New York Employment Attorneys Blog

Scanning the internet, I've come across more and more posts detailing the events around people getting fired- "Can you be fired for using Facebook?", "Man Fired For Not Dressing Up Like Santa", "Nurses Fired for Cell Phone Pictures of Patients" all give interesting viewpoints on these workplace stories. What most people do not realize is that a condition of at-will employment means that employers do not have to give any particular reason at all.

At will employment is the prevailing form of employment throughout most of the United States. As a provision of at will employment, employers can terminate the working relationship with an employee at any time, for most any reason or no reason at all. Likewise, an employee has no obligation to remain working for a particular company.

The exceptions to this rule come when it can be shown that an individual has been fired for reasons relating to discrimination relating to an employees belonging to a protected group- gender, race religion etc. As well, Federal statues have been signed into law that expand the rights of at will employees- the Fair Labor Standards Act, the Family Leave Medical Act, and many others. New York currently has a Whistleblower statue designed to protect employees who report their bosses. However, this only comes into effect in reporting incidents that have to deal with the public health, severely limiting its use.

As the job market continues to tighten, many individuals are finding themselves without work, and without a reason for their termination. While discouraging, it does not always mean that an individual has not been discriminated or harassed in the course of their employment. If you do have questions resulting from your termination, your best bet would to discuss your situation with an employment attorney.

In recent years, much has been done to raise awareness of sexual harassment in the workplace, and how to go about identifying and reporting such behavior. However, this practice still affects scores of workers, with more and more individuals reporting sexual harassment in an academic setting.
According to the AAUW, over two thirds of college students have experienced some form of sexual harassment, while staggeringly few of these individuals come forward and report such activity. The sexual harassment seen on college campuses is not greatly different in the ways in which it is manifested- name calling, inappropriate touching, threats. Rather it is the situating of individuals around a college that leads to differences in how it is viewed and treated.
In recent years, sexual harassment carried out by teachers and professors has been under greater scrutiny by watch groups. Professors who have been accused of harassment have often taken advantage of the position of power they occupy over students, leaving the student vulnerable. As well, professors spend a considerable amount of time alone with students in their work. Concerns over appearances, as well as grades have led many individuals to not report harassment that occurs on campus.
As well, sexual harassment may occur between students, or students working on campus. The nature of campus social life, filled with the omnipresence of alcohol affords many opportunities for sexual harassment. Like in instances with professors, students are often afraid to report sexual harassment due to social ostracism, and fear of retaliation.
It is crucial to raise awareness of sexual harassment on college campuses across the country. In doing so, many individuals can come forward with their experiences and to seek justice.

A case proceeding in the Supreme Court has raised the issue of race and discrimination in hiring and promotion of public employees. The case, brought by a group of white fire fighters from New Haven, Connecticut, claim that a promotion exam was to be scrapped in that it appeared that it would only promote 2 Hispanic firefighters and no African American fire fighters.

At the heart of the issue is the idea that these white firefighters were effectively denied a promotion by withdrawing the exam, and if this practice constituted a violation of the firefighters civil rights. Furthermore, it treads the middle ground between trying to create an inclusive work environment and overt racism and discrimination.

The hearings were largely split along between the liberal and conservative justices. The more conservative justices such as Antonin Scalia and John Roberts uphold the rights of the white firefighters, arguing the idea that who decides what outcomes of exams are good and bad, and weighing the impact of the denial of benefits to those who deserved it.
The more liberal justices on the other hand have held that the city of New Haven did nothing wrong in throwing out the exam, claiming that the test had a disparate effect on minority participation in line with the 1964 Civil Rights Act.

This case marks the first instance of the Supreme Court dealing with the subject of race and discrimination in the Obama administration. This particular case, dealing with reverse racism, as well as a perception of institutionalized racism, marks an important moment for both the administration, as well as the current Supreme Court. The facts of the trial show we are a long ways off in having a completely equal workplace, and that discrimination in hiring and promotion is active well into the 21st Century.

