New York Employment Lawyer Blog

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Courthouse New Service: A couple Fridays ago I wrote about the wave of law suits that law students are filing against their alma maters for deceptive employment statistics. And now I am reading about it again. Seems that more law schools are coming under fire across the country for inflated graduate employment numbers. It will be interesting to see what the winning arguments and defenses are in these cases with so many lawyers and legal reputations at stake.

• The Press Enterprise: Police arrested three current and former employees of the state Employment Development Department (California) for participating in an unemployment benefits scheme that involved issuing checks for people who did not qualify for the benefits. Rather than cashing their illegal checks, these three are now facing serious felony charges.
• Huffington Post: Republican or democrat, the Huffington Post asks some tough questions about whether President Obama failed the US economy by not creating enough jobs. This is obviously going to be a big issue in the upcoming election and the HuffPo is a great read about the last 4 years when it comes to job creation.

• Jezebel: I do love a local employment law case. Jezebel write about an unpaid intern suing Haper’s Bazaar for labor violations. The lawsuit brings up interesting issues surrounding the unpaid internships in general and should be good case to follow with such a high profile magazine being accused of some pretty serious issues.

Wherever you are when you are reading this I hope everyone has a great weekend. Got some great articles to add? I would love to hear from you!

Indiana recently made headlines when it became the 23rd Right to Work state in the country. Those states that follow the right to work philosophy essentially prohibit employers from forcing employees to become members of a union or pay union dues. For those of you that are curious, New York is not one of the 23 states that support Right to Work acts.

Here’s a look at the rationale behind right to work laws…

Those in favor of right to work argue that employees should hold the power when it comes to joining or not joining a union and note that states that do not support this freedom of association are essentially forcing workers to join a union. There is also the argument that this “forced unionization” results in workers having to pay hefty union fees and ultimately “support” ideas they don’t believe in.

There are, of course, two sides to every argument so here goes the counter. Those against the right to work movement note that non union members still benefit from the gains a union makes and because of that are essentially experiencing all the benefits of the union without having to pay the dues. A having your cake and eating it too argument if you will.

So really, the name is slightly deceiving. The issue is not about whether or not an employee can work but what role a union should play for those employees already working. Whether for or against the right to work I hope you are now a little more informed on the issue. If you have something to add to this discussion, I would love to hear from you on our Facebook page!

NYC employment lawyers are fortunate to work in one of the most vibrant legal environments in the country. Our law firm, The Ottinger Firm, has been operating in NYC for almost 15 years now representing employees and executives. In that time, we have represented people of all kinds from high level financial executives to sanitation workers. Only NYC has a so much going on in such a small space so the situations we deal with sometimes make television seem boring.

NYC also has one of the most employee friendly laws in the country, the New York City Administrative Code. NYC employment lawyers have three powerful laws available that cover NYC employees: (1) federal law, (2) state law, and (3) the NYC Administrative Code. In my opinion, the NYC Administrative Code has more teeth than the federal and state employment laws. When we bring suits, we typically try to use this law because there are no limits on damages and it offers a wide range of protection for employees.

NYC also has some great judges. Some of the best judges our country has ever produced came from NYC such as Learned Hand and Benjamin Cardozo. NYC is a great place to practice employment law because the cases are interesting, the laws are strong and some of the best lawyers and judges in the country work here.

NYC is also home to a number of excellent employment law firms. If you are an employee in NYC with a legal problem, you are fortunate in the sense that you have a selection of very good employment lawyers and excellent laws available to help you.

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Job Mouse: Big news for the 20 states that borrowed money from the federal government to cover their increased unemployment insurance needs…payback deadline is at the end of this month. The back story here is that many states were financially ill-equipped to handle the huge increase in unemployment claims following the recession and had to borrow money to meet these demands. Let’s hope they fixed their accounting and are ready to start paying their debts.

• Reuters: Sheltered workshops are facilities funded by state and local agencies to provide jobs for disabled employees. The work is comprised of basic tasks and workers are typically paid less than minimum wage. Reuters reports on a recent class action lawsuit out of Portland, Oregon claiming that many of these disabled employees are being exploited and unfairly stereotyped. Look out for my blog delving into this interesting topic.

• The Bulletin: Are companies only seeking to hire employees that are currently working? The somewhat ironic question is one being discussed by The Bulletin in an article examining whether there need to be laws to protect currently unemployed workers from bias in their job hunt.

• Furley Page: And last but not least some news from our friends over in the UK. In a bid to reduce regulation and stimulate growth the government is making some big changes to employment law over there. The Furley Page does a nice job breaking down how these changes will affect employers and employees when put into effect.

Wherever you are when you are reading this I hope everyone has a great weekend. Got some great articles to add? I would love to hear from you!

Today in Bloomberg Business Week, there is a great article about three types of people who should be fired immediately. They are:

1. Victims: You know the type - the people who complain about everything and feel that life is just a struggle. They see problems everywhere and feel persecuted.

2. Nonbelievers: People who have a negative attitude and see failure at every turn.

3. Know-It-Alls: People who think they know the answer and the answer is usually no. The Bloomberg article cites people who predicted that radio and telephones had no commercial value. You know the type.

But - it is legal to fire these kinds of people. Can a company just fire them without cause or without due notice? Yes they can. An employee can be fired for no reason at all and no warning or notice is legally required. Just like an employee can quit for any reason and without notice, a company can fire it's employees at-will.
Believe it or not, employees do not normally have a legal right to their job. The best way to keep your job is to be valuable and pleasant to work with. Don't fall into one of the three categories in the Bloomberg article.

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Huffington Post: Unemployment is going to be a big issue in presidential campaigning. With a national unemployment average of 8.5% this is not a surprise but will still be interesting to see how politicians attempt to tackle the problem. One issue that the Huffington Post is currently covering in South Carolina is whether the receipt of unemployment benefits should be contingent on passing a drug test. The HuffPo reports that, in addition to drug testing, Republicans are also arguing for mandatory volunteer work for long term joblessness.

• NPR: Law schools have been getting a lot of heat in the past couple of years over their employment numbers. NPR explores the issue with the apt title, “Do Law Schools Cook Their Employment Numbers?” The article and issues surrounding it isn’t necessarily about employment law but as an attorney looking to the future of the profession, there are interesting issues being raised about the importance of a law school being up front about their graduates’ job prospects.

• Boston Herald: Big news out of Massachusetts for their roughly 33,000 transgender employees. The Boston Herald reports that Massachusetts just passed a new law that prohibits discrimination in the workplace.

• The Vancouver Sun: The Vancouver Sun covers an employment law case out of Chicago about a woman who was fired for doing extra work during her lunch break. After bringing a successful suit (representing herself I should add) she will now be receiving unemployment benefits.

Have a great weekend everyone. Got some great articles to add? I would love to hear from you!

I recently came across an entertaining article in the New York Daily News about a Manhattan school teacher that faked jury duty obligations to score free vacation days. Clever? Sure. Illegal? Of course. The way she got caught was perfectly ironic: poor spelling on the fake note from the court. Spelling basic words like trial, manager and cited wrong (trail, manger and sited respectively) was an easy clue for the school principal to catch the forgery.

Jury duty is your civic duty and as a New York employee, I found this article as a good chance to remind employees of the rights have when they actually serve on a jury. With more than half a million jurors serving in the state of New York every year, this is certainly something that will likely come up multiple times throughout the course of your professional career.

The New York court system has a great guide dedicated to employment issues relating to jury duty. Here’s some of the top frequently asked questions:

• Who Pays? In New York, the going rate if $40 per day of jury service. Additionally, employers are highly encouraged to pay an employee’s wages while reporting for service. Although this is not a requirement, the pay should not be considered sick or vacation time but an independent paid obligation.

• Do part-time or temporary employees get paid? The answer to this is basically the same as for full-time employees (see above). If you are a temporary employee then it is the temp agency and not the company you are staffed at that you would need to contact.

• Do employers have to let employees serve? The answer to this question is a resounding yes. Criminal penalties will be attached to any employer who says otherwise. Additionally, an employer cannot force an employee to make up time or work on nonscheduled days as a resulting of their jury service.

Oh and for those of you wondering, the 61-year-old teacher resigned from her position with the school and was ordered to pay $3,374.88 in salary she was paid while not serving on jury duty.

It’s finally time to catch up on anything and everything employment law, both within our own country and abroad (or in this week’s case, on the sea). Here’s a look at some articles I am reading this week:

• Thomson Reuters Legal News: WalMart v. Duke is an employment class action case that was ruled on in June by the Supreme Court. Many believed the holdings in this case would be a game changer and that certainly seems to be the case. The suit tried to certify a class of 1.5 million former and current female WalMart employees for issues with gender discrimination. The Court ruled that this class simply did not have enough in common. Since the decision, defendants in a variety of class actions have flooded courts with motions challenging the certification of large classes of plaintiffs. 260 times to be exact.

• New York Times: The NY Times talks about the big employment law decision to come from the Supreme Court this week…religious groups are exempt from employment discrimination laws. Yes, you read that right. Religious organizations, whether it is a Church or a school can discriminate. In application, this should be a very interesting attempt at separation of Church and State.

• Bloomberg: We handle a lot of overtime pay cases. So naturally I found this story about Goldman Sachs paying computer technicians $993,841 in back overtime pay very interesting and it so happens that our firm handled that case. Workers based in New York and New Jersey sometimes worked 70 hours a week but were paid for 40 of them. Glad to see they ultimately got compensated for their time.

• Justia: Sailing meets employment law. Justia highlights a case in which a seaman working on a boat suffers disabling neck injuries. Ahoy!

Got some great articles to add? I would love to hear from you!

Injustice anywhere is a threat to justice everywhere.

