July 28, 2014

President Obama Signs Executive Orders Forbidding Discrimination on the Basis of Sexual Orientation and Gender Identity in Federal Government and Most Contractors

On July 21, 2014, President Obama signed an Executive Order amending Executive Order 11478 adding "gender identity" to the list of categories on the basis of which the government may not discriminate in its hiring and employment practices. The amendment now states that: "It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, age, sexual orientation, gender identity, or status as a parent and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency."

In a second Executive Order, the President took an unprecedented further step in the same direction: he amended Executive Order 11246, which establishes rules for private companies that do contract work for the government exceeding $10,000.00 in a twelve-month period, as well as subcontractors of those complanies, to follow the same anti-discrimination policy. Each contractor will now be governed by the regulation stating: "During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin." Similar language is added in other sections of the Order, and contractors and subcontractors covered by it will now be required to include corresponding nondiscrimination clauses in subcontracts with their vendors and supplies of goods and/or services necessary to carry out their covered contracts, and to take affirmative action to ensure that individuals are employed and treated without regard to sexual orientation and gender identity. Notably, this Executive Order does not include exemptions for religious organizations.

As he signed the Order, the President said "It doesn't make any sense, but today in America, millions of our federal citizens wake up and go to work with the awareness that they could lose their job, not because of what they do and fail to do, but simply because of who they are--lesiban, gay, bisexual, transgender--and that's wrong. We're here to do what we can to make it right, to bend that arc of justice just a little bit in the other direction." Then, speaking to LGBT advocates in attendance, he continued: "Many of you have worked for a long time to see this day come. You organized, you spoke up, you signed petitions, you sent letters--I know because I got a lot of them...Thanks to your passion and advocacy and the irrefutable rightness of your cause, our government--the government of the people by the people and for the people--will become just a little bit fairer."

Also in attendance were Senators who have fought to pass legislation to make these policies the law of the land: the Employment Non-Discrimination Act, if it is ever implemented, will prohibit all employers from discriminating on the basis of sexual orientation or gender identity.

If you believe your employer has illegally discriminated against you, please contact The Harman Firm, PC.

July 25, 2014

EEOC Sues AutoZone for Discriminating Due To "Perceived Customer Preference" for Latinos over Blacks at Chicago Store

On July 22, 2014, the Equal Employment Opportunity Commission filed a lawsuit in the Northern District of Illinois against AutoZone, Inc. for discrimination. AutoZone is a large nationwide company headquartered in Memphis, TN. The Commission alleges that the company forced district manager Kevin Stuckey to transfer from one Chicago-area store to another as part of its "effort to eliminate or limit the number of black employees at (its) Kedzie store...because it believed that customers of the Kedzie Store preferred to be served by non-black, Hispanic employees." If true, they allege, this would be a clear violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), which prohibits any effort "to limit, segregate, or classify store employees on the basis of race."
When AutoZone informed Mr. Stuckey of their decision to relocate him, he was offended and refused, and they then terminated his employment. Through these actions, the EEOC alleges, the company acted so as to "deprive Stuckey and other black individuals of employment opportunities because of their race."

The company's belief that Hispanic customers at its Kedzie location would prefer to interact with Hispanic over Black employees was confirmed by the EEOC's investigation, supervised by District Director John Rowe.

John Hendrickson, the EEOC's regional attorney in Chicago, said "Fifty years after the adoption of the Civil Rights Act, a major employer transferring an employee simply because of his race and then firing him for not going along is unacceptable. When the employer is a major national brand and a leader in its industry, it's even worse. Everyone must understand that supposed customer preference is no excuse for discrimination - it's still illegal, and the EEOC will step in to challenge it."

The EEOC is requesting an order requiring the defendant to revise its policies to eliminate discrimination, to reinstate Stuckey to his position, to give him back-pay, and compensate him for economic losses, emotional pain, suffering, humiliation, inconvenience, and mental anguage as determined by a jury at trial.

If you are an employee and you believe you have been subject to gender discrimination, please contact The Harman Firm, PC.

July 23, 2014

Plaintiffs in Wage-and-Hour Case Against Chipotle Mexican Grill Get Court's Approval to Amend Complaint, Expand Case

On July 2, 2014, Magistrate Judge Sarah Netburn from New York's Southern District granted the plaintiff's motion in Scott v. Chipotle Mexican Grill, Inc. to file an amended complaint, which will convert four opt-ins to named plaintiffs and add four new state labor law class action claims. As of January 20, 2014, the close of the opt-in period, 582 plaintiffs had opted into the case, in addition to the two remaining original named plaintiffs.

The central claims in the original complaint are not unusual or complicated: plaintiffs allege that Chipotle violated both the Fair Labor Standards Act and New York Labor Law by misclassifying hundreds of its employees as "apprentices" who were supposedly FLSA exempt, although in fact they did the same work as non-exempt crew members--preparing guacamole, chopping vegetables, making burritos, etc. Because they were thus misclassified, these "apprentices" allege that they were never paid overtime or spread-of-hours pay as required under both state and federal law.

