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New York Employment Law Blog

Bridgewater pushed out, paid off woman for consensual relationship

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Can a purportedly consensual sexual relationship at work be considered sexual misconduct? Absolutely. When a sexual relationship emerges between a boss and a subordinate, the law might not consider it consensual even if the parties say that it is.

There are a host of potential problems. A supervisor who gets in the habit of dating subordinates could be accused of sexual harassment. The power dynamic between the participants may make it problematic for the subordinate to say no -- to sex or to workplace requests. A breakup could lead to such animosity that the employee feels the work environment has become hostile.

New legislation seeks to protect models from sexual harassment

Despite the high-profile nature of the work, many fashion models in New York City have fewer employment law protections than in other industries. Models usually work as independent contractors, meaning their agencies act as intermediaries in setting up shoots with clients. Models do not actually have contracts with the clients they are working for. Because of their status, it is not always clear who is legally responsible when sexual harassment occurs on the job.

Sexual harassment and abuse are rampant in fashion and modeling. In an effort to increase employment protections for models, New York State Assemblywoman Nily Rozic introduced a bill on Oct. 23 that would make photographers, retailers and others explicitly liable for sexual harassment that occurs during a shoot. She introduced the bill shortly after revelations about film mogul Harvey Weinstein's decades of harassing behavior toward actresses and models.

Grubhub tells court that its workers are independent contractors

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Grubhub, a restaurant take-out delivery service, is facing a lawsuit brought by one of its delivery drivers. The driver claims that he was misclassified as an independent contractor, and as a result earned less than the minimum wage and was denied overtime pay and reimbursement for gas and vehicle maintenance.

The company denies that the plaintiff or any of its delivery drivers are misclassified. It points out that drivers are free to accept or turn down assignments, set their own hours and even work for competitors. That degree of freedom from Grubhub's control, the company argues, meets the main test for independent contractor classification.

Why silence after sexual harassment? Nondisclosure agreements.

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Why do women remain silent after experiencing sexual harassment in the workplace? One reason is that companies sometimes settle the matter privately in exchange for a nondisclosure agreement.

As we discussed in our previous post, some sexual harassment victims remain silent due to a well-grounded fear of retaliation. In many cases, victims are given a false choice between signing a secret cash settlement and suffering retribution.

Why don't women speak up about sexual harassment? Retaliation.

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Are fears of retaliation well-founded? Yes. Does that mean it's not safe to come forward? No, but it does mean you should take extra care.

According to a comprehensive study released by the Equal Employment Opportunity Commission ("EEOC") last year, "anywhere from 25 percent to 85 percent of women report having experienced sexual or gender harassment in the workplace." Think about that. According to the EEOC, at least one in four women has experienced sexual harassment at work.

Legal Update: New York State Department of Labor Attempts to Clarify Rules on Home Health Aide Pay

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On September 13, 2017, in two separate decisions, the New York Supreme Court Appellate Division, Second Department, determined that the March 11, 2010 Opinion Letter issued by the New York State Department of Labor  was not a reasonable interpretation of the Wage Order and the New York Labor Law as it relates to home health aides.

Could New York businesses be caught up in 'the Weinstein effect'?

When the New York Times did an exposé on film mogul Harvey Weinstein's history of sexual harassment, it took the nation by storm. The story caused a cascade of chaos for Weinstein and the Weinstein Co.

Weinstein has been ousted from the company, which he co-founded with his brother Bob. The Times report said he has reached settlements on sexual harassment allegations with at least eight women since 1990, including actress Ashley Judd and several former employees. In total, 13 women had come forward, the story said, including three who claimed Weinstein raped them.

State Street Corp. to pay $5 million in wage discrimination case

The State Street Corp., a financial services organization, commissioned the famous "Fearless Girl" statue on Wall Street to promote female involvement in corporate leadership. Now, that same organization has agreed to pay women and African-American executives $5 million after the Department of Labor found that it had systematically underpaid them. State Street denies any wrongdoing.

The settlement came about after a 2012 wage compliance review by the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP). The review discovered a statistically significant differential between the pay of men and women in leadership roles and between African-American and white employees. Even after accounting for legitimate factors, a differential remained.

SCOTUS hears class-action waiver arguments in 3 wage-and-hour cases

Among the cases that the U.S. Supreme Court is deciding this term are three consolidated wage-and-hour cases. In each case, an employer required its employees to enter into arbitration agreements and waive their right to bring class-action lawsuits against the employer. While these types of agreements are commonplace, it is widely thought that many more employers would use such waivers if the Supreme Court determines that they are legal.

A spokesperson for the Society for Human Resources Management (SHRM) commented that employers would be "foolish" not to use such waivers, pointing to the benefits that arbitration may offer to both sides. In an ideal situation, arbitration offers a neutral forum where disputes may be settled more quickly and at less cost than courtroom litigation.

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