Earlier this year, New York City amended the Earned Safe and Sick Time Act (the “ESSTA”) to provide eligible New York City employees with “safe time” leave and expand the definition of a “family member” under the law.  As a result of the most recent amendments, the New York City Department of Consumer Affairs recently issued amended rules (the “Amended Rules”) and updated Frequently Asked Questions (“FAQs”) for the ESSTA.  Significantly, the Amended Rules, which are currently in effect, impose new requirements on employer ESSTA leave policies.

Under the ESSTA, covered employers must provide their employees, who work more than 80 hours per year in New York City, with up to 40 hours of paid safe and sick leave each year.  Employees either accrue one hour of paid safe and sick leave for every 30 hours worked or receive the full complement of paid safe and sick leave at the beginning of the year.  Employees may use safe and sick leave for absences related to: (1) the employee’s or a family member’s mental or physical illness or injury; (2) the closure of the employee’s workplace, or the school or care facility of the employee’s child, because of a public health emergency; or (3) the employee’s or a family member’s being the victim of a family offense matter, sexual offense, stalking, or human trafficking.  For example, employees may take “safe time” leave for a number of specifically enumerated instances that include, but are not limited to, obtaining services from a domestic violence shelter or rape crisis center, meeting with an attorney to prepare for any court proceeding, filing a complaint with law enforcement, or relocating to increase the safety of the employee or the employee’s family members.  The updated FAQs provide theoretical examples of situations where safe time would or would not be appropriate.

New ESSTA Policy Requirements

Pursuant to the ESSTA, employers must maintain a written ESSTA policy.  The Amended Rules include the following clarifications, amendments, and/or expansions upon the written policy requirement:

  • Merely relying on the DCA’s Notice of Employee Rights, which must be given to new employees upon hire, is not sufficient to meet the written policy requirement.
  • The ESSTA policy must be maintained “in a single writing.” While the Amended Rules do not further elaborate on what constitutes a “single writing,” employers who maintain separate leave policies should ensure that all policies are contained in one document.  For example, employers with employees both inside and outside New York City who use a separate ESSTA addendum to their general leave policies should now include that ESSTA addendum in the employee handbook to ensure compliance with the “single writing” requirement.
  • The policy must clearly set forth: (i) whether employees accrue safe and sick time throughout the year or are frontloaded the time at the beginning of the year; (ii) when the safe and sick time is accrued/frontloaded; and (iii) the rate of accrual and the maximum number of hours an employee may accrue in a year (if the time is not frontloaded).
  • The policy must also include the following requirements/policies (if applicable):
    • A notice requirement to use safe and sick time and the specific procedure for providing notice;
    • Any required written documentation to support the use of safe and sick leave, which may only be requested after three consecutive days of absence;
    • A reasonable minimum increment for using safe and sick leave;
    • The disciplinary policy for the misuse of safe and sick time;
    • The policy for carry-over of unused safe and sick time at the end of each year; and
    • A description of the confidentiality requirements under the ESSTA, which provide that: (1) as a condition of providing safe and sick leave, an employer may not require the disclosure of details relating to an employee’s or a family member’s medical condition or require the disclosure of details relating to an employee’s or a family member’s status as a victim of family offenses, sexual offenses, stalking, or human trafficking and (2) health information about an employee or a family member, and information concerning an employee’s or a family member’s status or perceived status as a victim of family offenses, sexual offenses, stalking, or human trafficking, may only be obtained for purposes of using safe and sick leave. This information will be kept confidential and shall only be disclosed with the written permission of the affected employee or as required by law.
  • If an employer uses a term besides safe and sick time to describe leave provided by the ESSTA, that employer must state that such leave may be used for any of the purposes set forth under the ESSTA without any condition prohibited by the ESSTA.

Further, it is no longer enough for employers to simply post the ESSTA policy.  Employers must now distribute the policy when a new employee begins employment, if an employee requests a copy, and within 14 days before a change to the policy becomes effective.  Any employer that must alter its ESSTA policy to comply with the above requirements must therefore distribute the new policy at least 14 days before the revised policy becomes effective.

As noted above, the recent amendments expand who is a “family member” under the ESSTA.  Specifically, the ESSTA also now provides that a “family member” includes any individual whose close association with the employee is equivalent of a family relationship.  The theoretical examples of family members within the updated FAQs also evidence the fact that the definition of “family member” will be broadly interpreted by the DCA.  As a result, employers should also adopt this broad approach when providing safe and sick leave to their employees.

In sum, employers should carefully review their ESSTA and/or general leave policies to ensure compliance with the new and expanded requirements.

As we have previously blogged, the New Jersey Earned Sick Leave law goes into effect on October 29, 2018. In connection with implementation of the law, the New Jersey Department of Labor and Workforce Development has issued a “Notice of Employee Rights.”  The Notice is available here.

The Notice must be provided to new employees when they begin employment and to all existing employees by November 29, 2018.  Employers must also post this notice in a conspicuous and accessible place at all work sites and also must give copies to employees on request.  Employers should note that the Department of Labor is in the process of translating the Notice into ten (10) additional languages and requires that the Notice be given in English, Spanish or any other language for which notifications have been provided and which is the first language of a majority of the workforce.

