New York Employment Lawyer Blog

As reported yesterday in Above The Law, the Third Circuit Court of Appeals rejected a sex discrimination case filed by a female law partner. The partner, Alyson Kirleis, worked for Dickie McCamey in Pennsylvania since 1988. From the Legal Intelligencer (via Above the Law who got if from The Careerist):

In the suit, Kirleis accused Dickie McCamey of paying female lawyers less than males and alleged she was told by a male partner that a woman with children should relinquish her partnership and work only part-time.

Kirleis, who has worked at the firm since 1988, also claimed she was told by another male partner that the role of women lawyers was to prepare lawsuits for trials that would be handled by male lawyers. The suit also included allegations that Kirleis has suffered retaliation since her suit was filed, and that Dickie McCamey’s annual Christmas party is effectively closed to women “because of the sexually explicit nature of the entertainment including skits, songs, pornographic materials and props.”

The Court apparently was unmoved by fairly clear evidence of unequal treatment. It is known that female law partners earn about $66K less per year then male partners and Ms. Kireis was clearly facing different standards than men. Nonetheless the Court held that a law partner cannot sue her own law partnership because she is an owner and has some control over management and policies herself. This ruling looks like a cop out to me because it seems pretty clear that Ms. Kirleis did not have the ability to impact the firm's treatment of women - if she did she probably would have raised her pay and punished her bigot partners. She clearly did not have enough votes so she looked to the courts for help and got nothing. I hope she appeals this one to the USSC that now has more female members.

This month, the Department of Labor issued a Fact Sheet that detailed a nursing mothers rights to express milk while at work.

According to the Fact Sheet, a nursing mother has the following rights at work:

- she is entitled to reasonable break time to express milk for her nursing child for 1 year after the child's birth each time she has a need to express the milk.

- She is entitled to have a private location (bathrooms do not qualify) to express her milk.

- If employees are normally compensated for break time, then the mother would also be entitled to compensation for the time spent expressing her milk. Otherwise she is not entitled to compensation for this time.

There are limits on these rules. First, these rules only apply to non-exempt employees under the Fair Labor Standards Act. This would exclude managers, professionals such as doctors and lawyers, most people who earn over 100K per year, and any other exempt employee.

These rules do not apply to employers with less than 50 employees if compliance would impose an undue hardship.

Thanks to the Connecticut Employment Law Blog for its post on this subject today.

At our law firm, we focus on representing employees. In these cases, we usually find ourselves up against a very large corporation with a lot more money to play with. The employers usually hire a big law firm with hundreds of lawyers. Even though the employers might have more money, in today's economy both sides need to focus on efficiency.

Today in the What About Clients blog (aka What About Paris?), the post is "Depositions: Quit wasting time and money." The point of this post obviously is that depositions are often a waste of resources. I could not agree more. Since we represent the economically distressed employee, we often limit our depositions and try to take short depositions or no deposition at all. The company lawyers, on the other hand, often take longer depositions.

In the What About Clients post, they ask "Why use deposition time to learn things you and yours can learn quickly and inexpensively and lash together from: Phone calls, live humans, your client, client employees, ex-girlfriends, ex-husbands, ex-bosses, bartenders, town drunks, libraries, American Legion halls, store clerks, hopeless gossips, old dudes in cafes who drool on their shirts, neighborhood urchins, newspaper reporters--and even the most rudimentary Google search?"

In law school, they don't teach you to go out and talk to old dudes in cafes or town drunks, instead they focus on the books. Upon graduation, lawyers (myself included) find ourselves in suits and fancy office buildings surrounded by people just like them. So instead of going out and digging around to learn the facts, they just take depositions in the antiseptic environment of a law firm conference room. Sadly, the real story rarely comes out. It is not a natural environment that lends to open communication.

The point is that we (as lawyers) could probably do a better job of finding the truth if we stepped out of our comfort zones and looked under the rocks for information. Depositions are rarely efficient and don't always elicit the whole truth.

A new report confirms what we have always thought about those annoying perfectionist bosses - no one that uptight can live long. The study by Trinity Western University in Canada found that perfectionists have a 51% increased risk of death.

How many of us have worked for one of these nut cases? I think we all have at some point and the experience is miserable.

At our law firm, we get calls almost every day from someone suffering a "Martha Stewart" like boss. These perfectionist bosses usually lack patience and often fire at will. Stunned and feeling abused, the fired employees look for answers from the law. So when the fired workers call us, they want to know about their employee rights. Bottom line is they want justice.

