Employment Law This Week March 19, 2018: NYC’s #MeToo Legislation, Title VII & Gender Identity, False Claims Act Lawsuit, Flu Shot Policy [VIDEO]
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This week’s stories include ...
(1) NYC Introduces Expanded Sexual Harassment Legislation
Our top story: New York City introduces #MeToo legislation. The City Council has introduced a package of bills modifying sexual harassment laws. One bill would require private employers with at least 15 employees to implement annual sexual harassment training. The laws could add significant and costly requirements, particularly for smaller businesses. Ian Carleton Schaefer has more:
“First, the law would mandate that private-sector employers here in New York City who have 15 or more employees conduct annual anti-harassment training for the entirety of their workforce, commencing in September of 2018. Second, the law would expand coverage of the New York City Human Rights Law to smaller employers, to employers who have fewer than four employees. And, finally, the law would lengthen the statute of limitations period, the time at which people can bring forward claims of harassment, which is currently at one year, to a period of three years. This legislation, which is actually a package of 11 different bills, which collectively is known as the Stop Sexual Harassment in New York City Act, would have a profound impact on nearly every single private-sector employer here in New York City, which is approximately 270,000 private-sector employers.”
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(2) Sixth Circuit: Title VII Covers Gender Identity
The U.S. Court of Appeals for the Sixth Circuit rules that Title VII of the Civil Rights Act of 1964 (“Title VII”) covers gender identity. The Equal Employment Opportunity Commission (“EEOC”) sued a Michigan funeral home for firing its director after learning that she planned to transition from male to female. The employer claimed protection under the Religious Freedom Restoration Act. The federal district court agreed, but a panel for the Sixth Circuit found that firing the plaintiff due to her transgender status was unlawful discrimination on the basis of her sex. The court also held that enforcing Title VII did not "substantially" burden the employer’s religious exercise. This is the second federal appellate court in recent weeks to have sided with the EEOC’s interpretation of “sex” under Title VII.
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(3) Nurse Can Pursue False Claims Act Suit
The Sixth Circuit ruled that a nurse who claims that she quit her job rather than participate in fraud can proceed with her False Claims Act lawsuit alleging constructive discharge. The district court dismissed her suit, holding that such a claim requires the employer to have a “specific intention” to cause the employee to quit. The Sixth Circuit reversed and concluded that an employer’s intent can support a constructive discharge claim if it can reasonably foresee that the plaintiff might be forced to resign as a consequence of its actions.
(4) DOJ Sues Wisconsin County for Flu Shot Policy
A nursing assistant got sick over a county flu shot policy. An employee at a Wisconsin county nursing home claims that she was forced to get a flu shot despite her religious objections. The county policy required a written statement from a clergy member in order to get a religious exemption. The employee was not affiliated with a church and provided a letter she'd written herself. She was forced to get the shot to avoid termination. After she filed an EEOC complaint, the agency referred the case to the Justice Department, which has now filed a Title VII suit claiming that the county’s policy fails to reasonably accommodate religious beliefs.
(5) Tip of the Week
Russ Ebersole, General Manager for King Cole Audio Visual Service, shares some advice for small employers on keeping up and complying with employment laws in the current environment:
“In 2017, countless new employment laws were enacted in New York State, California, Illinois, and many other jurisdictions. These include wage and hour, family leave and sick time policies, scheduling requirements, tax levies, and more. Small businesses are not exempt, and keeping abreast of these changes can be a daunting task. We must become familiar with these laws of regulations, and we must also develop policies and procedures for proper implementation. Failure to comply can be costly. So, how do we stay on top of it all? Review the advisories and other resources sent by outside counsel, like Epstein Becker & Green. Seek additional resources, such as state and local government websites. Sign up for their mailing list so you receive timely updates directly from the source. For example, Governor Cuomo's office releases many of these advisories in New York.”