On March 4, 2013, the plaintiffs filed an amended complaint adding Jay Ensor as a named plaintiff, alleging overtime claims under the FLSA as well as parallel claims under Missouri state law. A class of Missouri Chipotle employees was thereby added to the existing class of New York employees. The newly-approved amended complaint will add new named plaintiffs from Colorado, Illinois, North Carolina, and Washington, along with new state-law claims for the corresponding four classes of Chipotle workers from those four states. The FLSA action already encompasses a nationwide class: on June 27, 2013 the plaintiffs' counsel won the Court's approval to send notification of the pending legal action to a nation-wide class of prospective opt-in plaintiffs.

As the judge explains in her discussion, the Court's main task in deciding whether to grant leave to file an amended complaint, once the plaintiffs have used their one opportunity to file an amended complaint as of right, is to determine whether the parties moving for leave to amend their complaint again have shown good cause. This means they must have demonstrated diligence prior to filing their motion, which implies that the deadline to amend the pleadings could not reasonably have been met. In this case the Court concluded that the answer to this question was clear: while they might have been able to anticipate that new state law claims would be available when the lawsuit was filed, "Plaintiffs could not actually know the entire scope of potential plaintiffs until notice issued to the nationwide collective, until those potential plaintiffs opted in, and until the opt-in period finally closed." The Court had denied the plaintiffs' request, as part of their motion for conditional certification, for Chipotle to reveal all class members' dates of employment and work locations along with their contact information; thus, the plaintiffs had no option but to wait for people from other states to opt into the lawsuit before they could bring actions under those states' labor laws. Thus, the Court concluded, since plaintiffs' counsel did all they could reasonably have been expected to do to find all class members as soon as possible, and "given the choice between litigating each claim separately or in the aggregate," the law "favors the latter," the proper decision in this case was to allow the plaintiffs to expand their complaint.

If you are an employee and you believe your rights under the Fair Labor Standards Act have been violated, please contact The Harman Firm, PC.

July 21, 2014

Northern California District Court Rejects Collective Action Settlement in Daniels v. Aéropostale

On May 29, 2014 a federal judge denied the parties' joint motion for preliminary approval of a Fair Labor Standards Act settlement in the third of a trio of wage-and-hour cases against Aeropostale: "state-law overtime and wage-and-hour claims were filed in Sankey, the state-law vacation, rest-period, and waiting-time claims were filed in Pakaz, and the FLSA overtime claims were filed here (Daniels)." In each of these cases the plaintiffs are represented by Joseph R. Becerra from the Law Office of Joseph R. Becerra and Torey Joseph Favarote from Gleason & Favarote, LLP, and all involve similar complaints.

The judge was harshly critical in his order, concluding that the settlement "is so unfair, it cannot be fixed." One problem he found with the proposed settlement is that, by prosecuting three similar cases against the same defendant, with three overlapping lists of opt-in plaintiffs, plaintiffs' counsel have created conflicts of interest. The court notes that "the Supreme Court has warned of the problems with an attorney who currently represents another class against the same defendant...because defendants have an incentive to settle all claims at once, if it settles at all, thereby creating opportunities for counsel to manipulate the allocation of settlement dollars to the detriment of absent class members. Here the same plaintiff's counsel settled all three actions within months."

Second, the settlement would have distributed only $8,645.61 among 594 collective-action members, Worse, according to the distribution formula, a large majority of collective action opt-in members would sign away their rights to sue in exchange for nothing. "The collective-action opt ins," the Court explained, "would be better off simply walking away from this lawsuit with their rights to sue still intact." Further, he continued, the plaintiffs making almost no attempt to argue that this settlement would be fair.

The judge next criticized the fact that the proposed agreement contains an extremely broad release clause that would insulate "'defendants...the Released Parties, Representative Plaintiff, other Settlement Collective Action Members, Collective Action Counsel, Defendants' Counsel, [and] the Claims Administrator' from 'any claim ...based on distributions or payments made in accordance with this Settlement Agreement." This, the Court concluded, "takes the cake. Not only would most opt ins receive nothing at all, or in some cases, virtually nothing at all, but absent opt ins could not go after their counsel for malpractice in foisting this deal upon them."

The Court finally criticizes plaintiffs' counsel for submitting a fourteen-page notice of settlement, to be sent to all potential opt in plaintiffs, along with a one-page objection form, "all chock-full of legalese," devoid of any clear explanation of the salient points, and in a form that was sure to be "oppressive to the average person." In the notice, plaintiffs' counsel also carefully avoid mentioning the fact that nearly all plaintiffs would receive "nothing or virtually nothing" in the settlement.

If you are an employee and believe your rights under the Fair Labor Standards Act have been violated, please contact The Harman Firm, PC.

