New York Employment Attorneys Blog

Yarleyn Mena and Edgar M. Rivera, Esq.

Wal-Mart, the largest retailer in the United States, faces class-action allegations that it discriminated against its gay employees seeking health-insurance coverage for their spouses.

Former Wal-Mart employee, Jacqueline Cote, alleges that Wal-Mart violated Title VII of the Civil Rights Act of 1964 by not providing spousal health insurance to her wife, Diana Smithson. In 2004, the Cote and Smithson legally married in Massachusetts. Wal-Mart provides its employees with the option to receive health-insurance benefits for their spouses, yet until January 2014, the Massachusetts-based Wal-Mart store did not offer health insurance to its employees’ spouses in same-sex marriages. Smithson and Cote paid for Smithson’s health-care insurance under the Consolidated Omnibus Budget Reconciliation Act (COBRA). After her COBRA period ended in 2008, Smithson purchased individual-health insurance. When that health insurance became too expensive for the couple, they sought Wal-Mart’s spousal coverage. Cote repeatedly filled out an online form to enroll in Wal-Mart’s spousal health insurance plan, but because Cote entered her and her partner’s sex as female, the program would not process her application, instead directing her to call Wal-Mart’s offices. A Wal-Mart representative told Cote that Wal-Mart does not offer health coverage to same-sex spouses despite Cote otherwise being fully qualified to receive the benefits. In 2012, Smithson was diagnosed with ovarian cancer. Consequently, from 2012 to 2014, the couple accrued approximately $150,000 of uninsured-medical expenses.

Cote argues that Wal-Mart discriminated against Smithson by denying her health-insurance coverage because of her gender; Smithson would have been eligible to receive health benefits had she been a man. Carisa Cunningham, a spokeswoman for the Gay & Lesbian Advocates & Defenders and Cote’s representative, says, “We want to send a message to companies big and small that it is illegal to deny benefits to the same-sex spouses of their employees if they provide the same benefits to employees with opposite-sex spouses.”

Health insurance is a crucial part of employment for many workers like Cote who have spouses that are in need of health benefits. Companies cannot be allowed to continue to discriminate against these workers by denying them their rightful health benefits.

Further, as we have recently discussed, the EEOC has just expanded its interpretation of Title VII gender discrimination to include sexual-orientation discrimination. While this was a step in the right direction, lawsuits like Cote’s emphasize the need for federal laws protecting against sexual orientation and gender identity discrimination in the workplace.

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

Jennifer Melendez

On June 29, 2015, a jury in the Southern District Court of New York awarded Hanna Bouveng, a Swedish intern at New York Global Group (NYGG), $18 million in damages for sexual harassment and defamation. Bouveng sued NYGG’s Chief Executive Officer, Benjamin Wey, alleging sexual harassment, unlawful retaliation, and defamation.

On October 1, 2013, Bouveng started working for Wey as a marketing intern. Starting shortly after Bouveng’s hiring, and continuing throughout her employment, Wey sexually harassed Bouveng: he made comments about her appearance, purchased revealing clothing for her, and attempted to have sex with her. When she refused his advances, Wey threatened to fire her, revoke her visa and throw her out of her apartment.

In April 2014, Wey became disappointed with Bouveng’s resistance, demanding she show him “tangible love.” A few months later, Wey entered Bouveng’s apartment unannounced and, upon finding her boyfriend sleeping, fired her. A month after firing Bouveng, Wey published disturbing articles about her, defaming her by accusing her of being a “street walker,” a cocaine addict, and a “loose woman.” Because of Wey’s conduct, Bouveng moved back to her hometown in Sweden, starting a new life working at a small café. However, Wey tracked her down, traveled to Sweden, and sent text messages and emails to her family spreading the same lies written in his articles.

Title VII of the Civil Rights Act prohibits discrimination in hiring, compensation, and terms, conditions or privileges of employment on the basis of, among other things, sex. In this case, Wey’s insistence on sexual favors in exchange for continued employment is a form of sexual harassment known as “quid pro quo” sexual harassment. Out of spite, Wey used rejection as a basis for decisions affecting her employment and personal life. He is now paying the price for his illegal conduct.

