Archives for September 2018

October 2, 2018.

The #MeToo movement has generated nationwide discussion on the subject of sexual harassment and resulted in increased workplace sexual harassment complaints. In order to stop sexual harassment, New York State passed the 2019 New York State Budget, including the Stop Sexual Harassment in NYC Act, as well as extensive revisions to New York human rights laws. These changes increase employer liability for, and enhance employee protections against, workplace sexual harassment and gender discrimination. The laws also expand the law to cover every for-profit and not-for-profit entity in the state of New York. Accordingly, New York employers of all shapes and sizes should be aware of these new statutory requirements.

2019 New York State Law

The 2019 New York State Budget, signed into effect by Governor Andrew Cuomo, evokes many changes of which employers should be aware, including:

1. Mandatory Annual Sexual Harassment Prevention Policy and Interactive Training Program

Effective October 9, 2018, New York State employers must:

Implement a new sexual harassment policy that meets or exceeds the guidelines provided by the forthcoming model sexual harassment prevention policy created by the New York State Department of Labor and New York State Division of Human Rights.
Distribute their new or revamped policies to all employees and provide a standard complaint form for employee use.
Implement an interactive sexual harassment prevention training program that features:
- an explanation and specific examples of sexual harassment;
- detailed information about federal, state, and local laws concerning sexual harassment and available remedies for victims;
- the responsibilities of supervisors; and
- a description of employee rights and all internal and external forums for bringing complaints.
Render the training in the language spoken by their employees.
Conduct the above-described sexual harassment trainings for all employees annually.

Per the finalized guidance on the new legislation released by Governor Cuomo, the deadline for employees to receive sexual harassment prevention training is October 1, 2019. This gives employers a full year to implement compliant training programs.

2. Prohibition of Mandatory Arbitration of Sexual Harassment Claims

Effective July 11, 2018, New York Civil Practice Law and Rules bans mandatory binding arbitration provisions in employment contracts, except where inconsistent with federal law or included as part of a collective bargaining agreement. Although this provision could be preempted by the Federal Arbitration Act, prior to a Supreme Court ruling (or denial of certiorari) on the subject, employers should operate under the assumption that it is constitutionally sound.

3. Extension of Employer Liability for Sexual harassment to Non-Employees

Effective April 12, 2018, employers may be held liable for:

sexual harassment claims brought by non-employees such as independent contractors, subcontractors and other employees working under service contracts.
sexual harassment experienced by non-employees if the employer had knowledge or should have known about the incident(s) and did not take prompt and appropriate action to resolve the issue.

4. Prohibition of Non-Disclosure Agreements

Effective July 11, 2018, New York State Law will prohibit non-disclosure provisions in sexual harassment settlement agreements unless the complainant consents. In order to obtain consent, the employer must ensure:

the complainant prefers a non-disclosure provision;
the complainant is given 21 days to consider the non-disclosure provision; and
the complainant is given seven days to revoke acceptance of the non-disclosure provision.

Stop Sexual Harassment in NYC Act (New York City Law)

As with the New York State Laws, the Stop Sexual Harassment in NYC Act requires the attention of all NYC employers. The following is a list of provisions, many of which became effective upon Mayor De Blasio’s signing on May 9, 2018, of which employers should be aware:

1. Extended Statute of Limitations for NYC Sexual Harassment Claims

As of May 9, 2018, the statute of limitations for sexual harassment claims under the New York City Human Rights Law is extended from one year to three years.

2. Law Applies to All Employers

As of May 9, 2018, current city laws prohibiting gender-based harassment apply equally to all employers, rather than merely those with 4 or more employees.

3. Requirement to Distribute written policies, forms, information sheets, and hang posters outlining the sexual harassment complaint process

As of September 9, 2018, New York City employers will be required to conspicuously display a poster created by the New York City Human Rights Commission that outlines the rights of employees and responsibilities of employers with respect to sexual harassment policies and protocol. Employers must also distribute an information sheet containing the same information to current employees and new employees upon hire. The posters and information sheets must be posted and distributed in English and Spanish, and if employees speak a different language, these materials must be posted and distributed in that language as well.

4. Mandatory Interactive Anti-Sexual Harassment Training

As of April 1, 2019, employers with 15 or more employees must conduct annual, interactive anti-sexual harassment training with all employees and interns. To comply with the law, employees of the relevant employers must be trained according to the stated guidelines by that date.

According to the City Law, the “interactive” requirement means “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory forms of training as determined by the [New York City Human Rights] Commission.”

Though it is similar to the New York State Law, the City Law provides a longer list of mandates for the trainings and does not require training of employees until after 90 days of employment or retraining of employees who participated in the requisite training through another employer. Additionally, employers will be required to maintain training records dating back three years to demonstrate compliance with the law.

Conclusion

Given the extensive changes in New York State and City Law contained in this legislation to stop sexual harassment, New York employers should anticipate an upswing in sexual harassment claims. Accordingly, employers should immediately embrace and implement policy and training reforms to their current sexual harassment programs to protect their employees and insulate themselves from potential liability.

For an even more detailed discussion of these changes, read Tannenbaum Helpern Syracuse & Hirschtritt LLP’s comprehensive article here.

Learn about how Castaybert PLLC can assist you with an employment law matter here.

