New York Employment Attorneys Blog

In a 5 to 4 decision, the Supreme Court ruled on the controversial Ricci v.
DeStefano case. The case, which was brought by a group of white firefighters
in New Haven, Connecticut claiming they were denied promotions when the city
of New Haven threw out the promotion exam. Lower courts found in favor of
New Haven in throwing out the results of the exam, and against the white
firefighters.

However, the Supreme Court reversed the findings of lower courts. Justice
Kennedy wrote for the majority, and was joined by Justices Thomas, Roberts,
Alito and Scalia. Kennedy stated unequivocally that ³the city rejected the
test results solely because the higher scoring candidates were white,² and
that ³Fear of litigation alone cannot justify an employer¹s reliance on race
to the detriment of individuals who passed the examinations and qualified
for promotions.²

The ruling will make it difficult for employers, mainly those that require
tests or other examinations to determine eligibility, to throw out results
if the exam shows a disparate impact on a minority. This includes many
government entities that employ civil servants, and often use exams for
promotion.

In the dissenting opinion, Justice Ginsberg minced no words in showing her
disdain for this opinion, and standing behind the black and Hispanic
firefighters. The city of New Haven has a high percentage of blacks and
Hispanics, but the make up of the city's fire department does not coincide
with these proportions, and highlights problems associated with the
disparate impact clause of Title VII.

This case also draws attention to Judge Sotamayor¹s ruling in the Appeals
Court. She had found in favor of the city, which had thrown out the test
results when they were notified of their potential liability. This case was
closely watched to see if the Court would uphold Sotamayor¹s ruling.

The decision cuts a hole in Title VII. The issue for the employer under
Title VII is not the fear of being sued but rather the disparate or
discriminatory impact the employers' decisions (including mandatory tests)
have on the employee.

Shame on the Supreme Court for a leap backwards!

In the midst of the backlash from gay rights groups concerning his recent actions on the Defense of Marriage Act and extending limited benefits to gay couples, President Obama was also working on legislation that would include transgendered employees in anti-discrimination codes. This act would mark the first time that the Federal government has given protection to transgenedered individuals, and marks a turning point in the legal acceptance and equal protection of these people.

The main effects of this move will to allow for transgendered individuals to use their status in discrimination claims, similar to other statues protecting people from discrimination based on their gender, race, or religion. While transgendered individuals make up a small small fraction of the Federal workforce, this decision will likely be a greater symbolic victory for these people who have long been neglected and unprotected by legislation.

The inclusion of transgendered individuals is historic as it marks the first time that the Federal Government has recognized this group as a protected class. As well, this could mean sweeping changes in local and state organizations as states move to adopt anti-discrimination laws to protect transgendered people from discrimination. What was once a fringe issue rarely discussed is now getting pushed into the mainstream as it should, starting with Federal acceptance and protection of these people

In an extremely surprising and disappointing decision, the Supreme Court ruled last week in favor of an employer in an age discrimination case. The 5-4 decision showed the deep divide between the two sides on the issue, with the majority ruling that the employee must show that age was the primary factor in a wrongful employment action. The burden of proof of this discrimination falls on the employee bringing the claim, and not on the employee.

Clarence Thomas, speaking for the majority stated that "the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age...even when a plaintiff has produced some evidence that age was one motivating factor".

The case was Gross v. FBL Financial Services, where Jack Gross was effectively demoted in title and responsibility, with part of his work load going to a younger female employee who used to report to him directly. Gross brought a case against FBL Financial, and was awarded $46.945 by the jury. On appeal, this award was overturned, leading to the Supreme Court fight.

This is a very disappointing sign for working Americans, especially as the workforce continues to get older. Businesses are now more empowered to let go of older workers as costs rise, and replace them with younger and cheaper employees.

This conservative bench has been no friend of workers, ruling first against Lilly Ledbetter in her case against Goodyear fighting for pay equality. In that case, Congress stepped in to correct the law and work to ensure equal pay for men and women. Hopefully, Congress will take the right step here and shore up the rights of older workers.