If you believe your employer has discriminated against you please contact The Harman Firm, PC. If you are interested in learning more about sexual harassment in the workplace, Please see The Harman Firm’s own, Ed Rivera, on PIX 11 News.

Owen H. Laird

In a recent decision, the Equal Employment Opportunity Commission (“EEOC”) unexpectedly extended Title VII of the Civil Rights Act of 1964 (“Title VII”) to protect against sexual-orientation discrimination. The EEOC’s decision applies to claims brought by federal employees and all EEOC investigations of private employers.  The EEOC, the federal agency tasked to implement Title VII, has 53 field offices across the United States.

Title VII protects individuals against discrimination based on race, color, religion, sex, and national origin, but does not recognize sexual orientation protection. Complainants attempted to pursue claims of sexual orientation discrimination under Title VII by way of perceived gender-stereotyping with some success, but by and large the EEOC dismissed these complaints. Similarly, courts across the country generally have held that Title VII does not protect against sexual orientation discrimination. Although many states and local municipalities have passed anti-discrimination laws that are more expansive than Title VII, for the millions of Americans who live in those that do not, Title VII is the only legal protection available against discrimination in the workplace.

This decision, written by Bernadette Wilson on behalf of the EEOC’s Executive Secretariat, concerned a complaint brought by David Baldwin, an air traffic controller working for the Federal Aviation Administration, alleging that his supervisors discriminated against him in the workplace because of his sexual orientation. As a federal employee, Mr. Baldwin was only able to pursue his Title VII action at the EEOC.

The EEOC ruled that it had jurisdiction to hear Mr. Baldwin’s claim because sexual orientation discrimination “is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” Not only does this decision allow Mr. Baldwin’s claim to proceed, but it clearly demonstrates the EEOC’s position that all claims of sexual orientation discrimination are a of sex discrimination. As a result, both public-sector and private-sector employees can rely on this decision to support claims of sexual orientation discrimination at the EEOC.

This decision is a particularly significant development: the EEOC is the largest and most important anti-discrimination agency in the United States, and this change of policy not only expands the protection of Title VII to millions, but may well prompt other state and local agencies to reexamine their jurisdiction over claims of sexual orientation discrimination.  However, the question of whether circuit courts will follow this decision is yet to be known;  EEOC decisions are persuasive but not binding authority.

Along with the Supreme Court’s recent holding recognizing gay marriage, the EEOC’s decision to provide protection against sexual orientation discrimination is a major step toward providing equal protections to gay and lesbian individuals in America. As we recently wrote, it is critical that we continue extending the rights that the majority of Americans already enjoy to those in the LGBT community.

If you think that you have been discriminated against because of your sexual orientation, contact The Harman Firm, PC.

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By Yarelyn Mena and Owen H. Laird

When the Supreme Court of the United States affirmed the right for same-sex couples to marry, the LGBT community won a long and hard-fought battle for marriage equality. The Human Rights Coalition (HRC), one of America’s largest civil rights organizations committed to ensuring legal rights for the LGBT community, continues the struggle for LGBT rights by supporting the Employment Non-Discrimination Act (ENDA), legislation aimed at protecting the LGBT community from discrimination in the workplace. ENDA would make it illegal for employers to discriminate against potential or current employees based on their sexual orientation or identity.

ENDA resembles Title VII of the Civil Rights Act of 1964 in its purpose to prevent and eradicate discrimination of protected classes in the workplace. The HRC supports passing ENDA because there “is no federal law that consistently protects LGBT individuals from employment discrimination; there are no state laws in 29 states that explicitly prohibit discrimination based on sexual orientation, and in 32 states that do so on gender identity.” Currently, in the states that do not offer protection to LGBT workers, employees and prospective employees face routine and often legal discrimination because of their sexual orientation or gender identity. ENDA will provide LGBT workers with nationwide protection from employment discrimination, filling in the gaps left by state laws. Protection against sexual orientation and gender identity based discrimination is already widespread. According to a report by the HRC, 8 out of 10 voters already believe that discrimination based on sexual orientation and gender identity was illegal, showing that ENDA would provide the legal framework for rights that most Americans already believe exist.

