New York Employment Lawyer Blog

A New York City judge has held that two beauty salon workers can sue their employer for retaliating against them after they complained about overtime pay. The Court held that prior rulings to the contrary were wrong. See the article entitled NY Court Permits Retaliation Action Based on Overtime. In a separate federal case back in 2007, Higueros v. New York State Catholic Health Plan, 526 F. Supp. 2d 342 (SDNY), the court expressed the same view that retaliation claims under the NY Labor Code are viable. While it possible that the cases could be reversed, it seems unlikely. I suspect that retaliation claims will be allowed in overtime pay cases in NY. It only makes sense that an employee should be able to sue if they are retaliated against for requesting overtime pay. Moreover, retaliation laws are being strengthened and expanded as the courts see these laws as a vital part of the overall employment law framework.

At our law firm, we frequently talk to employees who are upset because their employers refuse to provide overtime pay. Most everyone we talk to is afraid of retaliation as most people depend on their jobs to survive. They cannot risk getting fired for asking about overtime pay. Fear of retaliation is probably one of the reasons that overtime pay violations are so widespread - people are afraid to complain. Wage violations are so common that the Obama administration has made overtime pay one of its causes and increased the staff at the Department of Labor.

This ruling in NY allowing retaliation claims in overtime cases is long overdue and hopefully the appellate courts will agree.

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Nursing assistants, licensed practical nurses, janitors and cooks “are particularly vulnerable to wage violations,” said an official for the U.S. Department of Labor. As reported in the NY Times, the U.S. Department of Labor is cracking down on what it perceives as an industry wide practice of wage violations in the health care industry. See the article, Pay Practices in Health Care are Investigated. The article cites several recent settlements such as 1.7M for 4000 health care workers in St. Louis, 2.7M for employees of Partners Health Care System in Boston, and 7.25M for hundreds of registered nurses who worked for Kaiser Permanente in California.

Our law firm just filed a class action against Cigna for its practice of not paying overtime wages to disability clinical case managers. It our contention that these employees are entitled to overtime pay. An article on our case was published yesterday in Law360, a newswire for business lawyers.

Sex discrimination occurs when someone is treated differently on account of their gender. Sexual harassment is a form of sex discrimination. Recent reports on the declining number of women on Wall Street show that women are being treated differently, they are being replaced by men. As reported on Fin.com, Casualties of the Crisis: Stress, Sexism and Layoffs Thin the Ranks of Women on Wall Street.

In the past 10 years, 141,000 women, 2.6% of female workers in finance, disappeared from the industry, while the ranks of men in the industry grew by 389,000, or 9.6%, according to a review of data provided by the federal Bureau of Labor Statistics. The discrepancy is particularly pronounced at brokerages, investment banks and asset management companies.

Ironically, while Wall Street has become more and more of a boys club, the number of sex discrimination and sex harassment charges has dropped. According to the EEOC, "the number of sexual harassment charges in finance, insurance and real estate has decreased by roughly half from 2005 to 2009 -- from 287 to 119." See Sex Harassment Still a Problem in Finance, Despite the Numbers. Why is that woman have stopped complaining while their jobs are being taken by men? New York Post Gossip Columnist Cindy Adams explained the reason recently when she said that women need to keep quiet and "learn to deal with it."

With good jobs hard to find, it may be that woman are more reluctant than ever to complain. At my employment law firm, we get less calls now about sex harassment and sex discrimination. Many of the women we speak to have accepted Cindy Adams advice, they have learned to deal with it. They accept that sex harassment and sex discrimination are part of life on Wall Street and they also know that complaints will only ruin their careers and not fix the problem.

The system frequently works against those who try to use it. I cannot tell you how many human resource people I have deposed or interviewed in cases with clear evidence of sex discrimination or sex harassment and the HR person says that their investigation found no signs of misconduct. Their investigations are designed to find no such evidence. If you get close to the process, you can see that the system is a really a joke. It is a rigged system designed to protect the company, not the employee. Does anyone really think that an investment firm is going to create a system designed to harm itself in favor of an employee?

Women cannot be blamed for taking Cindy Adam's advice. They are not being complacent. They just accept reality - they are not well protected by the law. The laws designed to protect women don't work. They need to be fixed. If they worked, Cindy Adams would not be telling women to just deal with it and we would not see statistics showing stark gender bias on Wall Street. Men discriminate against women on Wall Street because they can. Real change will not occur until laws with teeth are created.

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.

Sex discrimination on Wall Street is on the rise. Wall Street is a boys club and shows no signs of changing. The statistics show that the number of woman working on wall street dropped by 16% over the past decade, while the number of men on Wall Street increased by 7%. However, the number of women in the overall national workforce increased by 4% over the same period and number of men joining the overall workforce fell by half a percent. Look at the graphs illustrating this trend at Fincom and their article, The Changing Face of Wall Street. The data comes from the U.S. Department of Labor and it shows that women are disappearing from Wall Street and being replaced by men.