Just like other forms of discrimination, age discrimination is no more tolerable in our society than others and we should stand up for older workers.

President Obama was largely elected on the support of a progressive land swell of coalitions, from labor unions to gay rights groups. So why is it that now that Obama is President with more than enough votes in the Senate he continues to support a discriminatory and blatantly wrong policy enacted by the Defense of Marriage Act.

The Defense of Marriage Act, enacted in 1996 prevents the Federal Government from recognizing the legality of gay marriage on the Federal level, causing major setbacks in equality for gays and fueling legislation aimed at curbing rights. The fury from the left comes after last week, where President Obama and the White House filed a brief in a Federal case supporting the Defense of Marriage Act.

The case, which came up tried to challenge the legality of the Defense of Marriage Act and force Federal recognition of gay marriages preformed in states. The Depart of Justice filed a brief in the court stating that the Federal government is not required to honor certain marriages preformed elsewhere, and cited a case of incestuous marriage preformed in Italy. The brief went further in insulting gay couples by stating that the Defense of Marriage Act was never designed to discriminate against gays, flying in the face of comments made by President Obama on the campaign trail.

This backpedaling is incredibly disappointing for a candidate that ran on a progressive platform of change and equality. To see these ridiculous steps being taken against gays and their equality is downright shocking, and should be condemned coming from President Obama. While offering some Federal benefits to gay couples, President Obama has miles to go in ensuring equal protection and opportunity under the law for gay American's everywhere.

On June 17, President Obama announced that he would extend benefits of Federal employees to same sex couples, taking a small step towards workplace equality. Specifically, Federal employees will now be able to add their same sex partners to their long term insurance policies, and can use sick days to take care of their partners and non-biological children. We applaud this decision.

While it is a small gesture, it marks a step in the right direction for inclusion of gay couples in deciding benefits, as well as advancing the equality and protection of the rights of gay workers. Currently, there is no Federal statue that prohibits individuals being discriminated against because they are gay, leaving these people vulnerable to mistreatment and persecution.

Under the Obama administration, we could hope to look forward to more of these acts that will span the gap between gays and non-gays in the workplace. While minor, it could be a sign of a major sea change in employment law, eventually leading to the much contested "Don't Ask, Don't Tell" policy discriminating against homosexuals in the military.

A recent piece in the Daily Mail describes the plight of a 22-year old law student. The student, Riam Deen, was hired at the London flagship store of the Abercrombie and Fitch chain. While there, Deen was required to comply with the stores strict dress and "look" policies, which dictate the appearances of the employees.

While working on the floor of the store, Deen was told to take off the cardigan that was covering the joint between her arm and the prosthesis. When she refused, she was sent to the stock room to work until the store deemed it appropriate for her to wear long sleeves. Later, she was told that she would have to stay in the stock room until they would allow her to wear a long sleeve shirt to cover up her prosthetic arm. Shocked, she quit and refused to be subjected to this treatment.

Abercrombie is no stranger to discrimination suits. Currently, a group of ethnic employees are suing the chain for discrimination after they were confined to the back and stock rooms of the store, while the floor staff was comprised mainly of white employees. It is shocking that this type of discrimination continues to persist in this day and age, where employees should be protected from unfair labor practices. Where does a stores' right to enforce an image end, and employees' rights begin?

We encourage you to avoid Abercrombie to protest this detestable behavior. Too let Abercrombie know what you think, call them at 1.866.314.7743, or email them at abercrombie@abercrombie.com.

In a speech Monday morning, President Obama laid out his plans to create over 600,000 jobs this Summer through Federal stimulus money. This ambitious plan would also include 125,000 jobs for teenagers who are suddenly finding summer jobs long held by teens and adolescents drying up as older and out of work job seekers start taking whatever jobs are around.