-- Martin Luther King Jr. "Letter from Birmingham Jail," 16 April 1963
If you are reading this you are also likely enjoying a day off of work or school in celebration of Martin Luther King Jr. Day. A leader in the nonviolent civil rights movement in the U.S., King’s legacy is one that is remembered in so much of your everyday employment life.

Although often talked about as violations of state and federal law, a lot of the employment law issues discussed in my blog are about exactly what King was working for: civil rights. But what is a civil right?

Simply put, civil rights are the rights of individuals to receive equal treatment. This right to fair treatment applies to many settings including: education, employment and housing. If you are being treated unfairly at work because of something you can’t change about yourself (age, sex, race, national origin etc) then your civil rights are being violated.

In the employment law context, a civil rights violation can be subtle or glaring but the end result is always the same…it is illegal. One central point Dr. King stressed was the importance in not staying silent in the face of discrimination. Applied to many of you in the working world, I hope you feel empowered by his message to seek help if you are being discriminated against. You know where to find us.

So happy birthday Dr. King and hope everyone is enjoying their holiday.

Full-time, part-time, contract, job share…the list for different types of employees is as exhaustive as the work itself. With that in mind, I thought I would take a chance to go over a brief description of three common types.

1. Full-time Employee: Working about 40 hours per week, a full-time employee is typically one with a stable title that enjoys the benefits of working for a company (vacation, health care, 401K, etc).

2. Contractor: A popular form of temporary employment used by companies to save money and finish task-based assignments, a contractor is usually employed by a temporary service business and staffed at the company for a certain period of time. In most cases, a contractor does not enjoy any of the benefits of being an employee for a company such as sick leave, vacation time and health benefits. However, if flexibility is what you are looking for then working as a contractor can be a perfect fit.

3. Job Share Employee: This arrangement is basically when two or more employees work to complete the job of one full-time employee. The benefits are typically prorated based on the amount of time worked and studies have shown this to be a great way to retain workers and increase job satisfaction.

It is nice to know that more and more companies are recognizing the utility of different work arrangements. Different classifications as an employee carry different benefits and obligations. However, just because an employee is a contractor versus a full-time does not relinquish an employer of their basic legal obligations against discrimination, fair pay, etc. If you feel like you have been treated unfairly, give us a call.

It’s finally Friday and time to catch up on anything and everything employment law, both within our own country and abroad. Here’s a look at some articles I am reading this week:

• Central Valley Business Times: The article presents a somewhat shocking figure: 45% of U.S. employees observed a violation of the law or ethics standard at their place of employment in the last year. The figure comes from a recent survey conducted by the Ethics Resource Center, a nonprofit. I find this figure entirely too high and agree with the author, creating an ethical workplace culture begins at the top.

• Chicago Tribune: A teacher writes a memoir and then gets fired. That is the boiled down version of a recent article from Chicago. The Chicago Public School teacher wrote a memoir about his life and is now suing the school district for $300,000 for discrimination and violation of his free speech rights.

• Los Angeles Times: The LA Times article talks about how Indiana is the new Wisconsin…when it comes to labor law media attention, that is. With the new year, Indiana has turned into a battleground between conservative Republicans and labor unions over a highly controversial right-to-work bill. If passed, the bill would the first state in the Midwest’s manufacturing region to limit union power in this way. Should be an interesting development to follow.

• The Times Leader: And some interesting employment law news from all the way in Saudi Arabia. Against the disapproval of the country’s top cleric, Saudi Arabia will begin enforcing a law that allows only females to work in women’s lingerie stores. The law will not only allow more employment opportunities for women but also allow for greater modesty in the shopping experience. Living in the United States, I sometimes forget how different employment law issues manifest themselves in other countries.

Have a great weekend everyone. Got some great articles to add? I would love to hear from you!

Congrats! You got the job! In the frenzy of excitement that often accompanies a new job, many New York employees may overlook the importance of the employment contract they are about to sign before starting their new position.

Depending on the position and the company, an employment contract can read like a novel and a thorough review of the contract should be part of your job preparedness. When it comes to executives and professionals, employment contracts discuss such things as: compensation, position, expectations, grounds for termination, severance and benefits. That’s right, you are not only negotiating the terms of your new job but also the benefits you may receive when your employment ends.

In many situations, an employment contract can and should be negotiated to better reflect your interests as an employee. Since lawyers likely drafted the employer end of the agreement, it is always a good idea to have lawyers help draft your demands that should be reflected in the employment contract.

Many of the more complicated employment contracts also include provisions that limit an employee’s ability to compete with the company for a certain period of time after he or she leaves and has stipulations about work product. If you are about to start a new position, give us a call before you sign on the dotted line and we can help you negotiate an employment contract that will protect your interests long after you leave. Oh, and congrats on the new gig.

The excitement and nervousness associated with landing a job interview can often cause a New York employee to forget that he or she has rights, even in the interview process. In fact, did you know you have legal rights in place to protect you even if you don’t get the job?

Like most employment laws, there are New York city and New York state and federal laws in place mainly to ensure that an applicant does not experience unfair discrimination in the interview process. These safeguards begin as soon as a job is advertised and stay in effect throughout the entire hiring process.

Although some of these may seem obvious to you or I, here are some topics that should not be asked during a job interview:

1. Planning to have kids sometime soon? Although the interviewer may be looking for a future play date for their child, asking an applicant whether she is pregnant or planning to get pregnant is off limits. The potential for pregnancy discrimination is very real and an individual cannot be disregarded as a potential hire because of this decision.

2. Still liking to party like it’s 1999? Certainly a clever attempt (if I may say so myself) at inquiring whether an applicant uses drugs or alcohol. One important thing to remember that asking about drug or alcohol is likely illegal, requiring a drug test is not.

3. Boyfriend or girlfriend or both? The sexual orientation of an applicant holds no bearing on his or her ability to do a good job. When this question is broached, an applicant does not have to answer…simple as that.

4. Will I be seeing you at Church on Sunday? Again, a clever but illegal attempt at finding out an applicant’s religion is another question that employers should know better not to ask.

Many interviewers reach a nice rapport with job applicants and the meeting is less of an interrogation and more of a conversation. Should an applicant choose to reveal certain personal facts, is his or her choice but at no point should they feel compelled to answer private questions.

With the end of the year quickly upon us, I have been reading a lot of articles focused on what is slated for 2012. Here’s a look at some articles I am reading this week:

• New York Daily News: Being a New York employment law attorney, I do love reading my local newspapers. The NY Daily News reports that 68% of American believed that 2011 was a bad year and that 2012 will be better. Optimism is always a great way to ring in the New Year!

• JD Supra: There are a lot of employment law changes happening to California employers in 2012, including: fines for misclassifying independent contractors, providing the same employee insurance benefits to same-sex partners and new burdens on employers to inform employees of certain employment issues. Employers with operations in New York will also be subject to similar increased regulations.

• Eweek.com: The headline of this story really struck me: Online Contingent Work to Double Again in 2012. Eweek looks at how online hiring is growing at a record pace and 2012 looks to be the best year yet. This type of work is online and contingent but it will certainly be interesting to see how employment law will adapt to this type of employment.

• Fox Business: Fox talked to various economists about their 2012 predictions. When it came to employment, the focus was on the importance of the job market to help the U.S. economy. On a positive note, Wells Fargo Chief Economist John Silvia expects approximately 1.5 million jobs to be added over the next year. Fingers crossed!

Have a happy, healthy and legal New Year everyone! Got some great articles to add? I would love to hear from you!

Fridays are a great time to catch up on the week’s happenings. Although my specialty is in New York employment law, I enjoy reading about a range of issues that affect employment, in the US and abroad. Here’s a look at some articles I am reading this week:

• The Human Resources Exclusive Online: A look back on employment law issues from the year. This is a great recap of everything from unemployment issues and the Obama administration to the need for greater transparency in retirement-plan investment decisions.

• The Chicago Tribune: Clarification is always helpful when it comes from the top. This article clarifies the Illinois Supreme Court’s opinion on non-compete agreements. With the increase in job turnover, this was a much needed discussion and the principles may apply in other states as well.

• The Politico: The National Labor Relations Board delays key union rules. The delay effectively postpones the date employers must post information displaying employee rights. The new deadline is set for April 30, 2012.

• SFGate: Employment issues don’t just touch adults. In this article by the SFGate looks at how Republican presidential hopeful Newt Gingrich is leading a push to ease child labor laws.

• MarketWatch: Not just limited to New York or the United States, sometimes it is fun to read about what is happening across the pond. In this article, MarketWatch talks about the changes the new year will bring to UK employment law.

Have a great weekend everyone and look for blogs on some of these topics in the near future. Got some great articles to add? I would love to hear from you!

As a lawyer focusing on New York employment law, it is easy to get wrapped up in the nuances. Which is why sometimes, going back to basics is a helpful lesson for everyone. So here is my simple question for the day, what is employment law in New York?

New York employment law is not a single legal doctrine or case but rather a body of laws, rulings and legal rights in place to help employees and employers. New York Employment law is not something that comes into play after an incident has occurred but something that is in place to protect employees from having legal issues whenever possible. The complexity of this practice is only multiplied by the many work arrangements there are out there. Nevertheless, as an employee, you have rights.

From pay schedules to bonus disputes, to issues surrounding overtime compensation, employment law touches many important aspects of your relationship with your job. Did you know that you have legal rights in place when you interview for a job you may not even get? Or that you have certain rights that will remain after you leave a position? Did you know your workplace safety isn’t just a health issue but a right protected under employment laws in NY?

New York employment law not only covers broad issues such as rights to privacy and prohibitions against discrimination but also smaller issues that may be unique to the particular position or industry you are in.

