New York Employment Attorneys Blog

The recent Supreme Court session has been a disastrous term for the rights of workers in America. The current Court has weakened the rights of older employees in the case of Gross v. FBL Financial services, where the Court determined that age discrimination had to be the motivating factor in pursuing an age discrimination claim, deeply undercutting the interpretation of the Age Discrimination Employment Act. Later in the term, the Court ruled on the highly controversial Ricci v. DeSteffano case, where they found against the city of New Haven, who through out a promotion test for firefighters when it would have resulted in few if any minority firefighters receiving promotion- mostly in accordance with Title VII.

These setbacks have greatly affected the ways in which employees can seek recourse and damages from the actions of their employers. This is why it is a perfect time for Congress to get to work on an overhaul of the Civil Rights Act. Similar to the Lilly Ledbetter Fair Pay Act introduced after her appeal to the Supreme Court was denied, this new act could bolster the rights of employees and undo the damage brought by the current members of the bench.

Specifically, this act could work to restore the rights of employees who believe they have been discriminated against because of their age, as well as clarify the problems of Title VII that make it difficult for local and state governments to apply equal protection under the law. As well, it could go beyond that and provide greater rights for part time and tipped workers, who are often taken advantage, and not paid fairly.
Lobby your Congressmen and women to enact real change for employees, and help fight against the challenges to workers rights.

An interesting decision has been handed down in the 9th Circuit Appellate court out west. The ruling came in a case against the Castaway Casino and Resort Company. The suit alleges that the casino company failed to pay numerous workers during the companies decline into bankruptcy and reorganization. When the employees sued the trustees overseeing the bankruptcy operation, which included mostly company executives, the court found that they were liable along with the company. This ruling may have a widespread effect, as more and more workers are dealing with companies undergoing bankruptcy, with the major effect of letting workers sue the executives in civil courts rather than seeking damages in a bankruptcy court.

While nearly all employees at the lower end of the wage scale will benefit from the raising of minimum wage to $7.25 an hour, employees who are paid a portion of their salaries in tips will be left out to dry when the new rate goes into effect. While the minimum wage hike provided for a new minimum after the longest period without a raise, the minimum salary for workers who received tips has stayed at $2.13 an hour for over 18 years now.

This has resulted in damaging situations for waiters and other workers who work for tips, with their wages dropping nearly 36 percent in real value since the law was established. An article on the New York Times City Room blog highlights these perils, which quoted Paul K. Sonn of the National Employment Law Project. Mr. Sonn states "Tipped workers like waitresses and waiters have twice the poverty rate of the workforce as a whole".

The conditions for workers are even worse when given the fact that many employers do not fairly distribute tips, and sometimes take a percentage of tips for themselves. As well, service workers in New York City face much higher costs of living, and are often confronted with tourists that are unfamiliar with the American style of gratuity. All of these factors add up to a bad deal for some of the hardest working individuals in our work force.

Mayor Bloomberg was deposed yesterday in a case alleging widespread sexual harassment and gender discrimination at Bloomberg's media and financial news corporation. The deposition lasted for nearly four hours, and concerned the allegations of discrimination brought by over 80 female employees. The suit alleges that the company systematically discriminated against female employees who took maternity leave while pregnant.

While Bloomberg is not an individually named defendant in the action, he is a majority shareholder in the massive media conglomerate. The incidents allegedly occurred after Bloomberg was elected to Mayor, but his answers are expected to be used to determine company policy and how charges of discrimination are handled.

In a puzzling split decision, the Minnesota State Supreme Court ruled 4 to 3 that religious schools were exempt from claims of discrimination brought by employees. The ruling states that the state rights barring discrimination in the work place do not protect employees whose jobs were linked to the mission of the religious institution, which includes teachers at religious schools. The justices stated that since their jobs are linked to the mission of the institution, they are free to fire their employees at will to further their mission.

This ruling is startling, given the trend of recent anti-employee laws being passed. This law essentially undermines the rights of employees working for religious institutions, even though they are often lay-people and not part of the clergy. While religious freedom is one of the most important freedoms guaranteed in our Constitution, it seems hardly appropriate to use religion as shield for discrimination based on gender, race, age or any other protected group. The Court of Minnesota should be chastised for condoning discrimination, and working to erode to rights of workers in the state.

Bianca Wisniewski, a safety coordinator for a New York City construction company, has brought claims of sexual harassment and retaliation. The article- Pioneering female hardhat Bianca Wisniewski files $20M sexual harassment lawsuit, published today in the New York Daily News, details the workers claims. Wisniewski claims that while working for the Total Safety Company doing construction for JP Morgan Chase, she was repeatedly harassed, groped and propositioned by employees.

One particular employee, an elevator operator, is said to have groped her in the elevator and repeatedly propositioned her while she was employed at the company. When Wisniewski complained about these conditions, she was allegedly demoted and replaced with a white male employee.

