Rose Asaf

On September 7, 2016, Koya Abe, a former faculty member at the Steinhardt School of Culture, Education and Human Development at New York University (“NYU”), filed a lawsuit against his former employer. Mr. Abe, a photography instructor, is a middle-aged man of Japanese heritage. Mr. Abe alleges that NYU discriminated against him because of his race, national origin, and age, and retaliated against him for raising complaints of discrimination. NYU terminated Mr. Abe in 2009, shortly after Mr. Abe alleges that he complained about being discriminated against for being Japanese.

This is not the first lawsuit that Mr. Abe has filed against NYU. According to an opinion and order by District Judge Richard J. Sullivan of the United States District Court Southern District of New York, Mr. Abe “has been embroiled in at least eight lawsuits in a host of venues against Defendant, [NYU], and many of its administrators, deans, faculty, and staff.” The most recent lawsuit alleges that NYU has retaliated against him for bringing those earlier actions.

Owen H. Laird, Esq.

Earlier this week, we reported on a worker scheduling law implemented by the City of Seattle that required employers to provide employees with a more stable work schedule. Recently, New York Mayor Bill de Blasio sent out an email to many New Yorkers – myself included – in which he announced that achieving similar legislation would be the next step in New York City’s efforts to improve the wages and working conditions of low- and middle-class workers. The Mayor, along with other workers’ rights advocates, declared their general support for “Fair Workweek” legislation and identified three goals for fast-food restaurants in particular: to require employers to set a full schedule two weeks in advance and post it where workers can easily see it; to ensure that employees are appropriately compensated if hours need to be changed on short notice for reasons within the business’ control; and to regulate the practice of “clopenings,” or shifts that require people to work a closing and opening shift with fewer than 10 hours between them.

New York State and City both recently implemented increased minimum wages, with a special increase for fast-food workers. Those wage hikes have gone a long way towards improving the lives of thousands of wage-earners across the state. However, there’s more to a job than just wages, and the Mayor’s new goals are aimed at addressing quality-of-life issues that exist for many low-income fast-food earners.

Edgar M. Rivera, Esq.

On September 19, 2016, in Ernst v. City of Chicago, the Seventh Circuit held that the Chicago Fire Department failed to connect the physical skills for which it tested with the actual skills that its paramedics needed to perform the job.  

The Chicago Fire Department employs several hundred paramedics and, since 2000, Chicago has implemented a physical skills test when hiring new paramedics.  The plaintiffs argued that the physical skills test had a disparate impact on women, and that there was no evidence of Chicago paramedics ever lacking the physical ability to properly care for their patients.  Between 2000 and 2009, nearly 1,100 applicants took the physical skills test.  Among these, 800 were men, of whom 98% passed.  Another 300 were women, of whom only 60% passed. The plaintiffs’ brought two Title VII claims: disparate impact claimed decided by a bench trial and a disparate treatment claim decided by a jury trial.  The plaintiffs claimed that the physical skills test not only disproportionally hurt women’s chances of becoming paramedics, but it was intentionally implemented to keep women out.  The district court judge, however, ruled in favor of the Chicago on both claims, dismissing the action completely.

Lev Craig

On Monday, the Seattle City Council passed a new law regulating workers’ schedules, which creates a number of new requirements for employers and protections for employees. The new law is intended to prevent erratic and unpredictable schedules and applies to hourly, non-exempt employees of any retail establishments, full-service restaurants, and quick/limited food service establishments (such as fast food restaurants and coffee shops) that have over 500 employees worldwide.

Seattle recently passed expansive minimum wage and sick leave legislation. Many employees, however, have continued to suffer as a result of unpredictable schedules. For example, employees may work wildly different hours from week to week, leaving them unable to count on having a reliable paycheck, or receive schedules for an upcoming work week the day before the first shift of the week, making it nearly impossible to balance work with childcare or school.

Rose Asaf

Last Friday, we reported on Kerrie Campbell’s class action complaint against Chadbourne & Parke LLP.  Ms. Campbell, through her attorneys, Sanford Heisler, LLP, alleges that Chadbourne’s female partners “have been disparately underpaid, systematically shut out of Firm leadership, demoted, de-equitized and terminated.” Not all female partners in Chadbourne, however, agree with those allegations, which has prompted pushback against Ms. Campbell and Sanford Heisler, LLP.

In a letter addressed to David Sanford, a founding partner of Sanford Heisler, 14 female partners from Chadbourne expressed that Campbell’s complaint does not properly characterize their experiences with Chadbourne. In their attack, the women state that Sanford Heisler “did not make our voices heard…but rather have attempted to silence us.” The letter asserts that the complaint “makes a group of very accomplished, assertive and intelligent professional women look like they are victims unable to hold their own with their male colleagues.” The female partners also criticize Sanford Heisler for not reaching out to them before filing the suit.

Edgar M. Rivera, Esq.

