New York Employment Attorneys Blog

Owen H. Laird, Esq.

In a reminder that gender discrimination is not only a problem in the United States, the former team doctor for a top English Premier League football team recently settled her gender discrimination claim against the club on the eve of trial. Eva Carneiro was the lead doctor for Chelsea Football Club until a feud with the team’s manager over her decision to take the field to tend to an injured player triggered a series of events that ultimately led to Chelsea demoting Ms. Carneiro, at which point she resigned.

Ms. Carneiro sued Chelsea and the manager, alleging that she had been constructively dismissed (i.e., forced to resign), sexually harassed, and discriminated against because of her gender. Specifically, she alleged that Chelsea subjected her to a sexist atmosphere, that the manager made sexist and derogatory comments, and that the Club subjected her to disparate treatment as a woman. Given that the incident began with a highly public confrontation during a match, involved a very popular club, and the sensationalist nature of the British press, the case received immediate attention in the media.

Lev Craig and Edgar M. Rivera, Esq.

When Philip Sullivan decided to apply for a warehouse job at Grisham Farm Products, Inc. (Grisham), he learned that Grisham required all applicants to complete a 3-page “Health History” as part of their employment application. This form asked applicants to respond to 43 questions concerning their medical histories, including whether they had consulted with a healthcare provider in the past 24 months or suffered from specific medical issues, such as heart conditions, depression, and sexually transmitted infections, among others.

As Mr. Sullivan has disabilities, he was worried that his answers would reveal them and thus negatively impact his chances in the hiring process; therefore, he decided not to apply for the job and instead contacted the Equal Employment Opportunity Commission (EEOC). The EEOC sued Grisham on his behalf, alleging violations of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). The ADA prohibits employers from inquiring into a person’s medical history before making a conditional offer of employment, and GINA prohibits employers from requesting genetic information from job applicants.

Edgar M. Rivera, Esq.

On June 2, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) proposed enforcement guidance addressing national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). The guidance sets forth the agency’s interpretation of national origin discrimination under Title VII. This enforcement guidance will supersede the 2002 EEOC Compliance Manual, Vol. II, Section 13: National Origin Discrimination.

Title VII prohibits an employer from treating its employee unfavorably due to his or her national origin, which includes discrimination based on ethnicity, the appearance of an ethnic background, or the association with a particular country or part of the world. National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated or perceived to be associated with a particular religion or race. For example, discrimination against people with origins in the Middle East may be motivated by race (Arab), by national origin (Jordan), or religion (Islam). As a result, the same set of facts may state claims alleging multiple bases of discrimination. The proposed guidance also includes three new areas of coverage: job segregation, human trafficking, and intersectional discrimination.

Yarelyn Mena

In David Brady v. Bath Iron Works Corporation, Bath Iron Works Corporation (“Bath Iron Works”) terminated David Brady, a long time employee, for drinking a beer with a co-worker while on FMLA leave. Mr. Brady alleged that Bath Iron Work’s termination of his employment violated the Family Medical Leave Act (“FMLA”).

In 2014, Mr. Brady began to suffer from mental health issues, including depression and anxiety, and took intermittent FMLA leave. On June 23, 2015, Mr. Brady again took intermittent FMLA to undergo treatment related to his mental health issues.

Yarelyn Mena

On May 31, 2016, in Janean E. Chambers v. Sylvia Mathews Burwell, the Court of Appeals for the District of Columbia Circuit held that an employee may suffer an adverse employment action where an employer refuses to promote the employee to a non-existent position. Janean Chambers—a longtime, legally blind, Black employee of the U.S. Department of Health and Human Services (“HHS”)—filed a complaint alleging race and disability discrimination in violation of the Civil Rights Act of 1964, Title VII, and Rehabilitation Act against the HHS after HHS denied her several requests for promotions.

