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Lowenstein Sandler LLP

Amy Komoroski Wiwi

Amy Komoroski Wiwi

Partner

Lowenstein Sandler LLP
New Jersey, U.S.A.

tel: 973.597.2336
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Local Time: Sat. 11:48

Profile

Long fascinated by the complex relationships among members of the workforce, managers, and their employers, Amy translates a passion for problem-solving into strategic counsel and effective dispute resolution. Praised by clients as "very knowledgeable," "very objective," and a "superior strategist" (Chambers USA), she thrives on crafting creative solutions to the most intricate of employment problems.

Amy counsels employers on the myriad issues they face related to hiring, disciplining, and termination of employees; family and medical leaves; disability leaves and accommodations; compliance with anti-discrimination and anti-retaliation laws; and workforce reductions. She also drafts and negotiates executive employment and consulting agreements, restrictive covenant agreements, and separation and release agreements, working closely with company management, in-house counsel, and human resources to develop and implement employment policies and handbooks.

Amy's practice also covers a wide range of litigation involving federal and state laws, where she represents management in claims of discrimination, wrongful termination, and sexual harassment. She handles contract actions, disputes over noncompetition and confidentiality agreements, and other business torts.

Amy is deeply committed to supporting her local community. She sits on the Jersey Battered Women's Service board of directors, supporting its work against domestic violence by protecting and empowering victims, rehabilitating family members, advocating social reform to prevent partner violence, and educating the public. She is also on the board of directors for Free the Slaves, a not-for-profit with a mission to liberate slaves around the world and change the systems that allow slavery to exist.

Bar Admissions

    New York
    New Jersey

Education

Boston University School of Law (J.D. 2002), cum laude
Syracuse University, College of Visual and Performing Arts (B.F.A. 1998), cum laude
Areas of Practice
Professional Career

Significant Accomplishments

Represent a private investment firm against claims of a hostile work environment and discrimination on the basis of pregnancy.

Represented a company that manufactures, sells, and rents equipment for construction projects against allegations by five current and former unionized employees that they are or were subjected to a hostile work environment and discrimination on the basis of their respective national origins.

Represented a biotechnology company and two individual defendants in defense of claims of a hostile work environment and discrimination on the basis of gender, sexual orientation, race, and skin color; quid pro quo sexual harassment; and retaliation.

Represented a biotechnology company and four individual defendants in connection with claims of discrimination, harassment, failure to accommodate, and retaliation under the New Jersey Law Against Discrimination and the workers' compensation statute, as well as claims of intentional and negligent infliction of emotional distress.

Defended a client against a putative wage and hour class action/collective action arising out of work supposedly performed by the named plaintiff and nearly 100 other putative class members at an annual weeklong rock and roll music festival.

Represented an insurance management company in federal court in defense of claims that the plaintiff was demoted and ultimately terminated in violation of the Age Discrimination in Employment Act and the Family Medical Leave Act.

Defended a private investment firm against claims of harassment and discrimination on the basis of race.

Speaking Engagements

The Employment Counseling & Litigation practice will host a breakfast seminar in our New York office entitled "New York Employment Law Developments in 2017." Topics will include New York wage and hour exemptions, paid family leave in New York, mandatory written agreements for freelancers and consultants, and noncompete legal developments.

With news breaking seemingly every day of sexual harassment involving a variety of industries and powerful individuals, and efforts like the #metoo movement increasing awareness and encouraging victims to take action, it is more important than ever for companies to take steps to prevent sexual harassment. In this seminar, we will discuss:

  • A summary of federal, state, and local laws
  • HR policies, training, investigations and other best practices
  • The future of non-disclosure agreements and confidential settlements
  • Employment practices liability insurance and other business considerations

For more information, email [email protected]

Please join us for a practical, substantive discussion on workplace conduct investigations. We will provide a working case example prior to the seminar that we will discuss during the seminar. We will also address best practices on how to perform workplace conduct investigations, best practices on how to document workplace conduct investigations and considerations about attorney/client privilege and confidentiality.

For more information, email [email protected]

David M. Wissert and Amy Komoroski Wiwi lead a panel discussion on the impact of the #MeToo movement and other employee law issues at Media Outlook 2019, a seminar offered by the Media Financial Management Association (MFM). The panel will provide attendees with the information and tools needed to implement policies and training programs that can lead to a positive culture in which all employees can contribute and thrive. 

Media Outlook 2019 will address the top challenges and opportunities facing media companies in the coming year. Stuart Benson, CFO of Helios & Matheson, a provider of information technology services and solutions and majority owner of MoviePass Inc., and Jeana Stanley, Vice President of Finance for Hearst Corporation, will co-chair the program.

The event takes place 8 a.m.-12 p.m. at Lowenstein Sandler, 1251 Avenue of the Americas, 17th Floor, New York, NY 10020; 212.262.6700. Wissert and Wiwi's panel discussion is 11:10 a.m.-12 p.m.

