What Is the Faragher-Ellerth Affirmative Defense?

An Affirmative Defense for Employers

Affirmative defense is a legal term that offers some degree of protection for employers. We live in volatile times, an age where #MeToo is changing the legal landscape and sexual harassment claims are becoming very prevalent.

While many wrongs are being righted, it has also opened the door to the possibility of false claims. You may ask, “What protection do employers have?”

Womans Equal Rights, NY Equality Act

The Faragher-Ellerth Defense

The Faragher-Ellerth Affirmative Defense arose from two cases heard by the U.S. Supreme Court. The court’s decisions established precedents for affirmative defense for employers who faced accusations of sexual harassment. It has also served as a defense guideline against hostile work environment harassment claims based on other protected classes.

The defense may offer protection to employers if the following circumstances exist:

  • The employer exercised reasonable care to prevent and promptly correct the harassment. (Companies’ harassment polices show the business has taken effective preventative measures.)
  • The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities the employee provided or failed to otherwise avoid harm.
  • The employer or supervisors did not take tangible adverse actions against the complaining employee, such as demotion, termination or an undesirable reassignment.

Based on a Recent Ruling, Employers Should Be Proactive in Preventing Sexual Harassment

In a recent case, Minarsky v. Susquehanna County, the County used the Faragher-Ellerth affirmative defense and the district court granted the County summary judgment. However, the Third Circuit Court vacated the judgment by ruling that the case should be heard by a jury, which would decide whether the County took reasonable care to detect and eliminate the harassment and whether the employee had acted reasonably in not availing herself of the County’s anti-harassment protections.

The employee terminated for sexual harassment had been reprimanded twice previously with no notation made in his personnel file. Similar encounters by other workers came under scrutiny before he was terminated. However, Minarsky worked with him alone and had endured sexual harassment for four years.

Being proactive about dealing with sexual harassment and conducting a thorough investigation can often help employers avoid situations like these.

Our attorneys at Stephen Hans & Associates are glad to discuss employment issues and help business owners create discrimination-free work environments.

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What Can Restaurant Owners Do to Reduce Sexual Harassment?

Guidelines for Dealing with Sexual Harassment as a Restaurant Owner

sex harassmentRestaurant owners who allow sexual harassment to exist in the workplace put themselves at risk for complaints and lawsuits. It is wise to understand what actions you can take to eliminate sexual harassment and avoid liability.

The Harvard Business Review (HBR) pointed out that Pizza Hut became liable in the Lockard v. Pizza Hut case because the franchisee ignored corporate policy that required managers to inform a customer to stop harassing their employees. It was their policy to require that customers leave when they failed to heed the manager’s warning. The harassment case resulted in the franchisee paying the employee approximately $38,000 in damages.

What Actions Can Restaurant Owners Take?

To prevent sexual harassment in the workplace, restaurant owners can take the following measures:

  • Devise and enforce anti-harassment polices
  • Establish procedures for employees to file complaints
  • Establish procedures for managers to address complaints regularly and fairly
  • Establish a procedure for employees to report managers to a Human Resources department when being harassed by a manager
  • Use the “secret shoppers” model and interview employees about instances of sexual harassment
  • Require managers to complete sexual harassment training
  • Train managers to recognize the various types of sexual harassment and ensure they understand the legal measures necessary to keep the workplace free of sexual harassment
  • Train employees in bystander intervention training so witnesses know how to recognize and deal with sexual harassment and can disrupt it
  • Train managers how to deal with harassing customers, which includes assigning the employee to a different table, informing the customer that the harassment will not be tolerated, and asking customers to leave when they do not comply.
  • Make it restaurant policy not to serve customers who sexually harass employees. Employees can apply the policy in the same way that they can refuse to serve intoxicated or threatening customers.

Our attorneys at Stephen Hans & Associates are glad to discuss employment issues and help business owners create discrimination free work environments.





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Facts About Sexual Harassment in the Restaurant Industry

Why Is Sexual Harassment so Prevalent?

sexual harassment

Sexual harassment is more prevalent in the restaurant industry than any other industry. Statistics show that 90% of women and 70% of men working in the restaurant industry reported they had experienced some form of sexual harassment.

What Factors Make Restaurants Prone to Sexual Harassment?

The Harvard Business Review (HBR) indicated that the following factors make employees in the hospitality industry more susceptible to sexual harassment:

  • Women make up 71% of restaurant servers
  • Men make up the majority of restaurant management
  • Typical servers are young females
  • Women are in lower pay and lower status jobs
  • Due to lower status, women do not feel comfortable confronting others about inappropriate behavior
  • The employee turnover rate is high — 70% annually
  • The customer is always right mentality enables customers to sexually harass employees
  • States with tip systems experienced more sexual harassment than states that had minimum wages
  • Restaurants had strict grooming, and uniform rules and were focused on “looks”

According to an HBR study, where 162 managers from hotel and lodging departments participated, managers perceived sexual harassment as less negative when done by a customer than by an employee.

