Chris Van De Water by cjleclaire
New York City and Long Island Employment, Labor and Business Law Attorney
Oct 09, 2018 | 6501 views | 0 0 comments | 267 267 recommendations | email to a friend | print | permalink

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The Van De Water Law Firm, P.C. Opens New Office
by cjleclaire
Sep 12, 2019 | 6394 views | 0 0 comments | 186 186 recommendations | email to a friend | print | permalink
The Long Island firm has relocated its office to Woodbury, New York

The Van De Water Law Firm, P.C. is pleased to announce its new office location at:

185 Froehlich Farm Blvd., Woodbury, New York

Business hours: 9 a.m.–5 p.m. Monday–Friday

Attorney Christopher Van De Water stated, “We are happy with the recent move to our new office, which clients will find conveniently located off the Sunnyside Exit of Interstate 495, known as the Long Island Expressway (LIE).”  

The Van De Water Law Firm reminds employers that the New York Sexual Harassment Training Deadline is approaching. By Oct. 9, 2019, employers must provide sexual harassment training to all employees located in New York State. Thereafter and upon an ongoing basis, all employers must provide sexual harassment training to all employees each year. It's the law.

The Van De Water Law Firm provides detailed and fully compliant sexual harassment training that complies with both the New York State and City requirements, To arrange for the required training for your business or for a no-cost, no-obligation case evaluation and legal consultation, please call (516) 400-4142 or (631) 923-1314 or send an email to the firm at Chris@VDWLawFirm.com

About The Van De Water Law Firm, P.C. – Christopher L. Van De Water focuses his practice on employment, labor and business law, representing clients in litigation and negotiation in all areas of employment law, including wage and hour matters, sexual harassment, discrimination, retaliation, professional contracts, Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and numerous other types of employment-based litigation and disputes. With over 20 years of litigation experience, Chris Van De Water has successfully tried numerous cases to verdict in both State and Federal court. The firm’s recent landmark pregnancy discrimination case has been featured in the New York Law Journal.

The firm serves clients in Nassau and Suffolk counties and throughout the New York City area. Find out more about the firm at https://chrisvandewater.com/.

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THE DEADLINE APPROACHES! SEXUAL HARASSMENT TRAINING REQUIRMENTS IN NEW YORK STATE
by cjleclaire
Aug 23, 2019 | 9847 views | 0 0 comments | 816 816 recommendations | email to a friend | print | permalink

August 23, 2019 UPDATE

Governor Cuomo, on August 12, 2019, signed into law Assembly Bill A8421, which significantly expands New York State sexual harassment and discrimination laws.  These changes are in addition to the significant legislation that New York enacted in 2018 that were originally reported by The Van De Water Law Firm. This article details the revised and most timely deadlines and requirements under New York State and New York City sexual harassment training laws. 

New York Sexual Harassment Training Deadline of October 9, 2019

By October 9, 2019, employers must provide sexual harassment training to all employees located in New York State. Thereafter and upon an ongoing basis, all employers must provide sexual harassment training to all employees each year. Both court decisions and numerous regulations in New York State have made it clear for years that all employers should provide harassment prevention training.  Now it’s the law!

The New York State law:

·         Applies to all employers, regardless of their size, who employ anyone in the state of New York.

·         Applies to all employees, not just supervisors.

·         Requires that the training is provided annually.

·         Applies to all contractors who bid on New York State contracts.

The NYC law, entitled the “Stop Sexual Harassment in NYC Act,” applies to all employers with 15 or more employees, and requires annual sexual harassment training for all employees.  Mandatory compliance with that law began on April 1, 2019.

As a matter of course, both the New York State and New York City laws detail specific content that must be addressed in the training. While New York State training content requirements are similar to content requirements in other states, New York City’s law goes beyond the training content that previously has been required in other jurisdictions. For example, the training provided to employees in New York City must:

·         Address bystander intervention

·         Describe the complaint process available through the NYC Commission on Human Rights, the New York State Division of Human Rights, and the United States Equal Employment Opportunity Commission, and provide employees with those agencies’ contact information

The two tables below detail the obligations and the differences between the New York State and New York City laws regarding:

1.      Training Requirements (Table 1)

2.      Training Content (Table 2)

Read More

 

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PUMPING BREAST MILK IN THE WORKPLACE. YOU’RE PROTECTED UNDER FEDERAL LAW!
by cjleclaire
Aug 16, 2019 | 7877 views | 0 0 comments | 2286 2286 recommendations | email to a friend | print | permalink

As a breastfeeding mother, the last thing on your mind during this joyous time should be how and when you are permitted to pump breast milk at work.  However, the cold reality is that many employers don’t have a policy in place to permit pumping, and even worse, some employers discourage new mothers from pumping activities during working hours.  This is illegal and has no place in today’s evolving society norms. As an employer, you have an obligation to create a breastfeeding policy and accommodate your employees.

