New York Employment Lawyer Blog

In years past, job applicants were concerned merely with their resume, now, in light of the scientific breakthroughs in genetic testing, job applicants are now concerned with their family history of disease.

A new bill was recently introduced in the U.S. House of Representatives which would prohibit employers from making hiring/firing and promotional decisions based on genetic information showing an employee may contract a disease in the future. The bill would also prevent health plans from denying coverage or charging higher premiums using those same genetic tea leaves.

"There is a consensus in our country that when a person is applying for a job, they should not be denied a job due to a family history of diabetes," Rep. Robert Andrews, D-N.J., chairman of the House Education and Labor Subcommittee on Health, Employment, Labor and Pensions, said at a hearing in early January. "There is a consensus in our country that no person should be told they're going to get fired because they won't take a genetic test."

Reps. Louise Slaughter, D-N.Y., and Judy Biggert, R-Ill., are co-sponsoring this bill which would be limited to cases where an employer intentionally seeks out genetic information about a worker and misuses that information. The bill even carves out a so-called "water-cooler" exception to protect employers from liability under the law if they come across the sensitive data inadvertently.

But Biggert said the proposed law is clear that an employer "must go out of his way" to discriminate against a worker to be liable and must "go looking" for the employee's genetic information.

The bill also requires that a worker first take his case to the Equal Employment Opportunity Commission (“EEOC”) before going to court, and damages caps are built into the law. Therefore, in companies of less than 100 workers would pay no more than $50,000 in damages, while firms with more than 500 workers would have a damages limit of $300,000.

Target Corporation has agreed to pay $775,000 to a group of black workers as part of a litigation settlement of a race discrimination and retaliation case brought by U.S. Equal Employment Opportunity Commission ("EEOC"). The settlement also includes employer training and other remedial relief.

According to the EEOC charge, Target violated Title VII of the 1964 Civil Rights Act by creating and condoning a racially hostile work environment at its Springfield, Pa., store for a class of African American employees. The racial harassment included inappropriate comments and verbal berating based on race. Further, when one of the black employees objected to this treatment, he was allegedly retaliated against, leaving him no choice but to resign.

The EEOC said in the suit that Michael Hill, a senior merchant at the Springfield store (an apprentice in training to become a store manager) and others were subjected to racial harassment by a white store manager, whom they reported for the unlawful conduct. Hill ultimately left the job due to the negative health effects of the discrimination and the lack of effective response to his internal complaints. The EEOC charged that Hill’s resignation was forced upon him, amounting to a constructive discharge.

The consent decree settling the lawsuit provides Hill and a class of 13 African American employees with $775,000 and requires that all managers and supervisors at the Springfield store will receive training in the company’s equal employment opportunity policies. The decree also requires Target to post a notice about the settlement; ensure that its complaint procedure is effectively communicated to the workforce; and take remedial action if an employee violates its equal employment opportunity policy.

Title VII makes it illegal to deny a person any employment opportunity because of that person’s race or color, sex, religion or national origin. A work environment free from illegal harassment and different treatment based on race are included in the range of such employment opportunities. In addition, Title VII recognizes that persons made to work in an intolerable environment may be constructively discharged, or compelled to resign their employment. Finally, it is illegal to retaliate against someone because he has made a complaint of illegal discrimination.

To read the full story, go to http://eeoc.gov/press/1-26-07.html

The Equal Employment Opportunity Commission filed an age-discrimination lawsuit against Sidley Austin in 2005. The suit alleges that the firm violated the Age Discrimination in Employment Act when it demoted 31 partners in 1999 on account of their age.

Discovery has begun and it is becoming obvious that the firm is facing an extensive and invasive battle. The EEOC just filed a motion to compel the firm to produce “all client complaints received by Sidley about any partner of Sidley” from 1995-1999. Sidley claims that it demoted some of the partners in 1999, because of clients’ complaints. This motion is intended to expose that reason as “pretextual.” Sidley responded by calling the EEOC’s request “overbroad and unduly burdensome.”
This motion comes on the heels of the New York State Bar Association’s Position that firms should not force partners to retire based on age.

This case, coming on the heels of the Bar’s position paper, could shake up firm organization and employment procedures statewide. This is one to watch.