The announcement comes on the heels of some mixed economic news last week, with job losses slowing but overall unemployment up to a quarter of a century high. The plan announced, dubbed a "Roadmap to Recovery", plans to spend money in various areas to create jobs while expanding services throughout the country. For example, money will be distributed to health centers throughout the country to expand services while keeping jobs. Money would also flow to law enforcement officials to protect times, and save departments as budget cuts threaten jobs in municipalities across the country.

Just weeks after President Obama announced the nomination of Judge Sonya Sotamayor for the soon to be vacant seat on the Supreme Court, news organizations begin to tear through her records and pick apart statements made by the Appellate Court Judge. Of the comments being made, many of those from the Republican side of the aisle have unearthed a groundswell of unease at Sotamayor's record in dealing with race-related issues. Much contention has come from a quote by Sotamayor, often taken out of context, stating that she "would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life". Many have taken this statement, which was meant to describe the ways in which Judge's approach questions of discrimination, as a sign that Sotyamayor would be unfairly biased against non-minorities, with some like Newt Gingrich in the Republican Party calling Sotamayor a racist.

In the heat of this debate over race and politics, there has been relatively little attention paid to the cases that she has decided on. One of the most notable cases relating to employment and race is one that has been touched upon in this blog earlier, Ricci v. Desteffano. In this case, a promotion exam given to New Haven Connecticut firefighters was thrown out because it resulted in no minority applicants being promoted. The white firefighters who would have qualified for promotions sued, and the case now sits in the Supreme Court. As an Appeals Court Judge, Sotamayor agreed with the lower courts finding that to accept the results would have violated Title VII of the Civil Rights Act, which provides for equal treatment before the law. Now in the Supreme Court where Sotamayor hopes to ascend, the case has drawn much attention for the cries of "so called" reverse racism and the difficulty faced in applying the Civil Rights Act.

Again, many on the right have taken her deicision in the lower courts of Ricci v. Desteffano as a sign that she would use her own personal experience to influence her decisions in race related cases. However, a Washington Post article takes a more exhaustive look at her bench record, and finds just the opposite. Tom Goldstein, quoted in the article states that "Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times. The remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous". In this light, however we see that Sotamayor isn't as prone to use her minority background as a reason to rubber stamp any discrimination cases that come before her.

On the issue of disability discrimination, Sotomayor has decided on two prominent cases. The first case involves a law student who had learning and reading disabilities. The student had asked for an accomodation while taking the Bar exam, where Sotamayor had ruled for the student stating that she had a genuine disability. She stated that while she may have had excellent test scores and succeeded in the face of her disability, she was entitled to accomodation unlike other applications of the ADA where individuals who can correct there disability are not always accomodated. In another ruling, Sotomayor found for a group of truck drivers who said they had been unfairly discriminated against since they were required to take prescription medication. Sotomayor claims that these workers were "substantially limited in the major life activity of working", more than just simply unable to drive trucks as the lower courts had found.

These rulings paint an interesting portrait of Sotomayor and her dealings with employment related issues, many of which she will likely rule on if she ascends to the Supreme Court. In particular, the Ricci v. DeSteffano case will be interesting to watch if she sits on the bench based on her prior involvement and ruling on the it.

The NY Times has an interesting graphic and short article on a less covered side of the recession- individuals who have found new jobs, and industries that are desperate for qualified talent. While job losses often make the headlines, this article looks at the turn around and new hiring figures in various industries.

Check it out here.

In a report released by the Government on June 5th, economic data are painting two very different outlooks on the state of the economy. On one hand, job losses for May totaled 345,000. This figure marks the lowest number of job losses since September of 2008. This figure is down from nearly double that some months ago, where monthly job loss figures of nearly 600,000 were average.

However, at the same time the report stated that unemployment throughout the nation had reached nearly 9.4%, a twenty-six year high. This figure, inching ever towards a 10% percent unemployment rate, is a troubling picture of the overall employment market as more and more people begin to look for jobs.

