New York Employment Lawyer Blog

As unemployment reaches record numbers and more people are considering severance packages, the EEOC has just published a checklist for employees. The document is entitled "Employee Check List: What to do When Your Employer Offers you a Severance Agreement." Click here to see the checklist. Tell a friend. It is a good resource for people who are trying to make sense of their severance agreements.

The EEOC did miss a key point in their checklist. Sometimes employers will enhance the package by increasing the amount of money or extending the period of paid health insurance coverage and employees should not be afraid to politely ask for an enhancement. Simply asking your employer to add an extra months pay or health insurance is a good idea. If you never ask, the answer is always no. We have helped countless people increase their offers just by asking. Granted, these days companies are more reluctant to increase the offer, but it happens. In fact, this week we increased the severance packages for two of our clients by nearly 50%. Both of these clients had potential employment discrimination claims and that really helps negotiate an enhanced offer and companies do not want to get caught up in employment suits.

Being pregnant is tough enough, getting fired while pregnant or during maternity leave makes it tougher. But Zibute Scherl, a boat captain who was fired while pregnant, refused to abandon ship. She sued her employer for pregnancy discrimination and won $85,000 in emotional distress, repayment of all lost wages and her employer was fined an additional $25,000. The decision was issued on July 15, 2009.

Zibute Scherl was a Second Captain on a yacht. After she became pregnant, her boss expressed disappointment that she was pregnant, had concerns about "mothers working in the boating business," and worried about potential liablity. He fired Ms. Scherl soon after she announced her pregnancy.

The Company argued that Ms. Scherl's pregnancy was not a factor in her termination. Instead the Company claimed that she was simply part of a company wide reduction in force. But the Court did not believe this argument because when the company was in need of new employees, it did not ask Ms. Scherl to return and instead hired other less experienced people.

This is a great result for pregnant employees. At our firm, we find that a lot of pregnant woman are caught up in reductions in force. The companies always argue that pregnancy was not a factor and often are unwilling to settle. But this case shows that a close look at the facts can get past the "reduction in force" defense. Click here to see a short video of a typical pregnancy discrimination case.

Retaliation cases are probably the easiest cases for employees to win. To help you understand what kind of facts can lead to a retaliation case, I will set out the 3 basic elements here. It is pretty simple.

1. Protected Activity

First, you need to have engaged in protected activity. This means that you need to have made a complaint to someone in the company (like your boss or HR) about a potential violation of your rights such as employment discrimination (age, gender, pregnancy etc...), sexual harassment or overtime violations. You don't have to prove that a violation occurred, you just have to complain about a possible violation.

2. Adverse Employment Action

Next, you have to prove that your employer did something bad to you after you complained. In New York City, the bad thing can be just about anything negative such as lowering your performance rating, transferring you to a less desirable job, changing your hours, taking away any kind of perk - pretty much anything that would reasonably deter others from making complaints will be enough. The anti-retaliation law in New York City is very broad.

3. Causal Connection

The last element of a retaliation claim is proving that your complaint (protected activity) was the cause or motivation for the adverse employment action. The point here is to show that your company did the bad thing to you soon after you complained. The closer in time the better. For example, if you complain to your boss about sexual harassment on Monday and get fired the next day, then you probably have a great retaliation case. Typically you want to see no more than a few months between the the complaint and the adverse action. But some cases have allowed 14 months to pass between the events.

These are the basics of retaliation at work in New York City. Of course, each case if different, but these are the general rules. You can see a short video regarding a typical retaliation case at our website here. Retaliation cases are also known to produce some of the highest verdicts.

The Iowa Employment Law Blog by Patrick Smith today reports on a potential new trend in employee overtime cases.
Many employees are required to have blackberries, iphones or other smart phones and find themselves tethered to work even at home or on vacation. For some, it feels like they are always at work. It turns out that employees might have the right to receive overtime pay for responding to the emails and other after work tasks required of them. See the Wall Street Journal Blog for more on these blackberry overtime cases.