Employment lawyers continually face the problem of employees who write their innermost thoughts on the company computer. Why this happens is understandable. People spend a lot of time at their jobs and office drama and employment issues are topics of interest everywhere from water cooler conversations to television shows and movies. It is understandable that after a hard day’s work you want to vent. All that we employment lawyers ask is that you vent on your own time and on your own computers at home.

Office computers are the property of the company, as is anything on those computers from emails of your favorite crock-pot recipe to musings about what kind of tree you would be. While these examples are funny, others are not. A terminated employee who keeps a resume on her desktop and job postings in her files has just given her employer a basis for termination.

In a recent case in Iowa, a young girl kept a diary of how much she was slacking off and getting paid for it. This might be fun to read but it was also a cause for termination. As it turned out, the online diary of procrastination and malaise also led an administrative judge to deny the girl the right to collect unemployment. Judge Susan Ackeman said the journal indicated a refusal to work.

Next time you are at work and you are mad at the boss and frustrated by your co-workers and being driven crazy by the fluorescent lights, remember that whatever you put on that computer is the company’s not yours. Leave your innermost thoughts, feelings, opinions and job searches anywhere you want except the company computer.

According to the Equal Employment Opportunity Commission ("EEOC") a Philadelphia-based maternity clothes retailer will pay $375,000 to settle a pregnancy discrimination and retaliation lawsuit brought by the EEOC, alleging that Mothers Work, Inc., doing business as Motherhood Maternity, refused to hire qualified female applicants because they were pregnant.

According to the EEOC’s lawsuit (Case No. 3:05-CV-990-J-32TEM in U.S. District Court for the Middle District of Florida, Jacksonville Division), LaShonda Burns, a former assistant manager, complained about Motherhood’s policy and practice of discrimination against pregnant applicants. The EEOC said Motherhood illegally disciplined and ultimately fired Burns because it believed she was pregnant and in retaliation for her complaints.

Such alleged conduct violates the Pregnancy Discrimination Act. The EEOC filed suit after first attempting to reach a voluntary settlement, and Burns also took part in the suit with a private attorney.

The three-year consent decree settling the suit requires Motherhood to pay Ms. Burns $135,000 in compensatory and punitive damages; $50,000 in back pay; $130,000 for Burns’s private attorney’s fees and costs; and $20,000 in compensatory and punitive damages to each of three women who were denied employment opportunities because they were pregnant – Lakevia Rollins, Aimee Tart and Jackie Ciardiello. Motherhood must also adopt and distribute an anti-discrimination policy that specifically prohibits denying women employment opportunities because of their pregnancy; train all of its Florida current and future employees on the new policy and federal employment discrimination laws; post a notice of resolution of the lawsuit; and report to EEOC twice annually regarding pregnancy discrimination complaints.

Please see http://www.eeoc.gov/press/1-8-07.html for the full story.

Effective January 1, 2007 the New York State minimum wage http://www.labor.state.ny.us/formsdocs/wp/lS207_2007.pdf and the minimum salary to be paid to certain exempt employees will be increased to the following:

Minimum Wage - increases to $7.15
Minimum Wage for Customarily Tipped Food Service Workers - increases to $4.60
Minimum Salary for Exempt Administrative and Executive Employees - increases to $536.10

While the increase is a step in the right direction, you can visit http://www.dol.gov/esa/minwage/america.htm to see how New York compares to the rest of the country.

According to a recent New York Times article, The Goodyear Tire and Rubber Company has agreed to pay $925,000 to hundreds of women who were denied tire-building jobs at its Virginia plant, the Labor Department announced Tuesday.

The payment is part of a consent decree approved by an administrative law judge to resolve a lawsuit the Labor Department filed last year on behalf of 800 women who were denied jobs at the plant in Danville, Va., over a year-and-a-half period in the late 1990s.

As a federal contractor, the company is prohibited from employment discrimination on the basis of race, color, religion, sex or national origin.

The human resources manager at Danville, John Rhodes, said in a statement, “While we do not believe that our past hiring practices were discriminatory, this settlement is in the best interest of the company.”

He said the company wanted to avoid “the cost and distraction of protracted litigation with the federal government.”

