New York Employment Attorneys Blog

Owen H. Laird, Esq.

Many people are unaware of the significance of May 1. May 1 is May Day, also known as International Workers Day. In many countries across the world, “Labor Day” is celebrated on May 1. These holidays came to be in the late 19th century, as labor movements grew in size and significance, and nations began to recognize the importance of both workers and workers’ rights.

Although trade unions and organized labor have waned in power and influence, workers are still struggling in the United States and abroad to improve working conditions, to earn a fair wage, and to expand their rights. Each month, newspapers across the world are full of stories about workers coming together, from fast food workers seeking to increase wages in the United States to domestic workers trying organize to protect themselves in India, from fighting for safer workplaces here in New York to ending sweatshop labor across the globe.

Many people view the employer-employee relationship as one of subservience, where the employee should be happy to accept whatever his “generous” employer is willing to offer. We at The Harman Firm do not agree; workers have fought for rights in the workplace and must be allowed to exercise those rights when they are infringed upon by indifferent employers. Employers routinely and knowingly fail to pay their employees the overtime they are entitled to by law, and even fail to pay their employees the basic minimum wage. In order to secure the wages they are due, workers must demand to be paid.

In addition to fighting to enforce overtime and minimum wage laws, workers must still fight for basic human rights in the workplace as well. Despite a popular attitude that the dark days of race and gender discrimination are behind us, people still suffer from discrimination every day. We represent those who have been discriminated against because of their race, color, religion, gender, national origin, marital status, military status, sexual orientation, age, disability, citizenship status, and partnership status.

With the stock markets at all-time highs and corporate profits ever-increasing, that businesses continue to pad their balance sheets by treating workers as a commodity to be used up, rather than individual human beings, is shameful. Employers are willing to break laws and violate their employees’ rights to cut costs and increase profits. The only way to force these businesses to treat their employees properly is to make breaking the law too expensive to be a viable option by asserting workers’ rights. The only way to make companies feel the cost of their illegal actions is to stand up and go to the Equal Employment Opportunity Commission, go to the Department of Labor, or bring a case to court.

The sad truth is that employees with the courage to face their employers and assert their rights are often retaliated against for doing so. Rather than being intimidated, workers must understand that retaliation is also illegal and fight back against it. Even though workers are less powerful and very rarely able to engage with an employer on equal footing, governmental agencies and the judicial system provide them with a way to make their voice heard.

This May Day, if your employer is breaking the law, do something about it. The Harman Firm is prepared to provide legal assistance and counsel to employees with a wide range of employment claims, including wage-and-hour, discrimination, hostile work environments, harassment, and retaliation. If you believe that your rights have been violated, please contact us.

Yarelyn Mena and Edgar M. Rivera, Esq.

In February 2015, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit in the South District of Florida against Ruby Tuesday, a national restaurant chain, alleging age discrimination. The EEOC alleges that Ruby Tuesday discriminated against older applicants for both “front of the house” positions, which include host and server positions, and “back of the house” positions, which include chef and kitchen manager positions. The complaint claims that Ruby Tuesday’s management told older applicants that they were “too experienced,” that Ruby Tuesday was searching for “fresh” youthful employees, and that “[Ruby Tuesday] wasn’t looking for “old white guys.”

This lawsuit is not the first time Ruby Tuesday has been accused of age discrimination. In 2013, Ruby Tuesday agreed to pay $575,000 to settle another age discrimination lawsuit filed by the EEOC in Western District of Pennsylvania, which alleged that Ruby Tuesday directly or implicitly instructed the managers at six restaurants in Pennsylvania and Ohio to not hire servers, bartenders, hostesses or kitchen staff over the age of 40.

