Late last month, the New York State Department of Labor released model sexual harassment prevention training videos that employers can use to train their employees, available here. While a welcome development, the videos alone do not fully comply with the State’s requirement that sexual harassment prevention training be “interactive” – employers must ensure that employees have the ability to ask questions and receive answers to their questions. The New York City Commission on Human Rights has also provided some new and welcome guidance to employers, releasing FAQs regarding NYC’s new sexual harassment prevention laws, available here. The FAQs primarily address which employers must conduct sexual harassment prevention training and how to calculate an employer’s number of employees for purposes of determining whether the employer is subject to the training requirements. READ MORE
Jen Argyle is an employment law career associate in our New York office.
Jen Argyle joined the firm in 2017. She concentrates in employment disputes, executive counseling, and has represented management in labor arbitrations. Jen enables her executive clients to avoid litigation surrounding employment negotiations and contract issues. She counsels corporate clients on litigation avoidance, conducts internal investigations discretely and efficiently, and drafts internal policies and procedures, further insulating companies and business owners from costly court proceedings.
Jen also represents clients before both federal and state courts, arbitrations, mediations, and state and federal government agency proceedings. She has responded to claims of discrimination, retaliation, and harassment and she has also addressed wage-hour, misclassification, and disability/medical leave issues. Before joining the firm, Jen was an associate at a regional law firm where she represented management in all aspects of single-plaintiff and multi-plaintiff employment litigation.
Posts by: Jen Argyle
On October 15, 2017, the #MeToo movement began in earnest following a tweet by actress Alyssa Milano. To commemorate the one-year anniversary of the #MeToo movement, the Orrick Employment Law and Litigation Blog will analyze the effects of the movement from the employment perspective. Part 1 reviewed the movement’s impact on sexual harassment claims in the workplace, Part 2 below focuses on the legislative reaction to the movement, and Part 3 discusses how employers have responded to #MeToo. READ MORE
As you’ve likely been monitoring, last month the California legislature passed several bills to Governor Brown for signature relating to sexual harassment. The hashtag #TakeTheLead emerged as a symbol reflecting California’s potential to become the state at the forefront of passing additional legislation characterized as increasing protection for women – and workers generally – in the face of the #MeToo movement. Late Sunday night, in the last moments before Governor Brown’s September 30 deadline, he vetoed the most contentious bill – AB 3080 – and signed into law many of the other pending bills. READ MORE
Last week, the Financial Industry Regulatory Authority (“FINRA”) filed its first disciplinary action involving cryptocurrencies, conforming with its stated 2018 goal of monitoring and supervising the largely unregulated cryptocurrency market. FINRA’s actions reflect a long-anticipated and increased scrutiny on entities—including employers—dealing with cryptocurrency.
In the September 11 disciplinary complaint, FINRA alleged that a former Massachusetts broker, Timothy Tilton Ayre, committed securities fraud by avoiding registration requirements and selling an unregistered, cannabis-focused cryptocurrency security called HempCoin. Ayre purchased HempCoin in June 2015 and immediately advertised as “the first minable coin backed by marketable securities.” Ayre transformed the cryptocurrency into a security tied to his company, Rocky Mountain Ayre (“RMTN”), valuing each HempCoin as 0.1 shares of RMTN and trading over the counter. Investors mined over 81 million HempCoins through late 2017. However, Ayre failed to register HempCoin with the U.S. Securities and Exchange Commission (“SEC”).
FINRA’s action, coupled with recent joint statements by the Commodity Futures Trading Commission (“CFTC”) and the SEC addressing plans for heightened oversight of virtual currency regulation, reflect potential obstacles entities may face in dealing with cryptocurrency, or blockchain technology more broadly.
Growing start-ups or legacy companies with new industry sectors should be particularly mindful of the novel and transformative legal issues related to these emerging areas. For instance, although blockchain technology is generally expected to make data more secure, employers should continue to monitor their use of this technology for data privacy concerns related to information storage and programs for employment-related decisions. Further, employers should note that cryptocurrency is not currently recognized as legal tender in the United States.
