New York Employment Lawyer Blog

A few days ago, the New York Times listed a sampling of 2007’s newly coined buzzwords – words “that endured long enough to find a place in the national conversation.” Maternal Profiling was one of these. The New York Times defined it as:

“Employment discrimination against a woman who has, or will have, children. The term has been popularized by members of MomsRising, an advocacy group promoting the rights of mothers in the workplace.” If you feel that you have been discriminated based on the above, you should contact an attorney.

This new phrase is sure to become more commonly used in the years to come as more and more women feel discriminated against. Hopefully, there will be adequate legislation enacted to address this problem.

The workplace impacts of maternal profiling are jaw dropping, especially given that three-quarters of American mothers are now in the workforce and 82% of women become mothers by the time they are 44 years old. In fact, the American Journal of Sociology recently reported a study which found that mothers are 79% less likely to be hired than non-mothers with equal resumes and job experiences.

Mothers also face steep wage hits and unequal wages for equal work. One study found that women without children make 90 cents to a man’s dollar, but women with children make only 73 cents to a man’s dollar. And single mothers make about 60 cents to a man’s dollar.

Even in well-paid positions, mothers face discrimination. A Cornell University study found that mothers were offered $11,000 less in starting pay than non-mothers with the same resumes and job experience, while fathers were offered $6,000 more in starting pay.

That same study also found that mothers were held to harsher work standards than non-mothers and were taken off the management track for reasons that were not justifiable when compared to the behavior of other workers.

The United States lags far behind other countries when it comes to supporting families. For instance, Harvard researchers studied over 170 countries and found that the United States was one of only four nations without some form of national paid leave for new mothers. (The others were Liberia, Papua New Guinea and Swaziland.)

Unfortunately, so far only one state in our nation, California, provides for paid parental leave though Washington State will follow soon. The lack of paid family leave often causes parents to either quit much-needed jobs to care for their newborn (and thus lose their job-linked healthcare coverage), or else the financial hardship of living without paid leave drives women back to work earlier than they would have chosen. Yet when parents return to work, they face a chaotic and costly childcare system where the cost of care for two children can easily be upwards of $20,000 per year.

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.

Target has agreed to pay over $500,000 to settle a lawsuit in which four management applicants said that they were victims of racial discrimination, the Associated Press reported Tuesday.

The suit was settled Monday when U.S. District Judge Rudolph Randa signed a consent decree, the news service reported. The U.S. Equal Employment Opportunity Commission had accused the Minneapolis-based retail giant Target (NYSE: TGT) of violating the Civil Rights Act of 1964 when it did not hire four black applicants in Milwaukee and Madison, then destroyed their applications in bad faith. The suit alleged that it did not keep documents as required under the law.

Under terms of the settlement, the AP said that Target would pay a total of $510,000 to four applicants that were denied jobs as assistant store managers in 2000 and 2001.

Target also agreed to revise its policies for retaining documents, and pledged to provide supervisors with training on employment discrimination and record-keeping, to report on its hiring decisions and to post a notice about the decree for employees in its stores and offices in the affected district.

The AP quoted Target as saying in a statement that "We do not believe that any member of Target engaged in discrimination. Target prohibits and does not tolerate discrimination based upon race or any other characteristic protected by law."

Previously, Randa had dismissed the case, but that decision was reversed in 2006 when the 7th Circuit Court of Appeals in Chicago ruled that enough evidence was presented for the case to go to trial.

Target said it chose to settle the case because all claims of discrimination were dismissed except for those of the four applicants who alleged they were denied interviews.

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.

Look at her - she does not want him to touch her and he does not get it. What should you do if your boss touches you inappropriately at work? First, tell him to stop. If he continues, check the employee manual and follow the sexual harassment complaint procedure and report it in writing. If the company does not help you, then you need the help of someone outside of the company like an employment lawyer or the Equal Employment Opportunity Commission.

Most every large employer in New York has some kind of employee manual with a sexual harassment policy. This policy will typically tell you how to report the harassment. For example, it might tell you to report the sexual harassment to human resources or it might even give you the name of someone or a phone number to call. You have to follow this manual and report the sexual harassment. You need to let the company know what is going on and give them a chance to fix the problem.

Do not hold back when you report it- be honest and tell the whole story even if it is embarrassing or crude. The company needs to know. You should put the complaint in writing and ideally you should see an employment lawyer so they can help you draft the complaint. Many companies will take action and stop the harassment. But if they don't stop it, then you can take legal action. But - if you do not initially follow the company’s sexual harassment complaint procedure, you may not be able to take legal action. The point is that you need to give the company a chance to fix the problem first.

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.

Brokerage firms often expect experienced financial advisers to generate more business than less experienced ones. However, the EEOC is now investigating whether these brokerage firms discriminated against older brokers who didn't meet that higher standard.