People are living longer, healthier, and more productive lives; however, the unsupported stereotype still exists that older workers are mentally and physically inferior to younger workers and lack flexibility and enthusiasm. Age discrimination is profoundly harmful, depriving the national economy of the productive labor of millions of workers, substantially increasing the costs of both unemployment insurance and Social Security benefits, and inflicting economic and psychological injury upon workers robbed of the opportunity to engage in productive and satisfying occupations. As Kerry Segrave, the author of numerous works of social history, famously stated: “Racial bias targets people for what they are. Age bias targets people for what they become.” The Age Discrimination in Employment Act (“ADEA”) protects individuals above the age of 40 who are discriminated against based on their age. Robert E. Weisberg, the EEOC attorney representing the plaintiffs in 2015 lawsuit, stated: “As workers remain in the workforce longer, it is more important than ever that we refocus on the principle of non-discrimination based on age in the workplace. The EEOC will vigorously protect the rights of job applicants to ensure that hiring decisions are based on abilities, not age.”

In addition to discriminatory hiring, older workers are likely to be unemployed for longer periods of time than their younger counterparts and typically earn less after losing a job. The Washington Post reports that over 35 percent of those unemployed from age 55 to 64 remain so for the long term. This percentage increases to 45 percent for unemployed workers age 65 and older. Age discrimination forces older people into retirement earlier than planned and with less money in their retirement years. Older workers are also likely to earn less after losing a job. Accordingly to Heidi Shierholz, the U.S. Department of Labor’s Chief Economist, older workers earn 13.5 percent less in a new job after losing one than younger workers. This is particularly troublesome because in many families, an older worker is the breadwinner, and when he or she cannot find work, the rest of the family is unable to afford basic necessities. The elimination of discriminatory barriers keeping older but capable workers out of the workforce is essential for a healthy economy and healthy nation.

Employers must recognize that staffing older workers is a benefit and not bad luck. If you believe your employer illegally discriminated against you because of your age, please contact The Harman Firm, PC.

 

Ciera Ambrose and Owen H. Laird, Esq.

Recently, there has been an uproar surrounding two recent so-called “religious freedom” acts passed in Indiana and Arkansas. These laws, approved by the Republican-dominated legislatures and signed by Republican Governors, allow businesses in those states to refuse service to gay people on the basis of religious beliefs. While it is illegal under federal law to refuse service to someone because of his or her race, there is no similar protection for sexual orientation.  As a result, individual states are able to pass these “religious freedom” laws.

Laws allowing businesses or individuals to refuse service based on religious beliefs raise a number of ramifications concerning employment law, including the potential for conflict, up to and including employment discrimination, based on differing religious beliefs between employers and employees.

For example, Crystal O’Connor, whose family owns Memories Pizza in Walkerton, Indiana, told local TV station WBND that the state’s new religious freedom law protects their right to deny service to gay couples.  O’Connor stated that their Christian beliefs would prevent them from catering a same-sex couple’s wedding: “If a gay couple came in and wanted us to provide them pizzas for a wedding, we would have to say no.”

Now imagine that Memories Pizzeria had an employee who did not agree with this practice, and chose to serve gay customers. Would the owners of Memories Pizzeria have the legal right to terminate this employee? Or, conversely, if a business desired to serve gay customers, but an individual employee refused to do so, citing “religious freedom,” would the employer have the right to terminate that employee?

These questions are similar to those raised in 2012, when individual Illinois pharmacists were permitted to refuse to sell the contraceptive, “Plan B,” based on anti-abortion religious grounds. In this matter, an Illinois appeals court ruled that pharmacists may refuse to dispense the “morning after pill,” despite a 2005 executive order that directed all pharmacists to fill prescriptions for the morning after, or “Plan B,” pill. The lawsuit asserted that the Illinois Health Care Right of Conscience Act (the “Act”) should protect individual pharmacists from punishment if they refused to offer a service that is opposed to their religious beliefs. The Act allows pharmacists to refuse to dispense certain items. Although some recognized the order’s intention to “promote timely access to Plan B and other medicine,” they also saw it as an infringement on the “religious freedom of pharmacists who believe that life begins at conception.”