As of 2010, Section 7 of the Fair Labor Standards Act (FLSA), a Federal statute that protects employees in their workplace, was amended to require employers to provide basic accommodations, such as time, space and other accommodations, for breastfeeding mothers at work. Learn more about what employers are required to provide.

What time accommodation does an employer have to provide nursing employees?

“Reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision

Employers covered under FLSA must provide a reasonable break time to express milk. The law recognizes that each woman will have different needs for milk expression breaks (often called pumping breaks). Most women use their standard breaks and meal period to pump or express milk.

However, even in work environments that require a more rigid employee schedule, reasonable time can be accommodated. Women can schedule breaks ahead of time, if needed. Some companies, such as manufacturing plants and schools, often provide floaters for coverage when employees are taking breaks. Sometimes a supervisor fills in.

What space accommodations does an employer have to provide nursing employees?

“A place other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision.

Employers covered under FLSA must provide a private space for lactation that is not a bathroom. “Private” means that other people cannot see an employee while she is pumping breastmilk. Often this means putting a lock on the door, but some companies use mobile screens or tall cubicle areas. The space does not have to be a permanent, dedicated lactation room. This section shows many solutions for providing permanent, flexible, or temporary spaces and even mobile options that can be used in virtually every type of industry. Learn more about providing appropriate locations for nursing moms to express milk.

Why do employees who are breastfeeding need time and space for lactation at work?

Health benefits. Breastfeeding is so important for the health of mothers and babies that major medical organizations, such as the American Academy of Pediatrics (AAP), recommend that babies receive nothing but breast milk during the first 6 months of life and continue receiving breast milk for at least their first year. More than 80% of new mothers now begin breastfeeding immediately after birth.1 Breastfed babies are healthier and have lower health care costs. Giving breast milk, rather than formula, helps prevent sudden infant death syndrome (SIDS), asthma, ear infections, type 2 diabetes, and many other illnesses.2 And the longer a mother feeds her child breast milk, the more health benefits there are for both mother and child.2

Biological needs. Breastfeeding is a normal biological process. Breastfeeding employees need breaks throughout the workday to pump because milk production is a constant, ongoing biological process. A breastfeeding mother needs to feed her baby or pump milk about every 3 hours. Otherwise, her body will stop making breast milk. When a nursing mother cannot pump or breastfeed, the milk builds up in her breasts, causing pain and sometimes infection. Removing milk from the breast is a biological need, similar to the need to eat or sleep.

Comfort. A lactation space is necessary because in order to begin the flow of milk, mothers must be able to sit down and be relaxed and not stressed. Mothers who are in an open or uncomfortable space may not be able to pump milk or may not be able to pump milk as quickly.

Privacy. A private space is necessary because pumping or expressing milk is a very different experience from breastfeeding a baby in person. Most moms can breastfeed a baby very discreetly, and many moms breastfeed in public with no concerns. However, pumping breast milk is different. In order to apply the pump equipment, a woman will usually need to remove part of her clothing, and many pumps make a distinctive sound during pumping that may cause embarrassment or discomfort. Pumping equipment also needs to be cleaned after use, and breast milk must be stored properly. There are more steps required in pumping breast milk compared to breastfeeding a baby in person.

Why can’t employees pump milk in the bathroom?

Bathrooms are a place to eliminate waste from the body and to wash hands afterward in order to prevent the spread of germs and disease. Breast milk is food and should be handled in the same way other food is handled. No one would be willing to prepare food in a bathroom, and that includes breast milk. Bathrooms are not a sanitary place to prepare and handle food of any kind.

In the past, mothers were forced to use bathrooms to pump because there was no other private space available when it was time for a mother to express milk. Pumping is not something that all moms can do discreetly under a cover, in the way a baby can be breastfed discreetly in public. Breastfeeding mothers need space that is not a bathroom to express milk in a clean and private environment.

Are employers required to pay employees for pumping breaks?

“An employer shall not be required to compensate an employee receiving reasonable break time to express milk for any work time spent for such purpose.” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision

Therefore, employers are not required to pay employees for milk expression breaks, although some companies choose to do so. If an employer already provides paid breaks, however, an employee who uses that break time to pump must be compensated in the same way other employees are compensated for break time. If extra time is needed because a mother is pumping or expressing milk, that extra time can be unpaid.

Other options, though not required by law, are to allow women to work a more flexible schedule and make up extra time needed by coming to work earlier, staying later, or taking a shorter meal break. Some companies do not track extra break time taken as long as an employee completes her job duties in a timely manner. Learn more about providing break time to nursing moms.

Does my employer have to create a lactation policy?

