New York Employment Lawyer Blog

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Job Mouse: Big news for the 20 states that borrowed money from the federal government to cover their increased unemployment insurance needs…payback deadline is at the end of this month. The back story here is that many states were financially ill-equipped to handle the huge increase in unemployment claims following the recession and had to borrow money to meet these demands. Let’s hope they fixed their accounting and are ready to start paying their debts.

• Reuters: Sheltered workshops are facilities funded by state and local agencies to provide jobs for disabled employees. The work is comprised of basic tasks and workers are typically paid less than minimum wage. Reuters reports on a recent class action lawsuit out of Portland, Oregon claiming that many of these disabled employees are being exploited and unfairly stereotyped. Look out for my blog delving into this interesting topic.

• The Bulletin: Are companies only seeking to hire employees that are currently working? The somewhat ironic question is one being discussed by The Bulletin in an article examining whether there need to be laws to protect currently unemployed workers from bias in their job hunt.

• Furley Page: And last but not least some news from our friends over in the UK. In a bid to reduce regulation and stimulate growth the government is making some big changes to employment law over there. The Furley Page does a nice job breaking down how these changes will affect employers and employees when put into effect.

Wherever you are when you are reading this I hope everyone has a great weekend. Got some great articles to add? I would love to hear from you!

Today in Bloomberg Business Week, there is a great article about three types of people who should be fired immediately. They are:

1. Victims: You know the type - the people who complain about everything and feel that life is just a struggle. They see problems everywhere and feel persecuted.

2. Nonbelievers: People who have a negative attitude and see failure at every turn.

3. Know-It-Alls: People who think they know the answer and the answer is usually no. The Bloomberg article cites people who predicted that radio and telephones had no commercial value. You know the type.

But - it is legal to fire these kinds of people. Can a company just fire them without cause or without due notice? Yes they can. An employee can be fired for no reason at all and no warning or notice is legally required. Just like an employee can quit for any reason and without notice, a company can fire it's employees at-will.
Believe it or not, employees do not normally have a legal right to their job. The best way to keep your job is to be valuable and pleasant to work with. Don't fall into one of the three categories in the Bloomberg article.

It is interesting to see how a bizarre news story can actually lead to a blog post about a general employment law issue. So here I go about a story in a state very close to many of the New York employment law issues I usually write about: Pennsylvania

A 45-year-old Pennsylvania women believes she was fired from her position with a frozen treats making company after she wore a fake penis to work. The prosthetic device was worn to help her decide whether she wanted a sex change. Her complaint alleges both gender and gender identity discrimination.

You may be asking, was the gender discrimination against her as a women or her as a man? In this scenario, it was because she was being treated differently as a female dressed as a man. Hmmm, not sure that sentence really clarified anything.

In the employment context, gender discrimination occurs when an individual is treated differently simply because of his or her sex. Although a unique set of facts, if the woman in this scenario was in fact fired simply because she was a women dressing as a man and was otherwise competent in her job, then she has a very good case.

Perhaps the best argument the women has in this case is the fact that a male coworker was undergoing a similar sex change decision and dressed as a female to work without any negative repercussions. Who knew she would be so lucky with a similar fact pattern?!

As you can see, gender discrimination takes many forms. If you feel like you may have a unique or more textbook case of gender discrimination, give us a call.

It seems so high school. You tell on someone for doing something wrong and they try to get back at you. But when the high school quad meets the New York workplace, the revenge for reporting is actually called retaliation. And it’s illegal.

Let’s start from the beginning. An employee reports a situation, an employee experiences negative repercussions that he or she believes is the result of vocalizing their concerns.

There is not one specific type of reporting that makes a retaliation situation illegal. Rather, when an employee reports to supervisors about a workplace issue and then has some sort of adverse reaction take place…that is a form of retaliation. That means that reporting any type of employment discrimination (whether against the employee or someone else), illegal pay practices, harassment or other workplace issue is something that is not only encouraged but protected. I should also point out that whether the initial complaint is true or not is completely irrelevant when it comes to retaliation in the workplace issue.

Just like there are so many types of reporting protected under state and federal retaliation laws, there are also various types of retaliation situations to look out for. Firing, demotion and reduced pay are just a few of the forms of retaliation that an employee may experience from reporting.

Reporting a company’s potentially illegal activities should be something an employee feels comfortable discussing and a company feels compelled to listen to and fix. If you are concerned that you have been retaliated against, give us a call.

Many New York bankers work hard all year for their bonuses. But some of those bankers don't get what they were expecting, and some get nothing. I recently met with a banker who was fired after working all year and the bank will not pay the bonus. Not fair for the banker, but is it illegal?

The law that applies to banker bonuses is pretty simple. It applies to non-bankers as well. The root of the issue goes to whether or not the parties agreed, expressly or implicitly, that the bonus would be paid. If the circumstances indicate that the banker and the bank both knew that the bonus would be paid at year end, then the banker may have the right to recover that bonus. In order to evaluate these claims, the following factors are typically considered:

- was the bonus a substantial part of the banker's total annual compensation?

