New York Employment Attorneys Blog

While it is easy to lose sight of all the issues fought over in the recent Presidential election, an interesting debate was started over the Employee Free Choice Act. On the campaign trail, both parties issued a number of statements regarding the legislation, but did not explain much to the American people as to how this act would affect working individuals. President Elect Barack Obama has supported this act, stating that he believes it is in the best interest of workers to be able to organize and effectively promote change, while John McCain opposed this act, calling it a "gross deception" and that it will harm the American work force.

The act, which currently sitting in Congress waiting to become law, is an amendment to NATIONAL LABOR RELATIONS ACT passed in 1935 seeking to create a system that makes it easier for individuals to organize and create unions in the workplace. Proponents of the bill say that employees' rights to unionize are greatly impeded by employers as well as the courts. These groups, such as the AFL -CIO and the Service Employees International Union advocate for employees to organize and unionize effectively by forming unions when a majority of the members sign up using a process known as a card check. In this situation, a majority of employees sign cards and can then begin the process of organizing. Currently, unions can form only by secret ballot elections. Under the law as it stands, an employer does not have to recognize the card check and can demand secret ballots, which is part of what this legislation is trying to correct. This legislation would not take away the traditional secret ballots, which have been used for sometime, but rather add the process of the card check to make organizing a union more efficient and effective.

Another provision of the law is to increase damages for employers who discriminate against pro-union employees, demanding back pay and other damages for individuals negatively affected by organizing efforts. According to the AFL-CIO, 25% of employers have terminated an employee for union activity, while more than half of employees threaten to shut down or close shop while employees are in the process of unionizing. Employees see this as worker intimidation meant to keep unions out of the workplace, and demands updates to the National Labor Relations Act.

Opponents of the Employee Free Choice Act, such as the Heritage Foundation take issue with the removal of the traditional secret ballot as a means to vote on organizing, long seen as way to minimize intimidation and allow for a more democratic process. Many pro-union, but anti legislation critics argue that a card check would open employees up to much more intimidation and discrimination, as opposed to a secret ballot election. Another objection to the bill is that its provisions regarding federal mediation would create an unnecessary intrusion of Government in the affairs of business. There are also arguments from the pro-business side that the new damages for firing union employees would hurt business even further by enacting higher penalties.

While both sides of this divisive issue make their case, the act may never reach law- President Bush has vowed to veto this act if it were to make it to his desk. However, given the pro-labor and union policies of Barack Obama, we may see this act make its way through Congress and into law following after his inauguration in 2009.

The Americans With Disabilities Act, signed into law in 1990 provided job place relief for millions of America's living with disabilities. This act was designed to prevent discrimination against employees in the work place, provide fairness and equality in hiring decisions, as well make public services more accessible. As an extension of the Civil Rights Act of 1964, the ADA has made a positive impact on the lives of those affected by a disability and provides a legal remedy to fight against violations.

Since being written into law however, the ADA has come under fire by many employers and judges alike. A series of Supreme Court Decisions in the 1990's had narrowed the definition of disabled in the eyes of the Court, resulting in a lessened ability for plaintiffs to successfully take their claims of ADA violations to court. Disabled Americans came under greater scrutiny as it became harder to prove that one had been discriminated against as a result of a disability.

Thankfully, President Bush has signed into law a series of changes to undo this restricted definition of disabilities. According to the new rules which go into effect in January of 2009, the new changes intended to create "a broad scope of protection for employees". Specifically, these amendments are meant to undo decisions that ruled against claims made by employees whose disability had been mitigated or is undergoing treatment at the time. For example, under the narrow definition before a person suffering from diabetes but undergoing treatment for it did not qualify as disabled in the eyes of the Court. Another change is that individuals suffering from episodic disorders, such as epilepsy or other seizure-causing disorders fall under the Americans with Disabilities act. This brings relief to many workers whose disabilities are able to be recognized in the courts, and ensure equal protection in the workplace.

Most disputes that arise from employment discrimination suits are generally of a civil manner- in most cases an individual who has been discriminated against will make a claim seeking monetary damages. However, in certain instances, discrimination as part of a larger pattern can become a criminal offense.

This past Wednesday, New York City police arrested Simon and Michelle Nget, the owners of the popular restaurant chain Saigon Grill and charged them with nearly 200 counts, 151 of which stem from falsifying business records to cover up numerous instances of wage violations.

The investigation, led by Andrew Cuomo, had found that the Ngets had intentionally changed their business records in an attempt to undermine the allegations of workers claiming that they had been underpaid for their services, as well as other illegal payroll violations. The Ngets were also charged with tampering of evidence and submitting a false instrument in the first degree- essentially knowingly issuing a false statement in court.

The Saigon Grill has had numerous bouts with employment disputes in the past. Last October, delivery workers were awarded $4.6 million dollars in back pay and damages. They claimed that the restaurant paid them well below minimum wage, as well as made illegal deductions for such things as letting the door slam as they exited the restaurant. The workers also claimed that numerous delivery men were fired for trying to assert their legal rights as employees.

This systematic abuse of employee rights is one of the largest and high profile violations to be exposed in this city, and has led to these criminal charges being levied against the Ngets, with each of these charges carrying a maximum sentence of 4 years. The prosecution marks a win for the workers of Saigon Grill and their rights as employees, as well as sends a strong message to employers that they will not get away with such blatant violations of employees' rights.

With the recent economic downturn, millions of American's find themselves struggling to cope with the realities of losing their employment. The number layoffs in certain areas are unprecedented and terminations are becoming common in all sectors of the job market. Being terminated from a job is stressful, daunting and presents a host of problems previously unconsidered. However, you are not alone and frequently options remain available.

Upon termination, an employee may be presented with a severance package or separation agreement, particularly if the employer is offering severance pay. However, most employees are not aware of their full range of options available to them when presented with an agreement. For instance, employees are entitled to have an attorney review any severance or separation agreement. Furthermore, employees have the right to negotiate the terms of any agreement presented to them and are under no obligation to sign the agreement on the spot. By negotiating the terms of their severance and separation agreements, an employee has the opportunity to maximize her compensation in the event of a termination. An employee must understand that by signing a separation agreement, she may be waiving many important rights.

One such waiver could be a release of claims. A release of claims usually accompanies a severance package wherein an employee relinquishes her right to sue if a severance package is accepted. An individual should carefully review the terms of an agreement with an attorney to consider all available options. You may also want to seek counsel regarding contracts signed upon beginning new employment, such as non-compete agreements, non-solicitation agreements, or contracts regarding confidentiality.

While the economic downturn has resulted in an unexpected number of layoffs, individuals still have the right to fight workplace discrimination. Discrimination in firing decisions can take many forms, including race, age, disability, pregnancy, gender, sexual orientation discrimination and whistle-blowing, among others. Also, if you have an employment agreement that is entered into prior to your termination, you should have an attorney review that agreement to make certain that it has not been breached by your employer. If you believe that you have been laid off unfairly due to discrimination of any nature, you should consult with an employment attorney to explore your particular situation.

By consulting with an employment lawyer, a recently terminated employee will find guidance in navigating the difficult and trying times of losing a job. An experienced employment attorney will help asses all potential options moving forward.