Additionally, the HRC wants Congress to narrow the religious exemption that allows employers to make employment decisions based on sexual orientation if a religious reason is given as justification. Equality will never be reached while exemptions such as these prohibit ENDA from protecting LGBT workers. While many private companies, including a majority of those listed in the Fortune 500, have sexual orientation non-discrimination policies, these internal policies do not have the force of law, and are not an adequate substitute for federal legislation.

Sexual orientation and identity, just like race and gender, should not be a barrier to employment. The United States must continue to be an example for human rights both in the workplace, but in society general. Sexual orientation discrimination remains a serious problem throughout the world. As the United States takes groundbreaking strides towards equality for the LGBT community, other countries around the world continue to permit, and in some cases even encourage, this type of discrimination. As a country modeling freedom and promoting human rights, we must continue to push for ENDA and legislation like it, laws that promote equality and workplace fairness for all, inspiring other countries to join us in creating a truly just world.

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

Owen H. Laird, Esq.

Identifying which public-sector employees are entitled to overtime pay is a complex endeavor, fraught with regulations, collective bargaining agreements, and bureaucracy, as well as the numerous requirements and exemptions of the Civil Service Law, New York Labor Law, and the Fair Labor Standards Act. A recent case, Matter of Roberts v. Cuomo, addressed these issues in the context of New York’s response to, and recovery from, Hurricane Sandy.

In Roberts, the New York Appellate Division, Third Department reversed a decision regarding whether “exempt” public sector employees can receive compensation for overtime worked during Hurricane Sandy. “Exempt” workers – those who generally are not entitled to overtime pay – may receive overtime compensation under certain circumstances under New York Civil Service Law § 134[6], including work done in relation to an “extreme emergency.”

During Hurricane Sandy, thousands of public employees, both “exempt” and “non-exempt,” worked thousands of hours of overtime responding to the crisis. The non-exempt workers received pay for each hour worked, while the exempt workers did not. Under normal circumstances, this would not be unusual; however, Hurricane Sandy was a disaster constituting an “extreme emergency,” and the Director of the Budget for the New York State Division of the Budget (“DoB”) issued a bulletin allowing “exempt” employees to receive overtime for hours worked above 47.5 per workweek.

The unions representing many of these exempt workers challenged the DoB’s decision, seeking overtime for all hours worked above the regular workweek. The statute allows the DoB to authorize overtime for hours worked above the normal workweek, which for the employees in question was typically 37.5 hours per week. The unions argued that the DoB’s decision was arbitrary and that the DoB did not have adequate grounds to establish an overtime floor at 47.5 hours per workweek, and that the DoB should have to pay the exempt workers overtime for all hours worked in excess of the employees’ typical workweek. The Albany County Supreme Court agreed, ordering the State to pay these exempt employees overtime for all hours worked over 40 per workweek, performed in response to Hurricane Sandy.

Upon appeal by the State, the Third Department reversed the trial court’s decision.  The court summarily rejected the unions’ claim that the DoB had acted arbitrarily, citing to Matter of Kent v. Cuomo, where it found that a 47.5 hour-per-week overtime floor established by the DoB was not arbitrary, but justifiable under the applicable statutes and regulations.

In effect, by not examining the facts surrounding the Sandy-related overtime and simply referring to prior case law, the Third Department gave the DoB approval to set 47.5 hours per-workweek as the threshold for exempt-employee overtime in extreme emergencies. These employees will not receive overtime until working more than 47.5 hours in a given week.

If you believe your employer misclassified you as an exempt employee, or otherwise believe that your employer is not paying you the overtime that you are due, contact The Harman Firm, PC.

Jennifer Melendez and Edgar M. Rivera, Esq.