Charles Lamb once joked, “I always arrive late to the office but I make up for it by leaving early.” Like many people, work may not be your favorite thing to do but knowing that there are legal rights in place should help to make your day that much better.

Retaliation cases often produce large jury verdicts.   But, as Jon Hyman of The Ohio Employer's Law Blog points out, the verdict is not the end of the road.  In fact, the losing side in a trial can reduce or reverse the verdict  through post trial motions and appeals - the war continues even after the verdict.   The large verdicts in employment discrimination cases frequently get media attention, but what is rarely printed is the fact that many of these verdicts are later reversed or substantially reduced on appeal.    Lets look at a case that was recently profiled by The Ohio Employer's Law Blog.

Ronald Luri worked for Republic Services as a general manager.  He reported to Bowen.   In November of 2006, Bowen told Luri to fire the three oldest employees in the company and one of them had a disability.   Luri objected because he thought that the terminations amounted to age and disability discrimination.   Bowen then turned on Luri and began accusing him of misconduct and eventually fired Luri.   Luri sued Republic Services for retaliation.

The trial did not go well for Republic as they were caught trying to cover things up and the jury apparently had no trouble finding that they retaliated against Luri.  The jury awarded Luri $3.5 million in compensatory damages and a whopping $43.1 million in punitive damages.

The jury verdict, however, was just the beginning of the post trial process.    Republic filed an appeal and appellate courts are known to reduce big verdicts, it happens all the time.   Sure enough, the Court of Appeals of Ohio reduced the $43.1 million punitive damage award down to $7 million.  The Court of Appeals applied a tort reform rule that limits punitive damage verdicts to twice the compensatory award.   In that case, the compensatory award was $3.5 million so the punitive damage award was reduced to $7 million for a total verdict of $10.5 million.   The net result is that the Court of Appeal reduced the verdict by 75%.

This is a common occurrence.  Those big verdicts make great news paper headlines, but a high percentage (one report found that 85% of all employment verdicts are reduced or reversed on appeal) of them do not survive the appellate process.  Knowing this, many people agree to reduce the verdict amount to avoid the appeal.

As a plaintiff's lawyer, I think that the Appellate Courts should avoid the temptation to reduce the verdicts.   The jury is the body that heard the evidence and saw the witnesses - they know the case best and their verdict should be respected and only altered in rare cases.

Most people think that they have a right to their job and that they also have a right to be treated fairly.  But they don't have either.  America is built on the harsh reality of the employment at will doctrine.   This means that employees have no right to their job and no right to be treated fairly.   They can be fired at any time, for any reason or no reason at all.  No advance warning is required.  It sounds cold and brutal and it is.

At my law firm, I speak to people everyday who are upset because they were just fired for unfair reasons.  They are angry and they want to take action.  They want to sue.  But then I ruin their day by telling them that they really cannot do anything because their firing was legal.   It might have been morally wrong and unfair, but it is perfectly legal so there is nothing they can do but get over it and move on.

Some of the callers can prove that they were fired for false reasons.  They have rock solid evidence that they were not late, or that they are not responsible for the error etc.... but it does not matter.   An employer is free to fire an employee for the wrong reason.

It is clear that the employment at will doctrine is widely misunderstood.   Most people who call us really are shocked to hear about it.   I think that people just cannot believe that the law is so harsh.   People believe that some rule of fairness applies.

Because everyone works and everyone is subject to this harsh rule, you would think that people would know about this rule.  I think it should be taught in school.   People need to know about this rule because it governs their working lives.   At school, I learned all about math, geography, physics, science, grammar and more, but no one ever told me about the employment at will rule.  I wish they had.

I was fired once for a very unfair reason.  I was working as a cook at a restaurant and I dropped a stack of plates that I was carrying.  It was not my fault because someone bumped into me, but I got fired for it.   I was really upset about it because it was so unfair.  I was just a college kid at the time so I just got another job, but I had no idea that the manager was within his rights to fire me like that.

Those who understand the employment at will doctrine are at an advantage.   If people know that fairness does not matter, then people will not expect it and will govern their actions accordingly.   If you know that you can be fired at any time and for any reason, then there is only one thing that will give a person a semblance of job security and that is outstanding job performance.   If a person is a great worker who truly helps the company, then the company is more likely to protect that employee.   In my view, employees should stop worrying about fairness and notice and their rights because that is all an illusion - instead they should concentrate on delivering outstanding job  performance because that is what matters.

Employees do have some rights.  They have the right to overtime pay, to family or medical leave, they have the right to work in an environment free of sexual or racial harassment and employment discrimination based of race, sex, age, religion, disability etc. is prohibited.

Whoever is in charge of developing the curriculums for high schools ought to give some thought to teaching kids about the basics of working life.  While it may be important to know that Quito is the capital of Ecuador, it would be more useful for people to know the basic rules that govern their working lives.

Call center employees are unquestionably entitled to overtime pay, yet they are among the most stubbornly undercompensated groups of overtime-eligible employees. While many companies have relocated their customer service call centers abroad to India and other countries to avoid minimum wage and overtime laws, many remain in the US and their owners simply flout these laws. Aside from not receiving overtime compensation for hours worked in excess of 40 in a work week, many call center employees are simply not paid for all compensable hours whether they work over 40 hours in a week or not. In fact, call center employees are often not compensated for purported "off the clock" workday activities such as routine bathroom breaks or time spent waiting between customer service inquiries, despite the fact that the Department of Labor considers this time to be compensable.

A good employment lawyer can make all the difference.   If you are looking for an employment lawyer, here are some things to look for.

1.  Select a Firm that Specializes in Employment Law

Make sure that the lawyer you choose focuses their practice on employment law.  Employment law is a niche area and you will probably be served best by someone who only practices in this area.  Be wary of lawyers who try to practice in several different areas including employment law.

2.  Choose Sides

Employment lawyers generally work for one side or the other.   They either represent employees or management.   Be sure to pick an employment lawyer who is on your side.  If you are an employee, find a law firm that generally represents employees as opposed to companies.

3. Experience

Nothing beats experience.   Try to find a lawyer who has been practicing employment law for at least several years.  The longer the better.  Find out what kinds of cases they have handled and see if they have handled cases like yours.

4.  Communication System

One of the top complaints about lawyers is poor communication.  You have the right to know what is going on with your case and to stay updated.   When interviewing lawyers, ask them how they keep their clients updated and how they communicate with their clients.   Some law firms today have websites that let their clients login and see the case calendar, documents and other case information.  These systems open up the process and make it easy for clients to stay informed.

5.  Legal Fees

There are basically three kinds of legal fees.   Hourly fees, contingent fees and task based fees.   There are also hybrid fees that combine certain elements of each kind of fee arragment.   Hourly fees can add up quickly and this can cause tension between between the law firm and the client.  Contingent fees avoid this problem because the fee is paid at the end of the case and out of the settlement or verdict.  With a contingent fee,the interests of the client and the lawyer are aligned in that they have a common goal of obtaining maximum value from the case.  With task based fees, the lawyer and client agree on a price for a task or phase of the case.   For example, the client and lawyer might agree that the fee for drafting a complaint is $2,500.  Each task going forward will be priced so that everyone knows what the cost will be - this fee system is good because it avoids the surprise bills associated with hourly billing.  The type of fee arrangement can have a big impact on your case so make sure you understand it and can afford it.

6.  Customer Service

As a client, you have the right to be treated with respect and care.  Your law firm should put your interests first and treat you like gold.  Your lawyer is there to serve you.   Make sure you take the time to select a law firm that understands the importance of providing exceptional customer service.  Pay attention to how the receptionists treat you on the phone.   Look for the little things - do the employees seem happy, are they courteous and professional and is the office organized and clean.   These are all signs of a well run operation.

7.  Reputation

A lawyer's reputation is important.  If you have connections to the legal community, ask around to see what other lawyers say about the lawyer you are thinking of hiring.

These are a few points to consider in selecting a good employment lawyer.   Take your time and interview several different lawyers so you can make an informed decision.  Please call The Ottinger Firm when considering employment law firms.   We have been representing employees since 1999.  You can reach us at 866-571-5010.

I have two offices- one in New York City and the other in San Francisco. While it would have been far easier to open another office closer to NYC, like Connecticut or Massachusetts, I choose a place 3,000 miles away from my family and friends - San Francisco. To be clear, I am admitted to the California bar, went to law school in California and worked in LA for several years in the '90s.

The San Francisco office is small (right now) - it consists of me, my computer, my wife and our two dogs. But all new ventures must have an opening, a beginning, a start if you will. That is how the NYC office began. The NYC office is thriving and successful. I travel back and forth between the two cities to manage new business development, current cases and office management. While I can do most of this from SF, I chose to go back to NYC because sometimes I need a bite of the big apple.

I have an apartment in San Francisco with a great view of San Francisco Bay. Here is the view.

Here is a pic of our two dogs at the beach who also enjoy the West Coast life style.

Running two offices and living the bicoastal life requires a key tools. First, you need strong and responsible employees to keep your operation flowing smoothly while you are developing new business. One major tool that helps me manage this new business development is technology.

Basecamp is online project management and collaboration software that is used by famous companies such as Patagonia, Adidas, Kellogg's, Warner Brother's, USA Today and millions of others. Basecamp has provided my business the freedom of not being tied down to a physical location - where I am has become irrelevant. With Basecamp one of my best employees works remotely from home as she is a stay-at-home mom. She does amazing work for our firm and is able to take care of her children at the same time - all because of technology.