Creating a policy helps ensure that all employees have access to the same level of support, no matter what type of workplace they have. A policy helps the company be sure it is complying with federal regulations and also shows support for the health of employees and their families. A policy clearly defines the roles and responsibilities of both supervisors and employees, potentially helping them avoid embarrassment about discussing a personal topic. Having a policy in place means that managers will know exactly how to support an employee who is returning from maternity leave and wants to continue breastfeeding. And having a policy means that before maternity leave, employees will know what type of breastfeeding support they will receive at work. A lactation policy can help a mother decide whether to return to work after maternity leave.

A lactation policy or lactation support program also helps managers and supervisors communicate the importance of lactation breaks and private lactation space to all staff, not just the nursing mother. Employers can use a formal policy to educate all staff about the importance of respecting a coworker’s privacy while pumping and about providing coverage during lactation breaks. A clearly communicated policy can help prevent harassment and other negative workplace behavior.

What about New York State laws that protect breastfeeding mothers?

The following summaries the protections available to breastfeeding mothers under New York State Statutes:

  • N.Y. Civil Rights Law § 79-e (1994) permits a mother to breastfeed her child in any public or private location. (SB 3999)
  • N.Y. Labor Law § 206-c (2007) states that employers must allow breastfeeding mothers reasonable, unpaid break times to express milk and make a reasonable attempt to provide a private location for her to do so.  Prohibits discrimination against breastfeeding mothers.
  • N.Y. Public Health Law § 2505 provides that the Maternal and Child Health commissioner has the power to adopt regulations and guidelines including, but not limited to donor standards, methods of collection, and standards for storage and distribution of human breast milk.
  • N.Y. Public Health Law § 2505-a creates the Breastfeeding Mothers Bill of Rights and requires it to be posted in a public place in each maternal health care facility. The commissioner must also make the Breastfeeding Mothers Bill of Rights available on the health department’s website so that health care facilities and providers may include such rights in a maternity information leaflet. (2009 N.Y. Laws, Chap. 292; AB 789)

We at the Van De Water Law Firm, P.C. specialize in wage and hour and overtime cases. If you believe you are the victim of overtime violations, we are always available for a free consultation and can be reached via email: Chris@vdwlawfirm.com, cell phone: (516) 384-6223, office (631) 923-1314.  More information can be found at the website.

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NY County Lawyers Association Sued Over Alleged Pregnancy Discrimination
by cjleclaire
Aug 09, 2019 | 4822 views | 0 0 comments | 564 564 recommendations | email to a friend | print | permalink

“Discrimination in the present culture shouldn’t be tolerated under any circumstances, especially in the context of a woman’s pregnancy.” Attorney Chris Van de Water

By Jack Newsham, New York Law Journal, August 08,2019

The New York County Lawyers Association has been sued by a former employee who claims she was taunted in the workplace, had to pump breast milk in the bathroom and was ultimately fired because of her two pregnancies.

Heidi Leibowitz, a fee dispute program administrator, said she worked for the prominent New York bar association starting in 2005 and began facing discrimination once she became pregnant in 2013. The suit, filed Wednesday in Brooklyn Supreme Court, alleges violations of city and state human rights laws and seeks unspecified damages.

The first time she became pregnant, Leibowitz alleged, she was assigned arduous tasks that she wasn’t assigned before, such as retrieving boxes from a basement. After giving birth, she said, she could initially only pump breast milk in the bathroom and was only given 15 minutes to do so. After complaining, she was given access to a conference room, but it was rarely available for use, she said.

“Both defendants’ managing director and director repeatedly [asked] plaintiff whether she planned on having any more kids and ‘how many babies do you people have!,’ among numerous other snide and degrading remarks,” her suit claims.

The suit also names Sophia Gianacoplos, the group’s executive director, and Lois Davis, a director, as defendants. The suit claims Gianacoplos threatened to fire Leibowitz for using sick days and claims Davis made remarks such as “pregnancy doesn’t make you special.”

After she became pregnant again in 2015, Leibowitz said, a co-worker asked her if she was pregnant and told her that her bosses would be “furious.” Her complaint claims her supervisors told her not to take so many bathroom breaks, “despite the fact that plaintiff’s pregnancy caused her to repeatedly vomit in the bathroom,” remarked that she was “walking funny” and pressured her to disclose her pregnancy earlier than she had planned.

Leibowitz said she gave birth in May 2016. While on leave, she said, she was cut to part time and was fired on Aug. 9, 2016.

Christopher Van De Water of the Van De Water Law Firm, who represents Leibowitz, said, “Discrimination in the present culture shouldn’t be tolerated under any circumstances, especially in the context of a woman’s pregnancy.”