The department sued in June, asserting that from January 1998 to June 1999, Goodyear followed “a hiring process and selection procedures that discriminated against hundreds of female applicants for entry-level positions on the basis of gender.”

As part of the decree, Goodyear will hire up to 60 of the women who still want to work at the plant, provided they satisfy Goodyear’s new requirements for entry-level jobs.

The company also agreed to conduct annual training for managers on equal-employment opportunity and affirmative action.

According to a recent article in the New York Times,
http://www.nytimes.com/2007/01/17/dining/17prom.html?ex=157680000&en=4a854fc1475c0946&ei=5124&partner=permalink&exprod=permalink
Daniel Boulud, Chef-Owner of many of New York’s finest restaurants, is being sued for employment discrimination by several of his former and current employees. According to the suit which was filed recently in Federal District Court in Manhattan, dining room workers at Mr. Boulud’s restaurant “Daniel” have been denied promotion because they were Latino or Bangladeshi. The employees also say that Mr. Boulud and other managers yelled racial slurs. At one point, they say, Spanish was banned among employees; only English and French were allowed.

The New York State Bar Association has called on all New York law firms to end the practice of forcing retirement when partners reach a certain age. This practice may constitute age discrimination in New York. "Mandatory Retirement-requiring a partnr to leave the firm upon reaching an arbitrary age -is not an acceptable practice."

The New York TImes reports,http://www.nytimes.com/2007/01/19/business/19law.html?_r=2&oref=slogin&oref=slogin, that 57% of law firms with 100 or more attorneys have a mandatory retirement age. The New York State Bar's announcement comes on the heels of a law suit brought by the EEOC in Chicago claiming that Sidley Austin practiced age discrimination when it demoted or forced retirement of 32 older partners in 1999. This raises an interesting question of firm management.

Should a law firm work from a corporate model which squeezes out older lawyers so that the younger ones can take more business and earn more profit or should firms reward the experience that comes with age by encouraging older lawyers to remain on the job? I feel the latter is the better option. Law is not purely a business. Law is a profession that must, at times, act like a business. Further, law is a service profession and service is an learned art. Why discard the most learned of our artists just when they have gained the expertise necessary to guide the young attorney? It seems more logical that, in our profession, the most experienced members of the bar should be retained as long as they still hold value both monetarily and other. Law was originally an apprenticeship profession. While most would-be lawyers now gain legal education through formal schooling, almost all will tell you that law school teaches the law while your mentors in working world teach you how to practice it. Practice is an interesting word. It implies incompleteness and potential for growth and improvement. Perhaps we shouldn't be so quick to rid ourselves of our most practiced professionals.

Older workers are disfavored when a company switches to a cash balance pension plan. Some say this amounts to age discrimination. Cash balance pension plans work the same as a savings account. Employees put money into them, interest accrues and they can withdraw the money whenever they leave rather than having to wait until retirement. Any two employees who start the program and end their employment at the same time can put away and then withdraw the exact same amount. This is regardless of age, race, religion, gender or sexual orientation. This sounds fair so what's the problem?

The problem is that when a company switches from a traditional pension plan which vests after a number of years, thereby rewarding employees who stay, to a cash balance pension, the older employees do not have as much time to invest in the plan and thereby they will be short changed despite years of service. Is this legal?

Yes. The Supreme Court let stand, in Cooper v. IBM personal Pension Plan, the decision of the Seventh Circuit Court of Appeals which held that the plan does not discriminate because the cash balance pension formula did not use age as a factor. It does not matter that older workers are disadvantaged when a company switches to a cash balance pension plan.

Nonetheless, IBM is abandoning the cash balance pension plan on January 1, 2008 in favor of strengthening its traditional 401(k).

For obvious reasons, it is often easy for both the lawyer and the client to get consumed with the details of a particular case. Most times, the client has been wronged by his or her employer and not only is the client's pride on the line, but his or her financial security as well.

It is far too often that I find my blood pressure rising when talking to my adversary, much the same way my client's blood pressure must rise when they relay their employment story to me.

Unfortunately, it sometimes takes tragedy to put things back in perspective. I received a call yesterday letting me know that a client of mine had passed away from a heart attack at fifty one years old. While stress is an inevitable part of litigation, we should always remember that we cannot become consumed with it.

