be updated. Sexual harassment was first recognized by the courts as a form of discrimination in the mid-1980’s. Since that time, the various federal and state anti-discrimination laws have been interpreted to prohibit harassment on the basis of other protected categories, including but not limited to race, religion, national origin, disability, and age. In states such as New York – where the New York Human Rights Law includes no less than fourteen distinct protected categories (and counting) – employers must be sure to amend their policies as necessary to remain current with changes in the law.

     2.     Does My Policy Provide Accessible – And Alternative – Avenues Of Complaint?

Effective anti-harassment policies must provide reasonable methods for employees to bring alleged inappropriate conduct to their employer’s attention. A policy which requires that a complaint be made to a single person, for example the employee’s supervisor, is inadequate because it creates the potential for forcing the employee to complain to the very person accused of wrongdoing. To avoid this obvious chilling effect, employers should make available several avenues of complaint. At the very least, the employee should have the option to present a complaint to someone in his or her immediate chain-of-command, as well as someone outside his or her direct line of authority, such as a human resources manager. Never create the impression (express or implied) that the employee is required to lodge a complaint through a single individual. The more alternatives the better.

Employers should also publish contact information so that employees know exactly how to reach the persons to whom they can complain. Appropriate contact information (e.g., telephone number, e-mail address and/or mailing address) for each avenue of complaint should be included in the written policy and posted prominently in the workplace. That way, an employee has little excuse for not bringing a complaint of harassment to the employer’s attention.

     3.     Does My Policy Provide Reasonable Assurances Against Retaliation?

Just as employers have a legal obligation to implement reasonable measures to prevent and correct workplace harassment, employees have a duty to take reasonable steps to avoid or mitigate the effects of unwelcome conduct. This means generally that an employer can expect an employee to take advantage of an internal complaint procedure provided by the employer. An employee’s failure to lodge an internal complaint may be excused, however, if he or she can show a reasonable fear of retaliation. To minimize this possibility, it is critical that an employer’s policy clearly explain that retaliation against complaining employees will not be tolerated. This message should be reinforced at the time of a complaint. Moreover, the policy statement must also be enforced as necessary.

Of course, these are not the only issues to consider when assessing the effectiveness of your company’s anti-harassment policy and procedures. Keep in mind that the most comprehensive, water-tight, anti-harassment policies are only as good as the manner in which they are implemented and enforced. Courts and administrative agencies are increasingly looking at whether supervisors and employees are given training to reinforce written policies and to otherwise ensure that all employees understand the employer’s internal complaint procedure. While these measures are not technically required by law, it is advisable that such additional steps be taken to enhance the protections afforded by written anti-harassment policies.

• Terms of employment between an employer and commissioned salesperson must be in writing and signed by both parties. The agreement must include a description of how wages, salary, drawing account, commissions and all other monies earned and payable will be calculated.
• Employees must be notified in writing or by public posting of the employer’s policy on sick leave, vacation, personal leave, holidays and hours.
• Employers must notify employees of any changes in pay days prior to such changes.
• Employers must also notify employees of the date of termination and exact date of termination of employee benefits. The notice must be in writing and be given within 5 working days after termination.

Effective July 7, 2009, the New York State Human Rights Law prohibits employers from discriminating against employees who are victims of domestic violence. See our August 3, 2009 blog post for details on this new law.

Additionally, employers should keep in mind that as of July 6, 2009, the Human Rights Law provides for civil fines and penalties, payable to the State, of up to $50,000 for unlawful discriminatory acts, and up to $100,000 for willful, wanton or malicious discrimination. Our July 20, 2009 blog post describes that amendment.

Finally, an amendment to the New York State Insurance Law “mini-COBRA” provisions, creates an extension of the general continuation under a group health plan for covered employees from 18 months to 36 months following termination of employment. The law applies retroactively to insurance policies and contracts issue, renewed, modified, altered or amended on or after July 1, 2009, but does not apply to self-funded group health plans. Although New York’s mini-COBRA statute generally covers insurance plans of employers with fewer than 20 employees, this 36 month continuation period will apply to all New York group insurance policies regardless of employer size. Therefore, if federal COBRA coverage is exhausted, qualified beneficiaries can extend coverage under New York law for an additional 18-month period up to a total of 36 months following the date of the beginning of federal COBRA coverage.