New York Employment Lawyer Blog

There is a great article on the workforce website outlining Employers' top ten mistakes. Here are some of them:

1. Failing to establish an effective sexual harassment policy. Recent Supreme Court decisions hold employers liable for their supervisors' actions unless complaining employees fail to take advantage of company complaint procedures. In light of these rulings, implementing policies and procedures for dealing with sexual harassment is more important than ever. It is also essential that supervisors be trained on these policies and procedures. Finally, an employer must act in a timely manner to investigate all sexual harassment complaints that are brought to its attention.

2. Failing to pay overtime to nonexempt employees. Many employers pay employees a salary regardless of the number of hours they work and whether they are subject to the wage and hour laws. Unless they are exempt as administrative, executive or professional employees, you must pay them time-and-a-half their regular hourly pay for all hours worked in excess of 40 per week. When in doubt about whether an employee is exempt, pay him or her hourly wages. This will avoid having to pay back wages if you're audited by the Department of Labor's Wage and Hour Division.

3. Failing to take and document disciplinary actions. Supervisors, not wanting to be perceived as villains, hate to write up employees. Then, when the company can no longer tolerate unsatisfactory performances, the files do not document the poor records and you have no grounds on which to justify discharges. This leaves you open to lawsuits alleging discrimination. Employees who have been discharged for poor performance often have glowing evaluations in their files. This can expose you to lawsuits.

4. Failing to quickly discharge poor performers. Employers are advised to progressively discipline employees and to give one warning too many rather than one too few. But often a time comes when failure to act is as bad as overreacting. If you have retained employees for many years despite poor attendance records, multiple infractions and even several ``final'' warnings in their files, you are asking for trouble. These employees are most likely to sue when finally discharged. The best course is to discharge a poor performer as soon as prudently feasible. The more seniority an employee has, the harder to justify discharging him or her.

5. You must be sure that laying off a group of employees has no disparate impact on any protected group. To avoid lawsuits, verify that the group doesn't contain a disproportionately high percentage of age-protected employees or employees of a particular ethnic or racial group or sex compared to the rest of the work force. The decision of who will be laid off should be based on objective criteria, such as qualifications, experience, and ability to perform certain work essential to the company. If the decision to lay off one employee as opposed to another is based on such criteria, make sure the file supports this decision.

6. Failing to get a signed release from a terminated employee. As an employer, you may have a legitimate reason for terminating an employee. However, you fear a lawsuit if the employee is a member of a protected class. Many employers are reluctant to use releases because they fear the release may educate the employee about rights and litigation possibilities of which he might otherwise be unaware. But this may be a case of sticking your head in the sand. In light of media attention given to employment discrimination verdicts, employers should not rely on a hope that workers do not know their rights. The right approach to avoid litigation often is to get signed releases from departing employees, particularly if any severance or separation pay is provided to the employees.

7. Conditioning employment offers on medical exams. The Americans With Disabilities Act (ADA) bars employers from asking applicants about their disabilities or requiring medical exams before offering employment. You can ask applicants to take job-relevant medical exams only after offering jobs. The burden is on you to establish the medical exam's relevance to job requirements. In addition, employers often fail to accommodate their employees' disabilities after they are hired. The ADA requires employees to reasonably accommodate their employees' disabilities.

Target has agreed to pay over $500,000 to settle a lawsuit in which four management applicants said that they were victims of racial discrimination, the Associated Press reported Tuesday.

The suit was settled Monday when U.S. District Judge Rudolph Randa signed a consent decree, the news service reported. The U.S. Equal Employment Opportunity Commission had accused the Minneapolis-based retail giant Target (NYSE: TGT) of violating the Civil Rights Act of 1964 when it did not hire four black applicants in Milwaukee and Madison, then destroyed their applications in bad faith. The suit alleged that it did not keep documents as required under the law.

Under terms of the settlement, the AP said that Target would pay a total of $510,000 to four applicants that were denied jobs as assistant store managers in 2000 and 2001.