Most people would believe their days of being bullied and picked on would end on the playground, but startlingly more and more employees are coming forward with stories of workplace harassment and bullying. Consequently, more companies are faced with allegations of inappropriate workplace behavior that threatens morale.

Worse, is that many employers' codes of conduct and human resource guides do not proscribe solutions for this type of behavior, making it hard for bullied employees to seek recourse against the harassers. Workplace bullying can include any number of signs, including: passive-aggressiveness; nudging, pushing or shoving; character assassination; arrogance; an unfair attitude towards coworkers; coworkers who are quick to blame others for problems; or, an employee that is extremely rude and belligerent toward another. Some of this conduct is prohibited by law and some of it is not. However, none of it should be tolerated.

Bullying conditions are often exacerbated by the fact that if there is no strict policy against the behavior, bullies can take advantage of a lax policy and continue to torment individuals with much impunity. Until employers and human resource departments begin to take bullying seriously, it is likely that many more instances of bullying will go unpunished.

If you believe you are being bullied, you should immediately seek out your human resources representative or supervisor to explain your situation. Always put your complaints in writing and keep a copy for your records. Getting your workplace complaints in writing is the first step to seeking recourse for harassment and bullying. Contact an attorney if you think you are being bullied or harassed for an illegal reason, which might include your race, gender or age, among other reasons.

The pay gap between men and women, where the median income of women stands at about 75% of what men are paid, is equally prevalent in the world of non profit work, where startlingly more than 70% of the employees are female. This gap has been echoed in a number of surveys aimed at discovering the nature of these pay disparities, and why they are so rampant in the non-profit industry. A 2004 study by Guidestar, a non profit monitoring company, revealed that at groups with a budget of $50 million dollars or more, a male executive director was likely to be earning more than twice what a similarly employed female would be making.
A similar study conducted in 2007 by the Robert Morris University's Bayer Center for Nonprofit Management and the United Way of Allegheny Count, found similar trends in non-profit compensation between men and women. The study found that the average male non-profit director in Western Pennsylvania would make an average of $116,000 as compared to around $74,000 for women directors in the area.

Both studies examined the nature of these disparities by taking in a wide sample of both large and small non-profit groups. Both studies concluded that of large non-profit organizations that have large budgets with millions of dollars, the executives and directors are much more likely to be male, making up nearly 75% of the groups Guidestar surveyed. In addition, women are much more likely in both studies to be part of smaller non-profit organizations where salaries and budgets are much lower. It has also found that women are less likely to demand a salary that is commensurate with their fundraising efforts, compared with men who are likely to seek to find parity betweent their efforts and salary.

The good news, if any, is that the Guidestar survey shows that in non-profits with small budgets, women are actually making more money than their male counterparts, and are gaining over previous years in middle and high budget non-profits, closing the gap between the two groups. While this is a start, it does not truly address the disparities that exist here, and throughout the workplace.

Two female workers for the Department of Environmental Protection have filed a federal complaint against their department, alleging a long history of discrimination. The complaint, filed with the EEOC, outlines the patterns of harassment and retaliation suffered by two lesbian workers at the hands of their predominantly male coworkers and supervisors.

The pair, Lillian Padilla and Magda Rodrieguez allege that they found that their truck was constantly littered with pornography, that they were called derogatory names for being lesbians as well as being threatened and harassed for complaining about their situations.

Furthermore, there were no shower facilities for the two workers who spent much of their day working in sludge and grime around New York. The two contend that there were originally 13-15 female employees in the Department of Environmental protection, but the systematic sexism and harassment by "the old boys network" has forced many of the women out to find new jobs.

With a tightening labor market, employers believe "so called" background checks have garnered increasing importance, with the employer taking greater steps to ensure that the candidate for a position is a "good fit". As well, with a dearth of jobs in the marketplace, employers are finding themselves in a position to be much more discerning and selective with the few positions they have open, and the large number of applicants for each position.