Representatives for the NYCLA didn’t immediately respond to comment requests.  Davis, who no longer appears on NYCLA’s staff list online, could not be reached for comment.

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SO WHAT’S THE DEAL WITH OVERTIME AND WHY AREN’T I GETTING IT?
by cjleclaire
May 23, 2019 | 6841 views | 0 0 comments | 328 328 recommendations | email to a friend | print | permalink

Author: The Van De Water Law Firm, P.C.

Overtime Pay in New York

Many employees in New York are eligible for overtime pay if they work more than 40 hours per week. Unless an employee has a job that is specifically exempt from the overtime requirement under state and federal law, employers are required to pay employees time-and-a-half for all hours worked in excess of 40 hours per week.  Time-and-a-half means an employee is entitled to 1.5 times their hourly rate for all hours worked over 40 in a given week.  For example, if an employee is paid $20 hour and works 50 hours per week, that employee should be paid $20 x 40 ($800) in regular pay, and $35 x 10 ($350) for overtime hours worked, for a total of $1,150.

Determining Who Is Exempt from Overtime

A common misconception is that eligibility for overtime is determined based solely on your job title or whether you are salaried. That is simply not true.  Instead, it is your employment classification that determines how your employer pays you and the benefits to which you are entitled. In New York, you can find these classifications and the legal protections associated with them in the New York State Labor Law.

Some examples of jobs that are exempt and thus not subject to receiving overtime are:

  • Executive Employees
  • Administrative Employees
  • Professional Employees
  • Outside Salespeople
  • Individuals Working for a Federal, State, or Municipal Government
  • Farm Laborers
  • Certain Volunteers, Interns and Apprentices
  • Taxicab drivers
  • Members of Religious Ordersl
  • Certain Individuals Working for Religious or Charitable institutions
  • Camp Counselors
  • Individuals Working for a Fraternity, Sorority, Student or Faculty Association
  • Part-time Baby Sitters

Unfortunately, employers often mis-classify employees as exempt from overtime, and many employees are unaware of their right to overtime compensation. As a result, many employees are not paid wages they are owed under the law.

Common Misclassifications 

Another trick employers use to avoid paying overtime is misclassifying employees. Misclassification that results in failure to pay overtime wages can occur in three ways: 

  • Incorrectly labeling an employee as an independent contractor. Independent contractors are not eligible for overtime wages, since they are not on the business’ payroll. However, independent contractors must have a certain amount of independence to be correctly classified as an independent contractor. For example, does the business set your work hours? Are you required to be in the office? Is there a uniform you must wear or a standard set of procedures you must follow, which are set by the business? Does your income come from one business? If the answer is yes to any of these questions, you may not be an independent contractor, and if you work more than 40 hours per week, you may be entitled to overtime wages.
  • Providing job titles that do not match day-to-day work duties. Determining whether you are exempt or not is highly dependent on your job duties, not just your job title. For example, at first glance an administrative assistant may seem to meet the “administration exemption” criteria under the Fair Labor Standards Act. However, just because “administrative” is in the job title does not mean the work involves making administrative decisions on matters of significance for the business, which is a requirement to meet this exemption.

3)    Failing to provide an employee overtime wages because the employee is salaried. Just because you are salaried does not in itself mean you are exempt from getting overtime wages. If you are not exempt from overtime wages, your employer is responsible for calculating your hourly wage equivalent and providing you with overtime pay when you work more than 40 hours per week. Additionally, certain employees may meet the “highly paid” exemption if they are salaried; however, many salaried employees do not qualify for this exemption.

Who is Going to Pay for All This? Attorney’s Fees, Liquidated Damages, Cost and Interest

Federal and State Laws require that attorney’s fees, liquidated damages, costs and interest to be paid to an employee that prevails in an overtime claim. 29 U.S. Code § 216, otherwise known as the Fair Labor Standards Act (“FLSA”).  The FLSA provides that the Court shall allow a successful employee to recover his or her reasonable attorney’s fees, as well as the costs associated with pursuing their rights in a legal action.  More specifically, the Courts in New York have held that an employee who “prevails” in an FLSA action shall receive his or her “full wages plus the penalty without incurring any expense for legal fees or costs. This takes the financial burden off of an employee and places it squarely on the shoulders of their employer, allowing them to come forward and enforce their rights without paying an expensive retainer to secure the services of a highly skilled attorney who specializes in wage and hour claims, as does The Van De Water Law Firm, P.C.

Similarly, the New York Labor Law in §§ 198(1-a) strongly supports its Federal overtime counterpart by stating that “In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney’s fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.”.

We at the Van De Water Law Firm, P.C. specialize in wage and hour and overtime cases. If you believe you are the victim of overtime violations, we are always available for a free consultation and can be reached via email, cell phone: (516) 384-6223, office (631) 923-1314.  More information can be found at The Van De Water Law Firm P.C.

