New York Employment Lawyer Blog

Employment discrimination victims in New York City can fight back hard. There is a little known law that applies only in the five boroughs of New York City - the New York City Administrative Code. This law provides the victims of employment discrimination with more protection than Title VII (the federal law).

First, a person cannot bring an employment discrimination suit under federal law until the Equal Employment Opportunity Commission (EEOC) gives them the green light and this typically takes several months. Sadly the EEOC typically does nothing but make victims wait. This is absurd. Luckily, the New York City Administrative Code lets employees sue immediately with no nonsense.

Second, Title VII limits damages in most cases to $300,000. The New York City Administrative Code has no limits.

Third, many federal judges simply do not like dealing with employment discrimination cases. They were appointed by the President and Congress and they often think that they have more important things to do. In my view, many federal judges do not give discrimination victims a fair chance. So it is often better to bring the case in state court under the New York City Administrative Code. The New York City Administrative Code gives victims the right to recover punitive damages and attorneys fees if they win.

Finally, as the prior post notes, the US Supreme Court is generally narrowing individual rights. These unfavorable federal decisions typically have no effect on the New York City Administrative Code.

Here is my prediction-- New York State Courts will soon be flooded with cases now that the Supreme Court limited the time frame for employees to bring a lawsuit in pay disparity cases. Since the Supreme Court's decision only affects Federal Law (i.e.-Title VII), employees will be much more inclined to bring their cases in State Court under the New York City Administrative Code (§8-107) and/or the New York State Human Rights Law (§296). Both of the above laws carry a three year statute of limitations which is much more generous than the 180 days allowed under the recent Supreme Court decision.

I normally don't write more than one blog entry on the same topic but I couldn't help myself today. I just can't stop thinking about yesterday's Supreme Court 5-4 decision which makes it more difficult for women and minorities to win employment-discrimination complaints.

According to the 5-4 opinion, the court set strict time limits on filing such discrimination cases. Employees can't reach more than six months back in time to complain about discriminatory practices, it ruled. This decision is certainly a victory for businesses.

"The . . . filing deadline protects employers from the burden of defending claims arising from employment decisions that are long past," Justice Samuel Alito wrote for the majority.

The 180-day deadline is a significant restriction, particularly in wage complaints, and it prompted Justice Ruth Bader Ginsburg to urge Congress to overrule the court's majority.

"Once again," Ginsburg said for the court's minority, "the ball is in Congress' court."

She was underscoring what happened in 1991 after half a dozen civil-rights rulings by the court, then led by the late Chief Justice William Rehnquist. Congress passed what lawmakers called the Civil Rights Act of 1991. It overturned the rulings and extended protections against discrimination. For example, the 1991 law ended "business necessity" as a defense against discrimination claims.

There were over 75,000 discrimination cases filed with the Equal Employment Opportunity Commission last year, and obviously this decision will have important consequences on some of them.

The U.S. Chamber of Commerce said the decision would prevent a "potential windfall against employers," and New York City-based business lawyer Barbara Harris praised the ruling for giving employers "closure."

"The ruling essentially says tough luck to employees who don't immediately challenge their employer's discriminatory acts, even if the discrimination continues to the present time," said Marcia Greenberger, co-president of the National Women's Law Center.

The board members of the National Women's Law Center include Anita Hill, the law professor who nearly derailed Supreme Court Justice Clarence Thomas' 1991 nomination with her sexual-harassment allegations. Yesterday, Thomas joined Alito, Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy in the majority opinion.

Justices David Souter, John Paul Stevens and Stephen Breyer joined Ginsburg in her dissent.

Continue reading "Supreme Court Makes it Harder to Sue Employers" »

Employment law firms that represent management in New York, and around the country, are often large institutions with hundreds of lawyers. These firms often have other large practices areas. They live and die on increasing their scale and hourly rates. Efficiency is not the economic driver of these firms and now companies are beginning to take notice.

Mike Dillon is the General Counsel of Sun Microsystems and he prefers smaller efficient law firms. In his blog, The Legal Thing, he predicts that these large firms will soon go "the way of the Mastadon." Dillon says that law firms are aggregators of specialized legal expertise. It used to be that combining different areas of expertise in one large firm provided one stop shopping. Dillon says this used to be efficient, but now the Internet has changed things.