The New York Law Journal recently examined the legal implications of background check practices. On the subject of criminal background, the Equal Employment Opportunity Commission ("EEOC") states that discrimination based solely upon an individual's criminal record is illegal, concluding that arrests and incarcerations affect minority populations, particularly Hispanics and African Americans, and are generally prosecuted at a rate much higher than whites. However, employment may be legitimately denied to an individual if their criminal record is related to the position. For example, refusing to hire a convicted bank robber as a bank security guard.

Another potential area of concern is for employers conducting checks of candidates financial and credit histories. Federal law prohibits terminating or discriminating against an employee on the basis of their credit statuses, or previous indebtedness. However, courts have interpreted the law to not include decisions related to hiring of employees, and has been used to justify not hiring candidates in fields relating to the fields of finance and lending. While the EEOC does not recognize debtors as a protected class like other groups, minorities tend to have higher rates of indebtedness and insolvency, which could cause disparate hiring patterns and inadvertently shape the workforce when used as a hiring criterion.

A third criteria that employers should concern themselves with when performing background checks on individuals is the nebulous idea of character, which manifests itself in a few different ways. The most recognized example of this is employers requiring a pre-employment drug screening, and enforcing drug free work places. These tests are designed to catch illegal drug users, with those taking legitimate drugs for a disability or illness exempt from discrimination based on these results. Another potential site of discrimination in conducting searches is evaluating what legal activities individuals partake in their free time, such as political activities, unions or other associations.

A former Playboy employee, Joseph DeAcetis, has come forward with allegations of discrimination against Playboy. DeAcetis claims that he was fired because he was gay, and that he appeared much older due to his grey hair.

In his lawsuit, DeAcetis claims that his managers often called Playboy's gay employees "girl"s, and that he was repeatedly made fun of for having grey hair. Seeking $4 million dollars in damages, Acetis filed his lawsuit in Manhattan late last week.

Aside from being discriminated against, DeAcetis claims that his duties as fashion director were given to younger male employee's over time, and that he was passed up for television appearances, being told he looked "too old".

Under New York State and City law, discrimination based on sexual orientation is against the law, backed by the same laws that are designed to shield other protected groups from discrimination. In the past, discrimination against individuals had been much more common, but new laws have been designed to stem these instances.

Sadly, only 13 states have adopted laws that are designed to protect against discrimination based around sexual orientation and there remains no federal law that prohibits the practice in private business, meaning there are thousands of workers each year that are unprotected against such workplace descrimination.

More bad news on the economy as new figures released on Friday show that the national unemployment rate continues to rise, and stands now at 8.5%. This continued downturn has affected nearly all sectors of the work force, with the exception of health care industry workers. Over 13.2 million people are now considered unemployed, with the number of individuals who have been unemployed six months or longer now comprises 3.2 million people.

These figures come as economic stimulus money begins to trickle in, and help stave off further cuts in jobs across the board. People are continuing to spend money, as evidenced by the stabilization of the retail sector, while many people are taking advantage of low home prices and very low fixed rate mortgages to buy their first homes, or to build investment properties.

However, this continued down turn can potentially get worse, as decreased spending has forced many business to trim their workforces down, which in turn diverts money away from consumers and spending. With lowered wages and earnings, there is less money to be spent on goods and services, the opposite of what the stimulus package is hoping to address.

While the G-20 recently met in London to discuss a united economic effort between some of the worlds most powerful and wealthy nations, it is clear that there is still much to be done in turning the tide against the growing economic downturn.

A group of hospitals in the Albany region have recently agreed to settle a lawsuit brought by nurses. The deal, described in a NY Times article published March 9th seeks to settle a claim brought by the nurses who said hospitals had conspired together to keep nurses for wages down in the area.