A study done on 76 females in the restaurant industry over a three-month period revealed that there were 226 incidents of sexual harassment, which broke down as follows:

  • 112 incidents involved co-workers
  • 29 involved a manager
  • 85 involved customers

The nature of the harassment included:

  • Telling suggestive, sexual stories (49%)
  • Making offensive remarks (46%)
  • Making crude sexual remarks (45%)
  • Making sexist comments (42%)
  • Attempting to discuss sex. (33%)

Servers rarely complained to their managers even though most of them felt uncomfortable and threatened. The reason they didn’t report it was due to fear of retaliation. As a result, both men and women working in the industry have, to a degree, normalized sexual harassment.

Stephen Hans & Associates provides extensive legal experience to business owners regarding employment related issues.

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Changes in New York State and NYC Sexual Harassment Laws

Sexual Harassment: Mandatory Arbitration and Nondisclosure Agreements

The NY legislature passed changes in sexual harassment law that Governor Cuomo signed into law on April 17, 2018. These laws went into effect 90 days after being enacted, which means they are currently in effect.

Prohibition of Mandatory Arbitration Clauses

Prohibited clauses in employment contracts make arbitration mandatory for allegations or claims that employees file regarding sexual harassment (or any discriminatory action). Any contracts that contain such clauses no longer have legal standing and will not be enforced by the NY courts. The fact that a mandatory arbitration clause exists in a contract does not make the other clauses the contract contains invalid. The only clause that is null and void is the clause that makes arbitration mandatory.

Sex Harassment

Prohibition of Nondisclosure Agreements

In the past, employers could prevent disclosure of sexual harassment by including a nondisclosure or confidentiality clause in a contract. Under the new change in NY law, employers cannot require a claimant to keep confidential the underlying facts and circumstance that led to the claim or action. The only exception is if confidentiality is the complainant’s preference. Nondisclosure prohibition also applies to an agreed upon judgment, decree, settlement or stipulation in a legal proceeding regarding the sexual harassment claim.

If a nondisclosure agreement is being considered, all parties must be allowed to consider it for a period of 21 days. Additionally, if used, the individual has seven days to revoke the agreement, which does not become effective until the revocation period has ended.

(Reference: Lexology)

Are You an Employer with Questions about Employment Law Defense? Get Legal Help.

If you are uncertain about complying with employment laws or face a dispute or lawsuit brought against you by an employee, our attorneys at Stephen Hans & Associates are glad to discuss your concerns and determine how we can assist you.

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Supreme Court Rules in Favor of Employers in Recent Arbitration Case

Do you have an arbitration clause in your employment contract?

For some time, businesses have included arbitration clauses in their legal documents, which have stated that employment disputes would be resolved through arbitration. Companies can benefit from using arbitration to resolve disputes because it spares the expense of costly lawsuits.

According to the National Law Review, during the past six years, an ongoing legal battle has ensued to determine the legality of waiving arbitration agreements to allow class action lawsuits. The National Labor Relations Board (NLRB) had a policy of declaring arbitration agreements that included class action waivers as unlawful.

Various federal appeals courts had ruled on the issue with opposite findings, some holding that class action waivers were lawful and others deferring to the NLRB’s policy on the matter, that they were unlawful.

What Was the Recent Supreme Court’s Ruling on the Arbitration with Class Action Waivers?

As the highest level of appeal in the nation, the U.S. Supreme Court has the final say. Even so, the justices were split on the issue with a standing of 5 to 4.

On May 21, 2018 the U.S. Supreme Court ruled that valid arbitration agreements must be enforced.

Supreme Court Rules in Favor of Employers in Recent Arbitration Case

On What Basis Did the Supreme Court Arrive at Its Decision?

The Arbitration Act states that an arbitration agreement may only be invalidated “by generally applicable contract defenses, such as fraud, duress or unconscionability.”

In the case before the Supreme Court, employees did not assert that an act of fraud, duress or some other unconscionable factor should render the arbitration contract unenforceable. They objected because they were required to have individual arbitration proceedings instead being allowed a class or collective proceeding. The majority of justices ruled that their argument did not meet the terms of the Arbitration Act as sufficient to invalidate an arbitration agreement.

The majority also ruled that there is no conflict between the Arbitration Act and the National Labor Relations Act, which does not express approval or disapproval of arbitration and does not mention class or collective procedures at all. Therefore, the court found that the NLRB had overstepped its authority in its decisions that class or collective actions could waive arbitration agreements.