At issue in 2012 was that individuals, contrary to the wishes of the employer, did not want to provide services to customers based on their religious beliefs. Similar disagreements between employer and employee may well arise because of these new “religious freedom” laws. Where employer and employee do not share the same religious beliefs, allowing either employer or employee to act based on those beliefs against the wishes of the other side could easily lead to an employment dispute, and raise implications of religious discrimination.

Key ethical concerns between employers and employees exist as a result of these “religious freedom” acts and employees must remain conscious of the potential negative implications. To remain updated on employment law related news, please visit The Harman Firm, PC’s Blog.

Ciera Ambrose and Edgar M. Rivera, Esq.

Lakeland Eye Clinic (“Lakeland”), a Florida based ophthalmology and optometry center, agreed to pay $150,000 to settle a lawsuit for transgender discrimination under Title VII of the Civil Rights Act (“Title VII”). The eye clinic allegedly discriminated against a transgender worker by terminating her employment for failing to conform to the employer’s gender-based expectations. The complaint alleged that although the employee had performed her duties satisfactorily throughout her employment, Lakeland terminated her employment after she began to present herself as a woman.

Gender-identity discrimination in the workplace occurs when an employer discriminates against an employee for not adhering to expected gender norms. According to Workplace Fairness, a non-profit organization working to preserve and promote employee rights, gender-identity discrimination includes: (i) terminating a transgender employee after the employer learns of the employee’s gender identity or planned transition; (ii) denying a transgender employee access to workplace restroom facilities available to other employees; (iii) requiring a transgender employee to use a restroom not consistent with the employee’s gender identity or presentation; (iv) harassing a transgender employee; (v) permitting and/or refusing to investigate claims of harassment by coworkers and supervisors; or (vi) any other adverse employment action taken because of an employee’s gender identity.

Federal law does not specifically prohibit discrimination based on gender identity, but courts interpret Title VII gender protections to include discrimination based on gender stereotypes. In Price Waterhouse v. Hopkins, where a female employee was rejected from a partnership for being, among things, “overly aggressive for a woman,” the Supreme Court of the United States stated that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group….” The Court memorably stated, “[It does not] require expertise in psychology to know that, if an employee’s flawed ‘interpersonal skills’ can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.” In Glenn v. Brumby, the Eleventh Circuit explained: “[A] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes…. There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of fender-based behavioral norms.” In Macy v. Holder, the Equal Employment Opportunity Commission found that the complainant’s charge of discrimination based on gender identity, change of sex and/or transgender status was cognizable under Title VII, stating “we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on …sex,’ and such discrimination therefore violates Title VII.” There is no debate over whether Title VII protections include transgender individuals, as long as the discrimination is motivated by gender stereotypes.

After the lawsuit, Lakeland adopted a new transgender policy that prohibits discrimination against employees transitioning from one gender to another, and for sex- or gender-based preferences, expectations, or stereotypes.  Lakeland also implemented a new training program for its managers and employees explaining the prohibition against transgender/gender stereotype discrimination and provided its management with guidance on handling transgender/gender-stereotype complaints.

Being discriminated against because your employer learns you intend to undergo sex reassignment surgery, being retaliated against for failure to conform to a company policy that makes no effort to accommodate transgender individuals, and being harassed by coworkers and supervisors on the basis of your gender identity are all examples of sexual identity discrimination and may be grounds for civil litigation.

If you have experienced gender identity discrimination by your employer, please contact The Harman Firm, PC.

Yarelyn Mena and Edgar M. Rivera, Esq.

