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New York Passes Anti-Sexual Harassment Measures: What All Employers Must Know

On April 12, 2018, Governor Andrew Cuomo signed the New York state budget into law.  Beyond the dollars and cents associated with a typical budget bill, the legislation included new requirements for private and public employers to address sexual harassment in the workplace. While effective dates for the various measures are staggered over the next year, employers should start preparing now to comply with each provision:

  • Effective immediately: The budget bill amended the New York State Human Rights Law to prohibit harassment against “non-employees” who provide services under a contract, including contractors, vendors, and consultants. If an employer knew or should have known that a protected “non-employee” was sexually harassed at its office or workplace, the employer may be liable if it does not take appropriate action.
  • Effective July 9, 2018: Employers may include nondisclosure/confidentiality clauses in settlement or release agreements dealing with sexual harassment claims only if the complaining party requests such a clause. Additionally, settlement and release agreements must not contain mandatory arbitration clauses for the resolution of harassment claims.
  • Effective October 9, 2018: All employers must have a written anti-sexual harassment prevention policy, and also must provide annual anti-harassment training.  The New York State Department of Labor (NYDOL) and the New York Division of Human Rights are drafting model policies, and employers must base their own policies and trainings on the state-drafted models. Employers must also provide a written copy of the policy to all employees annually.

Employers should act quickly to ensure they comply

Employers Can Maintain a Drug Free Workplace in California Despite State Legalization of Recreational Marijuana

California’s passage of the “Control, Regulate, and Tax Adult Use of Marijuana Act,” commonly referred to as Proposition 64, legalized the sale, possession, and use of recreational marijuana under limited circumstances. Marijuana still remains an illegal Schedule I substance under the federal Controlled Substances Act and therefore still subject to prosecution under federal law. Many employers wonder what effect, if any, Proposition 64 has on their ability to maintain a drug free workplace.

Bryan Cave attorneys just released a client alert on this topic. Click here to read the Alert in full.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers comply with California law. If you or your organization would like more information on Proposition 64, or any other employment issue, please contact an attorney in the Labor and Employment practice group.

Investigating Claims of Harassment: A Step-by-Step “How To” Part 6: Closing the Investigation and Additional Steps Thereafter

This final installment of a six-part series on harassment investigations discusses how to close the investigation and steps to take after the investigation has been closed.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Close the Investigation

Once the investigation has concluded, it is essential to close the investigation with the complainant, each witness, and the accused.  It may also be prudent, in some circumstances, to follow-up with the entire workforce. All close-out meetings that are held should be documented. When closing the investigation with the complainant, and generally with each witness, here are the key points to tell each person:

  • We are closing our investigation based on the information as we know it now. (This allows you to reopen if you learn more later.)
  • The Company has a strong non-discrimination and non-harassment policy. (Consider providing or showing a copy of the policy.)
  • The Company takes claims of discrimination and harassment seriously and follows up to stop it, if we can conclude that inappropriate conduct occurred.
  • (If appropriate:) We have taken action on the complaint that we received, but we are not free to disclose any disciplinary action taken toward other employees. (It may be appropriate to tell the complainant more here, such as specific actions taken, in order to help reassure the complainant that reasonable steps have been taken to end the conduct and prevent its recurrence, and/or to inform the complainant of any limitations or

Supreme Court Narrowly Construes the Definition of a Whistleblower Under Dodd-Frank

The Supreme Court held that an individual must report alleged wrongdoing to the Securities and Exchange Commission in order to qualify for protection from whistleblower retaliation under the Dodd-Frank Act.

Click here to read the Alert written by Bryan Cave attorneys on 2/21/18.

For more information about the SEC Whistleblower Program, click here. For more information about this update, or if you have any questions regarding Bryan Cave’s White Collar Defense and Investigations or Securities Litigation and Enforcement Groups, contact Mark Srere or Jennifer Mammen in Washington, D.C., at +1 202-508-6000, or for Bryan Cave’s Labor and Employment group, contact Elaine Koch or Jennifer Berhorst in Kansas City, MO, at +1 816-374-3200.