The other key tool with bicoastal living is video conferencing through ichat or Skype. Just yesterday I interviewed several job applicants in NYC from my SF apartment with Skype video conferencing. While I could have flown back to NYC for the 1st round of interviews, I chose to Skype with the office and applicants. It not only saved money and time for the firm, it also helped me realize that we needed to get more applicants in before I flew back for 2nd round interviews.

I know I sound all happy and bright because I live in California, truth be told there are some downsides to the bicoastal lifestyle.
(a) I am not quite sure if I would want to do this forever.
(b) It is hard to find solid and hardworking talented lawyers who actually are responsible for their work and themselves. Graduating from a top law school is not a guarantee of good performance. I have hired attorneys from the best law schools and who turned out to be the worst employees and the not-topnotch law schools and who turned into the best lawyers. You should not have to watch your lawyers like you are potty training your 2 year old child.

To sum up - there are pros and cons to bicoastal living. It is challenging, great, frustrating and exhillarting! Long term - I'm pretty sure I made the right choice. If I can get the SF office up to the size and volume of the NYC office then I will have a fantastic business in two of the best cities in the country. It can and will be done - eventually.

If anyone has any experience doing this kind of thing I would love to hear from you and if anyone is looking for an employment lawyer in San Francisco or NYC please give me a call. My NYC firm has been around now for over 10 years and all we do is help employees. Our focus is on overtime pay and other wage & hour matters.

Before suing a company in an employment case, we like to know who we are up against.   We are less likely to sue a company that treats its employees and customers well.   The best companies to sue are those that treat people poorly because there will be less loyalty - employees, partners, vendors  and even customers might come forward to help.   One indicator of a problem company is a high number of lawsuits that have been filed against them.   Here is a list of the companies with the most federal law suits.

Source: Public Access to Court Electronic Records (PACER)

Read more: http://www.foxbusiness.com/markets/2011/01/18/sued-companies-america/#ixzz1DWwuRbgk

The new defense strategy is sifting through a plaintiff''s Facebook and other online profiles to find damaging evidence.   At first, courts resisted but now a person's online life is vulnerable.   Read about the changing landscape here.

Plaintiffs in employment disputes could find their Facebook postings and pictures becoming part of the case.   Claims of emotional distress will be countered by Facebook photos and postings.   A person's resume can be cross checked with their Linkedin and Facebook profiles.  Basically, the world is becoming transparent - no secrets.   Litigation will change.

It is a shame that people cannot freely express themselves online.

Plaintiffs lawyers might want to review a person's Facebook profile before accepting their case because that profile might be evidence in the case.

If a sexual harassment victim claims to have suffered severe emotional distress, you better make sure that her Facebook profile does not recount ski trips or parties or anything that makes her look like she is having fun.   If a plaintiff in an employment discrimination case claims that he cannot find alternate employment, there better not be postings of his latest fishing trip or travels overseas on Facebook.

Social networking sites have changed the way we interact with others and they may also impact the way we resolve our employment disputes.

Yesterday the Wall Street Journal's Law Blog posted another piece on the awards paid out to corporate whistleblowers.   They ask if these awards are too high and quote a Skadden partner, Mike Loucks, who thinks it is time to cap these awards.

Skadden is a corporate law firm so naturally its partners espouse a reduction in payouts to employees.   I am on the other side of the fence.  My firm represents individuals and I see what people go through when they challenge a corporation.

You have to be daring and tough to be a whistleblower.   Blowing the whistle can have an adverse impact on a person's career and surviving years of litigation is taxing.

Those people who have the guts to bring a whistleblower claim and who survive the process and win, deserve everything they get.   Reducing the awards paid out to whistleblowers is not a good idea because the tattletales will stop telling.

Also, MIke Louck of Skadden suggests that whistleblower awards should be capped at $2M.   Lets do the math.   If a whistleblower gets a $2M award, the whistleblower will only see a fraction of that amount.   First, the whistleblower will have to pay his lawyer at least half of that amount to cover the contingency fee and expenses.   That leaves $1M left.   But now taxes must be paid to the federal, state and local governments and this will leave the whistleblower with about $500,000 - about 25% of the award.    Whistleblower awards are taxable - see here.

The Facebookfiring case brought by the NLRB settled today.   In that case, American Medical Response of Connecticut fired an employee for disparaging a supervisor on Facebook.   The National Labor Relations Board (NLRB) filed a claim against American Medical for violating federal laws that protect an employees right to discuss work related matters online and elsewhere.

This case generated media attention because it was the first case that attempted to set boundries between a person's work and their private online activities.   Countries such as Germany have passed laws that prohibit employers from disciplining employees for their private online activities.

Since the NLRB case just settled, we will never know how the case would have turned out.  From the reports I have read, the case did force the company to change its policy.   The fired employee did not get her job back but the company agreed to change it policy that barred employees from criticizing the company or its supervisors on websites, blogs or in any other communication.

We recently filed a similar case in New York City against J.P. Morgan Chase.   In that case, J.P. Morgan fired our client because she blogged and wrote novels under an assumed name.   Her blogging and writing did not have any connection to her work at J.P. Morgan.   J.P. Morgan had a policy that prohibited this kind of conduct.

We sued J.P. Morgan under New York Labor Law Section 201which prohibits discrimination against employees for engaging in lawful recreational activities outside of work.   We filed the case in New York Supreme Court, but J.P. Morgan juste removed the case to federal court.   Our first appearance in court is set for March 16, 2011.   As far as we can tell, this is one of the first cases of its kind filed in New York.

In our view, an employer should not be able to regulate an employees private lawful recreational activities including a person's right to blog or engage in social networking.

Arbitration is a common method of resolving employment disputes, but there is a sleazy side to the process.   First, most employees are unwittingly duped into arbitration on their first day of employment when they sign a stack of forms and handbooks provided by Human Resources. Buried in these documents is an arbitration clause that most employees do not know about.   But even if the employee was aware of the arbitration clause, they are powerless to remove it because they must agree to arbitration in order to get the job.   So most employees do not truly enter into arbitration on a voluntary basis - instead they are either tricked or coerced into it.

But it gets worse.   Once a dispute arises, employees are required to select an arbitrator.   But employees typically know nothing about the arbitrators and there is no way to independently research an arbitrators history or prior dealings with the company. Employees are in the dark.

Employees also are not likely to select an arbitrator again so the arbitrators may feel more inclined to favor the company who is far more likely to need an arbitrator again.   Not only are employers likely to be repeat customers, they are more comfortable with the process because they decided to use arbitration in the first place and they may even develop relationships with the arbitrators.

A recent case in Texas demonstrates the inherent unfairness of the process.  In that case,  the arbitrator had tried cases before involving the company, it's lawyer and even the same company representative.   But the arbitrator did not disclose the prior relationship to the unsuspecting employee.   After the employee lost his case, he somehow found out that the arbitrator had lied about his past dealings with the company.   The arbitration was later reversed on appeal because of the arbitrator's misconduct, so the employee was lucky to get another chance. Read the post by the San Antonio Employment Blog for more details on the corrupt arbitrator.

However, the Texas case is unusual because most employees will never know about the arbitrators prior relationships.   There is no public data base that records an arbitrators prior cases for employees to review.  The employee in Texas somehow discovered the arbitrators prior relationships, but most employees will never know.  Employees are generally forced to rely on an arbitrators honesty and willingness to disclose his or her past cases and relationships with the parties, and we know from the Texas case that arbitrators cannot always be trusted.

I have handled quite a few arbitrations and some of them have taken place in smaller cities around the country.   In a few of these arbitrations, there was an almost clubby friendship between the arbitrator and the company lawyers - it was unnerving. However, many arbitrators are honest and fair and do excellent work.  The problem is that the system is closed and employees are forced to rely upon an arbitrators integrity to disclose potential conflicts of interest.   This is a flaw in the system.  If employees are required to arbitrate their cases, at a minimum there must be an easy way for employees to independently verify an arbitrator's history.

One of the most common questions we hear at our employment law firm is, "how much is my case worth?"   This question is usually impossible to answer because there are so many variables in employment cases.

One factor is the lost income incurred.  For example, if a person earned $80,000 a year and was out of work for two years, then their lost pay claim is worth approximately $160,000 plus interest and the value of lost benefits and other compensation.  Also, if the new job pays less than $80,000 annually then an additional amount must be added.    In addition to lost compensation, many cases also have the potential to recover amounts for emotional distress if the facts support it and the value will be easier to establish if employee obtained medical treatment for the distress.   It is very difficult to estimate the value of an emotional distress claim though.

Another way to gauge the value of cases is to look at the recoveries obtained in similar cases.   There are several resources that provide histories of jury verdicts and settlements.   Also many websites and blogs contain verdict and settlement information.  For example, I recently found a list of verdicts and settlements obtained by the Equal Employment Opportunity Commission posted at the Laconic Law Blog. I will post those findings in below to give you some insight into the value of certain employment cases:

WI – A settlement was reached between the EEOC and TRC Global Solutions in a retaliation suit brought on behalf of a former employee who alleged she was fired one day after she complained about discrimination.  The consent decree provides that the company will pay compensation, refrain from future retaliation, and provide anti-discrimination and retaliation training to its employees.

FL – A construction company will pay $125,000 to settle a sexual harassment suit brought on behalf of a group of female employees who alleged they were subject to a sexually hostile work environment by management.

NY – A children’s clothing retail operator agreed to pay $22,500 in settlement of a pregnancy discrimination suit brought by the EEOC on behalf of a former employee who alleged she was fired shortly after she announced she was pregnant.

KA – Cactus Grill agreed to pay $150,000 to settle a sexual harassment suit brought on behalf of a teenage female server who alleged she was sexually harassed by her manager and then discharged.

IL – A janitorial services company agreed to pay $3 million to settle a racial discrimination suit alleging that the company failed to hire and recruit African American job applicants.