While construction continues to be a male dominated industry, it is no excuse for the rampant sexual harassment that occurs daily. The mentality of it "being a mans world" is unacceptable in today's world, and individuals who have been harassed should come forward to protect their rights.

Today, United States District Judge Nicholas G. Garaufis granted summary judgment in
favor of the Vulcan Society, the fraternal organization of Black firefighters in the
Fire Department of New York (FDNY), and three individual candidates, in a class
action lawsuit charging the FDNY with racially discriminatory hiring practices.

From 1999 to 2007, the FDNY used written examinations to select more than 5,300
candidates for admission to the New York City Fire Academy. These examinations
unfairly excluded hundreds of qualified people of color from the opportunity to
serve as New York City firefighters.

In light of the overwhelming evidence, the Court found that New York City's reliance
on these examinations constitutes employment discrimination in violation of Title
VII of the Civil Rights Act of 1964. In Judge Garaufis's decision, dated July 22,
2009, he states that, "[f]rom 1999 to 2007, the New York City Fire Department used
written examinations with discriminatory effects and little relationship to the job
of a firefighter... [that] unfairly excluded hundreds of qualified people of color
from the opportunity to serve as New York City firefighters. . . Today, the court
holds that New York City's reliance on these examinations constitutes employment
discrimination in violation of Title VII of the Civil Rights Act of 1964."

A recent decision by the Appellate Division in New Jersey in the matter of Stengart v. Loving Care Agency, Inc ., No. BER-L-858-08, has held up the rights of an employee whose private, personal email to her lawyer had been stored by the employer. The employee had sent emails to her attorney from her work computer, using a personal, password protected email address that was separate from her work email. When the employee later resigned and brought a suit against the company, the employer had made a digital copy of her work laptop, including the emails sent from her private email account.

When the defense attorneys were required to respond to the interrogatories sent by the plaintiffs, the attorneys for the employer included these emails between the employee and her attorneys. Upon seeing these emails, the plaintiff's attorneys demanded all copies of what they believed to be privileged information between an attorney and client- one of the most fundamental principles of the attorney-client relationship.

The lower trial judge in the court upheld the employers belief that their policy of owning all documents and products that are produced on employer owned computers included these emails from the employee to her attorney, and that she had no reasonable expectation of privacy. However, upon appeal and review of the employer's policy, the appellate judge found for the client and sent the case back to the lower court, this time treating those emails as privileged communication under attorney/client privilege.

This decision is interesting, in that it shows the competing interests between workplace policies regarding computers and web technology, as well as the need to maintain a strong attorney/client confidentiality privilege. This decision is a victory for employees in New Jersey, and its influence will hopefully spread as employees start to challenge unfair and unreasonable policies of employers.

Another New York City restaurant has been cited for a variety of wage
violations, following close on the heels of dozens of other restaurants
who have violated Federal and State labor laws. A lawsuit filed by New
York State Attorney General Andrew Cuomo alleges that Lemongrass Grill, a
chain of Thai restaurants in downtown Manhattan systematically failed to
pay workers a minimum wage, as well as failed to keep records of hours and
personnel.

An article in the New York Times states that delivery persons would make
as little as 25 dollars for a 10 to 12 hour shift, while kitchen staff
would make as little as 50 dollars for their shifts. This type of
treatment is not only illegal, but borders on the inhumane.

The Harman Firm urges people to boycott the growing list of
restaurants in New York City that prey on workers. The systematic process
of undermining workers' rights should not be tolerated, nor rewarded.

In a resounding victory for victims of domestic violence, New York State has recently amended Executive Law, which prohibits certain types of discrimination, to include protection for victims of domestic violence from being discriminated against in employment matters. The law, which is long overdue, extends legal protections to the victims of domestic and sexual abuse, and helps ensure that this vulnerable class of individuals is not further punished for the intolerable actions of others.

Previously, it was legal for employers to discriminate against an employee who had been abused or harassed without penalty. For instance, employers could fire individuals suffering from domestic abuse, claiming that it caused a nuisance in the workplace, or had caused many absences from work and unpredictable behavior in the employees. Employers had also been concerned with angry and abusive spouses showing up at places of employment, causing disturbances.

The change in law should be greatly applauded as it extends benefits to these victims, and helps them hold on to their employment in the face of troubling circumstance. These individuals should be helped and protected, not punished further by losing their jobs.

President Obama last week has announced that he would continue the practice of using the E-verify system as a means to curb illegal immigrants working within this country. The program, which was established under President Bush, is an electronic database system that was intended to verify an individuals citizenship status for employers to ensure that they are hiring legal workers. However, the E-verify system is extremely flawed, relying on incorrect, incomplete and flawed information. The system has been responsible for many false positives, where a worker who is a legal citizen, cannot be verified within the system and in turn lose their job despite their actual standing. The continuation of this system is incredibly disheartening and disappointing coming from President Obama. This continuation of Bush-era policies will only hurt workers, legal and illegal and do more damage to the economy as money is poured into a broken system, while keeping individuals out of work.

