Chris Van De Water by cjleclaire
New York City and Long Island Employment, Labor and Business Law Attorney
Oct 09, 2018 | 29410 views | 0 0 comments | 532 532 recommendations | email to a friend | print | permalink

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#MeTOO? A Guide to What Exactly Constitutes Sexual Harassment in New York
by cjleclaire
May 20, 2019 | 16450 views | 0 0 comments | 563 563 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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by cjleclaire
May 10, 2019 | 24394 views | 0 0 comments | 1442 1442 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 | 27064 views | 0 0 comments | 601 601 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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by cjleclaire
Oct 25, 2018 | 35560 views | 0 0 comments | 728 728 recommendations | email to a friend | print | permalink


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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by cjleclaire
Oct 09, 2018 | 33159 views | 0 0 comments | 736 736 recommendations | email to a friend | print | permalink





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:


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.


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:


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
The Van De Water Law Firm
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