New York Employment Lawyer Blog

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

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

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

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

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

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

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

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

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.