 

Please join us on October 15, 2019 in Roseland or on October 16, 2019 in New York for a discussion on evolving workplace culture.

We will address:

  • Impact of today’s political climate on your workforce
  • Career development in the #metoo era
  • Social media and the workplace

Who Should Attend: Human Resource Professionals, Attorneys, and Business Leaders



Professional Associations

American Bar AssociationThe Association of the Federal Bar of the State of New JerseyNew York State Bar AssociationJersey Battered Women's Service, Inc.
  • Member, Board of Directors

Professional Activities and Experience

Accolades
  • Chambers USA: America's Leading Lawyers for Business (2013-2019) - Wiwi
  • Rising Star - Super Lawyers - (2010, 2012-2013, 2016) - Amy Wiwi

Blogs

Capital Markets Litigation
Lowenstein Sandler LLP 

Litigation News for the Global Financial Community

Articles

The #MeToo movement has triggered a rise in harassment claims. Make sure your company is carefully prepared for potential problems.


So much can happen in 15 months. It was that short time ago when The New Yorker expose of entertainment titan Harvey Weinstein’s outrageous behavior gave birth to the #MeToo movement. Women who had been previously silent came forward in droves, offering personal tales of sexual abuse and harassment in the workplace spanning decades.


Increased public awareness of the issue has led to more complaints. According to the Equal Employment Opportunity Commission (EEOC), allegations of sexual harassment claims increased by more than 12% in the fiscal year ending Sept. 30, 2018. In addition, the EEOC has reported that it filed 50% more lawsuits charging sexual harassment than it did in the year prior.


The #MeToo movement has inspired new anti-harassment legislation as well. In 2018, New York State enacted laws that impose extensive training, policy and posting requirements. The state now also prohibits the use of nondisclosure provisions in settlement agreements involving sexual harassment claims unless confidentiality is the employee’s preference. Further, New York has declared null and void any clause or provision in any contract entered into after July 11, 2018, that requires the parties to submit to mandatory arbitration to resolve any allegation or claim of sexual harassment.


New California laws also lower a plaintiff’s burden and standard of proof in sexual harassment lawsuits. In addition, they increase sexual harassment training requirements for employers and limit the use of nondisclosure agreements to settle sexual harassment claims.


These laws are part of a nationwide trend. According to the National Conference of State Legislatures, more than 32 states have introduced over 125 pieces of legislation related to sexual harassment and workplace misconduct in 2018. In light of this, should expect to face a more educated and demanding workforce, with a clearer understanding of what is prohibited, employees’ legal rights and where to seek redress. As Ruth Bader Ginsburg recently noted in a speech at Georgetown University Law Center, gone are the days when bad behavior will be excused under the premise that “boys will be boys.”


There are several actions that employers can take to prevent and address sexual harassment. Let’s look at each one in turn.


Examine the Culture


Take a hard look at your company’s culture to determine whether it supports and reinforces a respectful workplace free of sexual harassment. You may find that leaders in the organization engage in, ignore or perpetuate sexual harassment or other gender discrimination. There may be employees who believe that complaints will not be treated seriously or that alleged perpetrators will merely be given a slap on the wrist.


Find out if women have been penalized for assertive behavior – if they are silenced or spoken over at meetings. And there may be pay disparities between men and women who hold similar jobs. Whether explicit, implicit or passive, all of these issues must immediately be addressed.


A good way to improve culture is to formally evaluate supervisors on how they handle harassment and discrimination issues and promote diversity. Then tie that evaluation to career advancement opportunity and increased compensation.


Management should further determine whether a gender imbalance exists in the workplace – in the rank and file, in management, in the board room. Women remain vastly underrepresented at every level in corporate America according to the Women in the Workplace 2018 report. It’s based on a survey by LeanIn.Org and McKinsey & Co., which compiled four years of data from 462 companies employing 20 million people. The #MeToo movement has led to heightened public scrutiny of that imbalance.


Employers should consider providing women with leadership training, promoting them into the executive ranks or forming committees that focus on women’s issues and concerns. These efforts will certainly bolster an employer’s message that its female employees are valued and respected.


Develop a Strong Policy 


Employers are well advised – and required in many states – to adopt a sexual harassment policy. What’s more, it should contain a prominent statement that the employer is committed to maintaining a workplace free from sexual harassment. It should clearly define sexual harassment, emphasize that it is against the law and state that all employees have a legal right to a workplace free from sexual harassment.


The policy should specify that it applies to all employees, applicants for employment, interns as well as contractors and other third-parties who conduct business with the employer, as may be required by state law. The policy should advise that sexual harassment is not limited to the physical workplace and can occur while employees are traveling for business or at employer-sponsored events or parties.