Dillon says that a company now can easily identify smaller more efficient law firms by emailing his colleagues or seeking referrals from organizations like the Association of Corporate Counsel. He argues that a company now looks for firms that focus on efficiency and expertise and results and that the large firms focus on size and billable hours can put them at odds with a companies interests.

A divided Supreme Court ruled today that workers may not sue their employers for unequal pay because of discrimination that may have occurred years earlier.

The court ruled 5-4 that Lilly Ledbetter, a supervisor at a tire plant in Gadsden, Alabama, did not file her lawsuit against Goodyear Tire and Rubber Co. in the timely manner specified by Title VII of the Civil Rights Act of 1964.

A jury had originally awarded her more than $3.5 million because it found it "more likely than not" that sex discrimination during her 19-year career led to her being paid substantially less than her male counterparts.

An appeals court reversed, saying the law requires the suit be filed within 180 days "after the alleged unlawful employment practice occurred," and Ledbetter couldn't prove discrimination within that time period. She had argued that she was discriminated against throughout her career and each paycheck that was less because of discrimination was a new violation.

Continue reading "U.S. Supreme Court Limits Lawsuits for Unequal Pay" »

The New York Law Journal ran a special section on Employment Law on May 21st. The Ottinger Firm wrote one of the articles. Download the article here. The article is entitled "Biodata: The Measure of an Applicant." The article explained how Google and other innovative companies are changing the way people are hired by basing their decisions on biodata. This new trend will spark new forms of employment litigation alleging discrimination. How these matters are resolved may have profound implications for employees and companies who now must compete in a more competitive global marketplace.

The U.S. Department of Justice sued the city this week, accusing the New York CIty Fire Department ("FDNY") of using recruitment exams that discriminate against blacks and Hispanics.

A complaint filed in federal court in Brooklyn alleges that the FDNY administered exams in 1999 and 2002 that failed to fairly measure the applicants' ability to do the job.
"The city's testing practices ... do not select the firefighter applicants who will best perform their important public safety mission, while disproportionately screening out large numbers of qualified black and Hispanic applicants," said Wan J. Kim, assistant attorney general for the Civil Rights Division in Washington.

Of the roughly 11,000 firefighters, only about 3 percent are black and 4.5 percent Hispanic, the complaint said.

The city had no immediate comment on Monday. City Corporation Counsel Michael Cardozo has argued in the past that the FDNY has taken significant strides to improve minority recruitment, and warned that a federal civil rights suit would be "ill-advised."

At our law firm in New York, we help executives and employees negotiate severance packages. Typically the company will offer the executive a severance package and our goal is to improve the package. We use an incremental approach. At first, we coach the executive to help him negotiate a better package and we stay in the background. Often it is better if the lawyers stay out of sight.

In coaching an executive, we help them understand the dynamics of the negotiation. The executive is often keyed into the wrong factors as they tend to get caught up in the politics and personality issues at play. We identify potential legal and business issues that will motivate the company to increase the severance package. Then we work with the executive in approaching the appropriate person at the company. If all goes well, we are able to operate behind the scenes and help the executive enhance the severance package so that the transition to a new position is smoother and less stressful on everyone. Our goal is to keep the process professional and as smooth as possible so our clients can move on with their lives. Sometimes it is necessary to take stronger steps and that will be addressed in a future blog entry.

New York's employment laws are tough. Fairness is not a factor. An employee can be fired at any time for any reason. But employees have the same freedom. They can quit whenever they want for any reason. But people are often shocked that they can be fired for no reason.

At The Ottinger Firm, we represent employees in employment matters. People call every day complaining about unfair dismissals. There is usually nothing we can do to help because an employer is free to dismiss an employee. There are just a few restrictions on what an employer can do.

An employer cannot fire an employee for a discriminatory reason. An employer in New York cannot fire someone because of their age, race, gender, religion or sexual preference. So if an employer decides that it wants to have a younger work force and starts to dismiss its older workers, that employer would be violating the law and an older worker who was fired could sue the employer. Likewise, if a company did not want women in senior management positions and it only promoted men to high levels, that employer could be sued by the women who were denied promotions on account of their gender.