- is there a pattern of paying the banker such a bonus?

- did the banker do anything that would justify non-payment of the bonus?

- did anything happen at the bank (like poor earnings) to justify non-payment?

These banker bonus disputes are handled by FINRA through arbitration. Typically a panel of arbitrators handles these matters and FINRA has a good record of treating bankers and banks fairly. If you have a question about a bonus dispute, please give us a call.

In New York, and every place else in America, it is illegal to fire an employee due to a disability. It is also illegal to fire an employee who asks for time off for a medical procedure - this conduct is prohibited by the Family Medical Leave Act. The Family Medical Leave Act applies to companies with 50 or more employees and the employee has to have been employed continuously for a year to be protected.

The disability discrimination laws and the FMLA have been around for a long time. But still companies act like these laws don't exist. Just the other day, a woman came to see us who was fired several days after she told her boss that she needed time off for an operation. This employee, lets call her Gertrude for fun (real names not used here) had a heart condition and she needed to have an operation to prevent another heart attack from happening. She told her boss about the operation on Tuesday and on Friday she was fired after 8 years with the company. No warnings.

So does Gertrude have a case? She sure does. First, Gertrude has a disability discrimination case because she had a serious heart condition and she told her boss about her condition. Since she was fired soon after telling her boss about her heart condition, it looks very much like she was fired because her boss viewed her as disabled and likely to need time off and slow things down at work. She has a disability claim under the New York City Administrative Code and possibly under the Americans with Disabilities Act. I prefer the NYC law because it is broader than the ADA.

Gertrude also has a claim under the FMLA. Under that law, an employer cannot retaliate against an employee who seeks to exercise their rights under the FMLA. The company is also prohibited from interfering with an employees right to take time off under the Family Medical Leave Act.

Gertrude most likely has viable legal claims for disability discrimination and for violations of the FMLA. We see a lot of disability discrimination cases. For some reason, companies think it is OK to fire people when they need time off for serious illnesses (their own illness or to care for a sick family member) or when they learn that an employee has a serious illness. Just last week another person hired us after her boss fired her soon after she disclosed that she had MS.

If you have been fired due to an illness or disability, give us a call. There is no charge for the first consultation and during that meeting we will try to determine if you have a viable legal claim.

A women’s place is in the kitchen. Did I catch your attention with that stereotype? Thought so. Sexual stereotyping is an employment issue in New York and other states that men and women often struggle with. Simply put, women and men must be held to the same behavioral standards at the workplace. When this does not happen, there is a name for it: sexual stereotyping.

In the employment context, sexual stereotyping can result in lost promotions and other types of unfair job limitations. Interestingly enough, the legal profession is often guilty of sexual stereotyping, especially when it comes to promotions.

So what does a sexual stereotype look like? If a woman is being told that she is too macho and needs to take a more feminine approach to her style and overall appearance before she can be promoted to partner, then she is having stereotypes illegally used against her.

Or if a man is told to stop acting in a feminine way and speak with a deeper voice at work, that is also a form of sexual stereotypes.

Everyone is different and that diversity is what makes for a great work environment. When colleagues and employers are asking an employee to better fit within their gender role, there is a sexual stereotyping issue, especially when a promotion is contingent on conforming to certain gender roles. There are legal implications for an employer that demands this type of conformity from his or her employees. The first step to stopping this stereotyping is to speak out against it. If that doesn’t work, give us a call.

Let’s talk about sex. Sexual harassment that is. When it comes to working in New York, there are a lot of questionable situations that may fall under the definition of sexual harassment. Generally speaking, any unwelcome physical or verbal conduct directed at an employee because of his or her sex can constitute sexual harassment.
The definition seems simple enough but there are a lot of caveats and misconceptions about sexual harassment that I want highlight in my blog today. Picking the above definition apart, a New York sexual harassment case does not have to be physical but it can also be words (this would include emails, text messages, etc) and it does not just apply to women but men too.
Here are some other misconceptions about sexual harassment that I want to point out:

• Same Sex Sexual Harassment: Although the majority of sexual harassment cases are between a man and a woman, that does not make it any less illegal for a man to harass another man or vice versa.

• Let’s Hear It For The Boys: Piggybacking on the above point, men can be the victims of harassment in the workplace.

• Title Doesn’t Matter: Sure, there are a lot of public instances in which a male boss is acting in an inappropriate and illegal manner towards a female employee. But the title of an employee does not matter when it comes to sexual harassment. It is not just the boss that can be on the giving end, there are many instances in which an employer is the victim.

Hopefully you now have a more informed definition of sexual harassment. If you feel like you are being sexually harassed at work, give us a call.

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Huffington Post: Unemployment is going to be a big issue in presidential campaigning. With a national unemployment average of 8.5% this is not a surprise but will still be interesting to see how politicians attempt to tackle the problem. One issue that the Huffington Post is currently covering in South Carolina is whether the receipt of unemployment benefits should be contingent on passing a drug test. The HuffPo reports that, in addition to drug testing, Republicans are also arguing for mandatory volunteer work for long term joblessness.