On March 16, 2013, Kathryn Zabell brought an action against former employer Medpace, Inc. (“Medpace”) under the Americans with Disabilities Act (“ADA”) alleging Medpace terminated her employment for a perceived disability. In 2010, Medpace hired Ms. Zabell as a Medical Writer II, the second highest level at Medpace for her position. In 2011, Ms. Zabell was assaulted in her home. She notified her boss, Mr. Breen, who allowed her to take time off from work to attend therapy sessions and doctors’ appointments. Weeks after the assault, Ms. Zabell discovered that her assailant had the human immunodeficiency virus (“HIV”). She informed Mr. Breen of her exposure to HIV and requested to take some time off to be with her family, which he approved. Shortly after Ms. Zabell’s return to work, she noticed differences in Mr. Breen’s demeanor towards her; he ceased casual talk, changed his body language around her, and watched everything she touched when she was in his office. Within three months of Ms. Zabell informing Mr. Breen of her exposure to HIV, Medpace terminated her employment. Ms. Zabell claims Mr. Breen discriminated against her as if she had HIV. After she was terminated, Ms. Zabell learned she in fact was not HIV positive.

Mr. Breen and the Senior Medical Writer, Ms. Cafferkey, claim they terminated Ms. Zabell because her work was not progressing and they had to spend a great deal of time editing her work; however, emails between both parties reveal that Mr. Breen and Ms. Cafferkey assured Ms. Zabell of the high quality of her work, with criticisms comparable to other Medpace employees who were not terminated.

Medpace moved for summary judgment on the above-mentioned issue. Although Ms. Zabell did not have a disability, she can establish an ADA claim under the theory of having been “regarded as disabled,” i.e., a perceived disability. To succeed, she must demonstrate to the court that if it were not for Mr. Breen believing she had a disability, she would not have been terminated. In Gruener v. Ohio Cas. Ins. Co., the Sixth Circuit held that the “regarded as disabled” theory of disability discrimination “protects employees who are perfectly able to perform a job, but are rejected… because of the myths, fears and stereotypes associated with disabilities.” Further, for purposes of the ADA “[the] HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease.” Ms. Zabell did not require any burdensome accommodations, nor was her work negatively affected, yet when Mr. Breen learned Ms. Zabell was exposed to HIV treated her markedly differently before terminating her employment.

On March 31, 2015, the U.S. District Court for the Southern District of Ohio decided in Ms. Zabell’s favor, denying Medpace summary judgment. Ms. Zabell showed that there was a genuine issue as to whether Medpace’s proffered rationale was pretextual. The court opinion rested heavily on the temporal proximity between Ms. Zabell’s exposure to HIV and her dismissal, Medpace’s changing rational, and unresolved questions of fact regarding Ms. Zabell’s allegedly poor performance.

This case is illustrative of the mistreatment employees often experience. Fully competent disabled workers are ostracized in their workplaces and robbed of their much-needed income over vicious stereotypes and unfounded fears. These myths are so pervasive that Medpace may have discriminated against Ms. Zabell whom it only believed had HIV. Laws such as the ADA aim to protect the disabled and those perceived as disabled against the maltreatment in the workplace.

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

Ciera Ambrose and Edgar M. Rivera, Esq.

On March 26, 2015, the Supreme Court of the United States (“SCOTUS”) articulated the standard for pregnancy discrimination claims under the Pregnancy Discrimination Act of 1978 (“PDA”). In Young v. UPS, the Court interpreted the second clause of the PDA, which requires employers to treat “women affected by pregnancy … the same for all employment-related purposes…as other purposes not so affected but similar in their ability or inability to work.” The Court decided how this clause applies to employers that provide fewer accommodations to pregnant workers than to employees with non-pregnancy related disabilities.

Peggy Young was a part-time UPS driver. After becoming pregnant, her doctor advised her not to lift anything more than 20 pounds. UPS requires drivers are required to lift packages weighing up to 70 pounds.   Young requested UPS to allow her to continue to working without requiring her to lift heavy packages to accommodate her pregnancy. UPS regularly gave such accommodations to employees who sustained work-related injuries or suffered from disabilities covered by the Americans with Disabilities Act (“ADA”). UPS told Young that she could not work if she could not lift packages. Young consequently stayed home without pay during most of her pregnancy. Young sued UPS under the PDA, alleging that UPS had discriminated against her based on her pregnancy.

