New York Employment Attorneys Blog

Yarelyn Mena and Edgar M. Rivera, Esq.

On April 27, 2016, the Second Circuit decided Legg et al. v. Ulster County et al., in which it reversed the Northern District of New York’s decision at summary judgment dismissing a pregnancy discrimination claim under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.  Legg arose after Ann Marie Legg, a corrections officer at the Ulster County Jail (“Ulster Jail”), requested an accommodation under Ulster Jail’s “light duty” policy.  Ulster Jail’s light duty policy allows employees suffering from medical conditions resulting from a line-of-duty injury to be reassigned to deskwork, i.e., to positions that do not include inmate contact.  Under the policy, pregnant women are not eligible for light duty; they must either continue to work “full duty,” use accrued sick or vacation time, or take leave under the Family and Medical Leave Act.

In 2008, Ms. Legg became pregnant.  Her doctor told her that her pregnancy was “high risk” and recommended that she “shouldn’t have direct contact with inmates.”  In accordance with her doctors’ recommendation, she requested that Ulster Jail allow her to work light duty and submitted a doctors’ note in support.  Although at first Ms. Legg received a denial letter in July 2008 stating that “[e]mployees are afforded light duty assignments at the Sheriff’s discretion for work-related injuries/illnesses only,” she was later informed that Ulster Jail would grant her request once she submitted a revised doctors’ note indicating that she was in fact able to work without restriction.  Ms. Legg complied and submitted the letter. For a time, Ulster Jail assigned Ms. Legg to light work; however, around August 2008, they forced her to work with inmates again.  In November 2008, Ms. Legg, now seven months pregnant, was caught in the middle of a physical fight between two inmates during which one inmate bumped into her as he ran past her.  After this incident, Ms. Legg did not return to work until after she gave birth.  Upon returning to work, Ms. Legg brought a lawsuit against Ulster Jail alleging pregnancy discrimination for denying her request for light duty.  Ulster Jail moved for summary judgment, arguing that light duty was only available for employees injured in line of duty and that all employees regardless of their gender or pregnancy status, were treated the same under that policy. The district court granted Ulster Jails’s motion and dismissed the case.

Yarelyn Mena and Edgar M. Rivera, Esq.

For a claimant to qualify for unemployment insurance benefits, the claimant, among other things, must have lost their job through no fault of their own. This generally means if the claimant was terminated, it must not have been for misconduct. Usually, whether the reason for termination rises to misconduct is simple: stealing, harassment, or fighting is misconduct while forgetfulness, occasional lateness, or being unable to do the job is not. The following two cases are examples of uncertainty; uncertainty in whether the behavior amounts to misconduct and uncertainty as to what actually happened.

In the first case, claimant Shawn Roy appealed his disqualification from receiving unemployment insurance benefits on the grounds that there was no misconduct. The Appellate Division found substantial evidence that supported the Unemployment Insurance Board’s determination that Mr. Roy was discharged as a food service worker due to disqualifying conduct, specifically, he created “violent and sexually explicit videos using LEGO characters, including characters depicting the executive director of the nursing home, claimant’s department head and two female coworkers, and posted the videos online.” The Board was convinced that Mr. Roy was obligated “even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him… ” As such, the Board decided that the videos constituted misconduct and, as a result, he was disqualified for collecting unemployment insurance benefits. This case is a lesson in that at least in some circumstances, legal conduct outside of work can constitute misconduct.

Yarelyn Mena and Edgar M. Rivera, Esq.

Courts in the United States generally recognize that marijuana use is a legitimate reason to terminate an employee. However, with an increasing number of states now legitimizing both recreational and medical marijuana use, employers and employees alike are left with uncertainty as to the potential repercussions of marijuana use with respect to employment.