July 17, 2014

In Case You Hadn't Heard...New York City Companies Are Now Legally Required To Offer Sick Leave

In June 2013, the New York City Council passed the Earned Sick Time Act (ESTA), extending protection to nearly all workers who must miss work because they or their family members become ill. Then, on February 26, 2014, with the support of Mayor Bill de Blasio, the City Council voted to strengthen the new law, which finally went into effect on April 1, 2014. According to an information sheet released by the Department of Consumer Affairs (DCA), which is responsible for investigating violations of the law and punishing violators, all employees of private companies now accrue sick time at the rate of 1 hour per 30 hours worked, up to 40 hours per year. For employees of companies that employ five or more, sick time must be paid at the employee's regular hourly rate; for smaller companies sick time is unpaid. Employers will be able to require employees to give them advance notice that they will claim sick time when such notice is possible, and they may demand documentation from a health care provider when the employee uses accrued sick time for more than three consecutive workdays. However, in all cases employers are forbidden from retaliating against employees who claim forty or fewer hours of sick time per year. Employees who started their jobs prior to April 1, 2014 will become eligible to use their sick days on July 30, 2014; others become eligible 120 days after their first day of employment.

Under the new law, employees are now entitled to carry over up to 40 hours of sick time to the following year, but employers are only required to grant a total of 40 hours in a given year.

Similar laws have been passed, or are currently being debated, by legislative bodies across the country. San Francisco, Washington D.C., Portland, Newark, and Jersey City, NJ have laws similar to New York city's new law. Connecticut has a statewide sick pay law, which guarantees paid sick leave to non-exempt "service workers" who work for companies with fifty or more employees. Vermont and Massachusetts could be next to enact such measures, and twenty other states and the cities of Chicago, Philadelphia, San Diego, and Eugene, OR have similar legislation currently pending. There have been few prospects of actually passing a paid sick leave law at the federal level, but there has been some activity on the issue: in 2013, Senators Harkin (IA) and DeLauro (CT) introduced The "Healthy Families Act," which was first introduced in 2004. That legislation has not succeeded thus far, but has steadily picked up cosponsors and votes, and proponents of the law hope the passage of sick pay laws in an increasing number of cities and states will provide enough political momentum to pass a version of the bill.

The proposed federal law has met with predictable resistance from employers, who argued that they would be forced to cut back on jobs or compensation to make up for increased labor costs. However, the data do not bear out such gloomy predictions; for example, the Institute for Women's Policy Research released a survey of employers and employees on the effect of San Francisco's sick pay law, and concluded that "the law is functioning well." Workers typically do not use all of the sick days they earn. They are also far less likely to send their children to school sick, or to go to work sick themselves, which probably produces a net decrease in the total number of missed work days by employees.

If you are an employee and you believe your rights have been violated, please contact The Harman Firm, PC.

July 15, 2014

NLRA Protected Activity in the Non-Union Workforce

The National Labor Relations Act (NLRA) creates the framework for how employers and unions interact. What many employees don't know is that the NLRA also protects the majority of non-union workers as well. Under the NLRA, employees - even those in a non-union workplace - are protected against employer retaliation for protected workplace activities. This means that if a group of employees make job-related complaints (e.g. workplace conditions, the terms of their employment, supervisor misconduct, safety issues, or other job related matters) and then are retaliated against for doing so, they may be able to seek redress under the NLRA.

Section 7 of the NLRA protects the right to engage in "concerted activities" for "mutual aid or protection." In the union setting, this means that employers cannot fire employees for trying to organize or establish a union. While Section 7 may not seem to protect a wide variety of workplace activities, in fact, protected activities under Section 7 go well beyond unions.

Concerted activities protected by Section 7 include whenever employees discuss their employment situation, or act together to improve their situation. This includes, among many other scenarios:

• Employees discussing together, in person or over Facebook or other social media, complaints about their employer;

• Employees communicating about payment or salary with coworkers;

• Employees speaking up in group meetings about their working conditions, or the actions of management;

• Employees sharing details of their own harassment complaints;

• Employees writing letters of complaint to their employers;

• Employees posting videos online where they complain about working conditions;

• Employees walking off the job to protest working conditions;

Usually, protected concerted activities involve two or more employees acting together. The actions of a single employee may be protected, however, if he or she consults with other employees before acting. For example, the National Labor Relations Board (NLRB) recently found that a nurse, who was fired for sending an email to her supervisor complaining about workplace conditions - specifically, complaining about the hospital's procedures for evaluating nursing fellows, was illegally terminated for protected concerted activity, because she drafted the email with help of four other nurses, and the email was signed by the four other nurses as well.

The NLRB has been aggressively expanding the protections of Section 7 to non-union workers, and has been remarkably proactive in addressing the myriad problems created by social media. Considering the nature of social media, most activity between coworkers on the internet could be considered "concerted activity." For instance, the NLRB has held that employees conversing with one another on Facebook about complaints regarding their employer are engaged in protected activity.

In addition to prohibiting employer action against employees based on protected activities, the NLRA also governs workplace rules and policies. This means that employers are not allowed to maintain a rule or policy that would curtail a Section 7 protected activity. In other words, banning one of the above activities would be a violation of the NLRA.

Not all employee actions are protected by the NLRA. If an employee acts alone, without conferring or the support of co-workers, that is not "concerted action" protected by the NRLA, and the employee is not protected from punishment. Additionally, some concerted employee actions are not protected, including falsely disparaging the employer, outrageously disruptive behavior, and some instances of refusing to work.

One final caveat: the recent Supreme Court decision NLRB v. Noel Canning effectively invalidated a number of NLRB decisions from 2012 and 2013. This is the period during which the NLRB most actively applied the NLRA to non-union employees. Although these decisions are no longer law, it is expected that the current NLRB panel will re-adopt many, if not all, of the invalidated decisions.