MI – A Days Inn Hotel franchisee will pay $50,000 to settle a sexual harassment and retaliation suit brought on behalf of female housekeeper who alleged she was sexually assaulted by her supervisor and then retaliated against after she resisted his advances.

TX – A security services firm will pay $52,500 to settle a sex discrimination suit brought on behalf of a group of female security guards who alleged they were discriminated against based on their gender with respect to security guard posts.

NC – Tuscarora Yarns, Inc. agreed to pay $230,000 to settle a sexual harassment and retaliation suit filed by the EEOC on behalf of a female employee who alleged she was harassed by the plant manager and then retaliated against for complaining about the conduct.

OH – A cable company will pay $75,000 to settle a sex discrimination suit alleging that qualified female applicants for cable technician positions were denied hire while similarly or less qualified male applicants were hired.

MO – A restaurant in Alton will pay $75,000 to settle a sexual harassment suit brought on behalf of female employees who alleged they were subject to sexual harassment by an executive of the restaurant.

OK – Burlington Northern & Santa Fe Railway Company will pay $95,000 to settle an age discrimination suit brought by the EEOC on behalf of two male job applicants who alleged they were denied hire because of their age.

PA – A telecommunications company agreed to pay $66,000 to settle a religious harassment suit brought on behalf of Jewish employees who alleged they were subject to harassment because of their religion and that the company failed to take remedial measures after they complained.

GA – A parking company will pay $46,000 to settle a religious discrimination suit brought on behalf of a former Muslim employee who alleged she was fired for refusing to remove her hijab.

FL – Callaro’s Prime Steak & Seafood, LLC will pay $10,000 to settle a disability discrimination suit filed on behalf of a former employee with an HIV-positive family member who alleged she was forced to resign because the company regarded her as disabled.  Upon learning of the family member’s condition, the company requested the employee get tested for HIV; when the employee refused, the company reduced her work hours.

MD – Innershore Enterprises, Inc. agreed to pay $20,000 in settlement of a disability discrimination suit brought by the EEOC on behalf of a concession manager who alleged she was fired after the company learned she was HIV-positive.

LA – A national waste removal firm will pay $95,000 to settle a disability discrimination suit brought on behalf of a former truck driver who alleged he was fired because of his disability, dyslexia.  Shortly before the scheduled trial, the company admitted that the employee was indeed fired because of his disability.

The Honorable David Trager, a former federal judge in Brooklyn, passed away last week. He was one of those judges that you never forget. He was intelligent, fair, calm and had a sense of humor. It was always a pleasure to appear before him. The bar has lost a great member. Here is a nice piece on him by the Wall Street Journal's law blog.

"First they ignore you, then they laugh at you, then they fight you, then you win." - GANDHI

If you are thinking of bringing a case against your employer, you should know how these cases often play out. It can be a wild ride and you need to know what you are in for before you take that leap. After handling hundreds of employment discrimination and sexual harassment cases over the years, I have noticed that these cases all tend to follow the same pattern.

Stage One - Ignoring It

Companies often ignore our initial efforts to communicate with them about the case. We typically send a short letter to the company to see if they are interested in resolving the matter. Most of the time the companies simply ignore these letters or provide a curt denial. The one exception to this rule are cases that involve severance packages. When we contact companies about an employee who has been provided with a severance agreement, companies tend to be more willing to discuss the matter.

Stage Two - Laughing About It

I cannot tell you how many times companies have tried to laugh off the allegations made in our employment cases. The arrogance can be shocking. But let them laugh. We have handled many cases that start out with laughing denials and wind up settling with a large check or a verdict against the company. In fact, during a recent sexual harassment case, the company representatives and lawyers were actually laughing during the hearing. I would love to have seen their faces when they received the judge's decision finding in our client's favor.

Stage Three - Fighting It

Typically, after ignoring the case and then laughing it off, the company will then fight it. They will deny the allegations, blame our client or anyone else they can cast blame upon. They will try to delay the case or complicate it and they will resist turning over relevant information. The lawyers who defend companies in these cases are typically paid by the hour so they try to drag things out so they can bill more hours. For example, a deposition that should only take two hours will take seven or eight hours and the company lawyers may even try to drag it out into a two day affair. If you bring an employment case against your employer, you may have your deposition taken and during this deposition you may be accused of being incompetent, dishonest, immoral and generally unfit for employment. You may also have to deal with requests for information that have no connection to your case. For example, I recently had to fend off a request for dental records in an employment discrimination case. Our client's dental records obviously had nothing to do with the case but the company asked for them anyway just to be annoying. These are just a few examples of what goes on in these cases. Once these cases get into litigation, they tend to be long, nasty, expensive and unpleasant.

Stage 4 - You Win

If you can survive the first three stages of an employment case, you hopefully will experience the joy of winning. But, understand that approximately 95% of these cases are resolved through settlement and you are not likely to feel entirely vindicated. All settlements require compromise and that means getting less than you deserve. So do not plan on feeling like you won. Instead, you will hopefully feel like a reasonable solution was reached in which both sides compromised their positions.

Did you know that 84% of our countries wealth is controlled by the richest 20% of Americans? Some estimate that the concentration of wealth is even worse at the top levels with studies showing that the richest 1% own 50% of America's wealth. Economists say that the concentration of wealth has not reached this level until just before the great depression. It is said that a consumer driven economy like ours cannot function if most the wealth is hoarded by a small fraction of the population. For more information wealth concentration see Americans Vastly Underestimate Wealth Inequality, Support 'More Equal Distribution Of Wealth': Study and Wealth Disparities in U.S. Approaching 1920s Levels.

Our feeble employment laws share some of the blame for the concentration of wealth. For example, look at the anemic Fair Labor Standards Act which is supposed to require the payment of overtime and minimum wage to workers. A recent study of 4,387 low wage workers in New York, Los Angeles and Chicago found that 76 percent of them were not provided with overtime pay and 25 percent were not minimum wage. It is estimated that workers in these three cities lose $56.4 million in lost wages every week. See Working Without Laws. Guess who keeps that $56.4 million?

When it comes to paying our workers, the wealthy business owners are breaking the law and keeping money owed to workers. This contributes to the concentration of wealth. Companies know they can withhold overtime pay until they are sued. They also know that the odds of getting caught are slim and even if they are caught, they just have to pay the wages at that point and often only a fraction of what is due.

The Obama administration enhanced the federal Department of Labor's budget to step up the enforcement of wage theft laws. But Obama is spending more to invade Afghanistan or save some mega bank from its own stupidity. More is needed to turn the tide here at home and transfer wealth back to consumers so they spend money and invigorate the economy.

In my skeptical view, the small fraction of the population that controls the wealth is using that wealth to effectively control the political process to serve their narrow interests. A political solution is not likely. Maybe another great depression is needed to change the status quo because the hoarders of wealth will not let it go any other way.

New York just passed an employee rights law that protects nannies and other domestic workers. It is the first of its kind. It protects nannies, caregivers, housekeepers and other in-home workers from sexual harssment, race discrimination and most all other forms of discrimination. It also gives them the right to overtime pay and the right to one day off per week. There is a detailed explanation of this law at Littlerlaw.com by Steven A. Fuchs.

Before this law passed, many domestic workers were unprotected because the employment discrimination and overtime pay laws only applied to larger employers. Small family operations were not covered, this left domestic workers unprotected. The New York City Administrative Code, for example, does not apply to any operation that has less than four employees.

In the past, at our law firm, we would hear stories of sexual harassment and other employer abuses involving domestic workers, but there was nothing we could do other than suggest that they call the police. In one case I remember, a domestic worker had photographs of her boss, a wealthy designer, walking around the house in the nude and engaged in highly illegal workplace behavior. Where is that case now? Wow, too bad this new law did not exist then. Now there is a solid law that protects against this kind of abuse.

Also, I think that domestic workers are more vulnerable to sexual harassment and abuse because they often work in close quarters with their employer. If problems develop, there is no one to turn to for help. There is no human resources department and before this law, there was no protection other than the criminal laws. This is a much needed new law.

Germany plans to pass a law that prevents employers from using Facebook profiles in hiring employees. See the article in today's New York Times. The law would apply to all social networking sites, but it would not extend to professional networking sites like Linkedin. Germany wants to protect the privacy of it's citizens social activity. Professional activity, on the other hand, is fair game. This makes sense. A person's private social life, in most cases, should be kept separate from work.

The same German law also prohibits employers from secretly videotaping employees at work.

Germany is protecting its workforce from unreasonable privacy intrusions. America should do the same.

Why should we care what Germany does? One reason to care is that Germany is doing a better job managing its economy. It has put the recession behind it. See the article: Germany A Rare Model of Recovery in Global Recession.

Does anyone think there is a connection between treating people well and strong economic performance?

In America, by contrast, there are no limits on how an employer can use Facebook information. Countless people in America have been fired and not hired on account of their Facebook profiles. The American workforce, no doubt, also feels vulnerable and less protected. Is this good for our country?

Germany wants its workforce to feel comfortable but we don't care about that, we, as a country, are focused on chasing people through the caves of Afghanistan, tea parties and whether a mosque ought be near Ground Zero in New York City. We just don't get it.

This summer I spent about a month in the Idaho pan handle region and got to know a guy named Saw Dust Pete. The upper tip of Idaho is just below Canada and wedged between Montana and Washington State. It is one of the most pristine parts of the lower 48 states. The wilderness attracts all kinds of characters including Saw Dust Pete who moved here from Stowe, Vermont about 20 years ago and never looked back.