Twenty-three states and the District of Columbia have legalized medical marijuana. In addition, in some states, including Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada and New York, an employer cannot take an adverse action against an employee simply because of his or her participation in a recognized medical marijuana program. Medical marijuana use also implicates federal and state disability laws. Additionally, a medical marijuana user may be considered disabled if he or she has a disability under the Americans with Disabilities Act (ADA) or similar state statutes. While the ADA itself does not require an accommodation based on marijuana use, it does require other accommodations related to a covered disability. As such, if an employee tests positive for marijuana, the employer should ask the worker to verify that he or she is a participant in a recognized medical marijuana program.

Yarelyn Mena and Edgar M. Rivera, Esq.

Several state investigations have found that the retail practice of “on-call scheduling” – where workers must call their employers to check if they are needed for scheduled shifts and are not paid if their shifts are cancelled – is so prevalent that several state attorney generals are demanding that major retailers respond to questions regarding their scheduling practices and answer requests for documentation.

On April 12, 2016, the attorney general of eight states and Washington D.C. sent letters to fifteen retailers, including Aeropostale, Payless and Coach, asking whether they use on-call scheduling and, if so, how they implement it. The retailers must provide answers by April 25, 2016. The officials are concerned about workers’ well-being because on-call scheduling leads to erratic schedules, making it difficult to plan child care, work a second job, or take classes.  Essentially, workers must make themselves available but are not guaranteed work while employers receive the benefits of always having workers available if the store becomes busy without having to pay workers.  On-call scheduling can also lead to unexpectedly low pay because employers often send employees home on slow days without proper compensation.  Additionally, low income workers often do not have the financial flexibility to allow for this type of uncertainty in their pay. In sum, on-call scheduling lets employers quickly staff their stores on busy days, and send employees home early on slow days, thus, saving money on payroll at the expense of their employee convenience.

Yarelyn Mena  and Edgar M. Rivera, Esq.

On March 23, 2016, North Carolina Governor Pat McCrory signed in to law the Public Facilities Privacy of Security Act (or H.B. 2), which bans transgender people from using the public bathroom that corresponds to their gender identity, overturns Charlotte, North Carolina’s anti-LGBT discrimination law, prevents other localities from passing anti-discrimination laws, and prevents cities from raising their minimum wages higher than that of the state. H.B. 2 was passed days before Transgender Day of Visibility, a day that recognizes the accomplishments of the transgender community. Although there were many recent victories for the LGBT community, H.B. 2 is an important reminder that there is still a lot of work to be done before LGBT individuals have the same rights everyone enjoys.

On February 22, 2016, the city of Charlotte, North Carolina passed a law prohibiting discrimination against gay, lesbian, bisexual and transgender people in the workplace. The most controversial part of the law was that it would allow transgendered people to use the bathroom that corresponds with their gender identity. Opponents of the bill nicknamed it the “bathroom bill” and argue that it made bathrooms unsafe for women and children. University of North Carolina at Greensboro, Payton McGarry, a transgender student, is one of the Plaintiff’s in a lawsuit challenging H.B. 2, who has been assaulted and ridiculed for using the bathroom that comports with his gender identity at his university, experiences which will only grow worse with H.B. 2 in place. H.B. 2 abrogated that law.

Edgar M. Rivera, Esq.

On March 17, 2016, in Graziadio v. Culinary Institute of America, the Second Circuit articulated the test for an employee-employer relationship with respect to Family and Medical Leave Act (“FMLA”) claims and clarified the standards for establishing prima facie cases in FMLA interference claims, FMLA retaliation claims, and association-disability claims under the Americans with Disabilities Act (“ADA”).

Cathleen Graziadio worked as a Payroll Administrator at the Culinary Institute of America (the “Institute”). On June 6, 2012, she took a leave under the FMLA to care for one of her sons who suffers from diabetes and took additional leave on June 27 when her other son broke his leg. The Institute took issue with the paperwork supporting her second FMLA leave and refused to allow her to return to work until she provided new documentation. Soon after, communication between Ms. Graziadio, Shaynan Garrioch—the Institure’s Director of HR—and Loreen Gardella—Ms. Graziadio’s supervisor—broke down, resulting in the Institute terminating Ms. Graziadio’s employment for abandoning her job.

