New York Employment Lawyer Blog

New York just passed an employee rights law that protects nannies and other domestic workers. It is the first of its kind. It protects nannies, caregivers, housekeepers and other in-home workers from sexual harssment, race discrimination and most all other forms of discrimination. It also gives them the right to overtime pay and the right to one day off per week. There is a detailed explanation of this law at Littlerlaw.com by Steven A. Fuchs.

Before this law passed, many domestic workers were unprotected because the employment discrimination and overtime pay laws only applied to larger employers. Small family operations were not covered, this left domestic workers unprotected. The New York City Administrative Code, for example, does not apply to any operation that has less than four employees.

In the past, at our law firm, we would hear stories of sexual harassment and other employer abuses involving domestic workers, but there was nothing we could do other than suggest that they call the police. In one case I remember, a domestic worker had photographs of her boss, a wealthy designer, walking around the house in the nude and engaged in highly illegal workplace behavior. Where is that case now? Wow, too bad this new law did not exist then. Now there is a solid law that protects against this kind of abuse.

Also, I think that domestic workers are more vulnerable to sexual harassment and abuse because they often work in close quarters with their employer. If problems develop, there is no one to turn to for help. There is no human resources department and before this law, there was no protection other than the criminal laws. This is a much needed new law.

Sex discrimination on Wall Street is on the rise. Wall Street is a boys club and shows no signs of changing. The statistics show that the number of woman working on wall street dropped by 16% over the past decade, while the number of men on Wall Street increased by 7%. However, the number of women in the overall national workforce increased by 4% over the same period and number of men joining the overall workforce fell by half a percent. Look at the graphs illustrating this trend at Fincom and their article, The Changing Face of Wall Street. The data comes from the U.S. Department of Labor and it shows that women are disappearing from Wall Street and being replaced by men.

The statistics show that more women than men are entering the workforce, except on Wall Street. Wall Street is still stuck in a male dominated culture such as that portrayed in Mad Men. I suspect that we could still find real life Don Draper's on Wall Street complete with the trophy wife at home in the suburbs and the secretary that sends out his dry cleaning.

It is probably easier for a woman to join the Army than to work on Wall Street. The military has changed it's culture, so why is Wall Street so behind the times? If you want to share your thoughts, please send me an email at robert@ottingerlaw and I will post some comments.

In executive compensation disputes, an executive can gain substantial leverage if the subject compensation, typically a bonus, can be classified as "wages" within the meaning of NY Labor Code section 190(1). If the bonus constitutes "wages," then the bonus is protected against any meddling by the employer and must be paid in full pursuant to section 193 of the Labor Code. In New York, and most other states, wages are protected and must be paid promptly.

New York defines wages as "the earnings of an employee for labor or services rendered, regardless of whether the amount is determined on a time, piece, commission or other basis." This definition sounds wide open and surely seems to cover most bonus plans as bonuses are certainly "earnings for labor or services rendered." See section 191(1). But this language has been read to exclude certain "incentive compensation" that is paid as profit sharing or as earnings that are contingent on the financial performance of the business.

The courts in New York have held that a bonus will be deemed wages only if the bonus compensation is directly linked to the executive's own performance. However, if the bonus compensation is based on other factors such as the financial success of the business enterprise or based on other discretionary factors, then the bonus is "discretionary compensation" and therefore does not constitute wages under the Labor Code. See Truelove v. Northeast Capital & Advisory, Inc. 95 N.Y.2d 220 (2000). But this does not mean that the bonus claim is lost. This only means that the executive's bonus is not protected by the New York Labor Code. The executive may still have a solid legal claim to the unpaid bonus under a breach of contract theory.

Age discrimination in technology firms is rampant. Thousands of experienced (experienced = old as in 40+) tech engineers cannot find jobs. This is because the tech world prefers young, inexperienced engineers who work for less, are eager to learn new technology, don't have family obligations, and will work all night. Older engineers, on the other hand, have to leave by 6 to get the kids to soccer practice and require double the pay and are perceived to be slower to learn new things.

