Building on progressive legislation passed last year, Governor Andrew Cuomo announced a sweeping proposal to strengthen protections against harassment in the workplace. The four part sexual assault and harassment safety reforms initiative, titled “TIME’S UP New York Safety Agenda,” is contained in the Governor’s 2019 Executive Budget, which was released on January 22, 2019. The safety reforms seek to prevent sexual harassment and assault from occurring while simultaneously enabling survivors to seek justice.

Currently, in order to prevail on a claim of sexual harassment/hostile work environment under the New York State Human Rights Law (“NYSHRL”), a plaintiff must show that the “workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’. . . that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’”[1]  Governor Cuomo has proposed to amend the NYSHRL to lower the “severe or pervasive” standard, although his proposal did not articulate the new standard that would take its place. Additionally, the proposal would amend existing legislation to require that all Non-Disclosure Agreements include specific language advising employees of their ability to file a complaint with a state or local agency, and to testify or participate in a government investigation.  New York employers would also be required to conspicuously post a sexual harassment educational poster designed and distributed by the State Division of Human Rights. Cuomo further proposes eliminating the statute of limitations on rape claims.

The TIME’S UP New York Safety Agenda arose out of recommendations made by TIME’S UP, led by a coalition of women in New York, including actresses, activists, attorneys and business executives.

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[1] Father Belle Community Ctr., Inc. v. New York State Div. of Human Rights, 221 A.D.2d 44 (4th Dep’t 1996), leave to appeal denied, 89 N.Y.2d 809 (1997).

By Nancy L. Gunzenhauser 

As we’ve previously advised, make sure you are prepared for interns this summer! This summer there’s a new legal trend about interns. While wage and hour lawsuits are still hot, the new “it” trend seems to be laws that extend protection against discrimination and harassment for interns.  Recently, states and cities have been adding interns to the protected individuals under their human rights laws.

Retailers have long used interns, both to provide training opportunities for the interns and to supplement their workforce over the summer months. Whether an intern should be paid or unpaid (meeting the test of a “trainee”) is a determination that should be made using the federal six-factor test, and any applicable state tests. 

Regardless if the intern is paid or unpaid, certain policies and procedures need to be tailored to interns, and should differ from those given to regular employees. While recruitment efforts and offer letters need to be prepared just for interns, certain benefits and policies may need to be provided to all workers – even unpaid interns.

This year, New York City joined Washington, D.C. and the state of Oregon in passing a law protecting interns from sexual harassment, and other forms of employment discrimination. Now, several other states are seeking to expand those same protections to interns. In the past month, legislatures in California, New York, and Illinois have debated and voted on these bills.

The decision to give interns the same protections against discrimination and harassment as employees could affect how interns are treated under wage and hour laws. While the NYC law states that it applies to both paid and unpaid interns, it doesn’t make any determination as to whether those interns should be classified as employees, to receive minimum wage and potentially overtime.

The proposed New York state legislation addresses such concerns that some employers may have over the decision to extend anti-discrimination protections to interns. The current text of the bill, which has advanced to the third reading within the state Senate, provides that “nothing in this section shall create an employment relationship between an employer and an intern.”

A similar law is pending in Illinois, but it has been amended to only protect unpaid interns who meet a certain set of factors, which are similar to the federal six-factor test:

the person works for the employer at least 10 hours per week; the employer is not committed to hiring the person at the conclusion of his or her tenure; the employer and the person agree that the person is not entitled to wages for the work performed; and the work provides experience for the benefit of the person, does not displace regular employees, and is performed under the close supervision of staff.

The wording of the Illinois bill shows that legislators are aware that granting unpaid interns, who may not qualify as employees under the law, rights typically only afforded to employees could affect their employment status.

As more states continue to address whether interns, paid or unpaid, will be protected under anti-discrimination laws, stay tuned to the Retail Labor and Employment Law blog for any updates. If you’re having interns this summer in NYC, DC or Oregon, make sure policies and procedures are updated and are distributed to all employees and non-employee interns!

By Amy Messigian

On October 11, 2012, the California Supreme Court granted review of Patterson v. Domino’s Pizza to address the circumstances in which a defendant franchisor may be held vicariously liable for tortious conduct by a supervising employee of a franchisee.

Like many fast food chains, Domino’s Pizza (“Domino’s”) is a franchising operation in which individual franchisees operate storefronts under the Domino’s name.

In Patterson, the plaintiff, a sixteen-year-old employee of a Sui Juris, a Domino’s Pizza franchisee (“Sui Juris”), alleged that she was sexually harassed and assaulted at work by an assistant manager of the store.  She filed a lawsuit against various Domino’s-related entities, including Sui Juris and Domino’s, as well as the assistant manager, alleging causes of action under the California Fair Employment and Housing Act, along with assault, battery and intentional infliction of emotional distress.  She claimed that Domino’s was vicariously liable for the supervisor’s actions.