Yarelyn Mena and Edgar M. Rivera, Esq.

In a 2014 case, Martin v. The United States, the United States Court of Federal Claims held that an employer’s late payment of wages violates the Fair Labor Standards Act (“FLSA”) and may trigger liquidated ”double payment” damages. The case arose out of the 2013 government shutdown (October 1, 2013 to October 16, 2013) which resulted in the untimely payment of wages to government workers.

Towards the end of 2013, Congress failed to issue funds for government workers, forcing the federal government into a partial shutdown. The shutdown took place in the first two weeks of October 2013, in the middle of a pay period, which resulted in plaintiffs unpaid government employees being paid only for work from September 22 to September 30, and not the first five days in October. Two weeks after their scheduled payday the plaintiffs received pay for those five days. They argued that the federal government’s failure to pay them for hours worked resulted in (i) underpayment that constituted a minimum wage violation, (ii) failure to pay non-exempt employees for overtime hours worked, and (iii) failure to pay even exempt employees for overtime hours worked.

Lucie Rivière and Edgar M. Rivera, Esq.

In January 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked to enforce the Title VII of the Civil Rights Act of 1964 (“Title VII”), adopted its Strategic Enforcement Plan (“SEP”) for the 2013-2016 time period, in which it identified the importance of addressing emerging and developing issues as one of its six national priorities. Specifically, EEOC wants to expend the protection of lesbian, gay, bisexual and transgender individual under Title VII.

On March 1, 2016, the EEOC filed two lawsuits asserting sexual orientation discrimination claims under Title VII. In U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa. Mar. 1, 2016), the EEOC alleges that a gay male employee was subjected to harassment because of his sexual orientation. In U.S. Equal Employment Opportunity Commission v. Pallet Companies d/b/a IFCO Systems, NA, Inc., Case No. 1:16-cv-00595-RDB (D. Md. Mar. 1, 2016), the EEOC alleges that a supervisor harassed a lesbian employee because of her sexual orientation. In both cases, the EEOC argues that the defendants conduct occurred in violation of Title VII.

Lucie Riviere and Owen H. Laird, Esq.

On February 16, 2016, U.S. District Judge William T. Lawrence of the Southern District of Indiana held that the Fair Labor Standards Act (“FLSA”), the federal labor law that prohibits employers from paying their employees less than minimum wage, did not cover college athletes.

In Berger v. National Collegiate Athletic Association, the three plaintiffs, members of the University of Pennsylvania (“Penn”) women’s track and field team, alleged that they were entitled to be paid at least the minimum wage for the work they performed as student athletes (e.g. practicing, playing in games, appearing at events, etc.). They argued that, by virtue of being on the team, they were Penn’s employees for purposes of the FLSA because they performed work for their universities for no academic credit, like students participants in work-study program. The plaintiffs sought an order from the Court allowing a collective action with a class of “[a]ll current and former National Collegiate Athletic Association (“NCAA”) Division I student athletes on NCAA women’s and men’s sports rosters for the [Defendant schools] . . . from academic year 2012-13 to the present” against Penn as well as the NCAA and the 123 NCAA Division I Member Schools.

Yarelyn Mena and Edgar M. Rivera, Esq.

On February 13, 2016, Supreme Court Justice Antonin Scalia passed away after 30 years of service on the bench. Justice Scalia was widely renowned for his conservative political views and eloquent legal opinions. His passing left a vacanct seat at the Supreme Court, without Justice Scalia, the Supreme Court; is evenly split between four liberals and four conservatives. The Constitution tasks the President to fill that vacancy by appointing a candidate “by and with the advice and consent” of the Senate.

The media has been whirling as it awaits President Obama’s nomination in light of the President’s ongoing battle with the Republican-filled Senate’particularly because any Republicans in  the Senate have vowed to block any of President Obama’s nominations. In fact, many Republicans in the Senate wish to prevent President Obama from nominating any Justice in hopes that when his term is over at the end of 2016, a new Republican President will nominate a conservative justice.