Two UC Berkley professors just published their book, "Chips and Change" and they document Bureau of Labor and Census data for the semiconductor industry and found that salaries rose sharply for engineers in their 30s but that the increases slowed in their 40s and began dropping in their 50s and beyond. See the article in Techcrunch, "Silicon Vally's Dark Secret: It's All About Age."

The tech industry denies overtly shopping for young engineers. A Microsoft employee, for example, "acknowledged that the vast majority of new Microsoft employees are young, but said that this is so because older workers tend to go into more senior jobs and there are fewer of those positions to begin with. It was all about hiring the best and brightest, he said; age and nationality are not important."

Over the years, I have represented a number of older high tech workers in age discrimination cases. The cases are typically long and drawn out but in the end they mostly settled for decent numbers. Age discrimination is tough to prove and companies tend to defend them vigorously. Frankly, I do not understand why companies fight these cases so hard. I suppose it is because they have a lot to lose. We all know that age discrimination is an epidemic in the tech industry. Maybe in our next case we will call the two Berkley professors as experts witnesses. Their statistics could be useful.

The Overtime Adviser Blog issued a good post on computer help desk workers this month. At our law firm, we have a number of cases that concern this issue. Help desk workers are vital to most companies because they keep people working. Because help desk positions are so demanding, many help desk workers put in a lot of overtime. But, many companies do not pay help desk workers overtime pay.

I suspect that part of the problem is the computer employee exemption in the Fair Labor Standards Act. There is wide spread misunderstanding of this exemption. People seem to think that all computer related work is exempt from the overtime pay rules. The reality is that most all computer related work is not exempt - most all computer related work is subject to overtime pay and all of those help desk workers are entitled to overtime pay.

The computer employee exemption is narrow in scope. It only applies to higher level computer employees who design, create, program and engineer software or computer systems. The computer employee exemption, for example, would cover a network engineer who actually designs computer systems but it would not cover an employee who maintains computer systems. The computer employee exemption would cover an employee whose primary duty is to design and create computer programs. The normally day-to-day maintenance, installation and repair of computer systems and software is not covered by the computer employee exemption and that covers most computer works.

The Department of Labor issued a regulation which limits the reach of the computer employee exemption:

The exemption for employees in computer occupations does not
include employees engaged in the manufacture or repair of computer
hardware and related equipment. Employees whose work is highly
dependent upon, or facilitated by, the use of computers and computer
software programs (e.g., engineers, drafters and others skilled in
computer-aided design software), but who are not primarily engaged in
computer systems analysis and programming or other similarly skilled
computer-related occupations identified in Sec. 541.400(b), are also
not exempt computer professionals.

We have a number of cases pending against companies that do not pay their computer and technology employees overtime pay. Some of the companies just do not pay it. Others try to avoid the overtime issue by hiring so called "independent contractors" to do the computer work. True independent contractors are not entitled to overtime pay. But often the independent contract label is inaccurate and the workers are entitled to overtime pay.

The Los Angeles Times reported that an executive with Northwestern Mutual Investment Services twice put his semen in a woman's water bottle at work. The first time it happened, the woman drank the semen laced water and felt ill. She threw the water bottle away and did not know what caused her illness. Several months later, she felt ill again after drinking from another water bottle and this time she saved the bottle and sent it out for testing. The test revealed that the water contained semen. DNA tests later confirmed that the semen belonged to Michael Kevin Lallana, a Field Director with Northwestern Mutual Investment Services. Mr. Lallana was arrested for assualt and releasing an offensive material in a public place and he was fired. See the Los Angeles Times article for more.

The story did not mention sexual harassment claims but such a claim may follow. The conduct is so offensive that it is a crime, but does the conduct also amount to sexual harassment? This would not be a clear case, but it might arise to a sexually hostile work environment. To make such a claim, the conduct must be based on sex and it must be severe and pervasive.