On October 17, 2018, New Jersey’s Appellate Division, in a published decision, refused to enforce an arbitration clause in an employment agreement where the clause did not select a forum for arbitration thereunder or describe a process for selecting such a forum.  In Flanzman v. Jenny Craig, Inc. et al., the plaintiff, after being terminated at the age of eighty-two, sued her former employer for employment discrimination pursuant to New Jersey’s Law Against Discrimination.

The employer then moved to compel arbitration, relying on an arbitration agreement signed by the plaintiff several years before in order to maintain her employment.  The broadly worded arbitration clause unmistakably provided that the parties agreed that “in lieu of a jury or civil trial,” they would settle any disputes between them – whether based upon statute or common law, contract or tort – “by final and binding arbitration.”  The agreement did not, however, identify a forum for the arbitration.

The trial court granted the motion to compel arbitration based upon the arbitration clause, but, on appeal, the Appellate Division reversed.  The court reasoned that, where an arbitration agreement does not select an “arbitral institution,” such as the American Arbitration Association (“AAA”) or Judicial Arbitration and Mediation Services (“JAMS”), the parties will not know basic information concerning the rights and procedures that would replace judicial adjudication, and thus, the parties will not have had the requisite “meeting of the minds” for enforcement of the agreement.   The court further explained that institutions like the AAA or JAMS have well-established arbitration rules and procedures for different types of disputes, and by specifically selecting one of these arbitral institutions, the parties are informed about the rights and procedures that will replace the rights that they have waived by agreeing to arbitration.

The court took pains to clarify that it was not imposing any special requirements on the type of language parties must use (as such requirements would violate the Federal Arbitration Act, which has been interpreted to prohibit courts from subjecting arbitration agreements to more burdensome requirements than other types of contracts).  To that end, the court cited, as an example, an out-of-state decision upholding an arbitration agreement where the agreement identified a forum and thereafter a process for selecting a forum should the named forum become unavailable.

It remains to be seen whether the Flanzman decision will be reviewed by the Supreme Court of New Jersey.  It is, however, consistent with a recent trend whereby New Jersey courts carefully scrutinize arbitration agreements, particularly in the employment context.  New Jersey-based employers are therefore well-served to remain abreast of these legal developments to ensure the enforceability of arbitration agreements.  And, following Flanzman, such agreements should identify an arbitral institution such as JAMS or AAA for the forum of the arbitration or, alternatively, should describe the method of and rules (or the process for selecting the method and rules) for any subsequent arbitration.

As we previously reported, New York State launched the Combating Sexual Harassment in the Workplace website in August 2018 to host resources for employers and employees about the new legal obligations arising from the New York State Budget.  The website originally contained draft model sexual harassment prevention training and policy materials, but New York State has just issued the final versions of the documents, which are now publicly available through the website.  In addition, the website contains finalized FAQs and additional guidance on the new laws, including an “Employer Toolkit”, which provides employers with “step-by-step guidance” to implement the required policy and training program.

The final documents come only several days in advance of the October 9, 2018 deadline by which all New York State employers must adopt written sexual harassment policies and begin to implement annual sexual harassment training for employees.

Model Sexual Harassment Prevention Policy

By the October 9, 2018 deadline, New York employers must adopt written sexual harassment policies that meet the new legal requirements under the New York State Budget.  Employers have a choice in either adopting the State’s model policy and complaint form or implementing their own policy and complaint form, which must meet or exceed the minimum standards set forth by the new law.  Notably, all employees must be given a copy of the policy and it is suggested that the policy should be written in a language spoken by the employees.

To aid employers that would like to craft their own policies, the State issued guidance outlining the minimum standards to which the policy must adhere.  Specifically, the policy must:

  • Prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  • Provide examples of prohibited conduct that would constitute unlawful harassment;
  • Include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
  • Include reference to a complaint form;
  • Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  • Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  • Clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
  • Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

As noted above, an employer that adopts their own policy must provide an overview of their investigative procedures within their policy.  The final FAQs note that an employer need not adopt the investigative procedures set forth in the State model policy as long as the procedures meet the minimum standards listed above.  Moreover, a complaint form is not required to be included in the policy itself, but employees must be notified where the form may be found.

Notably, the final FAQs also state that employers must provide employees with a copy of the policy in writing or electronically.  If the policy is made available to employees electronically, employees must be able to print a copy for their records.

Model Sexual Harassment Prevention Training

Starting on October 9, 2018, the New York State Budget also requires employers to provide all employees with sexual harassment training on an annual basis.  While the draft materials previously indicated that all employees must complete the first round of training by January 1, 2019, the final State guidance extends that deadline to October 9, 2019.  Moreover, the final materials relaxed the training requirement for new employees.  Specifically, the draft guidance stated that new employees must complete their sexual harassment training within 30 calendar days of their start date.  Now, the final guidance requires new employees to receive training “as soon as possible” after their start date.