Idaho is like Vermont on crack. Everything here is richer, bigger, more beautiful and some is still the way it looked when Lewis and Clark ventured through. The people here are different also. Many do not own computers or watch TV. Instead of twittering or surfing the internet, they are out in the wilderness fishing, hunting, skiing, snow shoeing, snowmobiling or engaging in a dozen other outdoor activities. Pete does not tweet, but he knows how to hunt elk.

Pete explained how he hunts elk the other day and I thought that his approach was brilliant. I know absolutely nothing about elk or hunting, but I loved what I heard and thought that his approach to elk hunting demonstrates the keys to succeeding in just about anything in life, especially litigating.

First, Pete understands that elk rely on their sense of smell, not sight, to detect danger. Since smell is everything and odors are transported by wind, Pete always moves upwind and never downwind. Most elk hunters, apparently, do not realize how important this is and many blunder along letting their human orders give them away. Many hunters will never see an elk for this reason alone.

Second, Pete knows that there are only two times in a day to hunt elk, the evening and morning. This is because elk feed at night and in the morning and they are distracted then and easier to approach undetected. During the day, the elk herds bed down in the woods and they are impossible to sneak up on during this time.

Third, elk need three things: water, food and cover. Therefore elk like places that are near rivers or lakes, have lots of grass and shrub available and thick brush or forest to bed down in and hide during the day.

Finally, since elk are very wary creatures, the best time to hunt them is when they are mating and letting their sex drive overrun their better sense. According to Pete, elk have only one thing on their mind during mating season and they are much easier to locate and approach for a good shot. Apparently elk are also as stupid as humans when it comes to sex.

Pete understands the fundamentals and he scrupulously uses this information to guide his actions. Fist, he scouts out areas that are elk friendly such as valleys with a river or stream, a food source and thick brush and he looks for elk tracks. Once he finds a few elk friendly locations, he will go out during mating season, in the early morning or evening, and approach the locations upwind so the elk do not know he is present. By operating on these basic fundamentals, he is one of the most successful elk hunters in his region. Most elk hunters ignore at least one fundamental and that will prevent a successful hunt.

I have never hunted elk but, I have tried a lot of cases and have won most of them by the following the basics that I learned from an old master, William Hobbs of Los Angeles. Hobb was like Pete, he said you need to understand the fundamentals and let that guide you. In a trial, you need a story that is compelling, simple, and believable. You need credible witnesses and you cannot act like a jerk during the trial. Also, you must admit the bad facts right away and turn the warts into beauty marks if possible. Those are some of the fundamentals and if followed, your odds of winning are much higher.

Many lawyers make complicated arguments that seem far fetched and they try to conceal their bad facts and wind up getting caught and looking sleazy. Many lawyers also object a lot like the actors do on TV but they irritate the jury. In fact, I think I have won many trials only because my opponents broke the rules and I followed them. Some my clients did not deserve to win, but they won only because the other side had a lawyer who did not follow the basics. In my opinion, the ability to understand and follow the basic rules can set you apart from the competition.

I just stumbled upon a great employment law blog called WorkMatters. I found it by following Betsy Munnell on twitter who referenced another blog that referenced WorkMatters. Anyway, WorkMatters is written by Michael Maslanka from Texas.

Michael wrote a nice post recently about firing employees. He had been reading "The Aneid" by Virgil - one of those ancient Greek books that almost no one reads anymore. The lesson from Virgil that Michael shares in his blog post is that one should not be wimpy when firing employees.

In "The Aneid," the main character is wimpy about breaking up with a powerful woman he hooked up with in Carthage. Instead of dealing directly with the break up, he delays, misleads, and seeks counsel from others. The woman eventually figures out that he is planning on leaving her and things get ugly and this ultimately leads to a war and endless misery. Had the suitor been direct about his plans, then the war and misery all could have been avoided.

This type of wimpy conduct exists today in the workplace and the lesson from Virgil still apply. Be open and direct about your intentions and this will reduce problems. As an employment lawyer, I hear different versions of this story on a regular basis. Employees, like the jilted lover in Aenid, often are forced to endure uncertainty and humiliation because management does not have the guts to be open and direct. This wimpy conduct is pervasive and it breeds anger and ill will at work. So many people come to our law firm because their pride has been damaged and they want revenge for how they were treated.

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.

Do you ever find yourself performing work "off the clock" simply because your employer tells you that you must? You are not alone. Off the clock work is as American as apple pie. Fast food restaurants often require managers to perform scheduling and "shift change" activities such as register counts off the clock following the conclusion of a shift. Here's the catch - 10 minutes a day for a year adds up. If you believe that you are performing tasks without compensation, you should contact us for a free screening.

The Fair Labor Standards Act, and the Portal to Portal Act which followed, set limitations on "preliminary or postliminary activities" which are compensable under the FLSA. The Supreme Court has addressed this issue many times, most recently in 2005 in IBP v. Alvarez and Tum v. Barber Foods. In these cases, the Court addressed the question of whether or not "donning and doffing" equipment prior to and after the "principal activity" of an employee's work is compensable time. The Court held that donning and doffing gear that is "integral and indispensable" to employees' work is a "principal activity" under the FLSA, and that the time spent walking to and from the worksite after donning and before doffing, as well as the time spent waiting to doff, are compensable under the FLSA.

More often than not, employees who are required to wear heavy protective gear - HAZMAT employees and production line employees, for instance - are required to punch in after suiting up and getting to work. If you are one of these employees, find a lawyer and advocate for payment of your unpaid wages. If you are working a 40 hour week, the uncompensated "donning and doffing" activities may be compensated at overtime rates.

Employment contracts have limited use, are often meaningless and can damage moral. Here is a quote from the Signals v. Noise blog in which the people at 37 Signals question the need for employment agreements:

"The [employment] contract is about five pages. It outlines some basic responsibilities we have to the employee and the employee has to the company. Starting salary, an overview of benefits, vacation time, confidentiality, and general expectations on both sides. But that’s really only a paragraph or two. Everything else is legal-cover-your-ass-speak. Like most contracts, it’s basically a big “I don’t trust you and you don’t trust me” document. What a terrible way to welcome someone to the team."

The guys at 37 Signals make a good point. What bother with an employment agreement anyway. What benefit does an employment agreement provide to the company or the employee? Typically, not much. Here is why.

First, all employees are presumed to be at-will. All at-will employees can be fired at any time and for any reason. At-will employees have virtually no rights. But, it is a two way street and at-will employees are free to quit any time and for any reason. Basically, the at-will doctrine is a lot like dating. You can break up and leave at any time and for any reason with no strings attached. You just pack your bags and go. Easy, but the downside is the lack of commitment.

Most employment contracts do not change the at-will doctrine and simply confirm that the at-will doctrine controls. So why bother with an employment contract if it does not change the fundamentals? In many cases, there is no need for an employment agreement. However, an employment agreement is useful in the follow situations:

1. Remove the At-Will Doctrine.
The parties want to remove themselves from the employment at-will doctrine. You can alter the employment at-will doctrine easily. All you need to do is provide that the employment is not at-will and instead is for a set time period and define the circumstances that provide cause to end the employment relationship.

2. Set Out Complicated Compensation Terms
An employment agreement is useful if the parties wish to add benefits such as stock options, bonuses, equity in the company, commissions or any other creative or complex compensation terms.

3. Non-Competition or Non-Solicitation
An employment agreement is necessary to add a non-competition or non-solicitation provision.

4. Provide a Set Severance Agreement
Typically, high level executives require employment agreements to set out, among other things, a set severance payment plan.

Late last year, our firm received a telephone call from an administrator employed by a hospital in New York State. The call was particularly memorable because the caller was frantically racing to finish the case screening - she had to return to her desk within 10 minutes or her absence would be noticed and dispparoved of by her supervisors. She told me that she was expected to work around the clock, including through her lunch and rest breaks, without any overtime pay. I asked her how many others were not receiving overtime and she seemed puzzled; nobody was getting overtime, she told me. We did a quick calculation and determined that over 100 employees were owed about $20,000 each. She was terrified of retaliation from her employer, and never called back after our intial call.

I've thought of this caller often - she was truly terrified of her employer - and wondered why we don't get more calls from health care workers. Apparently, it is not for a lack of wage and hour violations. The New York State Department of Labor recently launched a wage and hour enforcement intiative aimed at the health care industry, noting that nearly 65% of health care employers in New York who had been investigated in the last five years were not in compliance with federal wage and hour laws. If this is the case, the restaurant industry may have stiff competition as the most FLSA noncompliant industry.

This week, 37 million Americans will fill out NCAA tournament brackets. That's an incredible number. Today, President Obama filled out his bracket in a televised event that later made headlines across the country. The popularity of the NCAA tournament is undeniable.

However, unlike most other major sporting events, the NCAA tournament is aired smack in the middle of the work day and is available via streaming video on the internet. Needless to say, the temptation to watch the tournament on your workplace computer is now much harder to resist considering how easy it is to pull it off. Some commentators have gone so far as to suggest that the US economy is impacted by the decline in worker productivity which results from tournament fans tuning in during work hours. Doesn't seem like a stretch.

Can you be fired for watching the tournament at work? Of course. In New York, and in most states, employees can be fired for any reason or no reason at all, provided that unlawful discrimination and/or retaliation is not involved.

The better question is how to safely avoid detection while watching in the workplace. This is more puzzling. The challenge is twofold: (1) the tournament is long, so there is more opportunity for detection, and (2) watching a sporting event is not easy to conceal. My advice - watch on your computer, mute the volume and avoid excessive celebration. If you get caught, tell the truth and don't call a lawyer if you get fired because you're toast.

Better yet, just take a day off.

One of the biggest obstacles to negotiating severance pay is workplace misconduct. Typically, if misconduct is discovered by your employer, even if you are being let go for reasons unrelated to your performance, you will not be eligible for severance pay.