On August 31, 2016, Kerrie Campbell—a seasoned trial lawyer and leading practitioner in the defamation and product disparagement, First Amendment rights and consumer product safety fields—filed a class action complaint in the Southern District of New York against Chadbourne & Parke LLP—an international firm of approximately 400 lawyers and tax advisors, including former New York Governor George Pataki, with over $285 million of annual revenue. Campbell claims that Chadbourne systematically discriminated against its female partners.

According to the complaint, in January 2014, Campbell joined Chadbourne as a lateral partner in the litigation department. Campbell brought in approximately 40 new matters for over 20 clients, generating over $5 million in total revenue for Chadbourne. Campbell’s productivity and revenue generation was consistent with the Chadbourne’s top performing male partner, yet her pay consistently was at the bottom ranks of male partners, who brought far less revenue to Chadbourne. Chadbourne opposed the gender-based pay and asked Chadbourne’s all-male five-member Management Committee, Managing Partner, and Head of the Litigation Department to address and rectify these issues. On February 19, 2016, Chadbourne’s Managing Partner, Andy Giaccia, and Head of the Litigation Department, Abbe Lowell, told Campbell that Campbell’s practice did not “fit” with the “strategic direction” of Chadbourne and that she must leave. To incentivize Campbell’s speedy ouster from Chadbourne, they slashed her pay.

By Owen Laird, Esq.

A recent decision by the Ninth Circuit Court of Appeals has cast into doubt the validity of a range of lawsuits against Uber by its drivers.  The decision held that the mandatory arbitration provision in Uber’s contracts with its drivers is enforceable; as a result, Uber drivers may be foreclosed from bringing vast majority of their claims against Uber in court.

The ongoing legal saga between Uber and their drivers is one of the most significant labor disputes in the United States today.  Uber – the multi-billion-dollar taxi app – and its Silicon Valley startup brethren seek profitability by transforming the way people interact, work, and live their lives.  In Uber’s case, a central aspect of that transformation is redesigning the traditional employee/employer relationship: Uber classifies its drivers as independent contractors, not employees.  This decision benefits Uber and disadvantages its drivers because independent contractors do not receive the same basic legal privileges ­– such as anti-discrimination protections, minimum wage, and overtime – that employees do.

Edgar M. Rivera, Esq.

On August 29, 2016, in Vasquez v. Empress Ambulance Service, Inc., the Second Circuit vacated the Southern District’s decision and held that “retaliatory intent may be imputed to an employer where the employer’s negligence gives effect to the employee’s retaliatory animus and causes the victim to suffer an adverse employment decision.” In other words, where an employee with a discriminatory motive tricks the employer into discriminating against another employee, the employer may be liable.

Tyrell Gray, an Empress Ambulance Service dispatcher, began making unwanted sexual advances to Andrea Vasquez, a emergency medical technician (EMT), upon her hire in July 2013. He asked her out on dates, attempted to flirt with her, and touched her shoulder, making Vasquez extremely uncomfortable. After harassing Vasquez for six months, Gray escalated the situation. On January 8, 2014, Gray told Vasquez, “I bet I can make you leave your man,” and promised to “send … something between you and me.” Around midnight that night, while out on a shift, Vazquez received a text message of Gray’s erect penis, captioned: “Wat u think.”

Owen H. Laird, Esq.

Earlier this week, the National Labor Relations Board (NLRB) decided in favor of graduate students at Columbia University, allowing them the right to unionize. The question at the heart of the case was whether graduate students who work as research or teaching assistants were “employees” under the National Labor Relations Act (NLRA), the legislation that defines collective bargaining rights in the United States. Under the NLRA, employees are able to organize unions, while other groups, such as independent contractors and students, are not. The NLRB held that graduate students qualify as employees because they perform work at the discretion of the university, for which they are compensated by the university.

This decision reverses a prior decision by the NLRB that denied graduate students at Brown University the right to unionize. In that case, the NLRB came to the opposite conclusion: that graduate students were students first, and therefore not employees. The most significant difference between the Columbia and Brown decisions is not the nature of the relationships between the universities and their graduate students, but the political makeup of the NLRB.

Lev Craig

Last week, in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., the federal district court for the Eastern District of Michigan ruled on summary judgment that a funeral home’s termination of a transgender employee did not violate Title VII because the employer was entitled to a religious accommodation under the Religious Freedom Restoration Act (“RFRA”).

In October 2007, Aimee Stephens, started working at R.G. & G.R. Harris Funeral Homes, Inc. (the “Funeral Home”) as a funeral director and embalmer. On July 31, 2013, Ms. Stephens wrote a letter to the Funeral Home, in which she came out as transgender. In this letter, Ms. Stephens informed the Funeral Home that, as part of her transition from male to female, she planned to wear women’s clothing to work in accordance with the Funeral Home’s gendered dress code, which mandates that male employees wear a suit and tie and that female employees wear a skirt suit.