"Leering" Does Not Create a Hostile Work Environment

The Second Circuit Court of Appeals recently ruled in Lewis v. City of Norwalk (2d Cir. 2014) that a supervisor's occasional "leering" and "licking of his lips" at a subordinate employee was insufficiently severe and too sporadic to create a hostile work environment.

The subordinate complained that beginning in 2006, his supervisor, who was openly gay, "leered" at him and "made gestures with his tongue."  Although it began in 2006 and went on for years thereafter, it became merely sporadic over time.

Eventually, the employee was up for a performance review and his review reflected unacceptable work performance.  He was offered to resign with a severance package, or the employer would fire him.  He refused to resign--so he was fired.  The employee then commenced suit for sexual harassment against his supervisor and former employer.  His claims, however, were dismissed by the federal district court and, on appeal to the Second Circuit, he lost again, the Court holding that the supervisor's conduct was insufficiently severe and too sporadic to constitute sexual harassment.

This case is a reminder that in New York what constitutes conduct that is sufficiently "severe" in the context of a claim of sexual harassment must reach a very high threshold.

The Stakes are High for Misclassifying Employees in 2014

Misclassifying a worker as an independent contractor instead of an employee is creating potentially greater problems for business in 2014.   And it may well prove to be a banner year for the IRS, the U.S. Department of Labor and the  EEOC, which have all articulated their aggressive pursuit of misclassification claims against employers this year. I have warned about the danger of misclassifying workers as independent contractors in the past, and the penalties imposed for doing so.  This year, with an increase in the minimum wage in NY to $8.00 per hour, the implementation of the Affordable Care Act  (ObamaCare) and certain amendments to the Americans with Disabilities Act (ADA), the stakes are even higher. In addition, the U.S. Senate is introducing a bill in Congress (the Payroll Fraud and Prevention Act) to impose more requirements and penalties for misclassification.    Under the new law, among other things, an employer will be required to give written notice to each worker that he/she is considered a non-employee.  If wrongly classified, and the result is a wage underpayment, then the additional amounts already imposed under the Fair Labor Standards Act as a liquidated penalty for violation will be doubled.  The law will also allow the Department of Labor to target certain industries with "frequent incidence of misclassifying employees...."  For example, the construction industry and the restaurant industry. What makes it difficult for businesses to comply with the classification rules is that each government agency has a different definition and a different test for making the determination.  Therefore, employers need to make sure they fit all of the definitions.