If you failed to pass on a benefit to your employer (i.e. if you pocketed or diverted company funds) or if you competed with your employer during your employment, you should not expect any severance pay. In fact, you should find a lawyer, because you could be sued by your employer for breaching your fiduciary duty. Moreover, if you were repeatedly disloyal throughout your employment, your employer has the right to seek disgorgement of compensation, including salary and bonus, for the periods during which you were disloyal. This rule, known as the faithless servant doctrine, is extremely harsh. It extends to almost any breach of an employee's fiduciary duty, including mere breaches of confidentiality, and does not require proof of harm to one's employer. Also, if you are paid by your employer in installments which are not task based, the court will not distinguish between which portions of your compensation were paid in violation of the faithless servant doctrine - you will have to pay all of your salary back for the period of disloyalty.

If you have been disloyal to your employer, and if your employer is aware of it, being denied severance pay may be the least of your worries. Many employees assume that competing with one's employer is merely terminable but not unlawful. The average employee misundertands the risks of unfaithfulness - don't fall into the trap.

Are you employed in Florida and wondering why you aren't getting overtime pay? Get in line. Florida led the nation in FLSA lawsuits in 2009 with over 2000 filed. That's 37 wage and hour lawsuits a week in the sunshine state. There's a number of different theories about why so many FLSA lawsuits are filed in Florida, but I haven't found any of them to be convincing. My theory is that since there is no state wage recovery statute in Florida the only remedy for employees deprived of wages is the federal court and the FLSA.

I recently spoke with another plaintiffs' side employment lawyer practicing in Florida about the increase in FLSA lawsuits in his district and he groaned. As it turns out, the federal bench in Florida has grown weary of these lawsuits and perceives most of them to be abusive. In fact, the Middle District of Florida requires all FLSA litigants to answer judicial interrogatories immediately following the filing of a lawsuit in an effort to quickly resolve these cases.

Another possible reason for the FLSA litigation explosition in Florida - timeshares sales. In a January 25, 2007 opinion letter, the Department of Labor determined that on-property timeshare salespeople are nonexempt employees under the FLSA and are entitled to overtime. There are thousands of timeshares sales employees in Florida who may have only recently become aware of their entitlement to overtime.

If you are one of the Florida residents cheated out of overtime, call us for a free screening to determine your rights.

Are employees in small companies protected by the FLSA and therefore entitled to overtime pay? Most busineses, even small businesses, are required to comply with the FLSA. The FLSA protects employees working for an "enterprise" which employes more than 2 people and makes over $500,000 in gross annual revenue. This brings most small compaines within its protection, including small mom and pop restaurants, grocery stores and pharmacies.

Lawsuits against smaller companies for unpaid overtime are on the rise. See this article for examples of this trend. Some smaller companies simply can't afford to pay employees overtime and willfully violate the law. Other companies are ignorant of the law and negligently misclassify workers. The former are subject to greater penalties for willful violations, but attorneys' fees can be assessed against either category of violator. If you are an employee at a small company and think you are being deprived of overtime compensation, you should call for a free screening to determine your rights.

This is a very hard question to answer. I usually ask a few questions before providing a response - do you want to? Why? The first thing you need to do is look in the mirror and ask why you want to leave. If you can convince yourself (or maybe your spouse or another trusted person in your life) that you are not being treated fairly and need to leave, then you should start to plan a departure. Don't make a hasty decision. With few exceptions, you can't take back a resignation, and if you have access to sensitive company information, your departure may be hastened if your employer perceives any threat of disloyalty.

Practically speaking, the problem with resigning is that the law does not encourage it. With few exceptions, a resignation means forfeiting your right to unemployment, recovery for having to leave the workplace due to harassing behavior, entitlement to any unpaid bonus compensation (even earned) and/or a severance payment. Why are people forced to endure unfairness? If I had a dollar for every time I answered this question, I'd be a rich man. Public policy encourages employment, even if this creates hardship for some.

If you must leave the workplace, consult with an attorney about the best way to go about it. If you are leaving due to workplace hostility, you will need to know (1) what you are allowed to remove from the workplace, (2) what you should say/do on your way out and (3) what type of treatment and compensation you can expect from your employer after you resign.

My seven month old daughter hardly every blinks. My wife and I noticed this at some point in the fall and debated the origin and seriousness of the condition. In my uninformed opinion, low frequency blinking is a genetic characteristic. My wife was unconvinced and had her checked out by our pediatrician, who said it wasn't a problem (but didn't elaborate).

Why do babies blink less than adults? As it turns out, a number of factors contribute to low frequency blinking in babies, including less stress and more sleep than adults (go figure).

I was not entirely wrong. There is some evidence to suggest that low frequency blinking is an inherited trait. So could an airline require genetic testing for pilot candidates in the hopes of weeding out high frequency blinkers and identifying low frequency blinkers? If the condition is genetic, probably not. In the last 10 years, the federal government, and many local governments, have passed legislation prohibiting discrimination in employment based on genetic predisposition.

Too far fetched? Think again. Disability discrimination claims have originated this way. In fact, the Burlington Northern Santa Fe Railroad was sued by the EEOC for requiring that their employees who file claims for work-related carpal tunnel syndrome undergo genetic testing for a genetic deletion that has been proposed to make a person more susceptible to the condition. Before it went to trial, the Burlington Northern Santa Fe Railroad settled the lawsuit and stopped requiring genetic testing for their employees.

We had an inquiry today from a commercial truck driver. For two years, he made interstate deliveries to a single retail store that sold the goods. The delivery required a 14-hour roundtrip that he made five days a week - for $220 dollars a day. I nearly hit the floor.

It's not easy being a commercial truck driver, and the overtime laws don't help matters at all. Basically, if you are a delivery driver and ship goods in interstate commerce, you are not entitled to overtime. In fact, if you are distributing goods from a warehouse to outlets in the same state, but the goods themselves originated out of state, you are also not entitled to overtime.

Based on my experience, there are only three situations where commercial drivers may be able to demonstrate an entitlement to overtime under the FLSA. First, if your truck has a gross vehicle weight of less than 10,000 pounds, you will be eligible for overtime whether or not you haul goods in interstate commerce. Second, if the goods you haul are manufactured and distributed in a single state, you will be eligible for overtime. This is an uncommon occurrence, but not totally unforeseeable, especially in large states such as California. Third, if you deliver out of state goods, regardless of the size of your haul, from an intermediate in-state storage point and distribute the goods to local retail outlets without a "fixed and persisting transportation intent" to deliver the goods to identifiable retail outlets from the time of out-of-state shipment, you will qualify for overtime. In other words, if you deliver out-of-state goods to an in-state storage warehouse and then distribute the goods to a local retailer, you will qualify for overtime if no fixed destination existed from the out-of-state origin of the goods. For example, if you are a parts runner for an automobile sales franchise that requests replacement parts and sends you to retrieve them from a local warehouse, you will qualify for overtime compensation even if the parts originated from out-of-state and they were not intended for any dealership in particular.

Whew.

If you are a commercial driver and suspect you are getting the shaft, call for a free screening. The law is still very unclear and employers will likely exploit the ambiguity.

I frequently receive calls from potential clients who have been fired after reporting a supervisor's affair with a subordinate. Is it illegal to fire an employee for reporting a supervisor's affair with a subordinate? The short answer: probably not. The EEOC does not consider isolated incidents of "sexual favoritism" to be violations of Title VII. However, coerced sexual conduct by a supervisor may constitute quid pro quo harassment, and "widespread favortism" may give rise to a hostile work environment claim. What is "widespread favoritism"? Generally, it means more than one affair in the workplace resulting in greater opportunities for paramours. The EEOC, and many state and federal courts, have determined that "widespread favoritism" communicates to all female employees that they can obtain job benefits only by acquiescing in sexual conduct. I represented an employee who was fired for reporting his supervisor's affair. In a complete coincidence, a year later, I was contacted by the paramour seeking to sue the same employee for defamation. Workplace affairs are a nasty mess. Nobody should be forced to work for someone who promotes paramours, but if you must, play the game long enough to find another job. If you feel truly humiliated and degraded by a culture of affairs and meritless advancement, call a lawyer. If you are having an affair with a subordinate, do yourself and your employees a favor - stop.

An interesting ruling out of the Third Circuit this past week clarified the boundaries of the FLSA's "learned professional" exemption in a decision involving the classification of pilots. The opinion follows a confusing non-opinion opinion issued by the U.S. Department of Labor which articulated a "nonenforcement position" with respect to the exempt status of pilots. The Third Circuit Court of Appeals in Philadelphia in Michael G. Pignataro; Thompson R. Chase vs. Port Authority of New York and New Jersey affirmed a New Jersey federal judge’s decision granting summary judgment in favor of the pilots holding that they were not exempt employees under the professional exemption. Since the pilots’ knowledge and skills were acquired through experience and supervised training as opposed to intellectual, academic instruction, they did not qualify as "learned professionals." According to the DOL, recognized "professional" occupations include law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, pharmacy, various types of physical, chemical, and biological sciences. A bit of intellectual hogwash? Maybe. But if you're a pilot and now $87,000 richer following reimbursement of unpaid overtime, it may not matter.

And how are theologians paid, anyway? When exactly is a theologian off the clock? Sounds like a tough case for an employer.

Yes, you can be fired for wearing a Yankee hat, especially if your boss likes the Red Sox.

That is very unfair of course, but it is true.   An employee can be fired for any reason or no reason – even for wearing a Yankee hat.   There is no rule of fairness and cause is not needed.   People call our law firm everyday with crazy stories like that.   People seem to think that an employer needs cause to fire them.   Cause is not needed.  This is an “at-will” nation and you can lose your job for any reason or no reason.  

