On January 20, 2014, the Philadelphia Mayor enacted an amendment to the City Code that requires the city employers “to provide reasonable accommodations to an employee for needs related to pregnancy, childbirth, or a related medical condition.” The provisions of the new City amendment are triggered if the employee requests such accommodations, and if it would not cause an undue hardship to the employer to provide them. § 9-1128(1).
Reasonable accommodations under the new law “include, but are not limited to restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.” § 9-1128(1)(a). Employers must provide written notice of the new law “to all new and existing employees within 90 days of the effective date.” § 9-1128(4). The form and manner of the notice will be determined by the Pennsylvania Human Rights Commission. Id.
The law amends §§ 9-1101 through 9-1103 and §§ 9-1128 through 9-1129 of the Fair Practices Ordinance of the Philadelphia Code and goes into effect immediately. The amendments were created to “fill a gap” in related federal antidiscrimination law that prohibits discrimination based on pregnancy, but only requires accommodation for woman suffering from pregnancy-related medical conditions that rise to the level of a disability. The new law provides protection to a pregnant woman who, although experiencing a healthy pregnancy, may still require some form of accommodation at work.
The Fair Practices Ordinance defines employers as persons with “one or more” employees or persons who “do business in the City of Philadelphia.” § 9-1102(h). Violations of the employment provisions set forth in the Fair Practices Ordinance may lead to orders from the Philadelphia Commission on Human Relations (“PCHR”), including orders directing offending employers to stop unlawful conduct; directing the hiring, reinstatement or upgrading of employees, with or without back pay; demanding payment of compensatory damages; demanding payment of punitive damages not to exceed $2,000 per violation; and demanding payment of reasonable attorneys’ fees and costs. § 9-1105. The violation of these kinds of orders from the PCHR can expose violators to additional liability, including fines and imprisonment in the case of repeat violations. § 9-1121.
Finally, the Fair Practices Ordinance creates a private right of action. After administrative exhaustion, a “complainant may bring an action in the Court of Common Pleas of Philadelphia County based on the right to freedom from discrimination granted by this Chapter.” § 9-1122. This private right of action must be brought within two years of the PCHR’s notifying the claimant that his or her administrative case has been closed.
This legislation parallels similar laws recently enacted in New York and New Jersey, which were previously reported on our blog.
According to a recent CareerBuilder survey, four in ten people admitted to dating a co-worker, and one-third eventually married that person. Whether a relationship between peers, relationships between supervisors/subordinates, flings, long-term relationships, or extramarital affairs, office romances can lead to unwelcome complaints and expensive lawsuits.
Part 1 of this three-part series addressed the potential risks that office romances pose to companies, and Part 2 covered the importance of adopting and enforcing a company policy addressing fraternization. This final installment offers recommended steps you should take now to defend potential claims of discrimination and harassment.
Tips for Employers
Employers should prepare and implement a clear policy regarding office relationships or update an existing one, and be sure to disseminate it and obtain employees’ acknowledgements. The policy should address to extent to which office relationships are permissible, and, if appropriate, require employees to promptly disclose the existence (or termination) of a romantic or sexual relationship to a designated member of Human Resources or management. When the employees involved are in a supervisor/subordinate relationship, disclosure is especially critical so that the employer may effectively address the impact of the relationship (e.g., evaluating if it is necessary to change job duties or reassign the employee(s)).
If harassment occurs despite an employer’s best efforts to prevent and stop it, you will have a strong defense if you can demonstrate that you have done the following:
- Implement and enforce a sexual harassment and office romance policy that provides a clear reporting channel and prohibits retaliation for good faith complaints.
- Respect employees’ reasonable expectations of privacy regarding their relationship in line with the company policies.
- Train new and existing employees on the sexual harassment policy and document the training.
- Train managers on what constitutes sexual harassment and how to handle complaints.
- Train employees to report inappropriate behavior.
- If a relationship develops between a manager and his/her subordinate, transfer one of them if possible to eliminate a direct reporting relationship.
- Promptly and thoroughly investigate complaints.
- Take appropriate corrective action to address prior incidents of sexual harassment.
Regardless of the type of policy your company adopts, be sure to customize it to the needs and actual practices of your business. Train employees and managers on expectations governing office romances. A well-drafted and uniformly enforced fraternization (or non-fraternization) policy will not prevent workplace relationships altogether, but it can protect you if you encounter office romances.
