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Second Circuit: Trafficking Victims Protection Act Creates a Civil Remedy for Immigrants Lawfully in the Country as Temporary Guest Workers

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July 25, 2019

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In Adia v. Grandeur Management and Raja Younas, the 2nd Court of Appeal stated that immigrants could bring a civil lawsuit against employers who violate the Trafficking Victims Protection Act (TVPA). Forced labor under the TVPA can occur when a person knowingly obtains labor by abuse or threat, or by a pattern or scheme to cause belief that, if labor is not performed, there would be serious harm or physical threat.

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Second Circuit: ADA Protects Against a Hostile Work Environment

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March 6, 2019

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In Fox v. Costco Wholesale Corp., the Second Circuit Court of Appeals stated that hostile work environment claims may be brought under the Americans with Disabilities Act (ADA). There, an employee who had Tourette’s Syndrome and OCD claimed he was subject to a hostile work environment because of his medical conditions, including mocking his disability over a significant period of time and with the employer’s knowledge. Specifically, the court stated that the prohibition of discrimination under the ADA includes prohibiting workplace harassment, similar as with Title VII claims. The court indicated that there was sufficient information alleged that would allow the case to proceed. Employers should take care to consistently enforce anti-discrimination and harassment policies.

Action Item

  1. Review the decision here.
  2. Have discrimination and harassment policies reviewed for compliance.
  3. Have employees regularly trained on discrimination and harassment prevention.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

Vermont: New Sexual Harassment Prevention Law Imparts Greater Employee Protections, Employer Penalties

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July 1, 2018

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Signed on May 30, 2018, the “Act Relating to the Prevention of Sexual Harassment” (the “Act”) went into effect on July 1, 2018.  The Act, in response to public outcry through the #MeToo movement, implements expansive protections for employees, independent contractors, and interns, creates new employer obligations, and greatly strengthens the state agency’s ability to enforce sexual harassment prevention remedies.

Key provisions of the Act include the following:

  • Prohibits employers from requiring any worker or prospective worker to sign an agreement requiring sexual harassment claims to be arbitrated as a condition of employment;
  • Prohibits employment agreements that prevent/restrict a worker from opposing, disclosing, reporting, or participating in an investigation of sexual harassment;
  • Requires sexual harassment settlement agreements to contain specific statements indicating when a claimant-party may disclose information about the allegations or the settlement, and prohibits such agreements from prohibiting the claimant-party from working for the employer or its related entities;
  • Establishes a sexual harassment reporting hotline and web portal, requires the Attorney General’s office to develop a streamlined reporting system, and provides the Attorney General broad powers to investigate and enforce the new law;
  • Allows the Attorney General to enter and inspect an employer’s place of business and records on 48 hours’ notice, and may also order the employer to provide annual training on sexual harassment prevention, among other remedies; and
  • Will eventually permit voiding non-disclosure agreements in prior settlements where a separate, later claim determines an alleged harasser has engaged in sexual harassment or retaliated in relation to a sexual harassment claim.

The Act also emphasizes Vermont employers’ responsibility to provide workers with a written copy of the sexual harassment policy upon hire and whenever the policy is revised.  Although not required, the Act encourages employers to provide sexual harassment prevention training to employees as well as supervisors and managers.

Action Items

  1. Review employment agreements, including arbitration agreements, with legal counsel for compliance with the Act.
  2. Implement annual sexual harassment prevention training for all employees.
  3. Have a written sexual harassment policy prepared and distributed upon hire to employees and whenever updated.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Vermont: Adds “Crime Victims” to Protected Classes, New Unpaid Leave

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July 1, 2018

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Effective July 1, 2018, HB 711 adds “crime victims” to the Vermont Fair Employment Practices Act’s list of protected classes.  This addition prohibits retaliation and discrimination against crime victims, and also requires employers to provide an unpaid leave of absence to employees who need to attend legal proceedings related to this class.

“Crime victim” refers to individuals who are victims of domestic relations abuse, stalking, sexual assault, or abuse of a vulnerable adult under specified Vermont statutes.  The definition also includes the crime victim’s child, foster child, parent, spouse, stepchild or ward who lives with the victim, or parent of the victim’s spouse, provided these individuals are not identified as a defendant.

Employers must permit such crime victims unpaid leave to allow the employee to attend:

  • A deposition or other court proceeding related to a criminal proceeding where the employee is a victim, and has a right or obligation to appear;
  • A relief from abuse hearing when the employee seeks relief as the plaintiff;
  • A hearing concerning an order against stalking or sexual assault when the employee seeks relief as the plaintiff; or
  • A hearing seeking relief from abuse, neglect, or exploitation when the employee seeks relief as the plaintiff.