I just got off the phone with a man who was fired for an arbitrary reason.   It was unfair and he loved his job, but there was nothing illegal about his termination.  

  If anyone reading this is an employment lawyer, keep on reading because this may pertain directly to you.   A judge ruled earlier this month that an employee’s email sent from his work email account to his private lawyer was confidential and protected by the attorney/client privilege.  The case was first reported by the Legal Times: District Court Finds Personal E-Mail From Work Still Privileged, by Tresa Baldas. 

Here are the key factors that create the right of privacy:

- The employer does not ban personal use of work email

- The employee was not aware that his employer regularly saved and accessed his emails

- Due to the above circumstances, the employee had a reasonable expectation of privacy and therefore he did not waive the attorney/client privilege by sending emails to his personal lawyer from his work email account.

The case is entitled  Convertino v. United States DOJ, 2009 U.S. Dist. LEXIS 115050 (D. D.C. December 10, 2009) and here is the relevant part of the ruling courtesy of Fourthamendment.com:

Mr. Tukel reasonably expected his e-mails with his personal attorney to remain confidential. (Id.) Case law in this jurisdiction is not directly on point but New York gives the Court some direction. "[T]he question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable." In re Asia Global Crossing, Ltd., 322 B.R. 247, 258 (S.D.N.Y. 2005). In order for documents sent through e-mail to be protected by the attorney-client privilege there must be a subjective expectation of confidentiality that is found to be objectively reasonable. See id. at 257 (outlining four factors to determine reasonableness; "(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?"). Each case should be given an individualized look to see if the party requesting the protection of the privilege was reasonable in its actions. See Curto v. Med. World Commc'ns, Inc., No. 03-CV-6327, 2006 WL 1318387, *6 (E.D.N.Y. May 15, 2006); see also O'Connor v. Ortega, 480 U.S. 709, 718 (1987) ("Given the great variety of work environments, ... the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.").

On the facts of this case, Mr. Tukel's expectation of privacy was reasonable. The DOJ maintains a policy that does not ban personal use of the company e-mail. Although the DOJ does have access to personal e-mails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving e-mails sent from his account. (See Tukel's Mot. and Mem. of Law in Opp'n to Pl.'s Mot. to Compel at 4; see also Pl.'s Opp'n to Non-Party Tukel's Mot. to Intervene at 5-6.) Because his expectations were reasonable, Mr. Tukel's private e-mails will remain protected by the attorney-client privilege.

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.

Molly DiBianca, author of the Delaware Employment Law Blog, created a list of the Top 100 Employment Law Blogs. This is a great resource for anyone interested in employment law. We are happy that this blog was included in that list. The blogosphere is full of good employment law blogs and this list is a good place to start. I subscribe to many of the blogs listed including The Delaware Employment Law Blog, it is a good resource.

THE 8 REASONS WHY COMPANY’S OFFER SEVERANCE PAY

Many companies consider the following factors when creating a severance package for a departing executive. Each case is unique and there may be other factors at play in your situation.

1. SMOOTH TRANSITION - Company’s want to focus on their business and not get distracted by employment disputes. Severance packages are provided to facilitate a smooth transition and avoid disputes. There is no legal requirement to provide a severance package.

2. REASON FOR THE DISMISSAL – If the termination is the result of an economic slow down, reorganization or other circumstance beyond the executive’s control, the severance package may be more generous. If the dismissal is the result of poor or marginal performance, the package will be minimal or non-existent.

3. AGE - Older and more senior executives often require more time to find a comparable position. Therefore some companies provide a slightly larger severance payment for older executives. Also, larger severance offers are sometimes designed to deter age discrimination suits.

4. FAMILY - There was a time when an executive’s family situation would be considered. If an executive had a large dependent family, some companies would factor that into the severance calculation.

5. POSITION - Companies feel a greater obligation to offer generous severance packages to executives holding high level positions.

6. SENIORITY - Most severance packages are based on a formula that credits the executive for their years of service. The amount of the severance package is often directly linked to the number of years that the executive worked for the company.

7. FINANCIAL HEALTH OF THE COMPANY – There is no hard and fast rule here. Sometimes the largest and healthiest companies are the most stingy – [that is why they are rich]. Some smaller and less profitable companies, on the other hand, will provide very generous severance packages. However, large and established companies tend to provide better severance packages.

8. LEVERAGE - The key to obtaining an excellent severance package is leverage. If the executive has strong contacts or relationships that are valuable to the company, the company may offer a large severance package to preserve a strong relationship with the executive. Also, if the executive has information that is valuable to the company or which could be harmful if released to the public, the company will pay a premium for confidentiality. Finally, if the company discriminated against the executive or otherwise violated their rights, the company may enhance the severance package to avoid litigation.

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.

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.

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.

The Supreme Court is expected to hear the case of Sprint/United Management Co. v. Mendelsohn on December 3. This is an age discrimination case in which the plaintiff, Ellen Mendelsohn, was laid off. At trial, Mendelsohn wanted to call five former employees as witnesses, to testify that they, too, had been laid off as a result of age discrimination. The trial judge didn’t let them testify, because they weren’t in Mendelsohn’s department and weren’t laid off by her supervisor. Sprint won at trial, and Mendelsohn appealed.

The federal Court of Appeals for the 10th Circuit ruled in Mendelsohn’s favor, finding that the testimony was relevant and should have been presented at trial. The Court of Appeals stated that this testimony might help Mendelsohn prove that there was a company-wide policy of illegally considering age when deciding who should be laid off.

Sprint then appealed to the Supreme Court. The Court agreed to hear the case because the Circuit Courts are split on whether this type of testimony (called “me too” evidence) is admissible in a discrimination case.

This type of evidence is very probative because it helps reveal the motive behind employment decisions, which can be very difficult for plaintiffs to prove at trial unless a company decision-maker was walking around calling people names.

This is a big case because the issue comes up so often. One of the most significant pretrial battles in many employment lawsuits is whether to admit testimony from other employees — and, if the testimony will be admitted, how much they’ll be allowed to say. Both sides are willing to spend time and money fighting over this because it can determine who wins at trial. The Supreme Court’s decision could well shape the outcome of federal discrimination lawsuits for years to come.

Executive recruiters in New York and around the country are using Google to find “digital dirt” on job candidates. Jared Flesher wrote an informative article for the Wall Street Journal’s executive career site (CareerJournal.com) on how to clean up your “digital dirt.” Mr. Flesher’s article cited a survey of executive recruiters finding that 75% of them use search engines to check on job candidates. Chris Russell’s blog, Secrets of the Job Hunt has a new post with good tips on managing your digital information.

If negative information is out there, you need to do something about it. If there is negative information about you that is false, you need to ask the person or company who posted it to take it down. If they refuse and it is keeping you from getting a job, you can take legal action to remove it.

Forbes Magazine just listed some of the worst jobs to have for the 21st Century. Here are the top 10:

1. News Analysts, Reporters and Correspondents
2. Economists
3. Announcers
4. Travel Agents
5. Jewelers and Precious Stone and Metal Workers
6. Farmers and Ranchers
7. Federal Employees
8. Computer Programmers
9. Insurance Agents
10. Fisherman and Fishing Boat Operators

Read the full article here to hear why these jobs are dead ends. The good news is that if you have one of these jobs, you are most likely an employee at will and therefore you are free to leave whenever you feel like it. This is America and you can quit your job any time just as your employer is free to fire you whenever it wants.

It never ceases to amaze me how far my opposition will go to try to intimidate and/or embarrass my client in an effort to force him/her to settle. No matter how often I warn my clients about what happens during litigation, they are always shocked at what comes out. For instance, I have negotiated severance agreements for clients who feel they have been discriminated against based on their age or their gender. It would be extremely difficult to argue that extra-marital affairs (not involving intra-office relationships) or other unrelated but potentially detrimental information would be relevant. However, often times, my opposition will call me up and in a not so subtle way inform me that these issues will be raised at the deposition-should the case not settle. Although I would strongly oppose their efforts to obtain such irrelevant information, the damage is often times done.

By way of example, if anyone has been following the Anucha Browne Sanders v. Isiah Thomas trial, I'm sure you have already heard the idle threats regarding Ms. Browne Sanders' alleged tax fraud issues. These tactics are merely created to embarrass and force the plaintiff to settle before the case gets to a jury which could potentially drag the New York Knicks' name into the mud.

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.

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.

Controversy swirls around the commencement address at Boston College. The speaker, Representative Edward Markey (D-MA), told the graduates, "“You must find some ways to use your training to comfort the afflicted, and afflict the comfortable.” The Wall Street Journal took issue with this advice. It is easy to see why. The comfortable want to stay comfortable and they do not want a bunch of young lawyers trying to knock them off their cozy perches.

I think Representative Markey is right. At our law firm, we focus on helping the victims of employment discrimination. Our cases almost always pit the afflicted against the comfortable. The comfortable manager who sexually harasses a subordinate or refuses to promote women into hirer ranks. That kind of thing. Our law firm has sued some of the largest companies in the world for employment discrimination. These mega companies have their mega law firms in tow and they typically try to wear us down with delay tactics and the like. Our entire operation is focused on overcoming the delaying tactics employed by defense lawyers. Not only do many lawyers focus on representing the comfortable, but, in my view, some of them abuse the legal system to some degree in trying to wear down the afflicted. There are also many ethical and very talented defense lawyers and I admire them. The world needs more lawyers who want to help the afflicted - the afflicted need legal help too but sadly few can afford a good lawyer. We also need to think about changing the way lawyers bill clients to increase access to legal services.

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.

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.

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.

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.