Get Legal Help with Your Questions about Employment Law

If you face employment disputes, our attorneys at Stephen Hans & Associates are glad to offer seasoned legal guidance and representation to help you resolve employment issues.





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Flex Schedules for Businesses

Flex Schedules Can Help Employers Reduce Overtime Costs

You often hear the term “flex schedule,” mentioned as a job perk, and it may well be if as a result the worker avoids peak traffic times and getting stuck in freeway gridlock. However, flex schedules can also be of great benefit to an employer, and especially in terms of avoiding the costs of overtime payments. Overtime costs are among the top concerns that small business owners have.

Why Are Overtime Costs a Top Concern for Small Business Owners?

According to statistics on the NYS Comptroller website, an estimated eight to 30 percent of wages paid to highway employees in NYS are for overtime.

Employees Flex Schedules

What Flex Schedules Can Serve As Alternatives?

Depending on the operational needs of a business, depending on employees’ needs and based on terns included in union contracts, the following are possible flex schedules to consider:

Five-day flex schedule. A five-day flex schedule either ends the workday earlier or later than normal. For example, when employees arrive earlier to work, then they would also leave work earlier.

Five-day, eight-hour schedule with alternate shifts. Scheduling more employees to work during peak hours and smaller numbers of employees to work during non-peak hours helps with meeting production or service needs.

Four-and-a-half-day schedule. Employees work an extra hour on Monday through Thursday and a half-day on Friday. The employer still avoids having to pay overtime.

Four-day, 10-hour schedule. Employees would work an hour earlier and later Monday through Thursday. This type of schedule can help employers avoid overtime that would apply to the fifth workday.

Four-day, split-crew schedule. This type of schedule splits the crew so half of the employees work 10-hour days on Monday through Thursday and the other half works 10-hour days on Tuesday through Friday.

How Do Employers Save with These Flex Schedules?

A Comptroller’s Office audit indicated that in the nine towns they studied, employers could have saved between $15,000 and $159,000 in overtime payments by using one of the flex schedules. Employers would also save money on the amount they would pay into Social Security and Medicare, workers comp premiums and retirement costs, indicating a 20 percent cost savings overall.

For Answers to Questions about Wage and Hour Laws

Discuss your concerns with our attorneys at Stephen Hans & Associates. We are happy to provide trusted legal guidance to business owners regarding employment related issues.

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Social Media: Can You Use Social Media in Hiring Decisions?

Can or Should Cyber-Vetting Be Part of the Hiring Process?

Some employers are using social media in hiring and are cyber-vetting their job applicants. However, these practices are under the legal microscope as cases arise involving employment and social media. Some states have already passed laws that limit what an employer can do in relation to accessing an applicant’s social media.

What is cyber-vetting?

Cyber-vetting refers to using information found at social network services, such as Facebook, Twitter, LinkedIn and Google, to evaluate whether an applicant is an appropriate fit for a job.

Why should employers be concerned about using social media in hiring?

Today, many individuals post large amounts of personal information online that describe their family, friends, favorite books or movies, political candidates they support and how they spend free time outside of work.

Can You Use Social Media in Hiring Decisions?

According to the American Bar, there are important factors that employers must consider before using social media or even before doing simple internet searches. They include:

Actual identity. Many people have the same names and it is easy to confuse one person with another based on online accounts.

Validity of information. Who is to say whether the information posted on a site is true or not?

Impermissible subject matter. Impermissible information that relates to religion, disabled status, sexual orientation, marital status, genetic information, etc. are protected characteristics that employers may not consider as a reason not to hire when interviewing job applicants. However, this information is often discussed in social media and stands out to anyone visiting the site.

A Case Ruling that Involved Website Information about a Job Applicant

In the case Gaskell v. Univ. of Kentucky, the hiring committee was privy to an email circulated by an employee about a scientist’s religious views, which were visible on the scientist’s website. After the email was circulated, the hiring committee rejected the scientist applying for employment. The court denied the University’s motion for summary judgment against the plaintiff’s claims of religious discrimination, stating that the plaintiff had raised a triable issue of fact about the University’s motivation in its decision not to hire him.

Employers can put themselves at risk for being suspected of improper motivation simply because they accessed online information. This even occurs when the information is not a factor in their motivation.

State Laws About Social Media in Hiring

Some states have passed laws prohibiting or limiting employers from asking employees for social media account information. Currently, there is a bill in the New York Legislature (N.Y. Senate-Assembly Bill S. 3927, N.Y. Assembly Bill A. 2891) that would protect employees and applicants from having to provide their social media information to employers.

Social Media: Should You Use Social Media in an Internal Investigation?


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