If you believe that your employer has retaliated against you for your involvement in protected concerted activities, please contact The Harman Firm, PC.

July 14, 2014

Judge Approves Settlement, With No Cap on Damages, To Compensate NFL Players Who Suffer Concussion-Related Brain Injuries

On July 9, 2014 a federal judge for the Eastern District of Pennsylvania gave preliminary approval to a $675 million settlement in the case In re: National Football League Players' Concussion Injury Litigation. The NFL has agreed to the settlement, under which all valid claims (by retired NFL players) will be paid in full for 65 years," with "no cap on the amount of funds available to pay...Monetary Awards." In addition to this $675 million, the NFL Parties have also agreed to pay $112.5 million in attorneys' fees and costs.

The class of plaintiffs consists of (i) Retired NFL Football Players, including American Football League, World League of American Football, NFL Europe League, and NFL Europa League players; (ii) authorized representatives, ordered by a court or other official of competent jurisdiction, of deceased or legally incapacitated or incompetent Retired NFL Football Players; and (iii) close family members of Retired NFL Football Players or any other persons who properly assert, under applicable state law, the right to sue by virtue of their relationship with a Retired NFL Football Player. Based on the records of the NFL Parties, there are more than 20,000 Settlement Class Members.

Each member of the settlement class who registers and does not opt out will undergo baseline neuropsychological and neurological examination to determine whether they are currently suffering from impairment serious enough for compensation. $75 million from the settlement is set aside to pay for these examinations, collectively labeled the "Baseline Assessment Program" (BAP). The Court ordered that a notice is to be sent to all potential class members with information and registration materials, all of which can also be found on the dedicated website www.nflconcussionsettlement.com.

Class members who are diagnosed with ALS (Lou Gehrig's disease), Parkinson's Disease, Alzheimer's Disease, early or moderate Dementia, or certain kinds of chronic traumatic encephalopathy (CET) will be compensated at $5 million, adjusted downward according to a) the diagnosis; b) the number of seasons played; c) age at the time of diagnosis; and d) relationship to the qualifying retired player.

A common general concern in the public discussion about this issue has been how injured players would be able to prove that their injuries happened because of working conditions at the NFL, as opposed to similar collisions that happened to them in Pop Warner, high school, college football, or even unrelated accidents or other events. The settlement agreement ignores this question: "To get money," it says, "proof that injuries were caused by playing NFL football is not required."

In addition to examinations and monetary awards, the Agreement also calls for "Education programs promoting safety and injury prevention with respect to football players, including safety-related initiatives in youth football, the education of retired players regarding the NFL's medical and disability programs and other educational programs and initiatives ($10 million)."

If you are an employee and you believe your rights have been violated, please contact The Harman Firm, PC.

July 10, 2014

Supreme Court Agrees to Resolve Circuit Split On EEOC's Authority to Sue After Little or No Attempt at Conciliation

On June 30, 2014, the United States Supreme Court granted certiorari, agreeing to review the Seventh Circuit ruling in EEOC v. Mach Mining. In its decision the Appeals Court clearly acknowledged its departure from all of the various legal standards that have been applied by other courts, and thus intentionally brought to a head the already-existing appellate split on the central question of the case: whether, or how vigorously, the EEOC is required to pursue conciliation before suing in Title VII discrimination cases.

In its complaint in the original case, the EEOC alleged that Mach Mining. LLC violated Title VII of the Civil Rights Act of 1964, and Title I of the Civil Rights Act of 1991, by maintaining (i) a policy and practice of not hiring women for mining positions, and/or (ii) a facially neutral hiring policy that had a disparate impact of women applicants. Specifically, in addition to refusing to hire female applicants, the company maintained the policy of hiring only applicants who had been recommended by current employees. Thus, they claimed, Mach Mining deprived complainant Brooke Petkas and a class of female applicants employment opportunities because of their sex.

The District Court for Southern Illinois granted summary judgment to the defense based on its affirmative defense that the EEOC had not fulfilled its duty under U.S. Code to "...endeavor to eliminate any (such) alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Thus, the defense argued, and the Court ultimately agreed, the EEOC hadn't met its legal obligation to attempt conciliation prior to commencing litigation. In its decision, the Court acknowledged a "circuit split as to the scope of inquiry a court may make into the EEOC's statutory conciliation obligation," leaving unresolved the question of whether a court can review the EEOC's efforts at conciliation to determine whether it has met the requirement. Some circuits have employed a "deferential standard," deferring to the EEOC's authority to determine when, or how much, conciliation is appropriate in each case, while other circuits have employed a "heightened scrutiny standard" under which the courts require the EEOC to meet several conditions before filing suit.