The district court granted summary judgment in UPS’s favor, finding that the workers with whom Young compared herself—those who suffered on-the-job injuries or ADA disabilities, were too different to qualify as similarly situated employees. According to the court, on-the-job injuries were distinguishable because they occur at the workplace in furtherance of the employer’s business, and the ADA, as then defined, only protected employees with permanent disabilities. The Fourth Circuit affirmed.

Writing on behalf of the 6-3 majority, Justice Breyer explained that the PDA does not require employers to offer benefits to pregnant employees that it does not provide to non-pregnant employees. The Court ruled that a complainant for pregnancy discrimination must show that her pregnancy “actually motivated the employer’s decision” to deny accommodation through direct evidence that a workplace policy relies expressly on a protected characteristic or through the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green. Under McDonnell Douglas, Young must show that (i) she was pregnant, (ii) she sought accommodation, (iii) the employer did not accommodate her, and (iv) the employer did accommodate others “similar in their ability or inability to work.” If Young is able to make such a showing, the burden shifts to UPS to articulate some legitimate, nondiscriminatory reason for treating non-pregnant employees better than pregnant employees. If UPS articulates such a reason, Young has an opportunity to prove by a preponderance of the evidence that the reasons offered were pretext for discrimination. Pretext is shown by providing sufficient evidence that UPS’s policies impose a significant burden on pregnant employees, and that their legitimate, nondiscriminatory reasons are not sufficiently strong to justify such burden, but rather—when considered in light of the burden imposed—give rise to an inference of intentional discrimination. In other words, why could UPS not accommodate pregnant women when it already accommodated so many other employees?

The Supreme Court vacated the judgment and remanded the case to the Fourth Circuit to decide whether Young presented a genuine issue of material fact as to whether UPS’s reasons for having treated Young less favorably than it treated these other non-pregnant employees were pretextual.

If you believe your employer has failed to accommodate your pregnancy, please contact The Harman Firm, PC.

 

 

 

Yarelyn Mena

On March 19, 2015, Tina Huang, a former engineer at Twitter, filed a class action suit on behalf of fifty other female employees alleging gender discrimination in Twitter’s promotion process. Ms. Huang alleges that Twitter’s management team, 79% of which are men, favored other male employees for promotions, creating a glass ceiling for women that cannot be explained or justified by any reasonable business purpose. Ms. Huang claims she was overlooked for the Senior Staff Engineer position, and when she expressed concerns about the company’s promotion policies to the Chief Executive Officer, Dick Costolo, she was ordered to go on administrative leave and was removed from assignments until she was ultimately forced to resign.

Twitter’s promotion policy is an informal, “black box” process where a committee of predominately male upper management officers decides which employees to promote. Candidates are notified of open positions through a “shoulder tap” process, rather than a transparent public job posting. Allegedly, Twitter does not publish any promotion criteria, nor any internal hiring, advancement, or application processes for employees. Whether the discrimination was intentional, this covert method of selecting candidates for promotion is disadvantageous to women because the “black box” process relies on subjective criteria, which inherently precludes external criticism and review.

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating against their female employers, including failing to promote women, and the Equal Pay Act of 1963 prohibit employers from adjusting wages based on gender. Despite these laws, women generally earn less than their male counterparts—a phenomenon known as a “wage gap.” Catalyst, the leading nonprofit organization expanding opportunities for women in business, reports that although women form 40% of the labor force, they currently make up only 4.8% of CEO positions at S&P 500 companies. Without the opportunities to progress with their male counterparts, women will be at the lower end of an unequal balance of power. Based on data collected from 2014 to 2015, the International Labour Organization’s Global Wage Report found that the United States had the widest gender wage gap—36% after adjusting for factors such as education level and work experience—among the thirty-eight countries assessed in the report.