I recently had a client come to me regarding a severance agreement. This client had worked for a large company for nine years initially. She then left for three years to care for her child, and returned to the company for another ten years. After being told she was terminated, the company offered her ten months severance, which, according to the employer, reflected her length of service with the company. She had asked them to reconsider, as she had actually worked for the company for almost twenty years. However, the company would not budge. Therefore, she came to me to see what I could do for her.

I met with this client for over an hour, in an effort to understand her duties at the company, why she was terminated, her performance, and other important factors. During this time it came out that this client was clearly a victim of racial discrimination. During her years at the company, she had been referred to as “colored” and told she was inadequate because of her race. However, this client did not want to sue, she merely wanted what she felt was owed to her.

Following our meeting, I sent a one page letter to the company, asking them to reconsider their position, in light of my client’s twenty year history and in light of the racial discrimination she endured while at the company. Within one week (and many phone calls), I received a revised separation agreement, reflecting my client’s twenty years of service. In return, my client agreed to write a memo reciting who at the company used racial slurs. I can only hope that this company will be using this memorandum as ammunition to terminate this other employer.

The moral of this story is twofold. First, lawyers do not always complicate matters. Rather, on certain occasions, lawyers can simplify matters and get results when the employee is not able to. Second, when speaking with a lawyer, make sure to tell the whole story. In this case, I would probably not have been able to get such a favorable result had I not included the racial discrimination aspect.

Judith P. Vladeck, ardent advocate of worker's rights, passed away on January 8th at the age of 83.

Ms. Vladeck was known for her passion, thorough preparation and fierce tenacity. She is best remembered as a successful plaintiff's attorney who won against some of the biggest corporate employers in the world and expanded the rights of employees to be free from employment discrimination.

Ms. Vladeck's greatest successes included: a 1979 settlement with Chase Manhattan which led to a new recruitment and training program for women managers; a 1980 settlement with Western Electric, whereby the appliance giant agreed to pay women $7 million to settle an equal-pay class-action suit; and a 1983 age discrimination case against Union Carbide that she won and thereby established a benchmark for damages.

Ms. Vladeck graduated from Columbia University School of Law in 1947 with only a handful of women. She joined the first law firm that would hire her and then transitioned into her husband's firm, Vladeck, Waldman, Elias & Engelhard P.C., in 1957. She worked there full-time until 2003. She continued to work until her passing.

Judith Vladeck was a fierce opponent to some, a zealous friend to others and respected by all.

A very nice obituary, from which we garnered some facts, ran in today's Wall Street Journal. That tribute can be read here:
http://online.wsj.com/article/SB116865426193075930.html?mod=home_law_more_news

Can termination based on seniority constitute race discrimination?

The Philadelphia Inquirer has seen better days financially and now it faces reputational damages. Its recent financial troubles have led to a lay off. The paper has terminated 71 newsroom employees which is equal to 17 percent of its staff. These layoffs were based on seniority guidelines found in the newspaper union’s contract. These guidelines disproportionally disadvantage minorities. According to the Newspaper Guild of Greater Philadelphia, 17 of the 71 journalists laid off, or about 24 percent, are minorities. The National Association of Black Journalists and the newspaper's editor and unions are squaring off to forestall any further inflammation. While litigation has not begun, this case is one to watch.

This information comes courtesy of a recent NY Times article. If you would like to read further:http://www.nytimes.com/2007/01/15/business/media/15philly.html?ref=media

I once defended a New York State prison that was sued for violating an inmate’s First Amendment rights. The inmate was a Rastafarian and his dreadlocks were shaved off by the prison. The inmate claimed that his dreadlocks were an expression of his faith and therefore protected by the First Amendment. He lost his case and this was part of a trend of Courts narrowing the First Amendment.

More recently, a teacher lost her First Amendment case. She gave a gay student two religious pamphlets that harped on the sinfulness of homosexuality. The student told the school about this and the teacher was fired.

She sued the state run college under Section 1983 claiming that her speech was protected by the First Amendment. The Seventh Circuit held that free speech is alive and well in the classroom, but that this speech had nothing to do with the classroom. The court held that the religious anti-gay pamphlets had no connection to the subject matter of the course, cosmetology, and therefore the First Amendment did not apply.