In 2006, HHS promoted Ms. Chambers to management analyst. In 2007, she applied for a another promotion; however, her supervisor, Michael Curtis, informed her that her position was capped at the current pay level and that she could apply for other positions within HHS of a higher pay level or request a “desk audit” to demonstrate that her skills warranted a higher pay level. Ms. Chambers instead decided to continue working in her position and sought an “informal” promotion by requesting the creation of a higher pay level vacancy with the same responsibilities as her current position, which HHS commonly granted. Mr. Curtis supported Ms. Chamber’s efforts but advised her that he did not have the authority to create a new position.

Owen H. Laird, Esq.

For New Yorkers, both the Fair Labor Standards Act (FLSA) and New York Labor Law provide employees with rights to a minimum wage and, in many cases, overtime pay. However, many workers in New York still do not receive the pay to which they are entitled; for instance, employers may under-report employees’ hours, improperly withhold wages or tips, or simply pay a wage lower than the State minimum.

However, many employees choose to let these violations go because they are “minimal.” An employer might underpay an employee for by a half hour for each pay period, a loss that might only amount to a few dollars a month. The employee could hesitate to pursue those lost wages, afraid of upsetting things at work or doubtful that they can find a lawyer to pursue a smaller case. Despite these potential concerns, employees who believe they are being illegally underpaid should not be afraid.

Yarelyn Mena

Last year, on June 29, 2015, the Department of Labor and President Obama announced a proposed rule change to the Fair Labor Standards Act (“FLSA”) that would increase the number of Americans eligible for overtime pay by increasing the salary threshold for overtime from $23,660 to $47,470. On May 18, 2016, the Obama administration issued the official rule changes, which goes into effect December 1, 2016.

The FLSA requires that employers pay certain employees overtime. Specifically, employers must pay eligible employees overtime for all hours worked above forty each week, at a rate of one and a half times their normal rate. Not all employees are entitled to overtime under the FLSA; for example, employers do not need to pay overtime to administrative, executive, or professional employees. Employees who are not entitled to overtime pay under the FLSA are “exempt.” However, the FLSA also creates an exception to these exemptions: if the employee earns less than a certain salary threshold – currently set at approximately $23,660 per year—then the employee is entitled to overtime pay no matter what their job duties.

Yarelyn Mena

Employers are often hostile to employees who must leave their job for extended periods of time, sometimes even terminating employees while they are on leave or upon their return to work. Such conduct, if permissible, would significantly impact military personnel, as members of the Armed Forces—particularly members of the Active Reserve and of the National Guard— are frequently required to leave their civilian jobs for service. To assure service members that their jobs will be secure, in 1994, Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA). The USERRA prohibits discrimination against service members in all employment decisions and requires employers to reemploy service members without losing their seniority.

As Elaine Chao, former Secretary of Labor explains:

Yarelyn Mena

On January 5, 2016, New York City Mayor Bill de Blasio signed Intro. 108-A, which expands the list of protected characteristics under the New York City Human Rights Law (NYCHRL) to include “caregiver status.” The NYCHRL currently prohibits employment discrimination on the basis of a number of protected characteristics, such as age, race, creed, color, national origin, gender (including gender identity and sexual harassment), disability, marital status, partnership status, sexual orientation, alienage, and citizenship status. The amendment is aimed at protecting the City’s family caregivers, who provide an estimated $31 billion of unpaid care per year for an increasingly large population of children, the disabled and elderly people. Mayor de Blasio expressed the importance of this legislation stating, “Caregivers are our unsung heroes. They literally keep families together. It’s critical we give them the employment protection they need and deserve.” Carmelyn P. Malalis, the New York City Human Rights Commissioner agreed, saying:

No one should be discriminated against because of their status as a caregiver. Intro. 108 guarantees that every parent and family member caring for a loved one receives the same rights and opportunities in the workplace as everyone else. The Commission will vigorously enforce this much-needed protection and looks forward to working with the Mayor’s Office and the New York City Council to further advance the rights of caregivers under the law so that every New Yorker can live and work free from discrimination.

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.