Former Lowe’s employee, William Powell, sued Lowe’s Home Centers LLC, alleging that Lowe’s violated the Americans with Disabilities Act (ADA) by refusing to provide him an accommodation for his urinary incontinence.  Lowe’s terminated Powell’s employment after another employee caught him urinating near the store’s entrance. The ADA prohibits employers from terminating a qualified employee because of a disability, as well as refusing to make a reasonable accommodation to a known disability if the accommodation would not impose an undue hardship on the operation of the employer’s business.

Powell began working at Lowe’s on February 6, 2008 as a stocker. The record reflected that in fall 2010, Powell underwent prostate surgery, was taking medication for urinary incontinence, and had urinated in a colorant bottle in the paint department during his shift—for which Lowe’s placed him on probation for six months. The record also showed that in March 2010, Powell reported to Lowe’s that his doctor changed his medication and that he was “cured” of his incontinence, he never provided Lowe’s with a doctor’s note indicating that he needed extra bathroom breaks because of incontinence, and, notably, there was no evidence that Powell suffered from incontinence between the the time he urinated into the colorant bottle and when he was caught urinating near the store’s entrance.

On July 1, 2012, Powell told his Lowe’s Freight Flow Department Manager that he had been experiencing back pain, who suggested to Powell alternative techniques to eliminate unnecessary strain on his body. The manager also checked with Human Resources to see if Powell had any work restrictions, which he did not. Regardless, Powell received an ADA Accommodation Request Form to complete. The form required medical information, doctors’ diagnosis and a note of action. He completed the ADA form, and Lowe’s changed his position as a stocker to a cashier to accommodate his back pain. He did not mention anywhere that he had problems with urinary incontinence.

A few months later another Lowe’s employee witnessed Powell urinating outside the public entrance near the shopping carts.  Because his actions created unsanitary conditions for Lowe’s customers and employees, in violation of its Code of Business Conduct and Ethics and he was already working under a Final Notice (from a prior incident), Lowe’s terminated his employment.

U.S. District Judge Kevin Sharp ruled that Powell’s claim that Lowe’s did not accommodate his incontinence failed because Powell did not provide medical documentation to Lowe’s stating he had an incontinence disability, nor did he tell Human Resources. The Court stated:

While plaintiff claims that the “restrooms at Lowe’s were in the back, about 300 feet away from the cashier stations at the front of the store,[“] he admits that “he did not think to formally request extra breaks due to the now long distance to the restroom.” Plaintiff also admits he never provided defendant with any doctor’s notes about his need for bathroom breaks. Defendant cannot be held liable for failing to engage in an interactive process when it did not know that there was a need for that dialogue.

The court also noted that Lowe’s did not terminate Powell after he requested an accommodation for his back-pain disability, but rather accommodated him by changing his position from stocker to cashier, and did not terminate him after he urinated in the colorant bottle.

Many employees are embarrassed at the thought of revealing personal medical issues to their employers. However, to avoid situations like Powell’s, employees should notify their employer’s of any disabilities so that their employer can attempt to make accommodations. The ADA protects workers against disability discrimination if their employer refuses to provide accommodations, but the employer must first be aware of the disability.

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

Edgar M. Rivera, Esq.

For years, employers, employees, interns, and lawyers have grappled with the following question: when is an unpaid intern entitled to compensation under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL)? On July 2, 2015, the Second Circuit provided an answer.

Although hired by Fox Searchlight, a subsidiary of Fox Entertainment Group, as unpaid interns, plaintiffs Eric Glatt, Alexander Footman, and Eden Antalik claimed compensation as employees under the FLSA and NYLL. The FLSA and NYLL only protect “individual[s] employed by an employer” but offer little guidance on who an employee is, both essentially defining “employ” as “to suffer or permit to work.”