Women should not be discouraged from seeking executive level positions. Title VII has explicitly prohibits such discrimination, yet many businesses continue to discreetly discriminate against their female employees. To create a better promotion policy, employers should post available positions for interested employees publically or on an intra-office job bank, as well as publish their selection criteria. Transparency allows for the qualifications of each candidate to be considered, and viewed neutrally, instead of left to the discretion of a few members of upper management behind closed doors. As Judge Brandeis famously said, “If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.”

If you believe your employer illegally discriminated against you because of sex or gender, please contact The Harman Firm, PC.

Ciera Ambrose and Edgar M. Rivera, Esq. 

To show employment discrimination, Plaintiffs often rely on communications between them and their employer. Because email is the primary mode of communication in professional settings, often the only evidence of discrimination is contained in an email. For example, emails may contain correspondence between company decision-makers engaging in discriminatory practices. Without such emails, Plaintiffs lose the opportunity to fully present evidence of their employers’ bad acts.

Rule 26 of the Federal Rules of Civil Procedure reflects email’s important role in communication, requiring parties to a lawsuit to have access to each other’s electronically stored information (“ESI”). Examples of ESI include emails, instant messaging chats, documents, accounting databases, CAD/CAM files, Web sites, and any other electronic information that could be relevant evidence in a lawsuit.

A recent threat to the success of employment discrimination lawsuits comes from New York Governor Andrew Cuomo’s policy on email deletion in state agencies. In 2013, Governor Cuomo implemented a policy mandating that state workers’ emails be automatically deleted after 90 days. Although the policy requires emails that could potentially be sought in litigation to be retained for longer than three months, such emails must be manually flagged for retention by an employee; putting this burden on individual employers increases the risk of deletion of important or relevant documents.

Critics of the policy believe that deleting emails is unnecessary, limits access to public information, reduces government transparency, and limits government accountability. Indeed, the federal government has a seven year email retention policy.  Investigating allegations of discrimination takes much longer than 90 days. In response, state lawmakers met this month to address the issue and introduce legislation that would, among other things, retain emails of some state employees for at least seven years. Whether the law will be passed remains to be seen.

With these concerns in mind, there are steps employees can take to protect emails evidencing discrimination. According to Brett Snider, Esq. of FindLaw.com, keep hard copies and backups of email correspondence with your employer. Although it’s fairly easy to retrieve an email that you want to use as evidence, you should make a hard copy and a backup digital copy of that email just in case (however, always make sure that you are not violating any company policy regarding confidential information). This step is particularly important if you are a state employee because under the above-discussed policy email correspondence stored in your work e-mail may be deleted after 90 days.

Additionally, emails are considered an authentic representation of a person or company’s words to you or a third party. Courts, however, demand some form of proof that an email is genuine if it is not self-authenticating.  This can be provided by: witnesses—email senders or receivers can testify at trial to the email’s authenticity; signature blocks—business signature blocks in emails may count as self-authenticating trade inscriptions for purposes of federal evidence; and email addresses—the sender’s email address may be sufficient to prove that an email was sent from an entity if the address bears the company and/or employee’s name (e.g., johndoe@thecompanyname.com). You may also ask the other party to stipulate to an email’s authenticity if granted.

Employees must take steps to ensure that potentially useful evidence is preserved. If you believe your employer illegally discriminated against you, please contact The Harman Firm, PC.

Yarelyn Mena and Edgar M. Rivera, Esq. 

Many companies require their job applicants to undergo criminal conviction checks as part of the hiring process, and use that information to make hiring decisions. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating against job applicants based on a protected class; however, discrimination does not need to be intentional—Title VII also prohibits “disparate-impact” discrimination. One way employers violate Title VII is if they have a blanket policy disqualifying all applicants with criminal convictions, the policy has a disparate impact, and the disqualification is not job-related or consistent with a valid business necessity.

