New York Employment Lawyer Blog

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.