Although Sui Juris’ owner testified that he received employment direction from Domino’s and that his operation was monitored by Domino’s inspectors, the trial court granted summary judgment for Domino’s on the grounds that Sui Juris was an independent contract and was not an agent of Domino’s. Particularly, it noted that the franchise agreement between Domino’s and Sui Juris provided that the latter was responsible for supervising and paying store employees. On this basis, the trial court concluded that Domino’s had no role in Sui Juris’ employment decisions.

The plaintiff appealed and the California Court of Appeal reversed the trial court. The appellate court stated that the nature of the franchise relationship will determine whether a franchisor is vicariously liable for injuries to a franchisee’s employee and that while a franchise agreement is relevant, it is not the exclusive evidence of the relationship between a franchisor and a franchisee.

[T]he franchisor may be subject to vicarious liability where it assumes substantial control over the franchisee’s local operation, its management-employee relations or employee discipline.

Here, the court determined that Domino’s exercised significant control over Sui Juris’ employees through the franchise agreement, which allows Domino’s to set employee qualifications and standards for their demeanor and appearance. The court also determined that Domino’s asserted control over other areas of the business, such as store hours, pricing, advertising, equipment usage, recordkeeping and Sui Juris’ insurance policies, which required naming Domino’s as an additional insured. Most importantly, the court concluded the Domino’s had instructed Sui Juris to terminate the assistant manager as well as another employee of the store for violating company policy, and that Sui Juris had acted based on these instructions. Accordingly, the court reversed the order of summary judgment.

Domino’s has appealed to the California Supreme Court, which will determine whether a franchisee’s employee may bring an action against the franchisor for harassment or other wrongful acts alleged to have been committed by another employee of the franchisee. The line drawn by the Court will be of interest to any retail establishments operating under franchise agreements. If the appellate court’s decision is affirmed, franchisors that establish employment standards or communicate opinions regarding hiring or firing decisions to their franchisees may risk vicarious liability in actions brought by the franchisee’s employees, even if they do not facilitate operations of the franchisee on a daily or continual basis.

By Amy Messigian

On September 8, 2012, California Governor Jerry Brown signed the Workplace Religious Freedom Act into law.  The law, which becomes effective on January 1, 2013, amends the California Fair Employment and Housing Act (the “Act”) to include a religious dress practice or a religious grooming practice as a belief or observance covered under the Act’s protections against religious discrimination.

The new law also specifies that it is not reasonable to segregate an employee from the public or other employees as an accommodation of the individual’s religious dress practice or religious grooming practice.  Inasmuch, retail employers may not limit such employees to the back of the store due to their religious attire or grooming practice.

As with any new law, sure to come is a bevy of litigation testing the area of grey between the black and the white.  A new case involving The Walt Disney Company (“Disney”) may lead the way.  In August 2012, Imane Boudlal, a former employee of the Storytellers Café at the Grand California Hotel & Spa, located at the Disney Resort in Anaheim, California, filed a lawsuit against Disney alleging religious discrimination and harassment.

Boudlal, a naturalized U.S. citizen of Moroccan origin who is Muslim, began working for Disney in 2008.  Two years later, she decided to permanently wear a hijab, the headscarf worn by Muslim women.  She alleges that she asked her supervisors at Disney for permission to wear the hijab at work, but was informed that it violated the Disney “look.”  Boudlal further alleges that Disney did not enforce its “look” policy on an equal basis, and that other employees were allowed to visibly display tattoos, religious insignia or ostentatious hair and nails.  Boudlal also alleges that she offered to wear a hijab in colors matching her uniform, but that Disney rejected her offer and instead suggested that she be transferred to a position at the back of the restaurant or wear a hat on top of her hijab.

Although Disney has not had an opportunity to make its case at this early stage of the litigation, it issued a statement decrying the allegations in Boudlal’s complaint.  Particularly, the statement indicates that Boudlal was provided with multiple options to accommodate her beliefs, as well as several options to allow her to continue wearing her own hijab, all of which were rejected.  The statement also indicates that Boudlal has since refused to return to work.

Supposing that Disney allowed Boudlal to wear her hijab, but also requested that she cover it with a hat, it is unclear whether such actions would violate the Act.  Also unclear is whether the Act permits an employer to provide a headdress that matches its uniform.

What is clear is that employers should proceed with caution when addressing religious accommodation issues and avoid excluding the employee from customer interaction simply due to the employee’s religious dress or grooming practices.  Before any accommodation is provided or denied, legal counsel should be sought to ensure that the decision does not run afoul of the Act.