More than ever, employers are facing serious claims arising from office romances. Part 1 of this three-piece series covered the potential claims, charges and lawsuits that may arise from workplace relationships. In this installment, learn why it is imperative to adopt a company policy addressing fraternization. Part 3 will address tips for employers to mitigate potential liability.
What Does Company Policy Say?
With Valentine’s Day around the corner, now is a good time for employers to update or create a policy governing dating among workers. While some policies prohibit romantic relationships altogether, many employers recognize that employees will date each other regardless of policy. In fact, they might “sneak around” to avoid violating the policy, which could create even more tension if the relationship is discovered or known only to a select few. Moreover, strict no-dating policies may be difficult to implement and enforce, as they may not clearly define the conduct that is forbidden (e.g., does the policy prohibit socializing, dating, romantic relationships, or something else?).
Some policies interdict dating among management and staff, while others specify that there is to be no fraternization with outside third parties to avoid conflicts of interest or the appearance of impropriety. Still, other organizations mandate that employees who date one another voluntarily inform the company about their relationship.
In such cases, the notification policies direct employees to report their dating relationships to Human Resources, the EEOC officer, or a member of management, and they ask employees to sign a written consent regarding the romantic relationship. While this type of policy may seem intrusive, these documents are drafted to protect employers from unwanted complaints of future sexual harassment or retaliation.
When asking employees to sign consents, you should again advise them about the company’s sexual harassment policy and remind them about ramifications of policy violations. Document that the employees entered into the relationship voluntarily, were counseled and – if/when the relationship ends – include a memo in their respective personnel records that the relationship ended, and the employees were reminded about the company’s sexual harassment policy. You should require the dating parties to make certain written representations to shield the company from future claims:
- The individuals have entered the relationship voluntarily and the relationship is consensual.
- The employees will not engage in any conduct that makes others uncomfortable, intimidated, or creates a hostile work environment for other employees, guests, or third parties.
- The employees do not and will not make any decisions that could impact each other’s terms and conditions of employment.
- The employees will act professionally toward each other at all times, even after the relationship has ended.
- The relationship will not cause unnecessary workplace disruptions or distractions or otherwise adversely impact productivity.
- The employees will not retaliate against each other if/when the relationship ends.
Stay tuned for Part 3 for steps to take now to defend potential claims of discrimination and harassment.
Love is in the air – which could bring claims of sexual harassment and discrimination. As Valentine’s Day approaches, employers should be mindful of office romances:
- Statistics show that more than 20% of married couples met at work, yet nearly half of those employees reported that they did not know if their company had a policy on office romances.
- According to a recent survey by Monster Worldwide, 59% of employees admitted that they have been involved in an office romance.
- An additional 64% answered that they would be willing to do so if the opportunity arose.
- Yet, 75% of employers do not have a policy regarding workplace relationships.
- AshleyMadison.com (a dating site for married people looking to cheat – yikes!) reports that 46% percent of men and 37% percent of women have had an affair with a co-worker. Among these cheaters, 72% percent of women and 59% percent of men say that they had their first encounter with the affair partner at a company holiday party … which means now is the time for employers to pay attention!
In this three-part series, learn (1) the potential risks to employers from workplace relationships, (2) how to draft an office romance policy, and (3) what steps to take to head off potential litigation. Part I addresses the negative consequences that office romances can pose to unprepared employers.
What’s the Harm?
While consensual office relationships are more commonplace than in the past, they can trigger business and legal headaches for employers when the relationship fizzles or is no longer consensual. Moreover, fellow employees may feel resentful, jealous, uncomfortable, or intimidated (especially in relationships between a supervisor and a subordinate), leading to complaints of sexual harassment, discrimination, or retaliation.
Importantly, claims may be brought not only by the individuals in the relationship, but even by third parties. Complaints of “paramour favoritism” are on the rise and are being filed by employees who allege they are overlooked due to preferential treatment towards a co-worker who is engaged in a romantic relationship with the boss. While courts differ on whether such claims are meritorious, turning a blind eye to such relationships may result in business interruption and liability.