“I am your legal protector”

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#MeTOO? A Guide to What Exactly Constitutes Sexual Harassment in New York
by cjleclaire
May 20, 2019 | 6115 views | 0 0 comments | 328 328 recommendations | email to a friend | print | permalink

As brought to light during the course of the #MeToo movement, it is illegal to harass an employee or even a job applicant in New York State due to that person’s sex or gender.  However, some of the recent cases of sexual harassment in the press raise more questions than they answer as to what kind and manner of conduct is illegal.  In other words, sexual harassment at times is difficult to define and quantify and does not always need to be purely of a sexual nature. So how do we sort it all out?  To begin with, harassment does not need to include physical or sexual actions. It is considered prohibited sexual harassment to make offensive remarks about women, but these remarks must be severe or pervasive to be actionable, meaning that a single comment is usually not sufficient. Romantic overtures, rather than purely sexual ones, such as repeatedly asking a coworker on a date, may also be considered sexual harassment. The actions that are considered to be harassment may be directed toward a man or woman and may be committed by men or women. The victim and the harasser may be of the same sex or gender.

Sexual harassment claims fall into two distinct categories: 1) quid pro quo, and 2) hostile work environment.

Quid Pro Quo Sexual Harassment

A claim for quid pro quo sexual harassment may arise when your employer offers, either expressly or by implication, to trade job benefits such as a promotion, pay raise or other job benefit, in return for sexual favors.  Typically, quid pro quo sexual harassment is committed by a direct supervisor or manager that is in a position of sufficient power to grant the promised benefit.  Given the direct and often immediate impact on the employee, quid pro quo sexual harassment is often extreme and has lasting emotional and psychological effects on the targeted victim.

Here are a few examples of conduct that may be considered quid pro quo sexual harassment:

  • Text messages from the hiring contact at a potential job offering the position in return for sexual favors;
  • E-mails from a supervisor promising a promotion if the employee will go out with him for drinks and do what it takes to earn it;
  • Verbal communications with the boss where an employee’s submission to sexual favors is made a term or condition of continued employment;
  • Another employee who submits to sexual favors is given the promotion that an employee has earned or deserves;
  • Late night texts or e-mails of a sexual nature demanding that an employee communicate in kind and implying that their job depends on it.

Hostile Work Environment Sexual Harassment

A claim for hostile work environment sexual harassment arises when the actions that constitute the underlying harassment are “severe”, “frequent” or “pervasive”.  This type of harassment may be committed by co-workers as well as supervisors, managers, and even clients or customers. This type of harassment may include sexual or romantic advances, sexually discriminatory remarks, derogatory statements, words, pranks, jokes, signs, physical violence, intimidation, or any sort of conduct or action of a sexual nature taken due to the victim’s sex.  Actions or conduct that constitute hostile work environment sexual harassment must cause the person hearing or seeing them discomfort, humiliation, or a significant loss of productivity at work.

Here are a few examples of conduct that may be considered hostile work environment sexual harassment:

  • Inappropriate touching, massaging or fondling without the employee’s consent;
  • Suggestive, offensive or sexually explicit language;
  • Comments about an employee’s body parts;
  • Exposing an employee to sexually suggestive and offensive images;
  • Sending or forwarding emails, texts or other messages with sexual overtones;
  • Co-workers making repeated sexual jokes in the employee’s presence.

Generally, the New York State Human Rights Law applies to employers with four or more employees, while Title VII applies to employers with 15 or more employees. However, the Human Rights Law applies to all employers, regardless of how many people they employ, as of 2015. Even domestic workers like a nanny or maid are protected from sexual harassment.  Those individuals employed in New York City (Brooklyn, Bronx, Manhattan, Queens or Staten Island) are more advantageous. New York City Human Rights Law offers more extensive protection than state and federal laws. Incidents that would not be considered severe according to federal or state criteria may be valid within the City of New York.

An employer faces strict liability if the employee has been harassed by an owner or high-level manager. Employers may only be held strictly liable for harassment by lower-level managers and supervisors if they have enough control over an employee’s working conditions. This means that an employee may hold an employer responsible for the harassment, even if the owner did not know that it was happening. However, an employee should report the harassment to the employer and take advantage of any grievance system that the employer has put in place before taking other formal steps.

We at the Van De Water Law Firm, P.C. stand ready to protect your rights and are available for a free consultation at 631-923-1314 or email us  if you feel that you have been a victim of sexual harassment.  Don’t hesitate to protect your rights.

