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Q: I am an employer in Westchester County.  What do I need to know about the new paid sick leave law?  If I have employees in both Westchester County and New York City, can I have one paid sick leave policy that covers everyone?

A: Westchester County recently enacted its Earned Sick Leave Law (“ESLL”), which goes into effect on April 10, 2019.  While the law is similar in many aspects to New York City’s Earned Safe and Sick Time Act (“ESSTA”), there are some important differences.  Employers who want one policy to cover employees in both locations (referred to below as a “dual policy”) can opt to offer the more generous benefit.  Alternatively, employers can create a policy with carve-outs that are applicable to subsets of employees (referred to below as a “carve-out policy”).  As explained below, the key differences between the laws are whether the law covers safe time as a permissible use of sick leave, and the definition of family member.

Q: Are there certain rules an employer must follow when conducting background checks on employees and prospective employees?

A: The Fair Credit Reporting Act (“FCRA”) is an often overlooked federal law that imposes stringent technical requirements on employers wishing to procure a “consumer report” from a third party “consumer reporting agency” for hiring or other employment purposes. Individual FCRA lawsuits and class actions are on the rise and failure to comply with the FCRA can result in harsh financial penalties.  This blog post provides a brief overview of the FCRA.

Q: I understand that employers may be required to offer reasonable accommodations to hearing-impaired applicants and employees. When are accommodations required?  What kind of accommodations must employers offer?

A: The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment. In the context of a job application, an accommodation is considered to be reasonable if it enables an applicant with a disability to have an equal opportunity to apply for and be considered for a job.  In the context of employment, an accommodation is considered to be reasonable if it enables an employee to perform the essential functions of the position.

Q.  Is there anything I should look out for in documenting my legitimate business reason for terminating an employee?

A.  The United States Appeals Court for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) recently issued an opinion that serves as a warning that inconsistent explanations of an employer’s reason for an adverse employment decision could support an inference of retaliation. In Donley v. Stryker Sales Corp., No. 17-1195 (7th Cir. Oct. 15, 2018), the plaintiff filed an internal complaint with the company’s human resources department that a manager was harassing a female coworker. The human resources director investigated the complaint and the company then terminated the manager, albeit with a hefty severance package.  Shortly after the termination, however, the plaintiff also was terminated.  The company claims that it fired the plaintiff for taking improper photographs of the CEO of a vendor, who was drunk at a work event approximately six weeks prior to plaintiff’s harassment complaint.

Q.  Does Delaware have any laws requiring employers to train employees on their harassment policy?

A.  Yes. On August 29, 2018, Delaware enacted a sexual harassment law aimed to broaden protections for workers against sexual harassment. Among other things, the law requires employers to provide sexual harassment prevention training to all employees, with supervisors receiving additional training.  The law also instructs employers as to the content of the training.

Q: My company uses a third-party vendor to conduct background checks on prospective employees.  We heard there is a new model for the “A Summary of Your Rights Under the Fair Credit Reporting Act” notice.  Should we be using it?

A: Yes.

The Fair Credit Reporting Act (FCRA) establishes strict procedures that employers must follow when obtaining background check reports on applicants or employees from a third party “consumer reporting agency.” The FCRA requires employers to provide written disclosures to and seek affirmative consent from applicants and employees before procuring these types of background check reports.

Employers and consumer reporting agencies beware: a change to a commonly used form required by the Fair Credit Reporting Act (“FCRA”) becomes effective on September 21, 2018, and the price of non-compliance could be class action lawsuits.

On September 21, 2018, the Economic Growth, Regulatory Relief and Consumer Protection Act’s…

Q: My company is headquartered in Massachusetts. Does the new Massachusetts law on non-competes change how I structure non-compete agreements with employees?

A: Massachusetts recently enacted a new law outlining the requirements for valid employee non-competition agreements.  The law will go into effect for non-competition agreements entered into on October 1, 2018 and later.  Agreements signed prior to the new law will remain valid.

Q:  Does my company have an affirmative defense to a sexual harassment claim if the company has a policy for reporting sexual harassment and an employee never makes a report of sexual harassment under that policy?

A:  Earlier this summer, in a case called Minarsky v. Susquehanna County, the United States Court of Appeals for the Third Circuit (governing employers in Pennsylvania, New Jersey, Delaware, and the Virgin Islands) ruled that “a mere failure to report one’s harassment is not per se unreasonable,” even though the Third Circuit had previously “often found that a plaintiff’s outright failure to report persistent sexual harassment is unreasonable as a matter of law.”