Reversing the District Court's grant of summary judgment, the Seventh Circuit simply rejected the EEOC's failure-to-conciliate argument as an affirmative defense. The Court's conclusion was based on several considerations, most notably: 1) that allowing this kind of affirmative defense has little potential benefit, but encourages defendants in employment discrimination cases to avoid accountability for discrimination by engaging in "protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle," 2) that a failure-to-conciliate defense cannot be made consistent with the "statutory prohibition on using what was said and done during the conciliation process as evidence in a subsequent proceeding." That is, the Court concluded that it would be impossible to determine that the EEOC had not done enough without investigating what it did, which the statutes clearly proscribe. Finally, the Court questioned whether, when the EEOC fails to meet its obligation to attempt conciliation, the appropriate remedy imposed by a court should be dismissing the whole case, as opposed to ordering the parties to resume the process of conciliation. "...the Supreme Court has made clear," the judges write, "that, as a general rule, the remedy for a deficiency in a process is more process, not letting one party off the hook entirely."

Needless to say, the Supreme Court's decision in this case will affect the way employment discrimination claims are litigated across the country.

If you are an employee and you believe you have been subject to gender discrimination, please contact The Harman Firm, PC.

July 9, 2014

Federal and State Efforts to Increase Protections for Pregnant Women in the Workforce

Beginning with the Pregnancy Discrimination Act of 1978 ("PDA"), pregnant employees have had some degree of protection against discrimination in the workplace. Since 1978, different states have enacted several laws protecting pregnant workers, yet women continue to face challenges in the workplace because there is no federal law specifically requiring employers to provide accommodation for pregnancy. In fact, the Equal Employment Opportunity Commission--the federal agency in charge of enforcing employees' rights in the workplace--has seen a significant rise in complaints of pregnancy discrimination in the past twenty years.

For this reason, activists are advocating for stronger federal laws protecting pregnant workers. The Pregnant Workers Fairness Act (PWFA), introduced in the Senate in May 2013 and supported by President Obama, seeks to bridge the gap between the PDA and the Americans with Disabilities Act of 1990. Currently in Congress, the PWFA, would require employers to provide accommodations for pregnant workers that are similar to the accommodations required for employees with disabilities under the ADA. However, advocates are not optimistic about the law's ability to gather the support necessary to pass.

The Supreme Court recently stepped in to decide on the issue of accommodation for pregnant woman by taking the case Peggy Young v. United Parcel Service, instead of waiting on the EEOC to issue guidelines regarding the accommodations that pregnant women may request in the workplace. This case was filed by a delivery driver who alleged that her employer required her to take unpaid maternity leave rather than temporarily transferring her to a position that was less strenuous, as her doctors recommended. The plaintiff appealed the lower courts' decisions in UPS's favor, and petitioned for a writ of certiorari before the Supreme Court on the issue of "whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are 'similar in their ability or inability to work.'" The Supreme Court recently approved the plaintiff's petition for certiorari on July 1, 2013.

While the debate on federal laws protecting pregnant employees continues, the City of New York further strengthened the rights of pregnant women in the workplace through the New York City Pregnant Workers Fairness Act (the "Act"). Originally passed in October, the Act went into effect as of January 30, 2014. The Act applies to all companies with four or more employees, and requires employers to provide reasonable accommodations to pregnant employees and workers suffering from medical conditions related to childbirth. The Act specifically states that a reasonable accommodation includes, but is not limited to "bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor." The employer must provide these accommodations so long as the employee is still able to do the essential requirements of her job while accommodated, and so long as the accommodations do not create an undue hardship on the employer.

Additionally, employers are required to provide notice to employees of their rights under the PWFA; new employees must be given notice upon hiring, and existing employees must have been given notice by May 30, 2014. Given how new this law is, many employees may not know about the new protections to which they are entitled.

These legal reforms are responsive to the reality that a growing number of women work while pregnant, and many of those work into their third trimester.

If you believe that you have been discriminated against based on your pregnancy, please contact The Harman Firm, PC.

July 7, 2014

State Court Rules that NYC Was Entitled by Statute to Terminate Employee...But Termination Might Have Been Wrongful Nonetheless

On June 23, 2014, Justice Hunter of the New York State Supreme Court issued a judgment and order in the Vanacore v. City of New York and New York City Administration for Children's Services (ACS). In that case, petitioner Ralph Vanacore alleges that he was wrongfully terminated and seeks a judgment vacating ACS's decision to terminate his employment and reinstating him to his position with back pay and benefits. His other request, which is more at issue in the present Court order, is that ACS reimburse him for all medical expenses he incurred as a result of being wrongfully terminated.

Prior to his termination, Vanacore had worked for ACS as a caseworker for over twenty years. He then suffered a job-related injury in April of 2012, after which he took approved medical leave. While on leave, he received a letter dated March 11, 2013 which indicated that he must "resolve his employment status." To that end he was presented with several options: first, he could return to work with a doctor's statement saying he was able to work, either with or without restrictions; second, if he could not return to work, he could file for social security or some other benefits; third, he could resign; or fourth, if he chose none of these first three options, he would be terminated. The letter referred to Section 71 of the Civil Services Law, which states that "...an employee who has been continuously or cumulatively due to a work-related injury absent for one year or more, may be separated from staff."

Mr. Vanacore had been on worker's compensation leave for almost one year when he received the letter. He then returned to work on April 15, 2013, and provided a doctor's note saying he could work, but soon after returning he started another medical leave due to the same work-related injury. On June 24 he was again admitted to the hospital, where he stayed for two days. The next day, on June 25, the hospital informed him that he no longer had insurance coverage through his employer and would be responsible for paying all of his medical expenses himself. Only then did he learn that the City had, unbeknownst to him, terminated his employment effective June 14, 2013.