The court found that [T]he college had an interest in ensuring that its instructors stay on message while they were supervising the beauty clinic, just as it had an interest in ensuring that the instructors do the same while in the class room." Further, "[the plaintiff's] 'speech,' both verbal and through the pamphlets she put in [the student's] pocket, was not related to her job of instructing students in cosmetology. Indeed, if it did anything, it inhibited her ability to perform that job by undermining her relationship with [that student] and other students who disagreed with or were offended by her expressions of her beliefs. … [T]he college reasonably took the position that non-germane discussions of religion and other matters had no place in the classroom, because they could impede the school's educational mission," the court said.

Piggee v. Carl Sandburg Coll., No. 05-3228, 2006 WL 2771669 (7th Cir. Sept. 19, 2006).

In New York, and around the country, employment discrimination cases are avoided by having potential litigants sign a release. Releases are intended to end or avoid controversy, but sometimes they do the opposite. Courts have recently voided releases for three different reasons. Those reasons are discussed below.

First, there is a U.S. Department of Labor regulation that prohibits any waiver of FMLA rights - unless a court or the DOL first approves the waiver. Courts are catching on and invalidating releases that purport to waive FMLA matters. In Dougherty v. Teva Pharmaceuticals USA 2006 WL 2529632 (E.D. Pa. Aug. 30, 2006), the court held that a release did not preclude a former employee from suing the company for FMLA (Family Medical Leave Act) violations even though the release said so. The court relied on the DOL regulation that prohibits waivers of FMLA rights. Accord Taylor v. Progress Energy, Inc. 415 F.3d 364 (4th Cir. 2005).

Second, releases that prohibit an employee from filing an agency charge is not only invalid, it is actionable. Last August, a district court held that a release that prohibited an employee from filing an EEOC charge was retaliatory and the employee could sue the company for retaliation. EEOC v. Lockheed Martin Corp. 444 F. Supp.2d 414 (D. Md. 2006). The court held that a broad covenant not to sue that includes EEOC charges is unlawful and constitutes retaliation. It is well settled that a release cannot prohibit the filing of EEOC charges. See, e.g., EEOC v. Cosmair, Inc. 821 F.2d 1085 (5th Cir. 1987). The new Lockheed decision now indicates that such language amounts to retaliation and an employee can sue if one is presented for signature.

Continue reading "Employment Releases that Don't Work" »

Are the following questions discriminatory: Have you ever set a world record in anything? Have you ever made a profit running a dog walking business? Do you prefer to work alone or in groups? When did you first get excited about computers?

These are the kinds of issues that may soon creep into the employment law arena as companies begin to change the way they hire people. Smart companies are recognizing that traditional recruitment methods such as the job interview are ineffective. Laszlo Block, the Vice President for People Operations at Google believes that "interviews are a terrible predictor of performance." Google is now creating a new system to select employees.

The new frontier of employee selection will move away from subjective methods such as the job interview and will attempt to focus on quantitative data. Academic research has established that quantitative information on a person's background, called "biodata," is a valid way to look for good workers. Michael Mumford, a psychology professor at the University of Oklahoma who specializes in talent assessment, says that the use of biodata is an effective way for companies to find employees. Professor Mumford said that leadership traits can be identified by asking candidates if they ever started a club in high school.

Continue reading "New York and Google: Employment Law and The Future" »

Judy Scheidemantle was not qualified for the locksmith position posted by her employer, Slippery Rock University. Slippery Rock posted an ad for a locksmith and said the candidate must have at least two years of experience. Judy completed a home study locksmith course and had a professional locksmith license, but she did not have the requisite two years of experience. The other candidate, Mr. Clavin Rippey, did not have two years of experience either - but he had more experience than Judy.

Slippery Rock hired Mr. Rippey and Judy filed an EEOC charge alleging sex discrimination and age discrimination. The EEOC determined that Mr. Rippey had 941 hours of locksmith experience and that Judy's course work was the equivalent of 241 hours of experience. The EEOC dismissed her claim because Slippery Rock simply selected the candidate with the most experience. Judy then filed suit in District Court in Pennsylvania.

While the case was pending, Slippery Rock promoted Mr. Rippey out of the locksmith position and announced a new locksmith opening in June 2004. Judy applied. This time Slippe