New York Severance Agreements

The Perils of Poorly Drafted Severance Agreements On May 3rd, the New York State Supreme Court Appellate Division, First Department handed down a decision in the case of Johnson v. Lebanese American University (LAU) (You can read or download the decision from the court’s website here: www.courts.state.ny.us/courts/ad1/). The decision revived a lawsuit filed by a former employee of the University who alleged that he was unlawfully terminated because he is gay. At the time of his termination, the plaintiff was presented with a severance agreement, which included a release of claims against the university in exchange for payment of $4,651. The University successfully argued at the trial court level that the case should be dismissed because the employee had unequivocally released all possible legal claims by signing the release and accepting the payment after he was fired. Unfortunately for LAU, the Appellate Division reinstated the lawsuit, essentially finding, among other things, that the specific language of the release could be open to interpretation as to whether it was intended to cover the employee’s claims of discrimination. The appellate decision also found that there was a disputed question of fact as to whether the severance agreement payment constituted money to which the employee was already entitled. The decision highlights two of the many potential pitfalls employers can run into when trying to utilize and implement severance agreements without the assistance of experienced employment counsel: 1. The language of the release contained in the severance agreement MUST be carefully drafted to leave no doubt that it is intended to cover all possible claims that could later be asserted by the employee,...

What Is the NYC Victims of Gender-Motivated Violence Protection Law?

Recent Court Ruling about Victims of Gender-Motivated Violence Protection Law Recently, a New York Supreme Court, Appellate Division ruled on a Gender Motivated Violence Protection Act law case, which has potentially changed the legal landscape for employers. The case was Breest v Haggis. Details of the Victims of Gender-Motivated Protection Law (VGMVPA) Case The plaintiff, a 26-year old publicist, Haleigh Breest alleged that film director and writer Paul Haggis’ violated New York City’s law, the Victim’s of Gender-Motivated Violence Protection Act. This was the first time a plaintiff had applied the VGMVPA to a workplace harassment situation in New York City. Haleigh Breest and Paul Haggis had both attended an NYC premiere party. The defendant offered to give the plaintiff a ride home and suggested they go to his apartment for a drink. The plaintiff suggested a public bar instead but the defendant insisted and the plaintiff agreed to go to his apartment. The case details the actions that the plaintiff alleges ended in rape. The point being argued in the case was whether grounds existed to bring a case based on the VGMVPA. VGMVPA § 10-1103 Definitions states, “a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.” The Supreme Court allowed the case to be heard under the VGMVPA when it ruled: “Rape and sexual assault are, by definition, actions taken against the victim without the victim’s consent [FN11]. Without consent, sexual acts such as those alleged in the complaint are a violation of the victim’s bodily autonomy and...

COVID 19 Response Employment Impacts for New York Workers and Businesses

As we all know, there is only one issue in the news right now: the novel coronavirus (COVID-19), its varied impacts upon global societies, and the increasingly extraordinary measures being taken by nations, states and local governments to minimize the adverse health consequences to vulnerable populations. If you are a New Yorker reading this article, you are no doubt seriously worried about the possibility of contracting the virus. Even for the relatively young and healthy among us, the fear of community spread to family and friends who may be elderly or immunocompromised is very real, as they are at heightened risk of serious health complications. Here in New York City, as public schools and many businesses have been closed for the foreseeable future, people are wondering how this constantly evolving situation may impact their livelihoods, and are looking for ways to survive what may be a potentially long and painful period of economic pain. This article will provide some helpful information for employees and employers looking for some relief in these difficult times. Information for Affected NYC Employees Many businesses in the service and hospitality sectors have already been ordered to close by city and state governments. Additionally, many other businesses have either been forced to shutter or have vastly reduced staffing levels due to serious decline in customers and revenues as most New Yorkers begin to shelter in place. If you have been laid off or furloughed by your employer, you should immediately apply for unemployment insurance benefits, as New York has waived the normal seven-day waiting period before filing a claim. This means that workers who lose...

What Is Vicarious Employer Liability for Unlawful Harassment?

Legal Responsibility for Supervisors Vicarious liability for unlawful harassment is a legal precedent that emerged as a result of various cases. The Equal Employment Opportunity Commission (EEOC) issued guidelines that explain what this means. It cites the Supreme Court’s ruling in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). The Supreme Court based its decision on two main factors: An employer is responsible for the acts of its supervisors. Employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment. Affirmative defense that employers have against vicarious liability allegations include showing that: The employer exercised reasonable care to prevent and correct promptly any harassing behavior The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm The vicarious liability rule applies to harassment by supervisors based on race, color, sex (whether or not of a sexual nature), religion, national origin, protected activity, age or disability. Who Is Considered a Supervisor? Employees are supervisors if they have the authority to: Undertake or recommend tangible employment decisions affecting the employee Direct the employee’s daily work activities Examples of tangible employment decisions could include (but are not limited to) promoting, demoting, hiring, firing, reassigning employees, and making compensation decisions or changes in benefits. Examples of supervisor authority over daily work activities would be increasing or decreasing the workload. It is also vital for employers to make it known they will not tolerate adverse employee treatment for reporting harassment or providing...

Effect of the #MeToo Movement on New York Employment Law

Harvey Weinstein Convicted in NY Criminal Trial for Rape and Sexual Abuse We are reminded of the effect of the #MeToo movement on New York employment law as the jury rendered guilty verdicts for Harvey Weinstein on February 24, 2020. The jury found Weinstein guilty of third degree rape and sexual abuse. However, they found him not guilty of first-degree rape and predatory sexual assault, which were more serious charges. He still awaits trial in Los Angeles for charges of raping one woman and sexually assaulting another in 2013. How the #MeToo Movement Affected Employment Law in NY and NYC An article in NPR points out that the State of New York and New York City have passed the nation’s most rigorous workplace sexual harassment laws. Legislatures passed the laws subsequent to the #MeToo movement gaining momentum and media attention. In New York, employees must undergo annual sexual harassment training regardless of the company’s size. The laws are sweeping, affecting every business in New York. In addition, employers must post sexual harassment policies in highly visible places. The training must be interactive in that a live trainer must be available during training to respond to questions. Furthermore, employers must request feedback from employees regarding the training and materials. Even when an employee outside of New York comes to a New York office, if only for a day, that employee must receive the training. The outcome has been a complete shift in perspective regarding sexual harassment in the workplace. What Changes Have Occurred in NY Business Culture? As a result, employees subjected to sexual harassment are more willing to come...