The statistics show that more women than men are entering the workforce, except on Wall Street. Wall Street is still stuck in a male dominated culture such as that portrayed in Mad Men. I suspect that we could still find real life Don Draper's on Wall Street complete with the trophy wife at home in the suburbs and the secretary that sends out his dry cleaning.

It is probably easier for a woman to join the Army than to work on Wall Street. The military has changed it's culture, so why is Wall Street so behind the times? If you want to share your thoughts, please send me an email at robert@ottingerlaw and I will post some comments.

In executive compensation disputes, an executive can gain substantial leverage if the subject compensation, typically a bonus, can be classified as "wages" within the meaning of NY Labor Code section 190(1). If the bonus constitutes "wages," then the bonus is protected against any meddling by the employer and must be paid in full pursuant to section 193 of the Labor Code. In New York, and most other states, wages are protected and must be paid promptly.

New York defines wages as "the earnings of an employee for labor or services rendered, regardless of whether the amount is determined on a time, piece, commission or other basis." This definition sounds wide open and surely seems to cover most bonus plans as bonuses are certainly "earnings for labor or services rendered." See section 191(1). But this language has been read to exclude certain "incentive compensation" that is paid as profit sharing or as earnings that are contingent on the financial performance of the business.

The courts in New York have held that a bonus will be deemed wages only if the bonus compensation is directly linked to the executive's own performance. However, if the bonus compensation is based on other factors such as the financial success of the business enterprise or based on other discretionary factors, then the bonus is "discretionary compensation" and therefore does not constitute wages under the Labor Code. See Truelove v. Northeast Capital & Advisory, Inc. 95 N.Y.2d 220 (2000). But this does not mean that the bonus claim is lost. This only means that the executive's bonus is not protected by the New York Labor Code. The executive may still have a solid legal claim to the unpaid bonus under a breach of contract theory.

Age discrimination in technology firms is rampant. Thousands of experienced (experienced = old as in 40+) tech engineers cannot find jobs. This is because the tech world prefers young, inexperienced engineers who work for less, are eager to learn new technology, don't have family obligations, and will work all night. Older engineers, on the other hand, have to leave by 6 to get the kids to soccer practice and require double the pay and are perceived to be slower to learn new things.

Two UC Berkley professors just published their book, "Chips and Change" and they document Bureau of Labor and Census data for the semiconductor industry and found that salaries rose sharply for engineers in their 30s but that the increases slowed in their 40s and began dropping in their 50s and beyond. See the article in Techcrunch, "Silicon Vally's Dark Secret: It's All About Age."

The tech industry denies overtly shopping for young engineers. A Microsoft employee, for example, "acknowledged that the vast majority of new Microsoft employees are young, but said that this is so because older workers tend to go into more senior jobs and there are fewer of those positions to begin with. It was all about hiring the best and brightest, he said; age and nationality are not important."

Over the years, I have represented a number of older high tech workers in age discrimination cases. The cases are typically long and drawn out but in the end they mostly settled for decent numbers. Age discrimination is tough to prove and companies tend to defend them vigorously. Frankly, I do not understand why companies fight these cases so hard. I suppose it is because they have a lot to lose. We all know that age discrimination is an epidemic in the tech industry. Maybe in our next case we will call the two Berkley professors as experts witnesses. Their statistics could be useful.

The Overtime Adviser Blog issued a good post on computer help desk workers this month. At our law firm, we have a number of cases that concern this issue. Help desk workers are vital to most companies because they keep people working. Because help desk positions are so demanding, many help desk workers put in a lot of overtime. But, many companies do not pay help desk workers overtime pay.

I suspect that part of the problem is the computer employee exemption in the Fair Labor Standards Act. There is wide spread misunderstanding of this exemption. People seem to think that all computer related work is exempt from the overtime pay rules. The reality is that most all computer related work is not exempt - most all computer related work is subject to overtime pay and all of those help desk workers are entitled to overtime pay.

The computer employee exemption is narrow in scope. It only applies to higher level computer employees who design, create, program and engineer software or computer systems. The computer employee exemption, for example, would cover a network engineer who actually designs computer systems but it would not cover an employee who maintains computer systems. The computer employee exemption would cover an employee whose primary duty is to design and create computer programs. The normally day-to-day maintenance, installation and repair of computer systems and software is not covered by the computer employee exemption and that covers most computer works.

The Department of Labor issued a regulation which limits the reach of the computer employee exemption:

The exemption for employees in computer occupations does not
include employees engaged in the manufacture or repair of computer
hardware and related equipment. Employees whose work is highly
dependent upon, or facilitated by, the use of computers and computer
software programs (e.g., engineers, drafters and others skilled in
computer-aided design software), but who are not primarily engaged in
computer systems analysis and programming or other similarly skilled
computer-related occupations identified in Sec. 541.400(b), are also
not exempt computer professionals.