On August 5, 2013, Vanacore finally received a letter from ACS informing him of his termination effective June 14, 2013. The letter was dated June 14, but had not been mailed until (at the earliest) late July. He learned of his termination almost two months after it was executed, and as a result, he argues, he was denied several "due process rights." By not informing him of his termination when it happened, Vanacore claims, ACS denied his right to apply for retirement benefits, which would have included medical coverage, or to apply for COBRA. Moreover, petitioner Vanacore argues and the Court agreed, that Section 71 of the Civil Service Law, as previously interpreted by other courts, specifies that any employee who is terminated must i) receive pretermination notice, and, prior to termination, ii) "some minimal opportunity to be heard" regarding the duration of their absence and/or their ability to return to work.

Against all of these accusations, ACS effectively brought one response: that the March 11 letter notified Mr. Vanacore of his termination. But that letter only said that under the Civil Service Law he could be terminated, not that he actually would be terminated at some specific future time. Also, because the letter arrived long after his termination became effective, Vanacore received neither his due process right to be heard regarding his medical status nor his right to apply for post-employment benefits to which he would have been entitled.

Reinstatement to his job might be too much to hope for, but as of now the Court seems poised to award him at least his medical expenses.

If you are an employee and you believe your rights have been violated, please contact The Harman Firm, PC.

July 3, 2014

Senators Propose Legislation to Make Fewer Workers Exempt From Overtime and Minimum Wage

By now most workers understand that American employers regularly minimize their labor costs by classifying as many of their workers as possible as "executives," "managers," or "administrators," paying them a low yearly salary, and requiring them to work long hours for no extra pay. Occasionally some employees in this position convince a jury that their employer misclassified them as managers and put them on salary specifically in order to avoid the requirements of the Fair Labor Standards Act. But each successful lawsuit is a rare exception, which is more than outweighed by the millions that companies save in this way.

In March of 2014, President Obama issued a memorandum declaring that "white collar" exemptions to the Fair Labor Standards Act's minimum wage and overtime pay requirements are outdated and do not offer enough protection to working Americans. The federal rule was originally designed to limit overtime for highly paid employees, the President notes, but now covers workers earning as little as $23,000 a year. "It doesn't make sense," the President said, "that in some cases this rule actually makes it possible for salaried workers to be paid less than the minimum wage." In this Memorandum the President directed the Department of Labor "to propose revisions to modernize and streamline the existing overtime regulations," with the aim of decreasing the number of people who qualify for these FLSA exemptions and increasing the pay of those who do qualify.

The process of changing specifying regulations is inevitably arduous, and always vulnerable to the criticism that it is undemocratic. But now Tom Harkin and a handful of other U.S. Senators have introduced legislation--named the "Restoring Overtime Pay for Working Americans Act"--which would bypass these regulatory processes and simply write the President's suggested changes into the FLSA itself. If adopted, the law would make several changes: 1) it would raise the threshold below which low-paid salary workers must be paid overtime for hours worked in excess of forty per week, from $455 to $1,090 per week, then indexed to inflation. This threshold amount had not been changed since 1975; 2) it would raise the threshold for "highly-compensated" employees from $100,000 to $125,000 per year; 3) it would restore the "primary duty" test for determining qualification for the executive exemption, removed from the regulations in 2004, which specifies that exempt workers must spend more than fifty percent of their time performing exempt job duties; and 4) it would impose a $1,100 penalty on employers that fail to keep complete records of hours and wages.

Even if it makes it out of the Senate, Harkin's legislation will almost certainly fail in the House. It will, however, shed light on the two Parties' respective agendas concerning proposed changes to U.S. labor law, and probably reveal some elements of the DOL's upcoming changes to the FLSA.

If you are an employee and you believe your rights under the Fair Labor Standards Act have been violated, please contact The Harman Firm, PC.

July 2, 2014

New York State Assembly Takes Step Against Forced Employment Arbitration

On May 5, 2014, the New York State Assembly passed legislation forbidding the State from contracting with any business that requires employees to arbitrate claims arising from violations of Title VII of the Civil Rights Act. Should this bill win the support of the State Senate and be signed into law by Governor Cuomo, New York State would be taking a step in the right direction, towards fair employment conditions for workers and away from forced arbitration.

Forced employment arbitration clauses require American employees to sign away their fundamental right to a trial by jury; countless workers do so without even knowing what rights they are giving away. Many employers require employees to sign overarching employee handbooks, and within that handbook is a short clause stating that the employee has agreed to arbitrate any legal issues that may arise out of the course of his or her employment. Consequentially, when an employee is discriminated against, wrongfully terminated, or otherwise injured by their employer, the employee has lost the ability to take the employer to court, and instead must submit to arbitration.

The federal government began favoring arbitration in 1925, with the passage of the Federal Arbitration Act. At that time, arbitration was typically used to settle disputes between two parties of equal bargaining power. Over the last few decades, however, courts have expanded the application of the FAA to validate agreements between parties of vastly different bargaining power - such as employers and employees - entered into before any dispute exists. Typically, when faced with such an agreement, a worker has only two choices: agree to it, or find another job. Given those options, the worker really has no choice at all but to agree to sign away their rights.