Investigating Claims of Harassment: A Step-by-Step “How To” Part 5: Other Sources of Evidence, Summarizing the Investigation, and Reaching a Conclusion

Before concluding a harassment investigation, the investigator should follow up with other possible sources of evidence, record and summarize the investigation, and reach a conclusion.  This fifth part of a six-part series discusses these final steps in the investigation process.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Follow Up With Other Possible Sources of Evidence

The investigator should consider whether any other sources of evidence exist that could aid in the investigation process and gather any such evidence. If the evidence is in the possession of either the complainant or the accused, the investigator should ask that the evidence be shared with him/her.

Some examples of physical evidence that may aid in the investigation process are:

  • Time cards
  • Calendars or diaries
  • Telephone records
  • Travel logs
  • Expense reports
  • Notes, letters, cards, and/or handwriting samples
  • Emails, voice mails, and text messages
  • Computer files and computer log-in/log-out information
  • Internet usage
  • Security/surveillance video
  • Building entry/exit swipe information
  • Recordings
  • Photos
  • Offensive material at issue (magazines, calendars, postings, etc.)
  • Personal gifts
  • Timing of the incident (e.g., just before or after a performance appraisal or just before or after the accused is rejected by the complainant or vice versa)
  • Physical evidence, such as maps or relative locations of the parties or the areas in which the complainant and others work
  • Prior performance evaluations
  • Documents containing other complaints by the complainant, other complaints about the accused, prior investigations involving the same persons, recent adverse

Works Council Elections in Germany – Avoid mistakes and be aware of special termination protections! Final Part III

February 16, 2018

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March 2018 is getting closer and works council (re)elections will again be on the agenda in Germany. We started this three-part blog last November with an overview to this topic and the second part highlighting the election proceedings. See link to November 7, 2017 blog and link to January 11, 2018 blog. In this final Part III, we briefly address the potential risks of reruns of elections due to mistakes and provide you with an overview of the special termination protection resulting from works council elections.

Avoid mistakes – elections can be challenged or even be null and void!

German employers are well advised to closely monitor the election proceedings. In the event of substantial breaches of the election process, the elections can be null and void, i.e., if such serious mistakes occurred that no democratic process was granted, or in less obvious breaches, elections can be challenged in court within two weeks of the announcement of the election results.

Who can file the challenge – and what are the risks?

The employer, three employees, or a union having members at the operational site are entitled to file a respective application with the competent local labor courts. If the court holds that the election process was breached, then the works council elections must be repeated.

Court proceedings challenging the elections are time consuming and costly. Above all, they create uncertainty at the operational site. Questions may arise, for example, whether meanwhile concluded shop agreements are valid and binding.

Investigating Claims of Harassment: A Step-by-Step “How To” Part 4: Note-Taking Techniques and Tips for Assessing Witness Credibility

In any investigation of a harassment complaint, the investigator must interview people and take notes.  This fourth part of a six-part series addresses techniques for note-taking and tips for assessing the credibility of witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Helpful Witness Interview Note-Taking Techniques

Make sure that your notes are legible and that they are clear on who said and did what and which part of the story is according to whom.

Start a new page for each interview.

At the top of the page, state the names of those present at an interview, the date, time and place of the interview.  Sign (or initial) and date the notes.

Although it is not necessary to write in complete sentences, the notes should be free from misspellings or grammatical errors so that the interviewer is not discredited in the course of litigation.

Take detailed notes, as close to verbatim as possible, during each interview.  If necessary, ask the interviewee to speak more slowly, so that your notes will be as thorough and accurate as possible.  Notes should provide enough information to understand, when reviewed later, what was asked and what information was provided.

Report matters asked of the interviewee as well as words spoken and facts provided by the interviewee.  Document any refusal to share information.