Target also agreed to revise its policies for retaining documents, and pledged to provide supervisors with training on employment discrimination and record-keeping, to report on its hiring decisions and to post a notice about the decree for employees in its stores and offices in the affected district.

The AP quoted Target as saying in a statement that "We do not believe that any member of Target engaged in discrimination. Target prohibits and does not tolerate discrimination based upon race or any other characteristic protected by law."

Previously, Randa had dismissed the case, but that decision was reversed in 2006 when the 7th Circuit Court of Appeals in Chicago ruled that enough evidence was presented for the case to go to trial.

Target said it chose to settle the case because all claims of discrimination were dismissed except for those of the four applicants who alleged they were denied interviews.

Law firms are information managers. They dig around for information and put it together to tell a story. The law firm that knows the facts and tells a compelling story will probably win. Organization and focus are vital.

At our law firm, we have a system for organizing case information and case management. It is simple. The information that we collect is stored in 4 documents: (1) Case Chronology, (2) Hot Documents Chronology, (3) Cast of Characters List and (4) The Tough Questions and Best Answers Memo. Another key document is the Task Assignment Memo.

Each case is centered on a weekly case management meeting. For example, the Jones case revolves around a meeting held every Tuesday at 9:00 a.m. Each case is staffed by a trial team that consists of two lawyers and a paralegal. These people and the client all participate in the case meeting in person or by phone. Prior to the meeting, the 4 documents listed above and the task assignment memo are emailed to everyone and reviewed in advance. The pending tasks are reviewed and new tasks are assigned with due dates. It is an open system so that everyone, including the client, knows what is going on. This process helps us manage the information efficiently and keeps our focus on developing a winning story for our clients. It is also keeps our clients informed and makes them part of the process.

Look at her - she does not want him to touch her and he does not get it. What should you do if your boss touches you inappropriately at work? First, tell him to stop. If he continues, check the employee manual and follow the sexual harassment complaint procedure and report it in writing. If the company does not help you, then you need the help of someone outside of the company like an employment lawyer or the Equal Employment Opportunity Commission.

Most every large employer in New York has some kind of employee manual with a sexual harassment policy. This policy will typically tell you how to report the harassment. For example, it might tell you to report the sexual harassment to human resources or it might even give you the name of someone or a phone number to call. You have to follow this manual and report the sexual harassment. You need to let the company know what is going on and give them a chance to fix the problem.

Do not hold back when you report it- be honest and tell the whole story even if it is embarrassing or crude. The company needs to know. You should put the complaint in writing and ideally you should see an employment lawyer so they can help you draft the complaint. Many companies will take action and stop the harassment. But if they don't stop it, then you can take legal action. But - if you do not initially follow the company’s sexual harassment complaint procedure, you may not be able to take legal action. The point is that you need to give the company a chance to fix the problem first.

1. New York is an "at will" state. This means that you work at the "will" of your employer. You can be fired for any reason at any time. You have no right to your job. Just as you are free to leave at any time, your employer is free to let you go as well.

2. Severance Payment. You have no right to a severance payment if your employment is terminated. Many companies voluntarily provide a severance package to departing employees in order to make the transition smooth. If a package is not offered, you can ask for one and you can also ask the company to increase the amount. The company is not obligated to pay, but they often do.

3. Firings without cause. A company in New York does not need "cause" to fire an employee. An employee can be fired even if they are doing a great job.

4. Job discrimination is illegal. A company in New York cannot treat a person differently because of their race, sex, age, disability, religion, national origin or sexual orientation. This means that a company cannot fire you, demote you, refuse to promote you, or deny you a job or any other tangible job benefit because of your race, age, gender, religion etc...

5. Follow the company employee manual. If you believe that you are being sexually harassed or discriminated against at work, you should check the company personnel manual. If the manual provides a complaint process, you should follow it and make a complaint. An employment lawyer can guide you through the complaint process and help you if the company does not fix the problem.