The first question is whether this conduct is sexual or not. This begs the question, what is sex when it comes to sexual harassment? Putting semen into someones drinking water is disgusting, but is it sexual? It has a sexual connotation because it involves semen, but putting it in someones drink is not necessarily sexual. The answer is not clear. The conduct was not overtly sexual because the victim did not know she was drinking semen until the lab tests revealed its presence in the water. However, the man's actions violated the victim because he caused her to swallow his seamen against her will and that resembles rape which is sexual. In my view, this is sexual conduct because it involves a man putting his sexual fluid into a woman.

Second, the conduct at issue must be severe and pervasive. Here, the victim ingested semen twice. Is that enough to constitute severe and pervasive conduct? Normally, the offensive conduct has to be repeated frequently over time, but if the conduct is offensive enough, then the frequency requirement is reduced. Here, we have extremely offensive conduct but low frequency. Since the conduct is so outrageous and offensive, a finding that it was severe and pervasive is more likely.

Other legal hurdles exist in such a case. In many states and under federal law, the company might not be liable because it was not made aware of the conduct and once it learned of the conduct, it promptly terminated the offender.

Germany plans to pass a law that prevents employers from using Facebook profiles in hiring employees. See the article in today's New York Times. The law would apply to all social networking sites, but it would not extend to professional networking sites like Linkedin. Germany wants to protect the privacy of it's citizens social activity. Professional activity, on the other hand, is fair game. This makes sense. A person's private social life, in most cases, should be kept separate from work.

The same German law also prohibits employers from secretly videotaping employees at work.

Germany is protecting its workforce from unreasonable privacy intrusions. America should do the same.

Why should we care what Germany does? One reason to care is that Germany is doing a better job managing its economy. It has put the recession behind it. See the article: Germany A Rare Model of Recovery in Global Recession.

Does anyone think there is a connection between treating people well and strong economic performance?

In America, by contrast, there are no limits on how an employer can use Facebook information. Countless people in America have been fired and not hired on account of their Facebook profiles. The American workforce, no doubt, also feels vulnerable and less protected. Is this good for our country?

Germany wants its workforce to feel comfortable but we don't care about that, we, as a country, are focused on chasing people through the caves of Afghanistan, tea parties and whether a mosque ought be near Ground Zero in New York City. We just don't get it.

If you are one of the thousands of medical case managers, or disability case managers, working for large health plan companies throughout the US, you should keep close tabs on the case of Ruggles v. WellPoint, Inc., No. 08-cv-00201, because the case is likely to have an enormous impact on the industry, your profession and, if the plaintiffs prevail, your own pocketbook. Ruggles and the putative class are seeking to certify a class of misclassified nurse case managers who work in call centers collecting documents and data requested by claims adjusters. According to the Ruggles complaint, the nurse case managers receive a salary and are misclassified as exempt from overtime requirements under federal (FLSA) and NY state law (NYLL).

Often, registered nurses are hired for these positions since their nursing experience is useful for interpretting medical data, but they do not provide "traditional" direct medical services to patients, render an opinion or make any medical diagnosis (which is prohibited by state law). Traditionally, registered nurses qualified for the “learned professional” exemption to FLSA overtime requirements under 29 C.F.R. § 541.301(a). According to the regulations, to qualify for the exemption, an employee’s primary duties must require consistent discretion and judgment. See id. § 541.301 (b). The regulations further state “[r]egistered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption.” See § 541.301(e)(2). The central inquiry in Ruggles is whether or not nurse case managers who are, for all intents and purposes, not using traditional nurse skills and training still qualify for the exemption. Certain Wage and Hour opinion letters suggest that registered nurses who are not expected to utilize "traditional" nursing skills and instead rely on company manuals to perform administrative services, or who do not need a nursing degree or license to qualify for employment, do not exercise independent judgment and do not qualify for the exemption. Our firm intends to file a complaint next week against one of the largest health care companies in the US seeking to certify a class of disability and medical case management nurses for overtime violations. According to our client, a social work degree and other non-nursing degrees are suitable qualifications for employment as disability or medical case manager. Also, our client was urged by her managers to perform case management services in states other than those she was licensed in as a nurse. If you are in a similar situation, call for a free screening. This appears to be the next big thing in overtime litigation - the big defense firms are already issuing scary "client alerts" to notify (i.e. frighten) potential management clients of the litigation timebomb that awaits them if they don't rapidly retain counsel and reform their policies. This is a telltale sign that a massive wave of litigation is on the horizon.

