Articles Posted in Employment Law

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In the wake of America’s economic crisis, many workers through no fault of their own were being overlooked and outright discriminated against for employment.One ad in particular sparked national outrage when a company in Texas indicated that the unemployed need not apply.

Now, our Great Neck employment lawyers know it’s been little more than a month since New York City passed a new law barring businesses from rejecting job applicants solely on the basis of unemployment. The measure passed 44-4 and specifically outlaws help wanted ads requiring that potential job candidates be currently employed.

The idea of course is to help New Yorkers get back on their feet. In New York state, our unemployment rate is 8.2 percent. It’s markedly higher in New York City at 9.1 percent. Those numbers are skewed for minorities – 13.6 percent for African Americans and 10 percent for Latinos.

A survey of hiring managers last year found that unemployed job candidates were viewed as less qualified, even when they had the exact same resume as someone who was currently employed. This provided insight as to why unemployment begets unemployment. It’s not a matter of laziness. It’s a matter of opportunity denied on an illogical basis, and what’s more, it hurts us all as it prolongs economic recovery.

Council support was able to override a veto by Mayor Michael Bloomberg, who argued that such a measure would hurt businesses who are already fighting to stay open. The biggest concern, he said, is that a flood of “frivolous litigation” would hurt more than it would help.

One would have to ask – help and hurt whom? It’s only “frivolous” until you are the one who is discriminated against for a layoff or job loss over which you had no control. When you are the one who is qualified, able and eager to work, yet you are struggling to scrape by because no one will hire you – it’s not so frivolous anymore.

What’s more, other places that have passed very similar measures (New Jersey and Oregon) haven’t noted a great uptick in litigation. One would hope that’s because businesses are taking heed.

In New York City, the new law holds that an employer found in violation could be required to pay a civil penalty of up to $250,000, not including statutory fines and attorneys’ fees.

Still, there is some leeway provided for employers. Companies are allowed to consider an applicant’s unemployed status as long as there is a substantial, job-related reason to do so.

A similar measure at the federal level was proposed by President Barack Obama in 2011, with the President saying that requiring a candidate have a job to get a job “makes no sense.” It wouldn’t have made employment status a protected class, like how we view race or sex or religion, but it would have given unemployed job candidates a leg up. However, the bill, titled the American Jobs Act, ultimately faltered in Congress.

New York City applicants who feel they have been discriminated against on the basis of their employment status can file a complaint with the city’s Human Rights Commission, and should contact an experienced employment lawyer as soon as possible.
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The New York City Council appears poised to pass a measure requiring all city employers, public or private, of more than 15 employees to provide at least 5 sick days to workers.Our New York City employment lawyers understand that the bill is likely to pass, despite the pledged veto of Mayor Michael Bloomberg and criticism from at least two major unions voicing concern that the new law won’t go far enough.

The measure is expected to affect some 600,000 New Yorkers. Businesses with fewer than 15 workers won’t be required to offer paid leave, but will need to give at least five days of unpaid sick leave. Regardless of whether they offer paid or unpaid leave, employers will be forbidden from firing workers who take that time off.

Examples of why this law is necessary abound. Take the case of a couple whose teen daughter contracted a blood infection and required hospitalization. The couple also had a newborn, who had to be left in the care of the father while the mother was in the hospital with their teen. The father was fired from his pizza delivery job for taking those two days off. As the family’s primary wage earner, the effect was financially devastating.

As written, the law would take effect April 1, 2014 for companies with more than 20 employees and Oct. 1, 2015 for firms with 15 or more. A provision was written into the bill that holds it will not be enacted if the city’s economic health, as measured by the Federal Reserve Bank, falls below the levels measured as of January 2012. Currently, the city has a 9.1 percent unemployment rate.

Part of the concern expressed by the mayor and others is that while the measure is well-intended, it may actually result in many low-wage workers being laid off as smaller companies struggle to shoulder the cost of the new requirements. That was essentially what happened in San Francisco when a similar measure was passed there six years ago. In the immediate aftermath, research showed, nearly 30 percent of the lowest-paid workers were either laid off or suffered a reduction of hours.

But of course the ultimate goal is to protect workers from being fired simply because they have suffered an illness and can’t make it to work. In that regard, representatives from the building services and health care unions say the new law doesn’t go far enough. Most workers, they say, will fall ill more than five days out of the year and should be shielded from the financial repercussions.

As the measure was originally written, companies with more than 20 workers would have had to offer nine paid sick days throughout the year. However, that number was later reduced to five as part of a compromise in an effort to get the measure passed.

