Included in President Trump’s 2018 budget proposal is a request for funding a paid leave program.  The program would require $19 billion from the budget and would provide that employees were entitled to 6 weeks of paid leave from work.

So far, Republicans have not warmed to the idea.

Yesterday, at least 100 Democrats wrote a letter to President Trump also expressing concerns over the proposal.  However, the Democrats are concerned that the proposal does not go far enough. Democrats are pushing for consideration of other Democrat-sponsored bills that would provide for 12 weeks’ paid leave, matching the FMLA leave entitlement.

At this stage, it really is too early to tell whether some form of paid family leave will wind up in the final budget or if it will become a casualty of the horse-trading that goes on when trying to reach a consensus on the budget.

We will be keeping an eye on this one.

In November, voters in Arizona approved a ballot initiative that would require employers to provide paid sick leave.  The law goes into effect tomorrow.

Under the law, Arizona employers with less than 15 employees will have to provide up to 24 hours of paid sick leave.  Employers with 15 or more employees will have to provide up to 40 hours of paid sick leave.

In anticipation of the law, the Arizona Industrial Commission has issued FAQs, which can be found here.  The FAQs do make one significant change from the text of the law.  The FAQs do make clear that when counting employees for purposes of determining how much leave is to be offered, employers need only count employees working in Arizona.  Don’t get too excited.  This could change as the Commission itself notes that there might be further legislative guidance on this issue.

Employers not only need to make sure that they are offering leave, they will need to provide notices to the employees and post posters in both Spanish and English.

Arizona’s law, like many others, contains a no retaliation provision.  However, this provision should give employers pause.  Under the law, if any adverse action is taken against an employee within 90 days of them using sick leave, there is a presumption that adverse action was retaliatory.  Employers will then bear the burden of proving by clear and convincing evidence that the action was for a legitimate purpose.

Employers should tread carefully before disciplining any employee who has recently used sick leave.

I am sure that a lot employers lost productive work time yesterday with the Comey hearing. I must admit that I did not watch the Comey testimony yesterday.  I actually had a busy day and was afraid of getting sucked down the rabbit hole.  I do intend to catch up on it.  If you are so inclined, the New York Times has the full video and a transcript of the testimony.

I did read the seven page statement Comey released in anticipation of his testimony.   That seven page document detailed the meetings Comey had with President Trump and most shockingly, the statement that he felt compelled to start notes of the meeting on a laptop in his car immediately after leaving the White House.

Although the notes themselves are not conclusive proof, they could go along way in proving his claims.  Some may say that Comey was being needlessly paranoid, however, he did exactly what I wish all managers would do.  He saw an issue and he documented that issue.

Too often, whether I am simply being asked to give advice or I am trying to defend a lawsuit, I hear from managers that the employee was a terrible employee who had been spoken to on multiple occasions.  However, there is no documentation that corroborates that.

I do understand that some discipline and counseling will be verbal, but managers should still take notes of such meetings.  If for no other reason than when you are sitting down to do more formal discipline, you will be aware of what was discussed and on how many previous occasions.

The second thing that Comey did that managers should do is share the documentation.  He wrote that he showed his notes to senior FBI officials as soon as he wrote them. This makes it harder to argue that the notes were not contemporaneously made.

Once counseling or discipline is documented, the manager should forward that documentation to HR to be placed in the employee’s file.  This will go a long way to defending the company and employer in any later litigation.

Catherine Savio writes:

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Copyright: bbourdages / 123RF Stock Photo

On May 31, 2017, the Second Circuit seemingly broadened the scope of liability under a New York state anti-discrimination law by holding that non-employer third parties can be held liable for violating rules regarding the use of a job applicant’s criminal history records in hiring processes.

The plaintiffs in Griffin v. Sirva Inc., No. 15-307 (2d. Cir. 2017), were employed by Astro Moving and Storage Company, a New York-based moving company. Astro is a contractor for the nationwide moving company Allied Vans Incorporated.  Allied prohibited the companies with which it contracted from employing individuals if they had ever been convicted of a sexual offense.

In 2011, Astro terminated the plaintiffs’ employment following a background check that revealed plaintiffs’ prior convictions for sexual offenses. In Griffin, the plaintiffs brought claims against Allied, a third-party contractor by whom they were not directly employed, under the New York State Human Rights Laws (“NYSHRL”) for violations of NYSHRL’s limitations on the use of criminal background checks in hiring decisions.

The United State District Court for the Eastern District of New York dismissed the claims brought against Allied, holding that the NYSHRL criminal conviction ban only applies to employers. On appeal, the Second Circuit overturned the lower-court’s decision,  holding that NYSHRL covers entities other than those who directly employ the workers, including third-party contractors. The court cited a four-part test from a 1985 fourth department decision, State Div. of Human Rights v. GTE Corp., 109 A.D.2d 1082 (4th Dep’t 1985), noting that the power to control a worker’s performance is the most important factor in determining whether or not an entity is acting as a workers “employer” for NYSHRL purposes. The Court remanded the case to the United States District Court for the Eastern District of New York to determine whether or not Allied qualified as an employer for NYSHRL liability purposes.