The above are just a few examples to demonstrate that employers are generally free to dismiss an employee for any reason. The only real restrictions on this right are the laws that prohibit employment discrimination. The Ottinger Firm represents employees who have been fired for illegal reasons.

Severance pay is a misunderstood subject in New York and around the country. Companies are not legally required to pay a departing employee severance, but companies often do to make the transition smooth. Severance pay (or severance packages) is a custom that has developed. Employers are often willing to pay a departing employee severance pay to prevent law suits and the disruption of business. But there is no legal right to severance pay unless you have an employment contract that says you do.

The amount of severance a company is willing to pay is based on several factors: (1) if you have strong relationships with people or companies that are important to your employer, (2) how long you worked for the company, (3) how much you made, (4) if you could sue your employer for employment discrimination, and (5) the company's severance policy. Another key factor is the employee's ability to negotiate. Employees often take what the company initially offers without even trying to get more. Often, an employee can increase the amount simply by asking. It depends how you ask and what reasons you can give, but, if handled correctly, an employee may be able to substantially increase the severance package. The Ottinger Firm has helped many people negotiate better packages.

New York employment law firms routinely use contingent fees for certain cases such as sexual harassment and employment discrimination matters. For many clients, the contingency fee is the only option because they do not have enough money to pay a lawyer by the hour. Contingency fees also encourage lawyers to handle matters efficiently and not engage in excessive and dilatory practices. It is said by some that the hourly fee arrangement encourages lawyers to do things that are not necessary in order to run up high fees.

I personally think that many lawyers do this. How else can you explain all the nonsense that goes on in cases. I think the hourly fee is bad for everyone - it causes lawyers to file needless motions in court and this wastes precious judicial resources. The hourly fee also gives lawyers a bad rap with the public. They are seen as over-paid parasites by many and sadly there is truth to it. Legal work could be streamlined and made far more affordable and accessible. The hourly fee can be blamed for much of this.

George Bush recently signed an executive order that prohibits the federal government from paying lawyers a contingent fee. It is usually smart to do the opposite of what Bush does. Since he wants to bar contingency fees, that must mean they are good. But the private sector is catching on and more companies are hiring lawyers on contingent fee agreements. It is smart business. It aligns the interests of the lawyer and the client.

At our New York City employment law firm, we represent people from all walks of life - the poor and the super rich, mom and pop and the Fortune 500. The most satisfying cases are often the ones in which we help an individual victim of employment discrimination against a powerful corporation. Sadly many lawyers never get to experience the thrill of using the law to help those that need it most.

John Grisham talked about this at a commencement address at Washington and Lee University this Spring. He asked the graduates at tough question: Are you really needed? His answer was yes, lawyers are badly needed, but not in the big corporate law firms or towns with door to door law firms. Grisham said that a lot of people need help. He described the suffering and inequity he saw while researching his books. He urged the graduates to get involved with pro bono organizations such as the Innocence Project. Grisham said, “Until you use your license and your brains and your enthusiasm and your youthfulness to reach out, to reach down and to help someone less fortunate, you won’t realize the power the law has to protect people.” Representing plaintiffs in employment matters does this - it uses the law to protect ordinary people and sometimes it works.

A Central Racial Discrimation Theory faces an interesting challenge.
In a recent op-ed piece in the Wall Street Journal, Mr. James Taranto questions the effect of the disparate impact test established by the Supreme Court in Griggs v. Duke Power Comp. (1971) and codified through the Civil Rights Act of 1991.

The Griggs case established that forcing potential employees to take an aptitude test was discriminatory in that it had a "disparate impact" on minorities. Chief Justice Warren stated that no matter the intent of the test it was unfair to increase the level of difficulty for minorities to gain employment.

Mr. Taranto argues or opines that corporations have outsmarted both the ruling and the law. Neither the Girggs case nor the Civil Rights Act applies to institutes of higher education in their admissions criteria. They are free to base admission on the infamous aptitude tests such as SAT and ACT. Then, since the schools use race as a factor in admissions, the corporations can use college degrees as a prerequisite in hiring. Mr. Taranto concludes that the college degree has become an aptitude test.
If Mr. Taranto's opinion is correct, what does that mean for employment law in general and the future, if not present, of disparate impact as a viable means of proving discrimination?