Still, advocates say that the move could serve as as a bellwether regardless, given the size of New York’s workforce.

However, given the resistance that so many businesses have put up, we expect there will be some level of intimidation discouraging workers from actually taking those sick days. Firms should be put on notice that such action could result in swift legal action, should workers seek to pursue it.
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A New York City employment lawsuit filed by a former intern at Harper’s Bazaar has been granted class action status, with some 3,000 people eligible to join in a fight alleging that intern employment practices at Hearst Corp. violated state and federal labor laws.The suit alleges the company aggressively worked unpaid interns, who routinely worked overtime without compensation and were critical to the company’s operation. Yet, it was rare for the firms to actually extend a job offer or even recommendation. Hearst has begun fighting back, e-mailing thousands of former interns in an effort to find some willing to testify regarding the value of their intern experience.

Our New York employment attorneys understand the decision rendered in this case – and we could see one as early as next year – will have a greater impact on some industries than others. That’s because some industries, such as fashion, film and media, have always tended to rely a bit more heavily on the work of interns as part of daily operations.

These are cut-throat industries, with a fierce level of competition for even the unpaid positions. For a long time, these companies have probably felt as if that insulated them from legal action.

Speaking out against these companies’ practices would inevitably lead to a person being black-balled from the industry. And in fact, following the filing of this lawsuit, many in the fashion and publishing industry have been highly critical of the interns. Among those big names are CNN’s Anderson Cooper and Vogue’s Grace Coddington.

The federal Fair Labor Standards Act holds that interns who work at private, for-profit firms and who qualify as employees, as opposed to trainees, must typically be paid a minimum wage, plus overtime for any hours they work over 40 a week.

However, there are some situations in which interns may be unpaid. In most cases, in order to meet this standard, the following criteria must be met:

  • The internship, despite including actual operation of the employer’s facilities, is more akin to the training that would be received in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern doesn’t displace any regular workers, but instead works closely under the supervision and guidance of existing staffers;
  • The employer provides training, yet derives no immediate advantage from the intern’s work, and in fact, may be impeded by their presence;
  • The intern understands that he or she isn’t entitled to receive a job when the internship is done;
  • Both the intern and employer are on the same page about the fact that the position is unpaid.

In this case, in addition to Harper’s Bazaar, interns from Redbook, Marie Claire and Esquire have also joined the suit. They are seeking back wages, overtime and other damages.

It’s not expected that this suit, if successful, would end the unpaid internships altogether. However, we understand the goal is to prompt companies to change their policies so that interns can be paid rather than provided school credit. A number of media organizations have already done so, including Fox and Gawker Media.
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Our New York City employment litigation attorneys understand that city leaders have quietly adopted a policy of shielding from public view the dollar figures it pays to settle the majority of lawsuits filed against either itself or its employees.The New York Times reports these figures were at one time always included in courthouse documents. However, about three years ago, the city began notifying plaintiffs who had filed suit that if they wanted their labor and employment case settled, one condition was that the dollar amounts would remain confidential.

Then last month, that policy was expanded to include any lawsuits that were filed against the city’s police department or its members.

Of course, the settlement amounts are technically public record, available through a formal Freedom of Information Act request.

We view this action by the city with skepticism for several reasons. One is that the new policy now requires potential litigants to obtain the city’s permission for information that once could be obtained with neither the city’s knowledge or permission. Essentially, it sets them on alert for a pending action, which can sometimes be harmful to a plaintiff attorney’s strategy. Additionally, while it has historically been typical to maintain confidentiality in settlements involving private parties, a city government does have an obligation to offer a greater level of transparency.

First Amendment attorneys have been quick to note that this shift is not consistent with the major issue of the public’s right to know. Even if it doesn’t violate the letter of the law, it certainly violates the spirit.

This is important not only from a taxpayer point-of-view, but also from the strategic perspective of knowing how the city is compensating victims of misconduct or abuse perpetrated by its employees.

A recently cited case involved a man who was wrongly arrested for gambling based on falsified police reports. Inside sources indicate the man settled for $20,000 – but only on the condition that the plaintiff agreed to omit the amount of payment from courthouse records.

The Times reports this was just one of thousands of lawsuits that are filed against city employees each year. During the 2011 fiscal year, the city reportedly spent nearly $665 million on awards or settlements. It was slightly less this fiscal year, with the total settlement amount reaching about $585 million.

The city said that the new policy started when a federal judge overseeing a police misconduct case stated she was uncomfortable releasing the amounts. However, it’s not clear why.