The Federal Labor Standards Act (“FLSA”) mandates “payments of the prescribed wages, including [minimum wage and] overtime compensation, in cash or negotiable instrument payable at par.” 29 CFR § 531.27(a). The phrase “payable at par” allows cryptocurrencies to be a lawful method of payment under the FLSA, but employers should proceed with care if considering whether to use cryptocurrency to pay employee wages, particularly due to challenges with minimum wage and overtime calculations. Indeed, the legal designation for tax purposes is also unsettled: the SEC classifies cryptocurrency as a security; the CFTC says cryptocurrency is a commodity; and since 2014, the IRS has defined cryptocurrency as taxable property.
Given these ambiguities and emerging issues, employers dealing with cryptocurrency and incorporating blockchain technology into their practices should be aware of the potential legal implications and oversight in areas beyond the traditional employment law arena.
Late last week and in anticipation of the October 9, 2018 deadline for compliance with the statewide sexual harassment prevention mandate (the “Mandate”), New York Labor Law § 201-g, New York State released a model policy, complaint form, and training module. The materials are still in draft form and the State is accepting public comments through September 12, meaning these documents are subject to change. The model policy, complaint form, training module, and FAQs are available here. Several portions of the sample documents exceed the Mandate’s minimum requirements, and some directly conflict with the position of other agencies.
The New York City Commission on Human Rights has released the Fact Sheet and mandatory Notice referenced in the recent Stop Sexual Harassment in NYC Act (the “Act”). Effective September 6, 2018, all employers in New York City must conspicuously post the Notice in the workplace and must distribute the Fact Sheet to all new employees upon hire. Alternatively, the Fact Sheet may be incorporated in an employee handbook distributed to new employees upon hire. READ MORE
On April 11, 2018, the New York City Council passed the Stop Sexual Harassment in NYC Act (the “Act”), a comprehensive package of legislation aimed at combating sexual harassment in the workplace and strengthening New York City’s anti-sexual harassment laws. This is the first major legislative initiative undertaken by new City Council Speaker Corey Johnson, and he explained, “All New Yorkers are entitled to a safe, respectful workplace, and this package of legislation sends a strong message to public and private employers that there is no place for sexual harassment in our City.” The bill is subject to Mayor Bill de Blasio’s approval and he is expected to sign this legislation into law in short order.
There are 11 separate bills included in the Act: three amend the New York City Human Rights Law (“NYCHRL”), three apply to private employers, and the rest apply to City agencies. READ MORE
Since Anita Hill’s testimony in the early 1990s, sexual harassment has become a familiar term. At the federal level, Title VII prohibits harassment, discrimination, and retaliation on the basis of sex and gender, among other things. On the state level, the New York State Human Rights Law (“NYSHRL”) expands on the categories of protected classes covered by Title VII but is interpreted by the courts in largely the same manner as Title VII. Under California’s Fair Employment and Housing Act (“FEHA”), harassment is defined to include verbal harassment (such as derogatory comments), physical harassment (including physical interference with movement), visual harassment (such as derogatory cartoon or drawings), and sexual favors. FEHA prohibits sexual harassment because of a person’s sex, gender, gender identity, gender expression, sexual orientation, transgender status, pregnancy, and childbirth, breastfeeding, and related medical conditions. Harassment based on the perception of any of these characteristics is also prohibited, and sexually harassing conduct need not be motivated by sexual desire to be considered unlawful. READ MORE
The Obama-Era Overtime Rule Stalls
As we previously reported, a federal district judge’s invalidation of the Obama-era overtime rules – which proposed a sharp increase in the salary threshold for exempt employees, expanding overtime pay to millions of workers – did not doom the possibility of changes to the minimum salary requirements. Last week, on October 30, the Department of Labor filed a notice of appeal of the decision. The notice comes after the DOL started the rulemaking process to replace Obama’s Rule with a new rule increasing the current minimum salary level by about 50% (to around $33,000). If this became effective, it would be a significant departure from the Obama-era Rule, which doubled the minimum salary level to $47,476. The DOL is expected to issue the new proposed rule in the coming months. READ MORE