There should be a clear mechanism for reporting and handling complaints, specifying the people to whom the employee can complain. The options should include someone who will seem safe to a given employee, if he or she needs to lodge a complaint. To that end, someone in addition to the supervisor must be listed, and preferably the list should include at least one male and one female.


The employer should confirm that complaints will be treated confidentially, to the extent possible, promptly investigated and that the employer will take prompt corrective action to stop any inappropriate conduct. Some states, including California and New York, now require employers to specify how an employee can file a complaint with the EEOC or state agency that enforces the laws prohibiting discrimination.


Employers are strongly encouraged to outline and prohibit other forms of unlawful harassment and discrimination within their policy, beyond sexual abuse. For example, employers should affirm they provide equal employment opportunities to all staff members and job applicants without regard to race, color, religion, gender, national origin or any other characteristics protected by state and local law. The same complaint mechanism can be used to report claims of other unlawful discrimination and harassment.


The policy should emphasize that retaliation is prohibited. However, the employer should make clear the provision does not protect employees from making intentionally false charges of harassment. New York employers are now required to include a sample complaint form within their policy. Employers from other states may wish to do the same.


Communicate the Policy


Employers should disseminate a written copy of their policy to employees either as a hard copy or via email. Alternatively, they should post the current version of their policy on a company intranet with a tracking system. Intranet tracking is a compliance tool that allows employers to track and confirm that handbooks and policy updates have been received and reviewed by employees. In all events, the employer should secure an acknowledgment form from the employee.


Policies should be redistributed at least annually and provided to each new hire. But that’s not all. The employer should consider reminding employees of its harassment policies before holiday parties and at town halls or other large group meetings. By doing so, the employer can emphasize its commitment to the policy.


Train, Train, and Retrain


New York and California have enacted legislation that requires anti-harassment training in the workplace either every year or every other year and further require that employers track compliance. But employers in every state should provide anti-harassment training to their employees not only because it helps when defending a lawsuit, but also because it is good for the employer’s culture.


The New York and California training requirements serve as a model for employers in all states. Educational sessions should be interactive, which means they should allow employees to ask questions and require them to provide feedback about the information and materials presented.


Include an explanation of sexual harassment consistent with the law of the state in which the employee works and provide examples of conduct that would constitute unlawful sexual harassment. Also, provide information about the federal and state statutory provisions prohibiting sexual harassment and identify the internal and external complaint forums available to employees.


The subject of supervisor responsibility is an area of special concern, and employers should provide separate training for supervisors so they know exactly what to do when someone complains, or if they observe or know of sexual harassment even if no one is objecting to it.


Many states hold supervisors to a higher standard of behavior. Training should advise supervisors that they are required to report all complaints or instances of suspected harassment to a designated company representative (as provided in the employer’s anti-harassment policy) and that they will be subject to discipline for failing to make that report.


Supervisors must also be advised that retaliation against any employee because that individual complained of harassment, or helped another employee who did, is strictly prohibited. Retaliation includes any action taken to alter an employee’s terms and conditions of employment, such as a demotion, reduction in pay or location change. Year after year, the EEOC has reported that retaliation for harassment claims is the most common issue in the federal cases they handle.


Conduct Investigations


A prompt and thorough response to reports of sexual harassment is critical to a successful legal defense. Because there are more legislative efforts to combat workplace harassment, it’s likely that workplace investigations will face more scrutiny moving forward. Not only are victims likely to complain about investigation procedures, but accused harassers, facing stricter policies and penalties, may also complain that an investigation or the ensuing response is unfair.


Recent legislation limiting the use of confidentiality clauses in agreements that settle harassment claims will probably result in more claims going to trial. There, employers should expect their entire investigation process will be put under a microscope. (For tips on how to launch an investigation, see sidebar page 20.)


Act & Communicate Promptly 


Many employees expect that an alleged harasser will be immediately fired once allegations are made. While that expectation may be unrealistic, employees expect follow-up information from an employer once an investigation is concluded.


Ordinarily, employers should notify complainants in general terms either that the allegations were substantiated and corrective action was taken, or that the allegations were not substantiated. To emphasize the employer’s strong response to sexual harassment claims and the thoroughness of its investigation, some employers may choose to provide additional information regarding the scope of the investigation, the number of witnesses interviewed and the nature of the corrective action.


Consider Insurance


Employment practices liability (EPL) insurance policies allow companies to mitigate risk and reduce the costs associated with certain employment-related claims and litigation. The policies generally cover companies, executives and employees for claims arising from wrongful discharge, harassment, discrimination and retaliation. Coverage exclusions do exist and should be reviewed carefully.


Dealing with harassment, and guarding against it, is not a simple process. It requires ongoing efforts by employers to set and communicate policy, train, respond and promote a culture of respect.


WSG's members are independent firms and are not affiliated in the joint practice of professional services. Each member exercises its own individual judgments on all client matters.

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