Forced arbitration is disfavored by many commentators because it requires employees to forego many of the safeguards fundamental to the American legal system, including a public trial, the right to a jury of one's peers, and the right to an appeal. Additionally, the results employees get in arbitration are generally worse than their results in litigation, both in terms of employee success rate and the damages awarded. Employers typically select an arbitrator or arbitration agency that they know to be business-friendly, and that they have had prior success with. In turn, many of these arbitrators depend on these employers as a source of revenue, and are therefore less likely to rule against them.

Several legislative attempts have been made recently to try to level the playing field for employees. In 2013, the Arbitration Fairness Act was introduced in Congress; this is only the most recent time a bill of that name was introduced, prior Arbitration Fairness Acts were introduced in 2007, 2009, and 2011. The act would, among other things, bar pre-dispute arbitration agreements in the employment arena, in effect making employee handbook arbitration clauses illegal. The previous Arbitration Fairness Acts similar to this one have died in Congress - whether this bill will fare any differently remains to be seen.

The New York bill mirrors a federal law enacted in 2010, barring defense contractors and subcontractors from receiving federal funds if they require arbitration of Title VII or sexual assault claims.

If you believe that you have been the victim of workplace discrimination, please contact the Harman Firm, PC.

June 25, 2014

Surveillance of Employees Becoming Almost Ubiquitous Before Law Can Catch Up

As quoted in a 2003 article by Robin L. Wakefield of the Information Systems Audit and Control Association, "The American Management Association's (AMA) 2001 Workplace Monitoring and Surveillance Report indicates that 82 percent of responding managers use some type of electronic monitoring in the workplace...monitoring Internet connections remains the predominant surveillance activity (63 percent), followed by storage and review of e-mail (47 percent) or computer files (36 percent), video recording job performance (15 percent), and the storage and review of voice-mail messages (8 percent). The top three reasons for employee monitoring are legal liability (68 percent), security concerns (60 percent) and legal compliance (50 percent)." Since those data were gathered, all evidence points to a steady and massive increase in the use of various forms of desktop, email, internet, audio and video surveillance by employers.

Many of the reasons that employers give for these practices are difficult to deny. For example, employers are vicariously liable for many actions by their employees and therefore have plenty of reason to monitor and control actions that could end up affecting the company's bottom line--theft, harassment or other illegal workplace behavior, disclosure of company information, etc. Surveillance can be profitable in other ways: gathering detailed data about employees' behavior allows companies to take steps to control processes and increase efficiency. Some of the stated reasons for employee surveillance seem downright beneficent. The CEO of "Sociometric Solutions," a company that provides companies with equipment for monitoring their employees' communication behavior at work, points to the example of Bank of America, which learned through monitoring that they could increase productivity 10% by giving employees a shared 15-minute coffee break each day.

Of course, the trend toward increasing surveillance of workers has led to concerns about privacy and a fierce debate about how much surveillance should be allowed by law. The statutory and case law in this area are yet to take shape; in practical terms, there are presently few legal restrictions on what companies can do when it comes to monitoring employees.

Where they exist, legal restrictions on employers' monitoring of employees are mostly found in state law. For example, in 2006 New York added Article 7, Section 203-C to the state's labor law, making it illegal for any employer to make a video recording of employees "in a restroom, locker room, or room designated by an employer for employees to change their clothes..." New York State law also prohibits eavesdropping, and some lawyers suggest that this law amounts to a prohibition on surveillance by employers, but this law has found few applications in these kinds of cases. So companies in New York have been mostly free to monitor their employees, with only a few specific restrictions.

But now there is legislation pending in the State Congress of New York that would require employers to notify employees in writing "upon hiring" that they engage in electronic monitoring of employee communications, and to post a notice with the same information in a conspicuous location in the workplace. This law is far more on-point than any that preceded, but it does little more than codify the message that Human Resources professionals and corporate attorneys have been sending to companies for many years: the key to staying out of trouble if your company monitors its employees' communications at work is to notify those employees.

Under the new law, if it passes, companies will face laughably small penalties for monitoring without notification: five hundred dollars for the first violation, one thousand dollars for the second, and three thousand dollars for each subsequent violation. The law would not empower employees to seek damages for violations. But it's a start.

If you are an employee and you believe your rights under the New York Labor Law have been violated, please contact The Harman Firm, PC.

June 23, 2014

Supreme Court Upholds Sarbanes-Oxley Whistleblower Protections for Wall Street Contractors

Following the collapse of Enron Corporation in 2001 due to fraudulent financial and accounting practices, the federal government passed the Sarbanes-Oxley Act (SOX) in an attempt to prevent similar corporate implosions. Under SOX, each corporation's executives are required to certify the accuracy of the company's financial records. The new law also created new penalties for fraudulent financial activity and increased the independence of the outside auditors who review the accuracy of corporate financial statements. As part of the latter changes, to increase the accountability of public companies with regard to their financial and accounting practices and accounting, SOX outlawed retaliation against whistleblowers who make good-faith reports of corporate fraud. Enforcement of whistleblower-protection provisions of SOX was assigned to the Departmet of Labor, which in turn assigned OSHA to investigate and adjudicate such claims.