Catherine Savio is an associate in the firm’s Litigation Department, resident in its New York office.

This is not a post about any of the activities of the Trump Administration even though the headline uses his catch phrase.  We are taking a break from our multi-part series of commenting on the investigation of Trump’s ties to Russia to address a completely different topic.  Retaliation.  (Okay, maybe not a totally different topic depending on what really was the reason for Director Comey’s firing).

Law 360 is reporting that a former Giants’ defensive lineman is suing his former employer Home Towne Rx Pharmacy for firing him after he reported that two female employees had allegedly been sexually harassed by one of the company’s executive vice presidents.

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At this point, we literally know nothing about the case as we have not even seen the complaint.  However, according to the report, the complaint alleges that Leonard Marshall was fired only a few weeks after reporting that the women were complaining of harassment by the executive vice president.  It also alleges that the CEO of the company explicitly told Mr. Marshall that he was being fired for raising the complaint and spreading false claims against the other executive.

In my over 20 years of litigating employment discrimination claims, I can tell you that there are always two sides to every story, and sometimes more.  Even if the allegation that he was explicitly told that the complaint was the reason for his termination is false, at the least, the timing of Mr. Marshall’s termination should have given the company pause about whether they were justified in terminating his employment and whether that justification could be backed up by anything in writing.

If the allegation is true, the same question about documentation should be raised. For example, if the company did an investigation of the claims of harassment and found that Mr. Marshall and/or the women were making up the allegations, how did the company come to that conclusion?  Is it just a he said/she said situation or are there emails, texts, or other documentation that show the claims are false?

There are certainly cases where an employee or witness involved in a harassment investigation lies and a company is thus justified in firing that employee.  However, employers should tread very lightly in disciplining the complaining employee or a supporting witness for lying in the investigation.  In such cases, if I am counseling a client, I want to see more than it was a “feeling” that they lied.  I also want to see more than a bald assertion from the accused that it is all made up lies.  (Oh, look at that, maybe we did not take a break from commenting on politics after all.)

On April 19, 2017, West Virginia Governor Jim Justice signed a bill legalizing the use of marijuana for medicinal purposes.  With the passage of Senate Bill 386, West Virginia becomes the 29th state to adopt a medical marijuana law.

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Employers need not panic.  This does not mean you have to ignore your employee toking in the bathroom or ignore a positive drug test simply because the employee has a medical marijuana card.

The law does contain a broad anti-discrimination provision prohibiting an employer from taking an adverse action against an employee solely because that person possesses a medical marijuana card.  However, the law specifically says that no employer must make an accommodation for the use of medical marijuana in the workplace and employees can be disciplined for being under the influence of marijuana at work.

The law also makes it illegal for any patient to operate or be in physical control of any of the following:

  • chemicals which require a permit from a state or the federal government;
  • high-voltage electricity or any other public utility; or
  • vehicle, aircraft, train, boat or heavy machinery

The law also states that a patient may not perform employment duties at heights or in confined spaces, including mining, while under the influence of marijuana.  In furtherance of addressing safety concerns, the law specifically states that employers may prohibit an employee from performing any task while under the influence of marijuana which the employer deems life-threatening to either the employee or other employees.  Employers may also prohibit employees from performing any duty that could result in a public health or safety risk while under the influence of medical marijuana.

Employers in West Virginia should update drug policies to address the new law.  No person will be issued a card until July 2019 so you have some time, but like with all things, while it is fresh in your minds it is a good idea to have counsel review and revise your policies.

Last week, we commented on the fact that Representative Nunes had recused himself from the investigation into President Trump’s Russia ties after appearing less than impartial in the investigation.  Some employers may view the actions of Nunes in briefing the White House on certain classified information was not really wrong and, it could be argued, simply part of the investigation in confronting the accused.

It is certainly true that in any investigation, care should be taken to insure that both the complaining party and the accused have an opportunity to be heard.  However, there is a time and a place for confronting the accused.  Generally speaking, when conducting an investigation, it is usually best to speak with the accused after all other facts have been gathered.  In this way, you can conduct the investigation in a much more efficient matter and will not have to repeatedly interview the accused as more evidence is gathered.

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Even more importantly, by waiting to gather even more evidence, you may avoid implicit bias and insure a more thorough investigation.  Clients routinely ask me how investigations are going midstream and I always truthfully answer that “I’m not sure yet.”

I’m not simply avoiding having a discussion with my clients when I say this.  When I act as an investigator for clients, I know that I work to keep an open mind until all evidence is gathered.  This is not always easy as it is human nature to start forming opinions about the stories being told to you.  However, if I prejudge a witness as not being credible or that their claims are ridiculous, I will consciously or not, steer the investigation towards the conclusion that fits that prejudgment.  In such cases, investigators may short cut an investigation and miss the second or third claim that has merit.