This summer I spent about a month in the Idaho pan handle region and got to know a guy named Saw Dust Pete. The upper tip of Idaho is just below Canada and wedged between Montana and Washington State. It is one of the most pristine parts of the lower 48 states. The wilderness attracts all kinds of characters including Saw Dust Pete who moved here from Stowe, Vermont about 20 years ago and never looked back.

Idaho is like Vermont on crack. Everything here is richer, bigger, more beautiful and some is still the way it looked when Lewis and Clark ventured through. The people here are different also. Many do not own computers or watch TV. Instead of twittering or surfing the internet, they are out in the wilderness fishing, hunting, skiing, snow shoeing, snowmobiling or engaging in a dozen other outdoor activities. Pete does not tweet, but he knows how to hunt elk.

Pete explained how he hunts elk the other day and I thought that his approach was brilliant. I know absolutely nothing about elk or hunting, but I loved what I heard and thought that his approach to elk hunting demonstrates the keys to succeeding in just about anything in life, especially litigating.

First, Pete understands that elk rely on their sense of smell, not sight, to detect danger. Since smell is everything and odors are transported by wind, Pete always moves upwind and never downwind. Most elk hunters, apparently, do not realize how important this is and many blunder along letting their human orders give them away. Many hunters will never see an elk for this reason alone.

Second, Pete knows that there are only two times in a day to hunt elk, the evening and morning. This is because elk feed at night and in the morning and they are distracted then and easier to approach undetected. During the day, the elk herds bed down in the woods and they are impossible to sneak up on during this time.

Third, elk need three things: water, food and cover. Therefore elk like places that are near rivers or lakes, have lots of grass and shrub available and thick brush or forest to bed down in and hide during the day.

Finally, since elk are very wary creatures, the best time to hunt them is when they are mating and letting their sex drive overrun their better sense. According to Pete, elk have only one thing on their mind during mating season and they are much easier to locate and approach for a good shot. Apparently elk are also as stupid as humans when it comes to sex.

Pete understands the fundamentals and he scrupulously uses this information to guide his actions. Fist, he scouts out areas that are elk friendly such as valleys with a river or stream, a food source and thick brush and he looks for elk tracks. Once he finds a few elk friendly locations, he will go out during mating season, in the early morning or evening, and approach the locations upwind so the elk do not know he is present. By operating on these basic fundamentals, he is one of the most successful elk hunters in his region. Most elk hunters ignore at least one fundamental and that will prevent a successful hunt.

I have never hunted elk but, I have tried a lot of cases and have won most of them by the following the basics that I learned from an old master, William Hobbs of Los Angeles. Hobb was like Pete, he said you need to understand the fundamentals and let that guide you. In a trial, you need a story that is compelling, simple, and believable. You need credible witnesses and you cannot act like a jerk during the trial. Also, you must admit the bad facts right away and turn the warts into beauty marks if possible. Those are some of the fundamentals and if followed, your odds of winning are much higher.

Many lawyers make complicated arguments that seem far fetched and they try to conceal their bad facts and wind up getting caught and looking sleazy. Many lawyers also object a lot like the actors do on TV but they irritate the jury. In fact, I think I have won many trials only because my opponents broke the rules and I followed them. Some my clients did not deserve to win, but they won only because the other side had a lawyer who did not follow the basics. In my opinion, the ability to understand and follow the basic rules can set you apart from the competition.

I was recently reprimanded by my wife for checking my work email at a wedding. She said it was rude and she was right.