In 1967, the Department of Labor (DOL) adopted the U.S. Supreme Court’s approach for assessing whether unpaid interns working in the for-profit private sector need to be compensated, which the Court developed in a 1947 case dealing with unpaid railroad brakemen trainee. This approach states that an employment relationship exists upon a finding of all of the following factors:

(1) the internship is similar to training which would be given in an educational environment;

(2) the internship experience is for the benefit of the intern;

(3) the intern does not displace regular employees but works under close supervision of existing staff;

(4) the employer derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;

(5) the intern is not necessarily entitled to a job at the conclusion of the internship; and

(6) the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Southern District Court of New York (SDNY) balanced these factors, determining that the first four factors weighed in favor of finding that plaintiffs were employees and that the last two factors favored finding them to be interns. The SDNY held that they were entitled to compensation, and certified a class and collective action on behalf of similarly situated interns against Fox.

Fox appealed the SDNY’s decision to the Second Circuit, claiming the SDNY has used the wrong test. The plaintiffs and defendants both proposed different tests to the Second Circuit: the plaintiffs urged the court to adopt a test whereby interns will be considered employees whenever the employer receives an immediate advantage from the interns’ work, while the defendants urged the court to adopt a test where an employment relationship is created when the tangible and intangible benefits provided to the intern are greater than the intern’s contribution to the employer’s operation.

The Second Circuit agreed with Fox, holding that the “primary beneficiary” test determines whether an intern is an employee, vacating the district court’s decision. The Second Circuit mentioned seven non-exhaustive factors for the court to weigh when considering whether an intern in an employee:

(1) the extent to which the intern and the employer clearly understand that there is no expectation of compensation;

(2) the extent to which the internship provides training that would be similar to that which would be given in an educational environment;

(3) the extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic calendar;

(4) the extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar;

(5) the extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning;

(6) the extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern; and

(7) the extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

A court deciding this issue must weigh and balance all circumstances. The Second Circuit found that this approach reflects the relationship between the internship and the intern’s formal education and by focusing on the educational aspects of the internship, it better reflects the role of internships in today’s economy than the DOL factors derived from a SCOTUS decision that dealt with a prospective railroad brakemen. The Second Circuit remanded the case to the district court to decide in accordance with its decision.

Although we do not know whether the district court will find in favor of the plaintiffs, Fox argued that applying the primary beneficiary test in this case would lead to the conclusion that the plaintiffs were not employees because they — and not Fox — received the primary benefits of their time with the company, referring to intangible benefits such as a resume listing and an understanding of film production work.

The substitution of intangible benefits for payment is extreme. Benefits are wages, healthcare, vacation days, and the like, not a line on a resume or on-the-job experience. This decision gives employers more opportunities to avoid paying their employees, shifting business costs from employers to vulnerable young people and students. Fox Searchlight has annual revenue exceeding $6.5 million and Fox Entertainment exceeding $13 billion—there is no excuse for Fox paying their employees in goodwill rather than wages.

If you are interested in additional coverage of this case, The Harman Firm, PC wrote the following blogs: SDNY Says to Pay Your Interns if You Aren’t Teaching Them, regarding the Southern District’s decision to certify the class, and Unpaid Interns in the Film Industry Sue FOX, regarding the initial pleadings.

If you believe your employer has required to your provide genetic information, please contact The Harman Firm, PC.

Yaralyn Mena and Edgar M. Rivera, Esq.

Atlas Logistics Group Retail Services (Atlas), which operates warehouses for the storage of products sold at a variety of grocery stores, found itself in a bizarre situation after discovering human feces on the floor of one of its warehouses. Apparently, an Atlas employee had been defecating in the warehouse, resulting in the destruction of grocery products. Atlas had no idea who the “devious defecator” was, and no employees were coming forward with any information. The ongoing incidents provoked Atlas to conduct an in-house investigation. In a misguided effort to identify the perpetrator, Atlas subjected several employees, including Jack Lowe and Dennis Reynolds, to cheek swabs to check their DNA against that found in the feces. Atlas told Mr. Lowe and Mr. Reynolds that if they refused to be tested, they would be disciplined. Lowe and Reynolds complied; they were not matches, and the serial defecator presumably remains at large.

