New York Employment Lawyer Blog

Many clients do not realize that there are many ways to get what they want from their former employers. While litigation is often necessary, it can be expensive and burdensome. Often parties can resolve cases more quickly and amicably with one of the two most commonly used forms of alternative dispute resolution: arbitration or mediation.

What is the Difference between Arbitration and Mediation?
Mediation and arbitration are fairly similar. Both are proceedings in which a neutral third party renders a decision in a dispute. The biggest difference is that a decision issued from an arbitrator is legally binding and a mediator's decision is not. However, a mediator may help parties draft a contractual agreement, which would be legally binding.

Why Use Mediation if the Decision isn’t Binding?
Mediation can be very good for clients because it gives the client an idea of how a neutral third party (or a jury) might see a given situation. Mediation is usually confidential, which is beneficial for both employers and employees. It can also be less expensive than arbitration. Finally, mediation is often the least adversarial means for resolving a dispute. If both parties agree to mediation, it means that both parties have an interest in settling claims and that the case will be resolved more quickly. Mediation may be the most efficient way for an employee to get severance pay or health benefits. If you think your employer may be open to mediation, you should inform your attorney.

Many clients come into the office with employment disputes and they do not realize that they are subject to arbitration agreements. Usually, an employee signs many papers before he or she can start a job. Often these include tax forms and health insurance forms but they can also include an agreement to arbitrate. These agreements vary but typically limit an employee’s right to a jury trial. The best way to find out if you are subject to arbitration is to look at any papers you may have signed when you started your job. If you are required to arbitrate, there will be some documentation of that in your employment agreement.

Arbitration is proceeding--much like a mini-trial—where each side tells its story and then a judge or panel of judges issues an opinion that is legally binding. The exact rules of an arbitration proceeding will depend on the group that performs it. Groups and agencies that perform arbitration include: the American Arbitration Association and the National Arbitration Forum.

Pros and Cons of Arbitration:
Pros:
➢ It is generally considered a more efficient way of resolving conflict—proceedings are often just a few days and decisions are rendered quickly.
➢ It is typically less formal than a judicial proceeding.
➢ An arbitrator often has more flexibility in terms of what evidence he or she will hear and what remedies he or she can impose.
Cons:
➢ Parties need to pay for arbitration (although often employers will pay for arbitration if they require it).
➢ It may be harder to enforce remedies from arbitration.

Many clients worry that arbitration judges will always rule in favor of the employer. However, this is simply not true. Many clients may have a better outcome at arbitration than they would at a jury trial. The best thing to do is discuss your particular situation with an attorney.

As an employment lawyer, I speak to many disgruntled employees who are sick and tired of the way their bosses have been treating them. In such instances, I use the term “sick and tired” in a literal sense. The abuse really takes a toll on the health of these employees. Most people I speak to in this situation have high blood pressure, anxiety, problems sleeping or other manifestations of stress. Unfortunately, in most instances these abusive bosses are not liable under any anti-discrimination laws because they are not technically discriminating, rather, they are equal opportunity jerks.

I find this troubling not only for obvious reasons but for a more subtle reason as well. Specifically, I worry that these victims will become so accustomed to the blatant abuse that if they become victims of actionable discrimination (which is often much less blatant than the abuse referenced above) they will be numb to it and be less inclined to report this behavior or find a lawyer.

What employees have to remember is that it is illegal for an employer to discriminate on the basis of race, color, religion, sex, national origin or age. Regardless of the other injustices that employees have to put up with, discrimination based on the above factors is entirely illegal and actionable.

What IS the Glass Ceiling?
Many clients do not recognize that they may have a viable legal case of discrimination related to glass ceiling issues. The term "glass ceiling" refers to the idea that certain individuals--usually women--can see the top but cannot reach it. In other words, an individual has the credentials and experience but is never promoted beyond a certain level. Typically, these cases involve gender discrimination as well.

Glass ceiling cases are complicated and extremely fact-specific. The law recognizes that a corporation or business can have discriminatory policies even if it hires a few members of a “protected class”, individuals who are members of a group that it is unlawful to discriminate against—either by city, state or federal law. The law also recognizes that subjective criterion for judging a person’s qualifications can mask discriminatory practices.

Factors Courts Consider When Assessing a Glass Ceiling Case

--Statistics
Courts recognize that discriminatory practices are often hidden. Therefore, statistics are used to show what employers do not say but what employees already know--that certain people get promoted while others do not. A statistical analysis of a company's hiring practices is often the deciding factor in a glass ceiling case.

--Job Responsibilities
Courts also consider an individual's specific job tasks compared with those of others. In a recent Supreme Court case (Burlington Northern and Santa Fe Railway Company v. White), the court pointed out that some job duties are more desirable than others. It has also acknowledged that certain job duties are more likely to lead to promotions than others. An employee can show discrimination where she is assigned tasks that are less likely to lead to a promotion--even if they fall under the description of her job duties.

Dealing With a Potential Glass Ceiling Issue
If you think you are hitting the glass ceiling, the most important thing to do is to complain to your employer and document those complaints. Many people do not want to complain because they fear retaliation. However, it's important to give your employer a chance to fix the problem.

We get a lot of calls at our law firm from people who feel that they were treated unfairly at work. They want to know if they have a case against their employer. Sadly, it is perfectly legal to treat people unfairly at work. Most of the time we tell people that they do not have a case. So when does a person have a case?

The employment laws in the U.S. are very narrow. They only prohibit employment discrimination and certain wage payment practices. We will discuss wage issues later. Now we will focus on employment discrimination. What exactly is employment discrimination?

Employment discrimination occurs when an employee is treated differently than others because of their race, sex, disability, age, religion, pregnancy or sexual orientation. A classic example of employment discrimination is when an employer prefers men in top executive positions and passes over well qualified females in favor of men.

If you want to know if you have a case against your employer, you need to focus on discrimination. You need to determine if your employer had made decisions about you that were motivated by your race, sex, age, religion etc... If you honestly believe that your employer is discriminating against because of your race or age, for example, you might have a case. Discrimination is often subtle so it is not always easy to see.

The point here is that you need to be able to understand the difference between unfairness at work and employment discrimination. It is perfectly legal to favor one person over the other so long as it is not based on a person's race, sex, religion etc.... Keep an eye out for patterns of behavior. For example, if you see that your employer has a habit of only promoting men to certain positions or has a pattern of laying off more older people - these are signs of employment discrimination. Also, keep an ear out for words that show illegal bias such as racial slurs or comments about age. If you think that your employer is discriminating against you, you should write down what is happening and include the dates of the events and who did what to whom. These notes might be the key to winning a case because they will help you remember important facts.

The drug company Novartis AG will have to defend itself against sex-discrimination claims brought by a group of female sales employees in a $100 million class-action lawsuit, a federal judge has ruled.

The class action is brought by 19 current and former employees in sales-related positions.

The judge certified, as a class, women who hold or have held a sales-related job at the pharmaceuticals unit from July 15, 2002, to present, including sales representatives, sales consultants, sales associates and some district managers.

In his order, the judge also granted a request to dismiss claims against Novartis Corp., the pharmaceutical unit's U.S. parent.

The lawsuit, which originally was filed in 2004, had alleged the Novartis unit was discriminatory in its pay, promotions, evaluations and treatment of women who take pregnancy leave. The complaint is seeking at least $100 million in damages and back pay.