In a letter dated Nov. 6 obtained by Dow Jones Newswires and sent to hundreds of former Morgan Stanley brokers, the U.S. Equal Employment Opportunity Commission said it is conducting an investigation into large-scale layoffs by the New York-based firm in August 2005.

At the time, Morgan Stanley laid off around 1,000 brokers who failed to meet new production hurdles. As brokers gained seniority, they had to generate higher commissions and fees to remain employed.

The practice is common at brokerage firms. A number of them, including Morgan Stanley and Citigroup Inc. unit Smith Barney, ratchet up demands on experienced brokers. For a given production level, newer brokers retain a higher percentage than more experienced brokers of the commissions and fees they generate, particularly those in the low or middle ranges of production.

In Morgan Stanley's case, the firm went so far as to lay off experienced brokers who didn't generate a high enough production.

The EEOC probe isn't the only potential challenge to Morgan Stanley over age discrimination. A federal lawsuit filed by Edward Sullivan, former regional director at the firm's wealth management unit, is pending before the U.S. District Court of the Southern District of New York. Sullivan, a 25-year Morgan veteran in his mid-50s at the time, alleged that he was fired in May 2006 because of his age.

Some lawyers at brokerage firms and consultants say an adverse finding by the EEOC on the Morgan Stanley layoffs could force a rethinking of pay structures linked to years of service.

Lawyers at brokerage firms say it makes sense to require more production from more experienced advisers. "It has nothing to do with age, it has to do with the number of years of production," said a lawyer at a Morgan Stanley competitor. Still, with an adverse EEOC finding, depending on specifics, "you'd have to change the pay structure," the lawyer said.

To ward off potential lawsuits, said Robert Salwen, a compensation consultant, firms could implement a pay structure based purely on production. Pegging part of compensation on length of service may discourage veteran brokers from resting on their laurels, but "if that's the case, then there may be an age component."

Growing demands on aging brokers will become an issue because, say consultants, the age of the average broker is rising. "It's an aging industry and it's becoming a bigger problem," said Philip Palaveev, a senior consultant on financial advisory at Moss Adams.

If the EEOC probe concludes the brokers' complaint has merit, the commission can pursue the case before a federal court on the plaintiffs' behalf, or simply advise the plaintiffs to pursue a court case on their own. If the investigation proves favorable to Morgan Stanley, the plaintiffs will have a hard time pursuing a federal lawsuit unless the court overturns EEOC's decision.

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.

Last week, the House approved a bill granting broad protections against discrimination in the workplace for gay men, lesbians and bisexuals, a measure that supporters praised as the most important civil rights legislation since the Americans with Disabilities Act of 1990 but that opponents said would result in unnecessary lawsuits.

The bill, the Employment Nondiscrimination Act, is the latest version of legislation that Democrats have pursued since 1974.

“On this proud day of the 110th Congress, we will chart a new direction for civil rights,” said Representative Kathy Castor, a Florida Democrat and a gay rights advocate, in a speech before the vote. “On this proud day, the Congress will act to ensure that all Americans are granted equal rights in the work place.”

The House bill would make it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation.”

While 19 states and Washington, D.C., have laws barring discrimination based on sexual orientation, and many cities offer similar protections, federal law offers no such shield, though it does bar discrimination based on race, religion, ethnicity, sex, age, disability and pregnancy.

On November 6, 2007, the U.S. Supreme Court will hear argument in Federal Express Corp. v. Holowecki. The case considers what procedures a plaintiff must follow in order to successfully invoke her rights under the Age Discrimination in Employment Act (ADEA) - the federal law that prohibits employers from discriminating against employees aged 40 and over on the basis of age.

In 2001, Patricia Kennedy filed an “intake questionnaire” with the Equal Employment Opportunity Commission (”EEOC”) alleging age discrimination by her employer, Federal Express Corporation (”FedEx”), against her and other couriers. Because she did not file a formal “charge” document, the EEOC did not notify FedEx, investigate the claims, or begin conciliation efforts.

Five months later, Kennedy, along with 13 other past and present FedEx couriers over the age of 40, filed suit over this issue in federal court. The trial court granted FedEx’s motion to dismiss, ruling (among other things) that Kennedy could not sue because she never filed a timely charge with the EEOC as required by the Age Discrimination in Employment Act (”ADEA”). The U.S. Court of Appeals for the Second Circuit reversed, holding that Kennedy’s intake questionnaire is a “charge” for the ADEA’s purpose because it manifests her intent to activate the EEOC’s investigation and conciliation process.

The Supreme Court now takes up the question of whether, “even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge”, an intake questionnaire meets the requirements of a discrimination “charge”.