While there are still countless cases where the rights of minorities are protected by the disparate impact test, the test will be applied much less vigorously if it is seen as being so easily circumvented. Further, the current make-up of the Supreme Court seems prone to do away with race as a factor in admissions. Let me posit this. If the Court does away with racial preferences in school, and schools are permitted to test applicants, and corporations only hire applicants with college degrees, doesn't Griggs and the disparate impact test of the Civil Rights Act become a mere shadow of itself?

For Mr. Taranto's full article please visit: http://www.opinionjournal.com/taste/?id=110010091

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public Commission Meeting on how agency-enforced laws apply to employment testing and screening.

During the meeting, the Commission will hear from invited expert panelists, including EEOC attorneys and charging parties, advocates on behalf of employers and employees, and two nationally-recognized organizational psychologists. The panelists will share their experiences and perspectives on employment testing and screening, and answer questions from commissioners.

The meeting comes amid increased employment testing as employers seek lawful and efficient ways to screen large numbers of applicants. Topics of discussion will include written tests that evaluate knowledge and skills, criminal and credit histories as a basis for selection, medical exclusions in hiring, and employer best practices. Discriminatory employment tests and selection procedures are prohibited by Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act -- which are all enforced by the EEOC.

Some companies are adopting policies that require employees to only speak English on the job, causing a backlash of lawsuits alleging that such rules can discriminate against immigrants.

The English-only policies are coming as the number of immigrants in the U.S. soars: Nearly 11 million residents are not fluent in English, according to U.S. Census data, a drastic increase from 6.6 million in 1990. Nearly 34 million residents are foreign-born, according to 2003 U.S. Census data. That's up from 24.6 million in 1996.

Employers may legally adopt an English-only speaking rule if they can show it is a business necessity, such as the need for communication with co-workers and customers or safety-sensitive situations where use of a common language could prevent an emergency.

Continue reading "Employment Discrimination- "English Only" Policies" »

Sex discrimination can be hard to prove. But a group of women who wanted to be sausage packers proved that they were denied jobs because of their gender. The purpose of this blog entry is to show how sex discrimination can be proved.

There is a sausage packing plant in Fort Madison, Iowa. The packers carry and lift 18,000 pounds of sausage a day. Each pack weighs 35 pounds and it must be lifted 30 to 60 inches high. 46% of the new packers hired were female. But the company noticed that these packers had a high rate of injury and that cost them money - so they created a strength test for new hires. The percentage of females hired dropped from 46%t to 8% after the strength test was used. Only 38% of women passed the test while 97% of men passed. A group of women who were rejected as sausage packers sued and they won. Read more to find out how the women beat the company.

Continue reading "How Sausage Packers Proved Sex Discrimination" »

“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.” Charles Dickens, Oliver Twist.

Title VII, the federal employment law, is only 42 years old and it is still a bachelor and sometimes it acts like an ass. Maybe with experience it will mature.

At our employment law firm in New York, The Ottinger Firm, we see many people who have been mistreated. But the law's protection in the workplace is narrow and arbitrary. Generally, only discrimination, retaliation, and certain wage practices are illegal.

Most of the time, when someone comes to see us about a problem at work, all we can do is advise them to get a new job. The best remedy is to find a great employer that treats people well. Those jobs are hard to find. For now, it is perfectly legal to abuse people at work and ruin someone's career for no good reason.

Many of my clients come to The Ottinger Firm because they are victims of discrimination or harassment. Or, they have been laid off and would like someone to review their severance agreement.

However, in the last few weeks I have noticed an increase in the number of clients coming to The Ottinger Firm for an entirely different reason. These clients are looking to leave their job not because they are victims of discrimination or harassment, but rather they feel that their boss or upper management lacks integrity. These clients vary greatly in terms of their salaries, responsibilities and duties. However, their grievances are the same--they do not want to continue to work for a company (or person) that they feel lacks integrity.

While companies have finally caught on to the necessity of sexual harassment training, "integrity" is something that is rarely addressed--most likely because "integrity" is more subjective and hard to explain to someone who just doesn't have it.