As if on cue, my wife, who is also a lawyer and works for a low-tech government office which only allowed for external email four years ago, was issued a blackberry last week by her supervisor. Now she is one of many lawyers carrying two smart phones. My poor manners aside, there are virtually no social limitations on smart phone usage, including usage of smart phones for professional purposes.

Should you be paid for the time spent on your blackberry? Of course. Check out this NPR article on blackberry usage and overtime. Under the FLSA, time spent communicating with your employer or otherwise working on your crackberry is compensable. If you are a non-exempt employee who spends a tremedous amount of time on your blackberry and feels...well...instinctively undercompensated, you're probably right. Don't rest on your hunch, call for a free screening.

I have screened hundreds of overtime cases. In my practice, the following three categories of nonexempt employees under the FLSA are the most blackberry dependent, misclassified and undercompesated (i.e. abused):

1. IT employees, including help desk employees and systems engineers;
2. Pharmaceutical sales representatives;
3. Staffing recruiters (incredibly long hours and hard work - hats off to these employees - case law says you should be getting OT if you aren't involved in project management and post-recruitment supervision).

Smart phones are embedded in the culture. My 3 year old is adept with my iphone; she knows how to find the games she likes and will undoubtedly be asking for one before she is 10. Frightening. There's no turning back. However, you should not let your employer abuse the popularity of these phones by discounting the time you spend on them. Use your blackberry to call for a free screening.

I just stumbled upon a great employment law blog called WorkMatters. I found it by following Betsy Munnell on twitter who referenced another blog that referenced WorkMatters. Anyway, WorkMatters is written by Michael Maslanka from Texas.

Michael wrote a nice post recently about firing employees. He had been reading "The Aneid" by Virgil - one of those ancient Greek books that almost no one reads anymore. The lesson from Virgil that Michael shares in his blog post is that one should not be wimpy when firing employees.

In "The Aneid," the main character is wimpy about breaking up with a powerful woman he hooked up with in Carthage. Instead of dealing directly with the break up, he delays, misleads, and seeks counsel from others. The woman eventually figures out that he is planning on leaving her and things get ugly and this ultimately leads to a war and endless misery. Had the suitor been direct about his plans, then the war and misery all could have been avoided.

This type of wimpy conduct exists today in the workplace and the lesson from Virgil still apply. Be open and direct about your intentions and this will reduce problems. As an employment lawyer, I hear different versions of this story on a regular basis. Employees, like the jilted lover in Aenid, often are forced to endure uncertainty and humiliation because management does not have the guts to be open and direct. This wimpy conduct is pervasive and it breeds anger and ill will at work. So many people come to our law firm because their pride has been damaged and they want revenge for how they were treated.

As reported yesterday in Above The Law, the Third Circuit Court of Appeals rejected a sex discrimination case filed by a female law partner. The partner, Alyson Kirleis, worked for Dickie McCamey in Pennsylvania since 1988. From the Legal Intelligencer (via Above the Law who got if from The Careerist):

In the suit, Kirleis accused Dickie McCamey of paying female lawyers less than males and alleged she was told by a male partner that a woman with children should relinquish her partnership and work only part-time.

Kirleis, who has worked at the firm since 1988, also claimed she was told by another male partner that the role of women lawyers was to prepare lawsuits for trials that would be handled by male lawyers. The suit also included allegations that Kirleis has suffered retaliation since her suit was filed, and that Dickie McCamey’s annual Christmas party is effectively closed to women “because of the sexually explicit nature of the entertainment including skits, songs, pornographic materials and props.”

The Court apparently was unmoved by fairly clear evidence of unequal treatment. It is known that female law partners earn about $66K less per year then male partners and Ms. Kireis was clearly facing different standards than men. Nonetheless the Court held that a law partner cannot sue her own law partnership because she is an owner and has some control over management and policies herself. This ruling looks like a cop out to me because it seems pretty clear that Ms. Kirleis did not have the ability to impact the firm's treatment of women - if she did she probably would have raised her pay and punished her bigot partners. She clearly did not have enough votes so she looked to the courts for help and got nothing. I hope she appeals this one to the USSC that now has more female members.