These signs are a mixed bag, showing that while employers may be easing off firing, the economy has a long way to go in creating jobs necessary to stimulate the economy and pull us out of the recession.

An article printed on June 2nd in the New York Times reveals an interesting debate going on within the state. The debate stems from a bill that is sitting in the house currently, which would require all developers who are building low income housing to pay their workers a prevailing wage, comparable to the going Union wage.

The developers of these low income housing units, who have mostly built housing for government housing projects, say that the legislation would hamper their ability to provide housing for those that need it. Given the economic downturn, and the potential for more people to turn to government subsidized housing, it would be inappropriate to force these developers to compete with union jobs.

Supporters of the bill and construction workers rights say that the bill would provide for better construction and a decent standard of living for those that build these housing units.

On the face of this issue, it seems a stark contrast between providing housing for those that need assistance in affording it, while also hamstringing workers by not paying them as much as other prevailing rates in the field- making it more likely that these individuals will have to take advantage of the low income housing options.

Another such concern is that if prevailing wages are required, the laborers would largely be made up of white union members, as opposed to the mostly black and Latino workers that are non union contractors.

This situation highlights the fragile balance between providing for the public good, while doing so at a low enough cost for developers. The interchange of money between developers, contractors and those that would eventually occupy the units are an example of the stresses of the concerns for labor, and the bottom line.

Slipping under the new radar, the Healthy Family Act was reintroduced to Congress on May 15th. This act, originally introduced in 2005 by Ted Kennedy, is a step in the right direction for enabling workers to take time off when needed to deal with illnesses, beyond the scope of the provisions of the Family Medical Leave Act. The act would apply to all businesses with 15 or more employees, and require more time allowed for sick days. For every 30 hours an employee would work, they would be entitled to one hour of sick time, totaling 7 days of sick time on a year worked.

The bill has drawn the ire of pro-business groups, who state that it is an inappropriate time to be introducing legislation that will raise the costs of doing business. They contend that it is already hard enough for small business to remain afloat during these times, and this bill will only make it harder.

But the bills preamble states the difficulty faced by workers to take time off to care for themselves and their family, stating that nearly 59 percent of all private sector employees are not given any time off for sick days. This leads many individuals to come to work sick, often aggravating conditions and making it worse for themselves and those around them. Supporters of the bill state this is necessary, and that the United States lags behind other nations. All other industrialized nations in the world guarantee time off for illness, while only certain cities like San Francisco protect employees sick days.

The passage of this bill during the Obama administration is considerably more likely than under the Bush administration, who had paid no attention to the bill and consistently had sided with business interests.

Would you be more likely to take sick days if you had time? What effects do you think this would have on businesses?

In an unexpected, albeit late response, Citi Bank has announced that it would no longer honor the severance pay of a number of top executives. The story, which broke on June 2nd, states that 5 top executives would not receive millions promised to them in severance pay. The bank, which is going through a restructuring, is paying out the money to former employees to fulfill contracts that had been drawn up before the recession.

However, while the bank has halted these recent payments, it still has handed out nearly 50 million of the 100 million dollars that had been promised to executives in this year. While other employees are struggling to get by after being laid off with no benefits or severance, these few executives who oversaw these companies are walking away with millions to show. The article sites that the company withdrew the bonuses to avoid public backlash, but this move may just highlight the money that the banking industry has given to those at the top, while stranding their customers and employees.

While many companies are restructuring by laying off employees, other businesses are trying to shift their employees away from full time positions, and move them towards part-time positions. While some employees welcome the shift to less hours each week, other workers are struggling to keep up with their decreased salaries.

Some professions, such as law, are offering a percentage of employees salaries to not work for an entire year. The firm Skaden, Arps, Meagher, Slate, and Flom have offered associates $80,000 to take a year off. The firm even guarantees that when the employees return from their year off, the would be guaranteed a position. Furthermore, these employees would be immune from any layoffs that would occur while they are away, sweetening the deal even further. But employees faced with such a proposal should be wary, and seek guarantees of their employement after such an arrangment is made. Employees could potentially sign away their job and rights by taking such offers without evaluating the legal terms.