A company’s facially neutral rule may be illegal when the rule disparately impacts a protected class and is neither job-related nor consistent with a valid business necessity. In anti-discrimination law, a protected class is a characteristic of a person that cannot be targeted for discrimination, for example, race, color, religion, and national origin. Any discrete group can be disparately impacted. For example, a police department that imposes a height requirement may unintentionally exclude many women, who generally are shorter than men, from the position, although they otherwise are qualified for the position. Accordingly, the police department’s rule violates Title VII if the department cannot show that police offers must be tall to perform the various functions police work requires, which is unlikely to be the case.

A rule that categorically rejects applicants with criminal convictions disparately impacts minority applicants, particularly Black and Latino men. The Equal Employment Opportunity Commission (“EEOC”), which is tasked to enforce Title VII, reports: “African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.” If an employer relies on criminal convictions records when making employment decisions, Black and Latino are likely to be rejected at a higher rate than White men.

In response to these ongoing problems, the EEOC issued the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the “Guide”), which guides employers who use criminal conviction history as a factor when making employment decisions to navigate this complicated area of law. The Guide states that if an employer relies on criminal conviction records, the criminal conviction must be related to the job in question and the employer must show that there is not a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice.

When considering an applicant that has a record of past criminal conduct, the employer should notify the applicant that the criminal record might exclude him or her from the position so that the applicant can offer more information about the conviction before the employer makes an adverse hiring decision. Information from the applicant reveals if the conviction is related to the position and to the overall business necessity. Employers should not have policies that outright reject applicants because of a criminal conviction. Employers should consider the nature of conviction, the circumstances surrounding the offense, rehabilitation efforts, the total number of offenses, and the amount of time that has elapsed since the conviction in order to prevent unintentionally discriminating against candidates.

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

Daniela Adao and Edgar M. Rivera, Esq.

Most employees never read their employee handbooks even though such handbooks contain important information that sets the framework for, and terms of, their employment relationships. Employee handbooks often communicate valuable information, such as the employer’s mission, policies, and procedures, as well as employees’ benefits and rights under state and federal employment laws. In some circumstances, an employee handbook may be a contract, creating enforceable rights for employees.

In Braun v. Wal-Mart Stores, Inc., two Wal-Mart employees sued Wal-Mart on behalf of themselves and other similarly situated employees for breach of contract, unjust enrichment, and violations of the Fair Labor Standards Act (“FLSA”), alleging violations of their employee handbook. Wal-Mart’s employee handbook stated that all employees must be paid for meal breaks, and that hourly employees who work between three and six hours per shift must be paid for one short break, and hourly employees who work more than six hours per shift must be paid for two short breaks. Under Pennsylvania law, a handbook is enforceable against an employer if a reasonable person in the employee’s position would interpret its provisions as evidencing the employer’s intent to supplant the at-will rule and be bound legally by its representations in the handbook. The employees claimed that, contrary to their employee handbook, Wal-Mart frequently denied them their meal and short breaks and, when they did receive those breaks, they were not paid for that time. Although federal law does not require employers to provide meal and short breaks, the FLSA requires employers that do offer meal and short breaks to pay their employees for interrupted meal breaks, i.e., meal periods in which employees perform work, and for all short breaks.

The Pennsylvania Supreme Court affirmed the judgment of Pennsylvania’s Superior Court that Wal-Mart’s employee handbook constituted a contract and that Wal-Mart had, among other violations, breached that contract. The court ordered Wal-Mart to pay approximately $188 million dollars to the class, which was composed of approximately 187,000 Wal-Mart employees who worked in Pennsylvania between 1998 and 2006. On March 13, 2015, Wal-Mart filed a petition for certiorari with United States Supreme Court (“SCOTUS”) to review whether the Pennsylvania courts incorrectly subjected Wal-Mart to a “Trial by Formula” to produce class-wide “common” evidence on key elements of the plaintiffs’ claims. SCOTUS has not yet decided whether to hear this appeal.

Employers must follow their own employee handbooks. Wal-Mart’s meal and short break policy had the same force and effect as a contract. Employees should read their employee handbooks to make sure their employers are following their policies. If you believe your employer has violated your rights, contractual or otherwise, please contact The Harman Firm, PC.