We have a number of cases pending against companies that do not pay their computer and technology employees overtime pay. Some of the companies just do not pay it. Others try to avoid the overtime issue by hiring so called "independent contractors" to do the computer work. True independent contractors are not entitled to overtime pay. But often the independent contract label is inaccurate and the workers are entitled to overtime pay.

The Los Angeles Times reported that an executive with Northwestern Mutual Investment Services twice put his semen in a woman's water bottle at work. The first time it happened, the woman drank the semen laced water and felt ill. She threw the water bottle away and did not know what caused her illness. Several months later, she felt ill again after drinking from another water bottle and this time she saved the bottle and sent it out for testing. The test revealed that the water contained semen. DNA tests later confirmed that the semen belonged to Michael Kevin Lallana, a Field Director with Northwestern Mutual Investment Services. Mr. Lallana was arrested for assualt and releasing an offensive material in a public place and he was fired. See the Los Angeles Times article for more.

The story did not mention sexual harassment claims but such a claim may follow. The conduct is so offensive that it is a crime, but does the conduct also amount to sexual harassment? This would not be a clear case, but it might arise to a sexually hostile work environment. To make such a claim, the conduct must be based on sex and it must be severe and pervasive.

The first question is whether this conduct is sexual or not. This begs the question, what is sex when it comes to sexual harassment? Putting semen into someones drinking water is disgusting, but is it sexual? It has a sexual connotation because it involves semen, but putting it in someones drink is not necessarily sexual. The answer is not clear. The conduct was not overtly sexual because the victim did not know she was drinking semen until the lab tests revealed its presence in the water. However, the man's actions violated the victim because he caused her to swallow his seamen against her will and that resembles rape which is sexual. In my view, this is sexual conduct because it involves a man putting his sexual fluid into a woman.

Second, the conduct at issue must be severe and pervasive. Here, the victim ingested semen twice. Is that enough to constitute severe and pervasive conduct? Normally, the offensive conduct has to be repeated frequently over time, but if the conduct is offensive enough, then the frequency requirement is reduced. Here, we have extremely offensive conduct but low frequency. Since the conduct is so outrageous and offensive, a finding that it was severe and pervasive is more likely.

Other legal hurdles exist in such a case. In many states and under federal law, the company might not be liable because it was not made aware of the conduct and once it learned of the conduct, it promptly terminated the offender.

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.

If you are one of the thousands of medical case managers, or disability case managers, working for large health plan companies throughout the US, you should keep close tabs on the case of Ruggles v. WellPoint, Inc., No. 08-cv-00201, because the case is likely to have an enormous impact on the industry, your profession and, if the plaintiffs prevail, your own pocketbook. Ruggles and the putative class are seeking to certify a class of misclassified nurse case managers who work in call centers collecting documents and data requested by claims adjusters. According to the Ruggles complaint, the nurse case managers receive a salary and are misclassified as exempt from overtime requirements under federal (FLSA) and NY state law (NYLL).

Often, registered nurses are hired for these positions since their nursing experience is useful for interpretting medical data, but they do not provide "traditional" direct medical services to patients, render an opinion or make any medical diagnosis (which is prohibited by state law). Traditionally, registered nurses qualified for the “learned professional” exemption to FLSA overtime requirements under 29 C.F.R. § 541.301(a). According to the regulations, to qualify for the exemption, an employee’s primary duties must require consistent discretion and judgment. See id. § 541.301 (b). The regulations further state “[r]egistered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption.” See § 541.301(e)(2). The central inquiry in Ruggles is whether or not nurse case managers who are, for all intents and purposes, not using traditional nurse skills and training still qualify for the exemption. Certain Wage and Hour opinion letters suggest that registered nurses who are not expected to utilize "traditional" nursing skills and instead rely on company manuals to perform administrative services, or who do not need a nursing degree or license to qualify for employment, do not exercise independent judgment and do not qualify for the exemption. Our firm intends to file a complaint next week against one of the largest health care companies in the US seeking to certify a class of disability and medical case management nurses for overtime violations. According to our client, a social work degree and other non-nursing degrees are suitable qualifications for employment as disability or medical case manager. Also, our client was urged by her managers to perform case management services in states other than those she was licensed in as a nurse. If you are in a similar situation, call for a free screening. This appears to be the next big thing in overtime litigation - the big defense firms are already issuing scary "client alerts" to notify (i.e. frighten) potential management clients of the litigation timebomb that awaits them if they don't rapidly retain counsel and reform their policies. This is a telltale sign that a massive wave of litigation is on the horizon.

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.