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JUSTICE FOR CHILDHOOD VICTIMS OF SEXUAL ABUSE: WHAT YOU NEED TO KNOW NOW ABOUT NEW YORK’S 2019 CHILD VICTIMS ACT
by cjleclaire
May 10, 2019 | 12153 views | 0 0 comments | 1203 1203 recommendations | email to a friend | print | permalink

Author: The Van De Water Law Firm

On Thursday, February 14, 2019, New York Governor Andrew Cuomo signed into law one of the most important pieces of Civil Rights legislation in years, the Child Victims Act, ensuring that child abusers are held accountable in a civil court of law.  Finally, those survivors who have endured unimaginable pain and abuse have a path not only to justice, but perhaps also healing and closure.  As Governor Cuomo himself succinctly stated on that date: “This bill brings justice to people who were abused, and rights the wrongs that went unacknowledged and unpunished for too long.  By signing this bill, we are saying nobody is above the law, that the cloak of authority is not impenetrable, and that if you violate the law, we will find out and you will be punished and justice will be done”.  In short, the Child Victims Act provides long-awaited relief to child victims of sexual abuse by amending New York State’s antiquated laws to ensure that perpetrators of sexual abuse offenses on children are held accountable for their actions, regardless of when the crime occurred.   Under the former law, victims of sexual abuse as children had to bring a lawsuit within three year’s of the victim’s 18th birthday, an injustice that led to many victims finding the strength to come forward only learning too late that they were time barred from bringing a civil action against the heinous perpetrators of these crimes.  No more says the New York legislature!  A one-time window has opened for victims to file civil lawsuits for the immense emotional fallout associated with cases involving the sexual abuse of a child.

Here is what you need to know NOW about this important legislation and how it affects a victim’s exercise of their rights in a court of law. The Child Victims Act:

  • Allows victims of these crimes to commence a civil lawsuit any time before they reach 55 years of age;
  • Provides victims whose claims have been time-barred with a new opportunity for their day in Court by opening a one-time one-year window for them to finally commence a lawsuit;
  • Increases the amount of time during which perpetrators of these crimes may be held criminally accountable by extending New York’s statue of limitations to allow for criminal charges to be filed until a victim turns 28;
  • Eliminates the need to file a Notice of Claim for sexual offenses committed against a minor;
  • Requires judicial training with respect to crimes involving the sexual abuse of minors; and
  • Authorizes the Office of Court Administration to promulgate rules and regulations for the timely adjudication of these revived actions in a Court of Law.

The one-time one-year look back period opens during the summer of 2019, so it is very important for victims of child abuse to consult with a knowledgeable attorney as soon as possible to discuss their rights and develop a plan for your vigorous representation.  Stay tuned for more from the Courts on the promised procedural rules and regulations, which will be integral in successfully litigating these cases and will likely be tailored toward early resolution and settlement.

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THE WEED TRUTH: Recreational Use of Marijuana, even if legalized in New York, Can Still Get You FIRED!
by cjleclaire
Mar 12, 2019 | 13461 views | 0 0 comments | 460 460 recommendations | email to a friend | print | permalink
Let’s face it, the legalization of the recreational use of marijuana in New York State appears a foregone conclusion.  Both the state Legislature and Gov. Andrew Cuomo are negotiating whether to include the legalization of recreational marijuana in the state budget for the fiscal year that starts April 1st. However, keep in mind that license to fire up that joint would not go into effect, at the earliest, until the following year in April of 2020, when New York would officially join the 10 other states that have already legalized recreational marijuana use.

Governor Andres Cuomo’s proposal for the legalization of recreational marijuana use essentially condenses into the following agenda:

  • Ban marijuana sales to anyone under the age of 21
  • Establish separate licensing programs for marijuana growers, distributors and retailers, with a corresponding ban on growers also opening retail locations
  • Create a new state office, The Office of Cannabis Management, to regulate the drug and create a program to review and seal past marijuana convictions
  • Allow counties and large cities in New York to ban marijuana sales within their boundaries
  • Impose a 20 percent state tax and 2 percent local tax on the sale of marijuana from wholesalers and retailers, plus a per-gram tax to be imposed solely on growers
  • Provide preferences and incentives to minorities and women who intend to establish retail sales locations.

Nevertheless, the debate rages on about how far reaching the effects will be within the school environment, impaired driving and ultimately, the workplace.

Along that vein, it is important for all New Yorkers to be aware of the risks of showing up to work under the influence of marijuana.  As you know, if you show up to work under the influence of alcohol, and your employer has a substance abuse policy in their handbook, then you risk a disciplinary write-up at best, and termination at worst.  The same rules apply to employee’s use of recreational marijuana.  If you show up to work high, or light up outside your employer’s premises, employees run the same risks as with alcohol use.  Certainly, it is a fine line to tread as there are no uniformly established THC levels that your employer can test to determine an employee’s level of impairment.  Employers would therefore be given free license to make subjective judgments as to an employee’s level of impairment based upon smell, speech patterns, eye movement and dilation, delayed reactions, emotional state, short-term memory problems, among other physical symptomology.