What is clear is that a government that is not interested in being forthcoming about the actions taken to right its wrongs is likely not all that interested in actually righting those wrongs at all.
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In any sexual harassment litigation, the plaintiff should expect some level of scrutiny from the court, and particularly from the defense.New York employment lawyers know that this sometimes unfortunately means delving into matters of a personal nature. It’s something for which we try to steel our clients, and the bottom line is this: Nothing in your history creates a valid reason why you should have to suffer sexual harassment. It’s illegal. Period.

However, a judge in Colorado recently made a troubling ruling in preparation for a class action trial of a sexual harassment case there involving some 20 women who were reportedly targeted by a supervisor of a food distribution chain.

The November ruling in the EEOC v. The Original Honeybaked Ham Company of Georgia, Inc. made news after the U.S. Magistrate Judge in the U.S. District Court of Colorado granted a defense motion to compel the plaintiffs to turn over their Facebook passwords. This was part of an order compelling them to turn over their full, unredacted social media content, including text messages and e-mails.

While the realm of social media is relatively new territory as far as law is concerned, one doesn’t need to be a lawyer to understand that this is a breach of privacy.

The defendant in this case claims that these communications – some of them private – contain information about the lawsuit, the defendant and further go toward painting a picture of the plaintiffs that is unfavorable with regard to the litigation. For example, one of the complaints from an employee was that the supervisor had referred to her by a sexually derogatory expletive. However, in a photograph posted to her social media site, she appeared with a t-shirt with that same term written on the front. The defense claims this proves the plaintiff couldn’t have been categorically offended.

Of course, it’s a weak argument, but one the judge determined they were entitled to make.

Other elements of the electronic communication that the defense claims are relevant include:

  • Sexually suggestive commentary traded among members of the class;
  • The “self-described sexual aggressiveness” of one class member;
  • Information regarding their post-termination financial condition and employment opportunities.

But again, even if all these things are true, none of it makes it acceptable to act as the supervisor in this case allegedly did.

According to court records, the women allege that the supervisor made sexually suggestive comments to them, groped them and demanded sexual favors of them. Some complained to management. Those who took their complaints up the chain of command were subsequently fired from their jobs, despite previously positive performance reviews.

The judge has said that the information obtained from the social media sites won’t immediately be handed over to the defense. A “special master” will be designated to oversee the collection of information. From there, the judge will review the content and determine whether the information obtained is relevant and can be entered into evidence.

Not only does this raise serious privacy concerns for the plaintiffs, but it is also troubling from the perspective of those who were communicating with them, sometimes privately, who may not be party to the case and who may have sent messages with the expectation that no one else would read them.

While we disagree with the ruling, one thing we hope potential clients take from this is to be mindful of the material you are posting to social media sites and communicating electronically. Anytime you create a trail of such communication, there is a risk it may be used in court.
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Sparks Steak House was home to an infamous mafia murder 30 years ago. But it appears the illegal activity didn’t stop there.Our New York City employment lawyers understand that the restaurant owner was ordered to pay $600,000 for failing to stop sexual harassment perpetuated on some 22 male servers at the restaurant. The abuse reportedly went on for almost eight years.

The case, EEOC v. Michael Cetta, Inc., d/b/a Sparks Steakhouse, Inc.,was heard in the U.S. District Court, Southern District of New York.

The harassment included the manager making lewd comments to the men, groping their buttocks and making numerous attempts to touch their genitals.

But when some of the servers tried to complain, they were swiftly – and sometimes harshly – shut down by management. In some cases, they were assigned to tougher work. In other cases, those who complained were suspended.

Title VII of the Civil Rights Act of 1964 prohibits both sexual harassment and retaliation for complaint of such action.

Sexual harassment covers a gamut of actions, including (but not limited to):

  • requests for sexual favors;
  • unwanted sexual advances;
  • physical or verbal conduct that is sexual in nature and rejection or submission by one party affects that person’s employment;
  • sexually-charged comments, actions and material that creates an offensive or hostile work environment.

It’s noteworthy in this case that the victims were men. Stereotypically, we think of women as being the primary targets of sexual harassment. And in most instances, that is the case. But male employees tend to vastly under-report such incidents. They need to understand that they also have rights, and should seek assistance if they are being victimized.

Some are becoming braver.

Even though the overall number of sexual harassment filings involving the EEOC has fallen in the last handful of years, the percentage filed by men has climbed to 16 percent. The EEOC says same-sex harassment claims appear to be increasing.