• NPR: Law schools have been getting a lot of heat in the past couple of years over their employment numbers. NPR explores the issue with the apt title, “Do Law Schools Cook Their Employment Numbers?” The article and issues surrounding it isn’t necessarily about employment law but as an attorney looking to the future of the profession, there are interesting issues being raised about the importance of a law school being up front about their graduates’ job prospects.

• Boston Herald: Big news out of Massachusetts for their roughly 33,000 transgender employees. The Boston Herald reports that Massachusetts just passed a new law that prohibits discrimination in the workplace.

• The Vancouver Sun: The Vancouver Sun covers an employment law case out of Chicago about a woman who was fired for doing extra work during her lunch break. After bringing a successful suit (representing herself I should add) she will now be receiving unemployment benefits.

Have a great weekend everyone. Got some great articles to add? I would love to hear from you!

I recently came across an entertaining article in the New York Daily News about a Manhattan school teacher that faked jury duty obligations to score free vacation days. Clever? Sure. Illegal? Of course. The way she got caught was perfectly ironic: poor spelling on the fake note from the court. Spelling basic words like trial, manager and cited wrong (trail, manger and sited respectively) was an easy clue for the school principal to catch the forgery.

Jury duty is your civic duty and as a New York employee, I found this article as a good chance to remind employees of the rights have when they actually serve on a jury. With more than half a million jurors serving in the state of New York every year, this is certainly something that will likely come up multiple times throughout the course of your professional career.

The New York court system has a great guide dedicated to employment issues relating to jury duty. Here’s some of the top frequently asked questions:

• Who Pays? In New York, the going rate if $40 per day of jury service. Additionally, employers are highly encouraged to pay an employee’s wages while reporting for service. Although this is not a requirement, the pay should not be considered sick or vacation time but an independent paid obligation.

• Do part-time or temporary employees get paid? The answer to this is basically the same as for full-time employees (see above). If you are a temporary employee then it is the temp agency and not the company you are staffed at that you would need to contact.

• Do employers have to let employees serve? The answer to this question is a resounding yes. Criminal penalties will be attached to any employer who says otherwise. Additionally, an employer cannot force an employee to make up time or work on nonscheduled days as a resulting of their jury service.

Oh and for those of you wondering, the 61-year-old teacher resigned from her position with the school and was ordered to pay $3,374.88 in salary she was paid while not serving on jury duty.

I recently did a general roundup of the most common types of workplace discrimination categories. Although unfortunate that workplace discrimination exists at all in New York (and other cities for that matter), knowing about the various types will hopefully inspire employees to take action against the illegal situation they may be in.

Not to get overly historical but America was founded with the idea of religious tolerance in mind. Religious discrimination in the workplace does not just go against state and federal laws but also against the central tenets of the Constitution.
From firing to hiring and everything in between, New York employees are protected against religious discrimination in the work place by their employers and fellow employees.

But what are some of the accommodations that must be made to facilitate religious expression? Let’s start with the more day to day activities…if an employee needs to pray during the work hours then the best approach is to let the employer know and work out a suitable arrangement around those prayer times to make sure work is getting done too. If an employee needs to wear special religious clothing to work, that too is protected under the law.

Although making accommodations is part of the law, work still needs to get done. Meeting in the middle is the best approach to ensuring that an employee feels free to practice and an employer feels like they are still running their business smoothly. One of the best ways to combat this type of discrimination before rising to the level of litigation is by communicating. If you still feel like there are issues at work, then I will be happy to communicate the legal ramifications to your employer for you. You know where to find us.

It’s finally time to catch up on anything and everything employment law, both within our own country and abroad (or in this week’s case, on the sea). Here’s a look at some articles I am reading this week:

• Thomson Reuters Legal News: WalMart v. Duke is an employment class action case that was ruled on in June by the Supreme Court. Many believed the holdings in this case would be a game changer and that certainly seems to be the case. The suit tried to certify a class of 1.5 million former and current female WalMart employees for issues with gender discrimination. The Court ruled that this class simply did not have enough in common. Since the decision, defendants in a variety of class actions have flooded courts with motions challenging the certification of large classes of plaintiffs. 260 times to be exact.

• New York Times: The NY Times talks about the big employment law decision to come from the Supreme Court this week…religious groups are exempt from employment discrimination laws. Yes, you read that right. Religious organizations, whether it is a Church or a school can discriminate. In application, this should be a very interesting attempt at separation of Church and State.

• Bloomberg: We handle a lot of overtime pay cases. So naturally I found this story about Goldman Sachs paying computer technicians $993,841 in back overtime pay very interesting and it so happens that our firm handled that case. Workers based in New York and New Jersey sometimes worked 70 hours a week but were paid for 40 of them. Glad to see they ultimately got compensated for their time.

• Justia: Sailing meets employment law. Justia highlights a case in which a seaman working on a boat suffers disabling neck injuries. Ahoy!

Got some great articles to add? I would love to hear from you!