It is a slippery slope at best, but an employer is within their rights to terminate employees with substance abuse violations.  This is especially so in occupations involving physical labor and the use of a motor vehicle including drivers, delivery companies, waiters, warehouse workers, trades and any employees in the service industry.

The Van De Water Law Firm stands ready to serve you with respect to any employment issue, and our initial consultation is always free.

 

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SAVED BY THE BELL? NOT REALLY. NEW SEXUAL HARASSMENT POLICY MUST STILL BE IN PLACE BY OCTOBER 9, 2018
by cjleclaire
Oct 25, 2018 | 23108 views | 0 0 comments | 621 621 recommendations | email to a friend | print | permalink

WHAT YOU NEED TO KNOW TO COMPLY WITH THE FINAL CHANGES TO NEW YORK STATE’S SEXUAL HARASSMENT TRAINING LAWS

Ok, so October 9, 2018 came and went, and the Department of Labor hasn’t knocked down your door with notices that you are non-compliant with New York’s State’s new sexual harassment laws.  Time to breath easy, right?  Wrong! While the State has continually vacillated in their typical fashion, finally extending the full training compliance deadline to October 9, 2019.  However, effective October 9, 2018, all New York State employers were still required to adopt written sexual harassment prevention policies and institute annual anti-harassment training for employees.  Confusing right? After issuing draft documents in August, the State has now issued final model policy and training documents, as well as FAQs and additional guidance on the new laws.  More information can also be found on the State’s website.

The State has also issued an “Employer Toolkit” which provides an overview of the final policy and training materials and practical guidance for employers, which can be found here.

In order for your business to be fully compliant, it is required to adopt and distribute to employees written sexual harassment prevention policies that are compliant with the new law by October 9, 2018.  To satisfy this obligation, employers may (1) adopt the State’s model sexual harassment policy and complaint form, or (2) implement their own policy and complaint form that equals or exceeds the minimum standards provided under the statute consistent with guidance issued by the State.

In response to a number of comments submitted on the draft policy and FAQs issued in August, the State made the following notable changes to the final documents issued on October 1:

  • References in the model policy to the employer having a “zero-tolerance policy” for sexual harassment and retaliation have been removed, bringing the State’s guidance in line with the federal EEOC position disfavoring the use of the term.
  • The State’s model policy:
  • no longer requires that the investigation of a complaint be completed “within 30 days” as previously suggested, but rather states that the investigation should be completed “as soon as possible”;
  • now makes clear that the investigation process “may vary from case to case”;
  • indicates that investigation-related documents should be kept in a “confidential location”; and
  • notes that written documentation of the investigation should include “[t]he basis for the decision” regarding the resolution of the complaint, as opposed to simply a statement of any corrective actions that will be taken.

The final changes also state that if an employer has already established investigative procedures that are similar to those provided in the State model (in that they provide for a timely and confidential investigation of complaints in a matter that ensures due process for all parties), the employer need not expressly adopt the investigative procedure set forth in the State model.  That said, employers must nevertheless outline their investigative procedures in their policy document.

With regard to distribution of the policy, the FAQs state that a signed acknowledgment of receipt is not required, but that employers are “encouraged” to obtain one from employees.  Employers must provide employees with a copy of the policy in writing or electronically, and if made available electronically, employees must be able to print a copy for their records.

We at The Van De Water Law Firm, P.C. are ready to help you navigate these murky waters to make certain your business stands in full compliance with the ever-changing sexual harassment training policy and training requirements.  Call us for a free consultation on this, and any other legal issue affecting your business.

 

 
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EMPLOYMENT LAW ALERT: EMPLOYER COMPLIANCE WITH NEW SEXUAL HARASSMENT LAWS COMMENCES ON OCTOBER 9, 2018
by cjleclaire
Oct 09, 2018 | 21592 views | 0 0 comments | 630 630 recommendations | email to a friend | print | permalink

A BRIEF BY COMPREHENSIVE OVERVIEW OF WHAT YOU NEED TO KNOW TO COMPLY WITH THE NEWLY ENACTED NEW YORK STATE AND NEW YORK CITY SEXUAL HARASSMENT TRAINING LAWS

Author: CHRISTOPHER L. VAN DE WATER, ESQ. MANAGING PARTNER

THE VAN DE WATER LAW FIRM, P.C.

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In 2018, both New York State and New York City have enacted the strictest harassment training laws in the Nation as a clear outgrowth of the #MeToo movement that swept the country following the Harvey Weinstein scandal. All Employers must begin compliance with the New York State Law commencing on October 1, 2019, and the New York City Law on April 1, 2019.