If you are an employee who feels "shacked" to the office by a blackberry or other device, you might have the right to receive extra pay. The overtime laws can go back as far as six years in unpaid overtime, so some employees may be owed a lot of money. For people who are now out of work, the extra pay could not come at a better time.

Yesterday I was talking to a friend, Max (not his real name) who is a high level executive for a large firm in New York City. Max had to lay off people lately and worked with human resources to select people for lay off. He was joking around about how ridiculous the lay off process is at his firm. He said that the real reason for firing people is hardly ever mentioned. Instead, HR uses pre-formulated reasons that often have no connection to reality. He said that when he picks someone for termination he just picks the people who he does not like and who are not doing a good job. He said that if it was up to him he would tell people the real reason they were fired - like, sorry Ted, I had to let someone go and you are always late so I chose you." But instead, Ted is told by HR that "due to a job redundancy and downsizing parameters, your title has been eliminated." So Ted will never know why he was actually fired and might even suspect foul play since the truth was not told. Ted may go see an employment lawyer and since Ted is 62 years old and was given a bogus reason for termination, Ted might think he was fired due to age discrimination. But if the HR people would just tell Ted he was fired for being late, then Ted might not suspect age discrimination. I bet that a lot of employment discrimination cases could be avoided if companies just told the straight and simple truth when they fired people.

Today's Wall Street Journal has an article by Anna Prior that starkly details the cold reality facing hundreds of thousands of people today. Companies are cutting back severance pay to bone and they are less willing to negotiate. Today, it is take it or leave it. We see this every day at our law firm. In the past, companies were more willing to enhance severance packages by increasing the amount of pay, extending health care and other forms of compensation. Today, some companies will offer modest enhancements, but typically only when the employee has a potential claim.

I speak to people on a daily basis who contemplating severance offers and there are two common misunderstandings. First, most employees do not have a legal right to keep their job because they are employees at will. Second, people do not have a right to severance pay. Severance pay is not a legal right in the United States unless you have an employment contract that creates this right.

As Ms. Prior points out in her article, certain senior executives can increase the offer if the company requests a non-competition clause. In the past, we have obtained substantial increases for executives in this situation, but today it is more difficult. In some cases, the money offered in severance does not justify the restrictions imposed by a non-competition clause. The clauses are enforceable and people should think twice before signing them as they can keep a person out of their field for years. Before signing one, make sure you narrow it as much as possible and be sure you are well paid as you are basically agreeing to run in the race with one leg.

In my opinion, the best way to survive in today's economic climate is to save money while you have a job and build your own severance package in your bank account because you cannot rely on your company. Also, there will be a small minority of people who can extract an enhanced severance or settlement from a company because they have a legitimate employment discrimination or harassment claim that can be used as negotiating leverage. Most people, however, will not have a genuine employment claim and they will not have leverage to negotiate.

Mad Men is an excellent television show about the advertising business back in 1950-60. The ad men drink at work and some have sex with their secretaries and one of the partners uses his power to seduce young aspiring models into his office for a spin on his rug. Woman are openly disrespected. These were the days before Title VII. It is a great show and you can see that there were virtually no checks on office behavior. Most everyone in the office is white as well, except for the occasional black repair men or elevator operator. These were the days of openly coercive sexual exploits at work and racial discrimination. That was part of American culture and those days are not so long ago. That life style seen in that show still exists today. That is why there are so many employment law suits. Title VII is an attempt to curb behavior at work, but it does not work very well, in my view. It is a crude ax that prevents some blatant discrimination, but far more is needed. Mostly it has been a boon for lawyers and created its own industry. I think we could come up with a much better system to protect people at work. But at least things have improved since the days of Don Draper. Watch the show if you can, great entertainment too.

Right now I am working on a case that involves New York City's anti-retaliation law. This law was recently amended to expand it's protection of employees who report or file an employment discrimination or sexual harassment claim. Check out our website to see a video of a typical retaliation case.

