Sexual Harassment

Making a List and Checking It Twice – Key Employment Considerations For The New Year

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You may be asking yourself: How is it already almost 2019?! With the New Year fast approaching, for those employment law enthusiasts out there, here are some legal issues that you want to keep in mind as you look back on 2018 and forward to 2019:

1. Compensation

Year-End Bonuses: Employers distributing holiday bonuses, holiday gift cards, year-end merit bonuses, and other types of compensation to nonexempt employees should consider whether the compensation must be included in a nonexempt employee’s “regular rate” of pay when calculating overtime. The Code of Federal Regulations carves out some specific types of pay that need not be included in an employee’s regular rate of pay. For example, Section 778.211 excludes purely discretionary bonuses and section 778.212 excludes gifts for Christmas and other special occasions.  So, an employer giving employees gift cards for the holidays or other special occasions is not required to incorporate the value of those gift cards into an employee’s regular rate of pay as long as the amounts “are not measured by or dependent on hours worked, production, or efficiency.” See 29 C.F.R. § 778.212(a); 29 U.S.C.A. § 207.

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NY Harassment Update: NYS Releases Sexual Harassment Prevention Training Videos and NYC Releases Sexual Harassment Prevention FAQs

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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 →

#MeToo One Year Later – Employers’ Responses to the Movement

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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 focused on the legislative reaction to the movement, and Part 3 below discusses how employers have responded to #MeToo.

Over the past year, the #MeToo movement has caused a seismic shift in our culture that continues to ripple through important aspects of our daily lives, especially the workplace. As we previously discussed, the #MeToo movement’s growing momentum has sparked rising trends in sexual harassment claims and lawsuits, as well as a significant increase in EEOC charges and enforcement efforts. In the past year, the EEOC revealed that it filed 41 lawsuits with sexual harassment allegations, which is a 50 percent increase from 2017. In addition, litigation and administrative enforcement of sexual harassment issues yielded nearly $70 million to the EEOC in 2018, up from $47.5 million the prior year. But newly filed lawsuits or administrative charges only reveal a part of the impact – claims of sexual harassment may have a devastating effect on those accused of wrongdoing and their employers, even if they lie far beyond any applicable statute of limitations, as today’s claims often do. Employers of all shapes and sizes are acclimating their policies and practices for the #MeToo era, as none can avoid the categorical shift in workplace culture that is slowly becoming the “new normal.” READ MORE →

#MeToo One Year Later: The Legislative Reaction

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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 →

#MeToo One Year Later: A Viral Hashtag with Lasting Effects

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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 below looks at the movement’s impact on sexual harassment claims in the workplace, Part 2 focuses on the legislative reaction to the movement, and Part 3 discusses how employers have responded to #MeToo.

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California #TakesTheLead on Harassment Laws: What Does It Mean for Employers?

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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 →

Worth the Wait: NYS Clarifies Requirements for Sexual Harassment Prevention Programs

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One week before 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 revised model documents available on the state website: READ MORE →

NYS Advances its #MeToo Agenda: Draft Sexual Harassment Guidance Released

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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.

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#MeToo in Germany – Internal Investigation in Sexual Assault Cases

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Due to increased awareness and reporting triggered by the international #metoo discussion, besides taking preventive measures, it is crucial for companies with employees in Germany to know what internal actions to take in the event an employee reports an incident of sexual harassment at the workplace. READ MORE →

Employers, Victims, and Witnesses Rejoice: California Bars Sexual Harassers from Suing for Defamation

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In the wake of #MeToo, California has enacted a new statute aimed to protect victims, witnesses, and former employers from claims of defamation for making complaints or communicating information about alleged sexual harassers to others.  On July 9, 2018, Governor Brown signed into law Assembly Bill 2770. The bill amends Civil Code section 47, which makes certain communications “privileged,” meaning those communications cannot be the basis of a defamation claim.

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