With waves of terminations, employees are worrying that there is a deep swell in the job market toward these employment practices. Employees who had taken reduced hours assuming that they would be returned to full time status when the economy bounces back. But a more foreboding outlook has these workers worried that they remain on part-time status and will not find other suitable full-time employment.

The move makes some sense for employers, who shoulder the costs associated with paying for full time employees. Aside from salary and wages, full time employees often receive benefits and other compensation. Part time employees however are much more limited in their compensation, and can often be paid less by an hourly wage. By managing a staff of part-time or contract workers, these companies can lower their overhead and get by in these tough economic times.

While this seems to be advantageous to for companies to do, this shift can result in unintended negative consequences for the work environment. A work force comprised of part time or contract workers could have significantly lower morale than other environments. Reduced morale in a work environment can reduce cohesion between employees, and affect the quality and pace of work. The company may save some money in paying their workers for less hours, but will struggle to keep up the same output as workers become more disinterested in their work and are potentially spreading their time across a few different jobs.

Another potential pitfall of this shift in employment practices is a higher rate of attrition and turn around amongst employees. While the at will employment situation we have in American allows for flexibility for hiring and firing decisions, this move towards part time employment would adversely affect employers as well. If employers are likely to use mostly part time workers, they must be ready to deal with the high costs of employee turn around. Training employees is considered one of the largest expenses that companies encounter, and that continually having employees come in and out the door raises costs beyond the original desire to save money with part time workers.

As companies shift to these practices, many believe the nature of employment in general will shift with it, with individuals no longer working specifically for one company full time, but acting more as independent contractors and other outsourced positions.

According to an article in a recent issue of The American Prospect, America sits as the only industrialized nation that does not require employers to provide paid vacation time workers. This is something Congressman Alan Grayson wishes to change, as he introduced a bill last week that would mandate just that.

Grayson, a Representative from Orlando, introduced the bill into the House in response to rising concerns that many workers do not get any paid vacation time at all. Noting the laws in other nations, including China and Germany, Grayson contemplated why the United States with all its success lags behind in providing paid days off.

The bill would require all employers that have 100 or more employees to guarantee one week of paid vacation for each employee after one year of service. Three years after the bill is signed into law, it would expand to include any employer with 50 or more employees and provide 2 weeks paid vacation for any company with 100 or more employees.

Grayson was allegedly inspired by a recent family trip to Disney World, commenting on the importance of time off for working families, and to allow workers to strike a more flexible balance between work and home. This bill is particularly important for guaranteeing rights of part-time employees, who are rarely afforded benefits or any paid vacation time. While many white-collar workers are given this time already by their employers, many lower income employees do not receive these benefits and cannot afford to take such time off. This creates a profound imbalance in the work place, greatly affecting those that already receive less pay.

How do you feel about this legislation? Is this an important step forward for workers rights to ensure vacation time, or a sign of government intrusion into the workings of private companies?

Duane Reade, the drug store giant, has recently settled allegations of sexual harassment and retaliation at a Bronx store. The lawsuit, which was brought by the Equal Employment Opportunity Commission, claimed that the stores manager frequently harassed and abused workers. This manager would make vulgar comments about female employees bodies, harass them about their pregnancies and touch his employees inappropriately. When the workers had complained about such treatment, they were subjected to more of the same behavior, forcing them to endure a worsening work environment.

The settlement, which paid out over $240,000 to the employees affected, also called for changes in the sexual harassment policy of the store. Representatives for the company said that they would institute a new, mandatory education policy to protect workers from this illegal behavior. But many are concerned that a new policy is not nearly enough, and that Duane Reade stores should take much greater care in the hiring of employees.

No one should be forced to work in an environment where they are uncomfortable and harassed, least of all one in which workers are retaliated against for bringing claims to light.