I’ve been listening to a decent amount of criminal justice podcasts, namely “Undisclosed,” and they talk frequently of “confirmation bias.”  In short, confirmation bias in an investigation means that if an investigator assumes a certain result is likely, then the investigation will lead to that conclusion.  In order to make sure that the desired conclusion is reached, investigators may ignore information that does not fit that conclusion or exaggerate the importance of evidence that does fit the conclusion.

By waiting until an investigator has a full picture of the evidence for and against an accused, the investigator can hopefully avoid any confirmation bias.

Yesterday, we posted about Representative Nunes stepping down from the investigation into Russian interference with the election.  As we noted, as a direct result of his actions in briefing the White House on certain evidence that was found, he appeared less than impartial.

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The mere fact that he briefed the White House in the midst of the investigation is to me less damaging to the appearance of impartiality than what he actually said.  After briefing the White House, Representative Nunes rushed to make statements to the media that a “source” showed him intelligence reports indicating that communications of members of Trump’s campaign had been collected by the intelligence community.  This gave President Trump the chance to argue that he was “somewhat vindicated” and that his claims of wiretapping were true.

What likely got missed by most people in Representative Nunes’ statements was the fact that there was no evidence that Trump Tower or Trump himself had been illegally wiretapped as had been claimed.  Although Nunes and Representative Schiff had both previously noted there was no evidence of illegal wiretapping, Nunes’ statements as he rushed from the White House made it appear that there was new evidence since those statements; evidence that corroborated the President’s claims.

Instead, as was clarifed by Nunes in later days, members of Trump’s team were not targeted for a wiretap.  Rather, those members merely happened to be recorded having communications with Russian agents in legal surveillance.  Even fellow Republicans questioned why Nunes made the disclosure he did or that it was significant.  However, by this point, the damage was done and it is likely that the general public at large believes the broader claim that there was evidence that President Trump was subjected to an illegal wiretap.

If it is not already apparent from the above, making public statements about details of an ongoing investigation is not a good idea.  In the employment context, this could have a chilling effect on the investigation and future investigations.  For example, employees may not raise future complaints if they believe that an investigation will not be confidential.  With regard to the current investigation, witnesses may not come forward as they believe there is no point since there was already a finding in the investigation.

Finally, even assuming that a thorough investigation is completed and no wrongdoing is found, the complaining employee will likely not believe that there was an impartial investigation.  Instead, the employee will believe that the employer was always on the side of the acccused and is now engaged in a cover-up to protect that employee.

About a month ago, we posted that employers could take some lessons from the investigation into President Trump’s claims that he was illegally wiretapped by the Obama Administration.  This investigation still proves to be a cautionary tale for employers.

One of the key, and sometimes difficult, decisions in any investigation is who should conduct the investigation.  Should the investigation be done by HR or an executive in the Company?  Or should the investigation be conducted by an outside third party?

What may have gotten lost in last week’s news of the bombing in Syria is the fact that House Intelligence Chairman Devin Nunes has recused himself from the committee’s probe into Russian interference in the election.  This news came after Nunes was criticized for speaking publicly about classified surveillance reports that seemingly gave support to President Trump’s claims that he was wiretapped.

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Why the criticism?  Well, because before Nunes disclosed the evidence to his fellow members of the committee, he briefed the White House on what he found.  As anger grew over this breach of protocol and the fact that it lent credibility to claims that the investigation was biased, it was discovered that he had in fact reviewed the documents in question at the White House.

Now that he has recused himself in the face of ethics charges filed against him for his actions, the question remains whether anyone on the outside will believe that the new lead, Representative K. Michael Conway (R-Tex.) will conduct an impartial investigation.

Employers should take note that the perception of impartiality is key to a good investigation.  In this case, regardless of whether Nunes could be impartial if presented with evidence of ties to the Trump campaign and the Russian hackers, by so publicly rushing to the defense of the President and his team before any investigation was complete, he tanked the investigation.  Employers should be careful to select an investigator that can be seen as impartial and not favoring the accused in the investigation.

Recently, the United States Court of Appeals for the Seventh Circuit issued an opinion with significant employment law implications.  As you might recall, a panel of the Seventh Circuit issued a split 2-1 decision a few months ago, holding that Title VII’s prohibitions against sex discrimination in employment did not extend to protect employees on the basis of their sexual orientation.  The full Seventh Circuit then heard oral argument about whether the panel decision was correctly decided in the case, Hively v. Ivy Tech Community College.

Last week, the Seventh Circuit sitting en banc reversed the panel’s decision, holding that Title VII’s provisions that prohibit discrimination in employment on the basis of sex necessarily also prohibit employment discrimination on the basis of sexual orientation.  This decision is a binding interpretation of federal law for employers with employees within the Seventh Circuit, which includes Illinois, Indiana, and Wisconsin.  This decision means that employers in those states should immediately review their policies, procedures, and training regimens to ensure compliance.  However, employers outside of those states aren’t necessarily “off the hook” and should strongly consider reviewing their own policies in light of this decision.

To learn more about what this decision could mean for your workplace, check out our recent Labor & Employment Alert on the case.