On March 4, 1014 the U.S. Supreme Court in the case ruled">Lawson v. FMR LLC et al., in which the plaintiff alleged that she had been constructively terminated in retaliation after expressing concerns about the FMR's accounting methods. Writing for the 6-Justice majority, Justice Ginsburg gave careful consideration to the text of the law in light of Congress's reasons for enacting it. The central question in the case is whether the protection granted to whistleblowers applies i) only to the employees of public companies, or ii) to the company's employees, its contractors, and the employees of its contractors. The majority reasoned that, because mutual fund companies are almost always nominal companies with no actual employees, the Sarbanes-Oxley Act would be able to have none of its intended effect if it was understood to apply only to those companies' employees. For example, if the employees of a private accounting firm that managed the finances of a mutual fund had no legal protection when they reported fraud, because they were not employees of the mutual fund company itself, then there would be no one in a position to report the fraud. Justice Ginsburg reasoned that this interpretation of the law would undermine both the text and the purpose of the law. The law actually states that "no...contractor...may discharge an employee," clearly referring to an employee of the contractor since the contractor is not in a position to retaliate. Further, since mutual fund companies almost never have employees, under the dissent's narrow interpretation the law would have almost no effect; thus, she Justice Ginsburg writes, "This Court's reading of § 1514A avoids insulating the entire mutual fund industry from § 1514A."

In her dissent, Justice Sotomayor reasons that the majority's construction of the law carries the absurd implication that, for example, that SOX authorizes a babysitter to bring a federal case against his employer--a parent who happens to work at the local Walmart (a public company)--if the parent stops employing the babysitter after he expresses concern that the parent's teenage son may have participated in an internet purchase fraud." Justice Ginsburg replies: "Instead of indulging in fanciful visions of whistleblowing babysitters and the like...the dissent might pause to consider whether a Congress, prompted by the Enron debacle, would exclude from whistleblower protection countless professionals equipped to bring fraud on investors to a halt." Further, the majority argues, "the issue...is likely more theoretical than real. Few housekeepers or gardeners, we suspect, are likely to come upon and comprehend evidence of their employer's complicity in fraud."

The decision in this case confirms that contractors and their employees who blow the whistle on corporate fraud are protected by the Sarbanes-Oxley Act.

If you are an employee and you believe your rights under the Sarbanes-Oxley Act have been violated, please contact The Harman Firm, PC.

June 20, 2014

Starting on January 1, 2015, Many More Domestic Workers Will Be Entitled to Minimum Wage and Overtime Pay

The United States Department of Labor says that "nearly all" of the almost 2 million direct care workers in the United States work for third-party home care agencies, rather than directly for the client who receives their care services. At present, as recently confirmed by the United States Supreme Court's decision in Long Island Care at Home, Ltd. v. Coke, the Fair Labor Standards Act exempts providers of "companion services" from the FLSA's general minimum wage and overtime requirements.

The DOL's "final rule", which takes effect on January 1st of next year, clarifies and narrows the definition of "companionship services," requires the recording of hours worked by this category of employees, and--most importantly--precludes third-party providers of home care from claiming the companionship services exemption at all. This means that starting next year the vast majority of home care workers will--at long last--be protected by the FLSA.

Twenty states have at least some state-level requirements regarding the payment of minimum wages or overtime to these workers. But the U.S. population as a whole has a set of extremely inconsistent and often very weak standards regulating the employment of home care workers, and most of those workers are left with few legal protections at all. The disempowerment and underpayment of this population of workers is made all the more worrisome when we consider that the large majority of them are also women and racial minorities.

The FLSA does currently restrict the companionship services exemption to those who i) do not perform medical services that would typically be performed by trained personnel such as nurses, and ii) do not spend more than 20% of their work time doing general household work. These restrictions will remain largely intact after the Final Rule becomes effective next year, with one important change: the new requirements on record-keeping for domestic workers will make employers accountable for following these rules.

Of course, agencies providing home care services and corporate lawyers have complained loudly, arguing that these new rules will make their businesses unprofitable and ultimately make it harder for those who need home care to find it--or to afford it if they can find it. However, as Laura Fortman of the DOL's wage and hour division pointed out shortly after these policy discussions began in 2013, (at that time) fifteen states already provide(d) overtime and minimum wage protection to home care aides, and "we have not seen any evidence that it has resulted in job loss or any serious negative impact for the workers or for the people using the services."

Companies that offer home care services will face some compliance challenges, to be sure, and many will have to adopt new practices regarding meal breaks, the length of shifts, job duties assigned to workers, etc. However, even if some health companies' profit margins are affected, they are companies providing a service, so it is difficult to justify treating their employees differently than all others.

Under the new Final Rule it will remain possible for people who need in-home care to hire directly rather than through a third-party agency, and in that case they will still be exempt from the minimum wage and overtime requirements, assuming those directly-hired workers only perform the duties of a "companion" as the FLSA defines it.

If you are an employee and you believe your rights under the Fair Labor Standards Act have been violated, please contact The Harman Firm, PC.