I. 2018 New York State Budget Sexual Harassment Training Provisions Contained within Part KK of S7507-C

On April 12, 2018 New York Governor Andrew Cuomo signed into law several bills that were included in the 2018-2019 New York State budget. The bills address workplace sexual harassment. Part KK of S7507-C 0g the new law requires New York employers to adopt and distribute a sexual harassment policy and training program.

The new requirements take effect October 9, 2018.

A. Content Requirements of the New York State Sexual Harassment Policy:

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More specifically, the new law requires employers adopt a sexual harassment prevention policy which:

  1. prohibits sexual harassment and provides examples of prohibited conduct;
  2. includes information concerning federal and state sexual harassment lawsand mentions there may be applicable local laws;
  3. includes a standard complaint form;
  4. includes a procedure for the timely and confidential investigation ofcomplaints including due process for all parties;
  5. informs employees of their rights of redress and available forums foradjudicating claims administratively and judicially;
  6. clearly states sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory management who knowingly allow such behavior to continue; and
  7. clearly states retaliation against individuals who complain of sexual harassment or who testify or assist in any proceedings is unlawful.

This sexual harassment policy must then be provided to all of your employees in writing. It would be advisable to include this policy in your orientation package. You should should informally and formally routinely remind employees of this policy.

You can read the New York State’s sexual harassment laws in their entirety (Part KK of S7507-C) by clicking here

The Model Sexual Harassment Complaint Form can be found by clicking here:

B. Training Requirements of the New York State Sexual Harassment Policy:

The New York State Law also mandates that employers provide interactive training to their employees that includes the following:

1)  an explanation of sexual harassment;

2)  examples of sexual harassment;

3)  information concerning the federal and state laws concerning sexualharassment and remedies available to victims; and

4)  information concerning employees’ rights of redress and forums forcomplaints.

Although there is no record keeping requirement under the law, I strongly advise your company to formally track, in a signed form, your employees’ attendance at the training. This type of evidence is helpful in defending against potential allegations of sexual harassment, and will serve to mitigate your risk against frivilous lawsuits.

C. Model Sexual Harassment Policy and Training Program

The law also requires the New York State Department of Labor (DOL) and the New York State Division of Human Rights (DHR) to develop a model policy and training program for employers.

II. The Stop Sexual Harassment in New York City Act

The Stop Sexual Harassment in New York City Act was signed into law by Mayor Bill de Blasio on May 9, 2018 and expands the reach of the New York City Human Rights Law in cases involving gender-based harassment.

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A. The Stop Sexual Harassment in NYC Law Amends New York City Human Rights Law by:

1)  applying provisions related to gender-based discrimination to ALL employers, regardless of the number of employeess;

2)  increasing the statute of limitations from one-year to three-years for filing a claim of gender-based discrimination with the NYC Commission on Human Rights;

3)  mandating employers with 15 or more employees to conduct annual anti- sexual harassment training to all employees, including managers and supervisors.

4)  for new employees who work more than 80 hours in a year, such training much be provided within 90 days of their initial hire. This requirement is effective April 1, 2019.B. Training Requirements of the New York City Act:

The New York City Stop Sexual Harassment Act requires that every employer’s sexual harassment training must:

1)  provide an explanation and example of sexual harassment as a form of unlawful discrimination under NYC law;

2)  state sexual harassment is unlawful under both Federal and New York State laws;

3)  provide a detailed description of what sexual harassment is;

4)  identify the employer’s internal complaint process;

5)  state the complaint process that is available through the NYC Commissionon Human Rights, the NYS Division of Human Rights and the EEOC,including all relevant contact information;

6)  explain the prohibition against retaliation against an employee by anemployer;

7)  provide information concerning bystander intervention (i.e., such as suggestions about how to confront a harasser); and

8)  identify the specific responsibilities that supervisors and managerial employees have in the prevention of sexual harassment and retaliation.

9)  keep employee’s training acknowledgment forms for three years.

The New York City training requirements begin on April 1, 2019. The training must be provided annually and, in the case of a new employee hire, within 90 days thereof.

Starting September 6, 2018, all New York City employers are required to post a sexual harassment poster and distribute a sexual harassment fact sheet to all new employees.

Additionally, under the New York City Law, employers are required to keep training acknowledgment forms for 3 years.

You can find the NYC Stop Sexual Harassment in NYC Act here:

The Stop Sexual Harassment Fact Sheet can be found here in English:

DIFFERENCES BETWEEN THE NYC AND NEW YORK STATE NEW SEXUAL HARASSMENT LAWS

The two tables below detail the obligations and the differences between the New York State and New York City laws regarding:

  1. Training Requirements (Table 1)
  2. Training Content (Table 2)  Read More
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