September 28th, 2018

Yesterday the New York Appellate Division, First Department issued their highly anticipated decision in the Daesang Corp v. Nutrasweet Co. matter. The matter arises from a petition by Daesang to confirm an ICC Final Award. In a stunning decision, the Supreme Court found the Tribunal manifestly disregarded the law in dismissing two of Nutrasweet’s counterclaims and vacated the award. On appeal by Daesang, the First Department reversed citing that manifest disregard is a high standard that remains a doctrine of last resort and is difficult to apply given the FAA’s mandate to avoid judicial review of the arbitrators’ findings.

Click here for the text of the First Department’s decision.

Click here for more information on how Castaybert PLLC can assist you with all your arbitration needs.

September 28th, 2018
In New York the general policy is to facilitate the recognition and enforcement of foreign money and non-money judgments. Recognition is when a court converts a foreign judgment into a U.S. judgment which prevents re-litigation. Once recognized, a party can then invoke procedures for enforcement of the judgment under New York law. The law that governs money judgments is the Uniform-Foreign Country Money Judgments Recognition Act (the “Act”), whereas the non-money judgments are governed by New York common law.

For money judgments, the Act applies to any judgment of a foreign state granting or denying recovery of a sum of money. It does not cover judgments for taxes, fines, or other penalties; nor does it apply to support judgments in matrimonial or family cases. The Act has three requirements for recognition. First, it must be a final judgment. A judgment can be final even if it is subject to appeal. Second, it must be conclusive – meaning the judgment grants or denies recovery of a sum of money. Finally, the judgment must be enforceable where it was rendered. This means if there are any circumstances under the law in the country where the judgment was rendered that would make it unenforceable there, it cannot be enforced in New York. The most common of these is a statute of limitations in a foreign country that has expired for the recognition action in the U.S.

In addition to the three requirements, the Act provides two mandatory grounds on which a New York court must not recognize a foreign money judgment. First, is if the judgment was given under a system of law which does not provide procedures that comport with the New York standards of due process. An example of proper due process would be that the defendant was given notice of the proceedings and provided with adequate time to prepare his defense. Second, the foreign judgment must not be recognized if the foreign court did not have personal jurisdiction over the defendant – meaning the defendant must have had sufficient minimum contact with the jurisdiction in which the foreign court sits. The New York Court has discretion to refuse recognition when the claim on which the foreign judgment is based is contrary to New York public policy.

For non-money judgments, courts will generally recognize and enforce unless the foreign proceeding does not meet basic jurisdictional or due process requirements or if the foreign judgment violates fundamental rules of New York public policy.

In New York, a party can bring an action for recognition or enforcement before the New York state courts or before the US federal courts located in New York. The court must have a rational basis for asserting jurisdiction over the judgment debtor. Usually, if the funds to pay the judgment are located in New York, then that is sufficient to assert jurisdiction. Once a court is chosen, generally the party files a motion for summary judgment in lieu of complaint to begin the recognition process. New York courts will not review the merits of the suit, but only review for the relevant criteria under the Act to determine if the judgment can be recognized. Once a determination is made, an aggrieved party may file an appeal that decision, while the prevailing party can seek enforcement.

For a more detailed analysis, check out this article by Timothy G. Nelson and Jordan C. Wall of Skadden Arbs Slate Meagher & Flom LLP.

For more information about how Castaybert PLLC can assist you in enforcing a foreign judgment, click here.

Recent news that Christie’s will auction off a piece of artificial intelligence art raises important questions about the legal implications of artificial intelligence art (“AI art”). The artwork to be sold was created at the direction of Paris-based collective, Obvious, consisting of Hugo Caselles-Dupré, Pierre Fautrel and Gauthier Vernier, and is titled “Edmond De Belamy.” Among the concerns raised by the algorithm-signed painting include authorship, authenticity, automation and ethics. Each issue could have widespread ramifications on the art market, and therefore demand the attention of artists and art collectors who collect, create, and sell artwork.

Creating AI Artworks

Artists generally create artificial intelligence art using generative adversarial networks (GANs). These networks permit computers to study a library of images or sounds to create original content. The computer then creates an expressive work and judges the success of that work against the library images. Finally, the computer makes incremental improvements based on the results. Although artists generally curate the media library used to create the works, that is where their control of the artificial intelligence’s artistic output ends. This lack of artistic control over the final product raises compelling questions about authorship and copyright ownership of artificial intelligence art.

AI Art and the Law

Jessica Fjeld, assistant director of the Cyberlaw Clinic at Harvard Law School, insists that regardless of the artist’s control over the final output, the artist—not the AI—is the author of the finished product. Under this view, artificial intelligence is merely another tool for artists to employ in creating expressive works. The more interesting question to Ms. Fjeld arises when different individuals create or direct the inputs, learning algorithms, trained algorithms, and outputs. If different individuals create or direct the GAN, media library, learning algorithm, trained algorithm, and final output, who should own the copyright? The answer is unclear, and the inquiry is further muddied when artists include copyrighted imagery in the media libraries used to create artificial intelligence art.

Conclusion

The emergence of artificial intelligence art could have transformative effects on the art market, so collectors and artists should stay abreast of the developments in this area. For a deeper discussion of these issues, read Sam Gaskin’s Artsy article here.

Learn more about how Castaybert PLLC can assist you with Art Law matters here.

The New York City Bar has selected André to join the Fashion Law Committee. With his selection, André joins an impressive group of global industry leaders in shaping the future of fashion law. As a member of the Committee, André will discuss fashion law developments and public policy, continue honing his fashion law expertise, sponsor continuing legal education events and participate in public service projects.

Learn more about how Castaybert PLLC can assist you with Fashion Law matters here.

Learn more about the New York City Bar Fashion Law Committee here.