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New York City Law Blog

5 Misconceptions about workplace sexual harassment

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No employee should ever be subjected to sexual harassment at work. Unfortunately, even though sexual harassment in the workplace is illegal, it is quite common.

There are many misconceptions and myths about sexual harassment that may prevent an employee from taking action to stop the behavior. Let's briefly review and correct just a few of these misconceptions:

What you need to know about paid sick and safe leave

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Sometimes you need to miss work. You get sick, or someone in your family does. Medical and dental appointments can conflict with work schedules. It seems like there's always the potential for a health-related matter to make getting to work more difficult, and missing work can put your job at risk.

Recognizing the problem, cities and states have begun to enact laws ensuring paid sick leave for employees. And it's frequently not limited to full-time employees.

All the Best Intentions: Inadvertent Fraudulent Conveyances

All the Best Intentions Inadvertent Fraudulent Conveyances

Most claims for fraudulent conveyance fall under what's known as constructive fraud. In a constructive fraud, a debtor or third party can be held liable for fraudulent conduct even though the offending party did not intend to defraud the creditor. This typically occurs when a debtor transfers property to an "insider," or to any third party without receiving fair consideration in return. One common example occurs when a corporate debtor loans money to one of its shareholders while owing a debt to a creditor. The transfer may include property, cash, the hard assets of a business, trademarks, or any other property that can be transferred between two or more entities, between two or more people, or between people and entities. 

Should multistate retailers 'ban the box' in all locations?

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The ALDO Group, an international retailer of shoes and accessories, has 53 stores in New York. The group was recently targeted by the New York Attorney General's office for questioning job applicants about their criminal histories despite the state's 2015 "ban the box" legislation. Stores in New York were using application forms that included a criminal background question, an investigation found, and an ALDO hiring manager allegedly said that candidates with felony records would not be considered.

In a statement, ALDO said the stores in question were using an outdated version of the retailer's application form without the knowledge of its human resources department. It added that the company hasn't used criminal background checks for hiring since 2015, and isn't aware of any New York job applicant being turned down on the basis of criminal history. Nevertheless, the issue led to a $120,000 fine.

New anti-sexual harassment requirements for New York employers

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The #MeToo movement not only highlighted the problem of sexual harassment in the workplace but also revealed weaknesses in the laws designed to prevent it. This year, New York City employers should be aware of changes at both the state and city levels. The state updated its Human Rights Law in April, and the city passed the Stop Sexual Harassment in NYC Act in May.

New York employers are or will soon be required to take several actions under the new laws:

What are the two types of sexual harassment?

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Workplace sexual harassment is more common than many people realize. But it is never okay.

Last year's #MeToo movement shined light on the pervasiveness of sexual harassment in the workplace, particularly in the entertainment industry.

Is it sexual harassment? Sometimes it's difficult to tell.

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When imagining a "typical" workplace sexual harassment scenario, people tend to think of blatant, obvious examples, such as inappropriate touching or making inappropriate comments about physical appearance.

However, workplace sexual harassment is not always so obvious and overt.

Study: Men who stand up for others at work may face a backlash

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In the wake of the #MeToo movement, some have asked why women don't always stand up to those who commit sexual harassment or misconduct. Common answers include fear of not being believed, fear of retaliation, and settlements with nondisclosure clauses.

Now, a new hashtag-based movement is asking why men are reluctant to stand up and speak out when they see their female coworkers being harassed. Earlier this year, a Hollywood group released an open letter asking men to take on more of the responsibility for creating workplaces that are free from gender discrimination and harassment. They call their movement #AskMoreofHim.

Is it permissible to favor applicants with disabilities?

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Imagine there are two applicants for a job. Both are similarly qualified, but one applicant has a disability and requires the use of a wheelchair.

In that situation, federal anti-discrimination laws prohibit the employer from choosing the non-disabled applicant solely because the other applicant has a disability. But what if we turn that situation around? Can the employer choose to hire the applicant who has a disability solely because that applicant has a disability? According to a recent opinion by the Equal Employment Opportunity Commission, the answer is yes.

DOL issues guidance on proper classification of contractors

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The U.S. Department of Labor Wage and Hour Division recently issued a field assistance bulletin (FAB) entitled "Determining Whether Nurse or Caregiver Registries Are Employers of the Caregiver." While the bulletin focuses on nurses and other caregivers, it provides valuable insight into the proper classification of workers and independent contractors regardless of industry. It also indicates that the DOL will consider the totality of the circumstances when determining whether a worker should be considered an employee or an independent contractor.

The question of whether a worker is an employee or an independent contractor is a legal one. Courts generally rely on a multifactor test to make this determination, with the most commonly discussed factor being whether the company or the worker controls the details and performance of the work. The more that a company controls the work, the more likely the courts will deem that worker to be an employee.

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