Per the agreement, the nurses will receive $1.25 million dollars and prohibits the hospitals from sharing wage information of the nurses with any other hospitals operating in the area. Statements from the hospital admit no wrongdoing stemming from settling, and stated that they decided to settle the case to "preserve scarce resources" from going to waste.

A statement from the SEIU claimed this was a victory, and that "for too long, hospitals cut corners when it came to valuing the hard work of nurses", with many advocacy groups and nurses stating that the suppression of wages for nurses has further increased the shortage of nurses throughout the country.

The settlement also opens up new options for nurses who are currently awaiting similar trials in other states. The settlement allows for the lawyers for the nurses in this group access to nurses at other hospitals in the area to further explore claims of wage suppression and conspiracy.

New data released Friday painted a sign of the deepening conditions of the recession here and abroad at the national unemployment rate soared to 8.1 percent. These numbers beat the project unemployment estimates which sat around 7.6 and 8.1 percent. This staggering unemployment rate marks the highest unemployment level since 1983 and could potentially worsen if stimulus measures fail to take hold.
Some experts are warning that the current stimulus will not be enough to counter current job loses. President Obama's plan initially was designed to create and keep 3.5 million jobs, while over four million jobs have already been lost in the downturn. A few economists are wondering if the stimulus plan is bold enough to turn the tide against rising unemployment, meaning that new steps may have to be taken in the future, or the economic situation will deteriorate further.

Bloated unemployment rolls take resources that can be used for other programs, such as job creation, training and other infrastructure projects. As stimulus money begins to flow from the federal government and into state coffers, we will soon be able to tell the effects of this cash injection into the American economy.

In another food-related employment dispute, a Bronx bakery owner is accused of numerous criminal charges against employees. Walter Galliano, owner of the Arthur Avenue Bakery in the Bronx, was arraigned on over 200 misdemeanor and 40 felony counts, ranging from minimum wage violations, tax fraud and withholding wages from workers.

The charges came as the New York State Department of Labor launched an investigation into the bakery's practices after a worker had come forward citing unfair labor conditions. During the investigation, it is alleged that Galliano threatened ten employees to retract their statements and numerous other employees were let go for their involvement and cooperation with the state.

The Times reports that some workers were paid as little as $55 a day for a ten to twelve hour work day, clearly undercutting the New York State minimum of $7.15 an hour. Mr. Galliano is also accused of cheating the State of unemployment funds, while failing to provide workers compensation insurance for his employees.

If convicted, Mr. Galliano could face up to 4 years in prison and be forced to pay thousands of dollars in fines. It will also bring relief to the numerous employees affected by Mr. Galliano's alleged hiring and employment practices.

The economic downturn has taken its toll on numerous segments of the work force, but it continues to be seen that the most affected are generally the most vulnerable, low wageworkers struggling to get by. Food service in particular seems to be rife with these patterns of corruption and unfair practices, and hurts those workers who can afford it the least.

Recently, Whole Food's in Manhattan fired employee Ralph Reese when he had set aside a tuna fish sandwich that had been destined for the garbage. Reese, who was employed at the Union Square location of the upscale grocery chain, was working at the deli counter when he was throwing away a batch of sandwiches left over from the day and placed one aside for himself. His manager told him that company policy prohibited doing such, and threw the sandwich away in front of Reese.

Two days later, Reese was fired for "misconduct", despite having worked at Whole Food's for over 2 years without incident. Given the stated reason for his discharge, Reese was unable to apply for unemployment benefits upon his termination, even though no particular policy was violated in that the sandwich set aside was ultimately thrown away and he did not leave the store with any property.

After being refused benefits, Reese took his case to court where an Administrative Judge ruled that his behavior did not rise to the level of misconduct and had his benefits reinstated. While absurd, this is not a new trend with many employers seeking to trim their payrolls, while trying to withhold unemployment benefits to save on their unemployment insurance rates. If you are terminated and have your benefits held unfairly, make sure to discuss your options with an employment attorney.