Lowe and Reynolds sued Atlas pursuant to the Genetic Information Non-Disclosure Act (GINA). Under GINA, employers cannot attain, or require employees to disclose, employee genetic information for any employment purpose, including hiring, firing, promotions, and training. Lowe and Reynolds alleged Atlas violated GINA by requiring them to take the cheek swab with the intent to extract DNA and sending that genetic information to a third party. Atlas did not inform the employees of their rights under GINA and told them not to tell other employees of the request for their DNA sample.

Atlas moved for summary judgment, arguing that the information it requested and obtained was not “genetic information” covered by GINA. U.S. District Judge Amy Totenberg concluded that it was, denying Atlas’ motion for summary judgment to dismiss Lowe’s and Reynolds’ claims and granting Lowe and Reynolds summary judgment as to liability. After a trial on the issue of damages, the jury awarded the plaintiffs $2.2 million to Lowe and Reynolds, consisting of $475,000 in emotional distress damages, and approximately $1.75 million in punitive damages for the employer’s blatant violation of Lowe’s and Reynolds’ protected rights. Dion Kohler, Atlas’ attorney, is adamant that his client did not knowingly or recklessly violate the law, proclaiming, “It’s not over.”

Congress passed GINA to prevent discrimination against employees through genetic information. This assurance of confidentiality encourages employees to receive genetic testing for health reasons without having to fear disclosing any results to their employers. Employers also do not have the right to ask employees for genetic information about any member of their family. GINA also protects employees from harassment in the workplace based on genetic information such as a disease an employee may have.

During the Presidential Commission for the Study of Bioethical Issues on “Privacy and Progress in Whole Genome Sequencing,” experts argued that unauthorized access to one’s genetic information is itself a dignitary violation. Although calculating the quantity of that harm is difficult, employees must be aware that GINA protects them from such violations.

If you believe your employer has required to your provide genetic information, please contact The Harman Firm, PC.

Owen H. Laird, Esq.

On Monday, 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.

The FLSA requires that employers pay certain employees overtime. Specifically, employers must pay 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 covered by 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 exempt employee earns less than a certain salary threshold – currently set at approximately $23,660 per year—then the employee is not exempt, and is entitled to overtime pay.

The proposed rule change moves that salary threshold up to $50,440 per year. If put into effect, this would mean that all employees who make between $23,600 and $50,440 per year would be entitled to additional pay for all overtime work done. For example, an assistant manager at a retail store—typically an exempt position—earning $40,000 a year but working fifty hours a week with no overtime pay would be entitled to thousands of dollars of additional overtime pay each year.

The salary threshold was last adjusted decades ago; since then millions of jobs that were once eligible for overtime have become exempt, primarily because of inflation. The proposed rule seeks to change that—$50,440 has roughly the same purchasing power as $23,600 did back in the 1970s.

The overall effect that this proposed rule change will have on the workforce is difficult to predict. Many employers rely on exempt employees to work long hours, so requiring those employers to pay their employees overtime could result in several different scenarios: the employer may decide to cap an employee’s workweek at forty hours and hire additional workers, providing more free time to existing workers and creating additional jobs; the employer may decide to simply pay their employees more, resulting in significantly more take-home pay for their existing workers; the employer may decide to scale back, and cap an employees working hours without hiring extra help; or the employer could decide to give their previously exempt employees a raise to more than $50,400 per year, so that they are again overtime exempt. Each of these options would benefit the worker.

Although the announcement of this proposed rule change is a major victory for workers, there still is a long way to go before it is put in effect. After the Department of Labor files a Notice of Proposed Rulemaking, there will then be a comment period, during which the public can submit comments to the Department of Labor on the proposed rule. Undoubtedly, corporate interests and various chambers of commerce will loudly and vehemently oppose the rule. Then, should the rule go into effect, the Department of Labor will likely face a lawsuit from those same moneyed interests, claiming that the rule is illegal.

If the Department of Labor prevails and the rule goes into effect, then millions of workers will feel its benefits. If you think that you have been denied overtime pay, contact The Harman Firm, PC.