Employees may use accrued benefit time (such as vacation, paid time off, or sick leave) in lieu of part or all unpaid leave.  Employers are also required to maintain the same level of benefits coverage for the employee for the duration of the leave.  Upon return from leave, the employee must maintain the same job with the same level of compensation, benefits, and other terms and conditions of employment, with few exceptions.

Action Items

  1. Have handbook and policy documents revised to address the new protected category and unpaid crime victims leave.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

July Updates

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This Short List addresses the following topics:
  1. California: Janitorial Employers Must Register with Labor Commissioner
  2. New Hampshire Adds Gender Identity as a Protected Category
  3. North Carolina Increases Hiring Opportunities for Individuals with a Criminal History
  4. Texas: 5th Circuit Requires Employer Signature on Mutual Arbitration Agreements
  5. Vermont Issues New Guidance on Marijuana in the Workplace
  6. Washington, D.C. Approves Increased Minimum Wage for Tipped Workers
  7. Washington Governor Fights SCOTUS Arbitration Class Action Waiver Ruling

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Vermont: Bans Salary History Inquiries

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July 1, 2018

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Governor Scott recently signed H. 294 into law prohibiting employers from inquiring or seeking information about job applicants’ compensation history, including base compensation, bonuses, benefits, fringe benefits, and equity-based compensation. Employers are also prohibited from requiring a job applicant’s salary history satisfy minimum or maximum criteria as a prerequisite for employment, and from determining whether to interview job applicants based on their current or past compensation.

However, if job applicants voluntarily disclose their salary history, the employer may seek to confirm or request that the applicants confirm their salary history after making an offer of employment. Further, employers are permitted to ask a job applicant about salary expectations.

Action Items

  1. Have hiring managers trained on new requirements.
  2. Revise employment applications and interviewing procedures to eliminate any questions regarding salary history.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Vermont: New Bill Embraces Gender-Neutral, Single-User Bathrooms

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July 1, 2018

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On May 11, 2018, Governor Phil Scott signed H.333 into law.  This bill requires all single-user bathrooms in public buildings or places of public accommodation to be marked as gender-neutral.  It does not apply to any bathroom facilities for more than one user.

The bill requires a single-user toilet to be identified with a sign that indicates the facility as a restroom and does not indicate any specific gender.

Earlier last year, the Trump administration withdrew Obama-era protections for transgender students in public schools.  While some states have enacted so-called “bathroom bills” requiring individuals to use restrooms consistent with their gender at birth, Vermont joins California in recognizing gender identity issues by mandating single-user bathrooms to be marked as gender-neutral.

Action Items

  1. Replace signage on any single-user restrooms accessible to the general public by July 1, 2018.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Second Circuit: Sexual Orientation Discrimination is Prohibited Under Title VII

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February 26, 2018

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The Second Circuit Court of Appeals joins the Seventh Circuit in stating that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. Historically, the circuit courts have not included sexual orientation as a protected status under sex discrimination, which is prohibited by Title VII, but the Second Circuit acknowledged that the social and legal landscape surrounding LGBT rights have evolved.

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Vermont: Lawmakers Legalize Recreational Marijuana

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July 1, 2018

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This year, Vermont joins several other states in legalizing recreational marijuana use, and the first state to do so through its legislature. Effective July 1, 2018, H. 511 allows adults over the age of 21 years old to possess up to one ounce of marijuana and cultivate their own marijuana plants.

Though the bill permits recreational use and cultivation of marijuana, it does contain specific limitations. For example, marijuana use is prohibited in any public place, defined as street, alley, park, sidewalk, public building other than an individual dwelling, or any place of public accommodation, and selling marijuana is still illegal.

Furthermore, employers can rest assured—the bill explicitly states that nothing in the new law requires employers to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana within the workplace. Employers are still permitted to implement and enforce substance abuse policies in the workplace.

Action Items

  1. Review the text of H.511 here.
  2. Have substance abuse policies updated to include a drug-free workplace provision addressing marijuana.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Second Circuit: “Black Car” Drivers are Independent Contractors Under the FLSA

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April 21, 2017

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A recent Second Circuit case confirmed that New York City “black car” drivers—workers who provide high-end transportation services, e.g., limousines—are independent contractors under the Fair Labor Standards Act (“FLSA”).

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