Do not include your interpretations, beliefs, assumptions, conclusions, etc., about the facts stated. Rather than guess at reasons or intentions,

Kansas City Votes to “Ban the Box”

February 9, 2018

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On February 1, 2018, Kansas City, Missouri joined the ranks of more than 150 cities and counties to enact a “ban the box” ordinance, aimed at equalizing the chances to gain employment by those previously convicted of a crime.  Effective June 9, 2018, the ordinance expands Kansas City’s 2013 ordinance that applied only to city employees.  The new ordinance, “Criminal Records in Employment,” found at Section 38-104, applies to most employers employing six or more in Kansas City.  It excludes employers that are prohibited by a local, state, or federal law or regulation from considering applicants with a criminal record.

Under the ordinance, employers are banned from inquiring into an applicant’s criminal history until after the applicant has been interviewed, i.e., employers can no longer ask about criminal convictions on an employment application.  Criminal history is defined in the ordinance to include felony and misdemeanor convictions, guilty and no contest pleas, and records of arrest.  After an applicant is interviewed and considered qualified for the position, but before an offer is extended, an employer may ask about his or her criminal history.  However, the ordinance prohibits an employer from basing a hiring decision on this factor alone.

The Kansas City, Missouri Human Relations Department (the “Department”) will enforce the ordinance.  If the Department finds a violation occurred and conciliation is not reached, the Department can prosecute the employer in municipal court.  Penalties for violating the ordinance include a loss of business license for up to 30 days on the first

Paid Sick Leave to Take Effect in Maryland, Despite Governor’s Veto

Maryland has joined the growing ranks of states across the country mandating employee sick leave. Last year, the General Assembly passed the Healthy Working Families Act, requiring employers to allow employees to earn time off from work.  While Governor Larry Hogan vetoed the bill late last year, the General Assembly reconvened in January and overrode the veto. The Act takes effect on February 11, 2018, and employers should be prepared to implement changes quickly.

Coverage:

The Act applies to full-time, part-time, and temporary employees. However, it does not apply to any employee who works fewer than 12 hours per week, or employees under 18 years old.  Additionally, the Act contains other exceptions for certain categories of workers, including agricultural workers, construction industry employees that are covered by a collective bargaining agreement, and “as needed” shift employees in the healthcare industry.

Whether sick leave is paid or unpaid depends on the size of the employer. Employers with 15 or more employees must provide up 40 hours of paid sick leave per year.  Employers with 14 or fewer employees must provide employees the same amount of unpaid sick leave.

Accrual:

An employee begins accruing leave immediately upon starting work.  Employers must allow employees to accrue one hour of sick leave for every 30 hours worked, and the accrual rate is the same whether leave is paid or unpaid.  Additionally, employers must allow employees to carryover at least 40 hours of earned sick leave from one year to the next.  However, employers

Investigating Claims of Harassment: A Step-by-Step “How To” Part 3: Interviewing the Accused and Other Witnesses

You have received a complaint of harassment and interviewed the complainant.  In this third part of a six-part series, we discuss interviewing the accused and other witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Interviewing the Accused

At the beginning of the meeting, the investigator should:

  • Explain that a complaint of sexual (racial, etc.) harassment has been brought against the accused; that the Company is conducting a prompt and thorough investigation to determine if inappropriate conduct has occurred; and that no conclusion has yet been reached.
  • Identify your role as investigator.
  • Tell the accused that the Company prohibits retaliation against a complainant, and anyone the accused suspects may have participated in any way in the investigation.
  • Explain that the accused must provide a truthful account of what occurred, and identify all evidence and witnesses who may have relevant knowledge.
  • Explain that efforts will be made to share information on a need-to-know basis only, but do not promise confidentiality.
  • Explain the expected investigation procedure and the expected time frame involved.

During the Interview, the investigator should:

  • Explain the details of the allegations against him/her (the investigator need not disclose the source of the information, but usually should disclose the allegations in enough detail so that the accused can respond). Ask about the alleged conduct/comments first, before identifying the complainant.
  • Obtain the accused’s account of what occurred, as specifically as possible. (Depending on the circumstances, it
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