The $600,000 settlement is about more than just the money, however. In addition to the payout, the restaurant must set up a hotline to allow employees to call regarding incidents of discrimination or harassment. Additionally, the restaurant will need to amend its policy that prohibits sexual harassment and retaliation to include all employees – not just females. It will also be required to host anti-discrimination training for all workers. It will have to post a public notice regarding the settlement, and any future reports or complaints of sexual harassment or retaliation will have to be reported by the restaurant directly to the EEOC.

The restaurant is known these days for its great steak and long wine list. However, back in the mid-1980s, it was the scene of the murder of Paul Castellano and his bodyguard. They were killed by gunshot wounds outside the eatery on orders from John Gotti, who went on to become the head of the infamous Gambino crime family as a result.

We hope this ruling will be the end of the restaurant running afoul of the law.
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Our New York City employment lawyers know that women are not expendable assets – fine for when business is going well, but unnecessary when it comes time to belt-tightening.And yet, that is the allegation being made by five female executives who say they unfairly lost their jobs in the wake of the financial meltdown.

That some bank executives no longer have jobs wouldn’t merit much attention – or sympathy – but for the fact that a number of lesser qualified male employees were able to hold on to their positions — at least according to the allegations.

To be sure, the implosion of the housing market and the subsequent recession necessitated cuts within a number of large financial institutions. But an attorney for the former executives says the number of those who were women, in proportion to men, combined with the fact that there were few women at these institutions in the first place, show a clear discrimination.

For example at one public finance firm, 45 percent of the company’s top executives laid off were women. And yet, only 12 percent of the department was comprised of women to start.

In fact, of the roughly 260,000 lay-offs in the financial sector just after the housing bust, 72 percent were women, who made up about 60 percent of the workforce in the first place.

This has left a number of firms with no more top female management.

And this is not a phenomenon that is solely found in the financial sector.

In fact, recently-released federal data showed that since June 2009, men have been the ones to land about 80 percent of the 2.6 million jobs that have been created. In the last year, they have snapped up more than 60 percent of new jobs.

Part of this has to do with the kind of jobs that are being created. Men largely dominate manufacturing jobs, and a number of those sectors have rebounded in the last couple of years. Meanwhile in government, which is occupied by a majority of women, has continued to be hit hard with budget cuts.

However, the co-director for the Center for Economic and Policy Research was quoted by the L.A. Times as saying that there is a sneaking suspicion that some employers will take a male applicant more seriously than a female, even when both are equally qualified.

This is gender discrimination.

It can be difficult to prove, but it is illegal and should be taken seriously and discussed with an experienced New York City employment lawyer.
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Major banks have been accused of a number of misdeeds in recent years relating to the economic collapse. But now the most recent allegation involves potential employment discrimination in New York.Our Great Neck employment law attorneys understand that two former employees have filed separate lawsuits accusing mega-banks Bank of America and Cantor Fitzgerald of company-wide racism.

Unfortunately, cases such as this can be difficult to prove. It’s like being pulled over by a police officer. He or she may have initiated the stop based on your race, but if you were speeding, had a headlight that was out or tinted windows, it can be difficult to prove that the officer was wrong to stop you.

It’s the same kind of uphill battle for employees who allege discrimination – an experienced law firm can help. Evidence might include an executive’s statement made in the presence of others or some electronic communication such as an e-mail or something else to indicate that action taken against you (or favorable action not taken toward you) was on the basis of your race or some other protected status, such as your religion, gender or sexual orientation. A pattern of behavior on the part of the company can also go toward proof of employment bias.

Ideally, your complaint would be combined with a solid work history. In other words, the employer had no reason to take the action against you that it did except for a personally-held or company-wide bias.

That may well have been the case here, though it remains to be seen how the courts will decide.

In the first of these two cases, James v. Cantor Fitzgerald LP, filed in the US. District Court in the Southern District of New York, the plaintiff is a black man who worked at Cantor Fitzgerald for four years, ending in the summer of 2008. During that time, he says he endured racial harassment from co-workers that was condoned by his managers. This harassment included certain colleagues making ape-like noises while around him and in one case, a co-worker saying he would be enjoying a weekend absent any African Americans, only he used a slur instead.

The plaintiff says that he notified the bank management about it, but rather than address it, he says, he was denied promotions. In one case, he says, a bank manager instructed him to transfer locations so he could “be around his own people.” The employee says when he pressed the supervisor for the meaning of that statement, he said the supervisor responded by telling him he needed to be around other African Americans.

He says he was fired for complaining about the harassment. He is asking for his job back, as well as back pay, bonuses and punitive damages.

In the second case, a black male was a manager at a Bank of America branch from early in 2007 until the summer of 2008. During that time, he stated that the branch policy was that white customers should not be served by African American employees.