In 2011, for example, the EEOC reported that 11,364 charges of sexual harassment were filed, and 16.3% of those were filed by men. These charges are quite costly to employers – the EEOC recovered over $52 million in damages for sexual harassment claims in 2011. Employers might not be able to prevent love in the office, but you can take action to mitigate potential liability. An important initial measure is to draft a good policy depending on your company’s size, structure, business goals, and culture. Make sure that, if you implement an office dating policy, you enforce it uniformly and take appropriate and equal action for violations of the policy.
Watch for installments 2 and 3 to learn the dos and don’ts when drafting an office romance policy and tips for employers to avoid liability.
New Jersey lawmakers recently amended the New Jersey Law Against Discrimination (NJLAD) to provide additional protections for women in the workplace.
Employers are now required to provide reasonable accommodations to allow women who are pregnant, have given birth, or are suffering related medical complications to continue working. This Alert discusses the amendment and what it requires of New Jersey employers.
To view the GT Alert on www.gtlaw.com, please click here.
To view the GT Alert as a PDF, please click here.
The UK Government has announced plans this month to bring in new legislation increasing the maximum financial penalty for rogue employers who fail to pay their employees the National Minimum Wage (“NMW”).
At present, employers who flout their NMW obligations must make good on arrears, as well as incurring a financial penalty of 50% of the total underpayment to all workers to the Secretary of State, to a maximum of £5,000.
The draft National Minimum Wage (Variation of Financial Penalty) Regulations 2014, expected to come into force in February 2014, will increase the financial penalty to 100% of the total underpayment, to a maximum of £20,000.
The Government has further plans to ramp up the pressure, proposing that the maximum penalty of £20,000 should be levied in respect of each underpaid worker, rather than all workers.
Link to press release: https://www.gov.uk/government/news/national-minimum-wage-penalties-increased-on-rogue-employers
By definition, metadata is data about data. For computer files, it includes file name, file type, date last opened, date last edited and more. In addition to that kind of file information, which most people can see, there are many more metadata fields that are hidden to typical users. When a file is created or revised, details may be embedded about who created or changed the document, when, on what computer, at what company, what was changed and more. This information can be valuable for a court case, and it goes beyond standard electronic discovery data collection: it must be gathered and analyzed by a digital forensics specialist.
To view the media, please click here.
Employers operating in New Jersey must now “conspicuously post” the attached gender equity poster in a place accessible to their New Jersey employees. Employers can satisfy this requirement by posting the notice on a company internet/intranet site for exclusive use by employees and accessible to all employees.
In addition, employers must provide their employees with a written copy of the notice. For all employees hired on or before January 6, 2014, written notice must be provided no later than February 5, 2014. For employees hired after January 6, 2014, written notice must be provided at the time of hire. This written notice can be provided via (i) email delivery, (ii) printed material (e.g., a paycheck insert or attachment to an employee manual), or (iii) the internet/intranet site. Employers must also provide the written notice to all employees annually, and upon any employee’s request. The written notice must be accompanied by an acknowledgement that the employee has received the notice and has read and understands its terms.
These requirements are explained in the attached December 2013 Update. Both the Update and Poster are available for download on the Department of Labor and Workforce Development’s website: http://lwd.dol.state.nj.us/.
The GT Alert — 2013 California Employment Law Legislative Update: Things You Need to Know for 2014 was prepared by James M. Nelson, Angela Diesch and Jennifer Holly.
This Alert discusses how California’s legislative changes will affect management of employment in California for 2014 and beyond. The authors offer insight on the more significant employment-related legislation that should be given some thought prior to year end, when most of the new laws take effect.
To view the GT Alert on www.gtlaw.com please click here.
To view the GT Alert as a PDF, please click here.
With Zachary N. Klein and Michael J. Slocum.
The Pregnant Workers Fairness Act, scheduled to go into effect on January 29, 2014, requires employers in New York City to provide their pregnant employees with “reasonable accommodations” for their pregnancies or related medical conditions. Employers in the City of New York should prepare by considering pregnancy‐related conditions that may be covered under the new law, reviewing their current policies in light of these legal developments, and training supervisors to be mindful of the new law and its effects. This Alert describes important considerations that employers should keep in mind.
To view the GT Alert on www.gtlaw.com, please click here.
To view the GT Alert as a PDF, please click here.