The goal of the amended City law is to encourage employees to report and prosecute civil rights violations at work. The City law prohibits employers from taking any type of adverse action that might reasonably deter a person from reporting civil rights violations. This is a very broad law that appears to outlaw virtually any type of retaliatory conduct by employers. This marks a real expansion of anti-retaliation law. In the past, anti-retaliation laws required some kind of substantial retaliatory conduct such as a demotion, reduction in pay or even termination of employment. Now, almost any kind of retaliatory conduct is prohibited. This is good for New York City employees and bad for employers. At our law firm, retaliation cases are fast becoming our favorite cases.

The New York City Human Rights Law is a gem. It gives New York City employees more rights than the federal and state anti-discrimination laws. If employee oriented law firms would start using this law more, the judges would become more familiar with it. Now it is rarely used and when it is used it seems to be widely misunderstood as the judges assume it mirrors the federal and state employment laws. But it does not. It goes further and is stronger. Employees and their lawyers should take a good look at this law and some of the new cases that have been published under this law. Here is a great resources - the Anti-Discrimination Center has the full text of the NYCHRL and links to some good case law. If you want to know what employers think of this law, read this article. Companies realize that it is harder to obtain summary judgment under this law. This is good news for employees. Even the employment defense firms realize that this law is good for employees, so employees should start using it.

I

On July 29, 2009, the Town of Greenwhich Connecticut was found liable for race discrimination. A federal jury determined that several minority police officers endured a racially hostile work environment and were denied promotions on account of their race. The officers were awarded $160,000 for their troubles. But the town of Greenwhich apparently spent over $700,000 defending the case. For more on this story please the Connecticut Employee Rights Blog

I am glad the minority officers won their case, but the big winners here are the lawyers who were paid $700,000 to defend the town of Greenwhich. Even though they lost the case, they are the ones who got most of the money. Too bad there is not a legal procedure that would allow the money to be diverted from the law firm to the victims. This illustrates one of the problems with our anti-discrimination laws. The laws tend to help the company lawyers more than anyone. I would love to see a study that looks at all the money spent in a given year on employment discrimination cases nationwide. I bet that most of that money goes to the company defense lawyers and not to the victims of discrimination.

Jay Sheppard at the Client Revolution blog, just posted an interesting piece on hourly billing. He says that clients hire lawyers to manage or reduce risk. But, he says that when lawyers bill their clients by the hour, the lawyers actually create risk for their own clients with unpredictable bills.

I have to admit that at our law firm, we have charged many clients by the hour. But Jay Sheppard is right, hourly billing pits the lawyer and the client against each other. We have slowly eliminated hourly billing at our firm. We now use flat fees and contingency fee arrangements.

Recently, one of our clients said that one of the things he likes about our firm is our flat fees. He said he did not have to worry about managing the costs. In that case, we have a hybrid billing arrangement - part flat fee and part contingency fee. Under this approach, our interests are aligned with our clients. It works much better than hourly billing.

I know Judge Sotomayor and I can say without any reservation that she will be an excellent addition to the U.S. Supreme Court. Back when I was an Assistant Attorney General in New York City, I tried an employment discrimination case before Judge Sotomayor in the Southern District of New York. I represented the defendant, the New York State Prison system. The accusations against the State were serious. But Judge Sotomayor was fair to both sides. There were many motions that she ruled on along the way and she came to the right decisions. She followed the law. She is brilliant and tough. She brings the best of the lawyers who appear before her because she makes it known that she expects the lawyers to do their job well.

I liked her so much that after the trial, I asked her to give a talk at the Attorney General's Office on trial practice. She agreed and gave a great talk. Even back then when she was a trial judge, I remember thinking that she was one of those judges who just might make it to the U.S. Supreme Court. This country needs more people like her. She is a rare find and I am glad that she will be on the Court soon.