According to the final FAQs, employees who only “work[] a portion of their time in New York State, even if they’re based in another state” must also receive annual training.  This requirement is overall less burdensome than the original draft FAQs, which provided that any employee must receive training even if “someone just works for one day for the employer, or if someone works for just one day in NY.”

To comply with the new law, employers must either adopt the State’s model training slides, script, and/or case studies or implement live training or interactive online/video training that meets or exceeds the minimum standards set forth by the new law.  Specifically, at a minimum, the training must:

  • Be interactive;
  • Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  • Include examples of conduct that would constitute unlawful sexual harassment;
  • Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
  • Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
  • Include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

As denoted by the final FAQs, employers crafting their own training policy do not need to include the sections of the model training that are “not expressly required in the law[,]” but covering the information is still “strongly recommended.”

According to the State guidance, employers should provide employees with training in the language spoken by their employees.  State-issued Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish, and Haitian-Creole versions of the final training materials are forthcoming.

Some additional significant changes that the State made to the draft training documents and related training FAQs include:

  • The final FAQs provide that there is no minimum number of hours an employer must spend training its employees.
  • The final FAQs make clear that while there is no duty to train third-party vendors, contractors, or other non-employees who provide services to the employer in the workplace (either on a one-time or regular basis), the State still encourages employers “to provide the policy and training to anyone providing services in the workplace.”
  • The final FAQs clearly state that employers must make all of their employees aware of the additional requirements for those in managerial/supervisory roles.
  • Employers are permitted to “take appropriate administrative remedies” when faced with an employee who fails to complete the training.
  • The final FAQs further elaborate upon the meaning of “interactive training” by stating that merely watching a training video or reading a document, with no feedback mechanism or interaction, is not “interactive.” Instead, the guidance provides the following examples of interactive trainings:
    • If the training is web-based, it has questions at the end of a section and the employee must select the right answer;
    • If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner;
    • In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions; or
    • Web-based or in-person trainings that provide a feedback survey for employees to turn in after they have completed the training.
  • While a live trainer is not required under the New York State Budget, the final State guidance emphasizes bringing in a live trainer is “a best practice for effective and engaging trainings[.]”

The website also provides additional clarifying information about laws regarding mandatory arbitration and nondisclosure provisions.

Concluding Employer Considerations

The October 9, 2018 deadline is quickly approaching and employers should take immediate action to ensure that their sexual harassment policies are in compliance with the new legal obligations or alternatively choose to adopt the State’s model policy.  Further, although the first training deadline is not until October 9, 2019, employers should begin deciding how they will fulfill their training obligations.  Employers should particularly consider whether to retain counsel to serve as live trainers for their workforces to ensure compliance with the new training requirement.

Further, as previously reported, New York City employers must also comply with the new Stop Sexual Harassment in NYC Act, which imposes its own set of specific training requirements for employers with 15 or more employees beginning on April 1, 2019.  The New York City Commission on Human Rights is in the process of creating an online module that employers may use at no charge to comply with the new law, but it is unclear when this module will be ready.  Employers should consult with counsel to ensure compliance with both laws.

Non-competition agreements—or non-competes as they are routinely referred to—are common and are regularly enforced and upheld by Florida courts.  A non-compete is designed to limit what an employee can or cannot do both while employed by a business and after the employment relationship ends although non-competes can apply to persons other than those merely defined as employees.

In a nutshell and in its most basic form, a non-compete prevents an employee of a business from working for a competitor of  his employer both during the time he is employed by that employer and for a certain period of time after the employment ends.  Florida Statutes Sec. 542.335 governs non-competes in Florida that were entered into after July 1, 1996.  Amongst other things, it requires that the non-compete be in writing and signed by the person to whom the non-compete applies and that there be a legitimate business reason for the non-compete.  Legitimate business reasons, under Sec. 542.335, include but are not limited to trade secrets defined in Florida Statutes Sec. 688.002(4); customer or client goodwill; substantial relationships with  specific customers, whether those customers are existing or even prospective; and valuable confidential business information that does not necessarily rise to the level of being a trade secret.

If a court finds that a non-compete is not supported by a legitimate business interest that non-compete will be deemed unlawful.  Simply put, under those circumstances, the non-compete is void and unenforceable

Whether the period of time that a person is prohibited from competing, after the employment or business relationship ends, is ultimately considered reasonable depends upon the nature of that relationship.  Florida Statutes Sec. 542.335 provides for the following presumptively reasonable periods:

  • when the non-compete is against a former employer, agent or independent contractor and is not part of the sale of a business, the court presumes that a restrictive period of six months or less is reasonable and a period of more than two years is unreasonable;
  • when the non-compete is against a former distributor, franchisee, dealer or licensee of either a trademark or service mark and that is also not part of the sale of a business, the court presumes that a restrictive period of one year or less is reasonable and a period of more than three years is unreasonable;
  • when the non-compete is against the seller of all or part of a business, the court presumes that a restrictive period of three years or less is reasonable and a period of more than seven years is unreasonable.

The presumptions laid out in Florida Statutes Sec. 542.335 are rebuttable presumptions.

This means that the person subject to the non-compete can bring forward evidence as to why the restrictive period should not be enforced even if that restrictive period falls within the confines of Sec. 542.335.