Sadly, it is not illegal to be a jerk at work. It is perfectly legal to be fired for an unfair reason or even no reason. But even though we cannot sue these rotten souls, they will not get away with it. Karma will get them (we hope).

New York pharmaceutical sales representatives won a victory this week in a decision that granted them the right to overtime pay. The sales representatives worked for Novartis and their job was to visit doctors to promote the companies drugs. Novartis did not pay them overtime pay even though the sales representatives worked long hours and sometimes would not return home until 10 p.m. after wining and dining the doctors.

Novartis did not pay them overtime because it relied on the "outside sales" exemption under the Fair Labor Standards Act. Under this law, outside sales representatives are not entitled to overtime pay. The sales representatives succeeded in court by arguing that they were not really sales people because they did not actually sell the drugs, rather they just promoted the drugs. The actual sale of the drugs took place at the drug stores when the patients would pick up their prescriptions. The sales representatives had nothing to do with the actual sale of the drugs because it was illegal for them to sell the drugs themselves. All the Novartis reps could do was visit the doctors and persuade the doctors to prescribe the drugs to their patients.

The court found that the "outside sales" exemption did not apply to the Novartis sales reps because they did not sell anything. Under the FSLA, an outside sales person must actually sell a product or service in order to fall within the exemption. The exemption does not apply to promoters, marketers or other sales support people who do not actually cause the sale to take place.

In this case, the court strictly and narrowly construed the law and limited the scope of the exemption. According to the court, a true outside salesperson has to be more like a door to door salesman who sells the goods himself. A door to door vacuum salesman would qualify as a true outside sales person if he actually produced sales himself by obtaining orders for vacuum cleaners. But if he did not actually solicit and obtain orders and instead just promoted the product and only asked the prospects to consider using his companies vacuum cleaners, then he would not be an outside salesperson. The bottom line here is that overtime pay must be provided to everyone who helps promote or market a product and only people who actually consumate sales are exempt from the overtime pay requirements. For more on this case and access to a copy of the decision, please see the Connecticut Employee Rights Blog.

The LawMemo Employment Law Blog is a great source to keep track of new developments in employment law. It recently provided a a summary of retaliation cases now pending before the U.S. Supreme Court - here are the issues now facing the Court:

1. Are Oral Complaints Enough?

The anti-retaliation law makes it illegal for an employer to retaliate against an employee for making a complaint about potential illegal conduct. In this case, the employee made an oral complaint about the company's time keeping practices. The company fired the employee after he made the complaint. The lower court dismissed the employee's retaliation case because his complaint was oral. The employee never filed a written complaint. The US Supreme Court will now decide if an oral complaint is sufficient or if a written complaint is necessary. I suspect that the Court will find that an oral complaint is enough. The Court's prior retaliation cases have favored employees as the Court believes that strong anti-retaliation laws are important. For more details on this case please see the LawMemo here.

2. Are Relatives and other Third Parties Also Protected from Retaliation?

In another case under review, a husband and wife both worked for the same company. The wife filed a sex discrimination charge against the company with the EEOC. The husband was fired about week after his wife filed her discrimination complaint. The husband then sued the company for retaliation. But the husband's case was dismissed by the lower courts because the husband did not file the discrimination complaint - the lower courts found that only the wife was protected by the retaliation laws. The US Supreme Court will now decide whether the husband is also protected. My prediction is that the Court will extend the reach of retaliation laws to spouses because the purpose of the retaliation laws is to encourage people to file complaints. For more information on this case, see the LawMemo here.

The same ground-ball disability discrimination case passes through our firm every three months. It usually unfolds like this - a potential client calls and informs us that he or she is ineligible for FMLA leave and is being told that his or her position will not be held open if he or she opts for a short leave to accommodate the need for medical treatment for a chronic disability. My advice - let them fire you, sit back and wait for your settlement and watch as the HR representative who fired you is him or herself fired. Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation under the Americans with Disabilities Act when necessitated by an employee's disability. While the Second Circuit has not ruled on the issue, many other circuits, district courts throughout the Second Circuit and the EEOC have determined that unpaid leave - even leave beyond that which is permitted by a company's policies - is a reasonable accommodation provided that the company does not face an undue hardship in providing the accommodation. In fact, a federal judge in the Northern District of New York recently refused to dismiss a complaint on a defendant's motion to dismiss where the plaintiff had been fired during a 9 month unpaid leave finding that the plaintiff had alleged a prima facie case of disability discrimination for failure to accommodate. As many an HR employee has learned the hard way, the right to unpaid leave for medical treatment of a disability is protected by both the FMLA and the ADA for qualifying disabilities.