What that meant for the manager was that he was routinely assigned to branches that were in lower-income communities. That in turn led to affecting certain commission and compensation. The manager said when he complained about this, he was fired.

He is seeking $10 million in damages.
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The woman at the center of a New York discrimination lawsuit later told reporters it wasn’t about the money.Despite the $83,000 settlement the former special needs teacher received, she echoed what many of our clients say: It was about the principle of equality in the workforce.

It’s something our New York employment litigation attorneys take very seriously. We believe that each of these civil rights cases that is won gets us all one step closer to a more diverse – and ultimately better – workforce.

The truth is, not only is discrimination flat-out illegal and morally wrong, but it impedes innovation and progress if everyone within a company or industry is exactly the same.

Disability discrimination, according to the U.S. Equal Employment Opportunity Commission (EEOC), happens when an employer treats either an employee or a job candidate unfavorably simply because he or she has a disability. The law requires an employer to provide reasonable accommodations to an employee or prospective job candidate who has a disability, except if doing so would cause some sort of undue hardship. Generally, these laws are going to apply to all government and private employers who have more than 15 employees.

Reasonable accommodations would be such measures as modifying or providing certain devices or equipment, modifying work schedules or positions and making the workplace accessible and usable for those who are disabled.

Those things were reportedly at the center of the suit filed by the former West New York elementary special needs school teacher.

According to local news reports, the teacher fell at work back in 2006. She subsequently underwent knee surgery, but that only appeared to worsen her condition. The doctor informed her that if she was going to return to work, she would need to do so with a motorized scooter.

She did return, but was soon transferred by the district to the middle school, which was apparently better suited to her mobility needs, according to the school. However, the teacher said in her 2009 Division on Civil Rights Complaint that the middle school was not any better suited to accommodate her.

In one instance, the teacher was reprimanded for filing a complaint against a student who reportedly threw a bicycle at her. However, the administrative meeting she was to attend regarding that incident was inaccessible to her scooter. Forced to use a cane to navigate the building, she reportedly slipped and fell.

In another instance, her identification card, which gave her access to the school’s automatic handicap doorway, stopped working. The school, she says, did nothing to rectify the situation once informed of it. Following fire drills, she was left in the parking lot because she couldn’t get back in. She had to call another teacher to open the door.

There were also instances where other non-handicapped employees used the handicap parking spaces, leaving it inaccessible to her.

She was later fired.

All of these incidents collectively amount to a solid case for disability discrimination by the district, which is probably what ultimately led to their settlement agreement.

In addition to the payment the district must make to its former employee, the settlement agreement also mandates that the school will hold anti-discrimination training seminars for all management staff.
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It appears New York employment law is falling behind the times.Our employment litigation attorneys have been closely following the news out of Illinois, which is poised to become the second state to protect employees and prospective employees from being forced to divulge their passwords and log in information to their private social media sites.

Illinois Gov. Pat Quinn is debating whether to sign the bill into law. If he does, Illinois and Maryland would be the only two states with this type of protection.

In New York, there has yet to be any serious debate among legislators at the state level about whether to press forward with a similar measure, although given the pervasiveness of social media in America and throughout the world (more than 900 million active users across the globe), this is expected to become a major point of contention between employers and employees.

Democratic U.S. Senators from both New York and Connecticut have asked that the federal Equal Employment Opportunity Commission launch an investigation into the legalities of the issue. We’ll all be waiting to hear the outcome of that.

In April, two U.S. representatives (one from New York) introduced the Social Networking Online Protection Act. If passed into federal law, it would bar employers or potential employers from mandating that employees fork over their passwords, username or other information in relation to their social networking profile.

Of course, even if it does pass, people in general need to be careful about what they post to their profile in terms of information and pictures because some of that information can be seen publicly – and there’s nothing to stop an employer or potential employer from using public information against you.

On the one hand, certain employers believe they have a strong interest in thoroughly vetting employees and prospective job candidates – to the point that the privacy of the latter is overshadowed. These primarily include in jobs where public trust is key: i.e., teaching, law enforcement and banking.

However, without legislation to stop or at least limit the process, we are giving up quite a bit in terms of personal liberty in exchange for the “privilege” of having a job.

And it’s about more than just the privacy of the employee or job candidate. That person may have hundreds of “friends” on his or her social networking site, and those individuals have the expectation that certain correspondence is private. Those individuals aren’t even given a choice about whether that correspondence is subject to review by their “friend’s” employer.

If the Social Networking Online Protection Act is passed, New York state legislators probably won’t feel compelled to push a measure at the state level, unless there are loopholes.
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