A new article in the Wall Street Journal- "Mandating Unemployment", takes a look at the ways in which the minimum wage increase will potentially affect those getting paid at the low end of the pay scale. The article suggests, amongst other things, that the higher minimum wage during the recession is actually hurtful to low-income workers, and will work to raise unemployment at this time.

The article explores the reality of the minimum wage raise, which while long overdue, could actually put more people out of jobs. The rate increase will actually make it harder for employers to pay their employees, and cut jobs in response to the raise.

The logic in the article is that an employee making the old minimum wage will be eligible for earned income tax credits at their pay rate that would effectively raise their wages to around 10 dollars an hour. On the other hand, the cuts that employers will make in response to the wage hike will only slow hiring, and explores the idea that a person making ten dollars an hour with earned income tax credits is much better off than the individual who would have no income following a lost job.

This article underscores the difficult nature of trying to provide employees with a sustainable, living wage with the harsh realities of the current economic market. What's your take on the new minimum wage increases- boon to lower income employees or shooting the economy in the foot?

New York City is home to a widening gap in unemployment between white and black workers in the city, according to new data found in an article in the New York Times- "Job Losses Show Wider Racial Gap in New York". This article explores the numbered behind this phenomenon, showing that while generally blacks make up a higher percentage of unemployed workers, the recession has hit this demographic particularly hard, and at rates much greater than their white counterparts.

The data, released by the City Comptrollers Office, showed that there are 80,000 more blacks on unemployment currently, even though there are over 1.5 million more white residents within the city. This data was troubling considering that many of the noticeable job loses had come from areas where minorities are not as highly represented, like finance and other professional industries.

However, looking at other areas where cuts have been made, like customer service and retail positions, which have been hit hard as consumers curtail spending. These areas traditionally hire more African American employees. Other areas where African American employees make up a larger percent of the workforce- such as government jobs, have been feeling the hurt as well as local areas and state agencies trim budgets. One such agency, the Post Office, who has traditionally employed many African American workers, has been forced to lay more workers of as the recession depends.

The study continues on to show that whites in New York City have actually gained 130,000 jobs, while most minority groups have lost jobs concurrently. This race gap is troubling for a number of reasons, the most of which points to the idea that the recession has had a disparate impact on minority workers. While the recession has affect many industries, it is no excuse to single out minority workers for termination during cuts in employment.

The FLSA's anti-retaliation provision prohibits "discharg[ing] ... any employee because such employee has filed any complaint...." 29 U.S.C. § 215(a)(3) (emphasis added).

In 1993, the Second Circuit held that the anti-retaliation provision in the FLSA prohibits employers from retaliating against employees for filing formal complaints, instituting a proceeding, or testifying about FLSA violations, but does not encompass verbal complaints made to a supervisor. Lambert v. Genesee Hospital, 10 F.3d 46, 55 (2d Cir.1993)) (citations omitted).

On June 29, 2009, in Kasten v. Saint-Gobain Plastics, the Seventh Circuit followed when it held that, "the natural understanding of the phrase 'file any complaint' requires the submission of some writing to an employer, court, or administrative body."

This week, a New York City based car wash chain was required to pay back wages to employees. The payment, which came to over 3.4 million dollars in back wages and damages, resulted from a lawsuit brought by employees.

Employees claimed serious violations of the Fair Labor Standards Act, where the company, Lage Management Company, was found to have not paid employees minimum wage, refused to pay employees over time pay, and did not keep accurate employment records.

An article in the New York Times CityRoom-"Car Wash Chain to Pay $3.4 Million in Back Wages" explores this incident, and shows the perils of the car wash industry and other low-income positions. Low-income workers are often most susceptible to unfair treatment by their employer for a number of reasons. Employees in these positions are vulnerable to unfair treatment by their superiors, may not be aware of the laws that are designed to protect them, and are often afraid to complain about unfair treatment due to their reliance on their income.

Employers who treat their employees in such a way should not be held just accountable for the damages and back wages. Rather, we feel that these acts border on criminal in the same way individuals like Bernie Madoff have fleeced investors, if not worse. Criminal sentences for such flagrant violations should be instituted to ensure that these repeat offenders will definitely learn from their heinous treatment of employees, and help protect employees rights.

On July 1, 2009, New York State Attorney General Andrew Cuomo announced a $1.125 million settlement with the owners and former owners of two Brooklyn-based supermarkets for underpayment of their workers as well as other violations of New York State labor laws.

The AG's office filed a lawsuit against the Associated and Pioneer supermarkets after their investigation found that employees at the stores were not paid proper wages. At both supermarkets, baggers had been paid no wages at all and had to rely solely on tips for income. In addition, delivery workers at the supermarkets often worked 70-hour weeks but were not paid minimum wage nor were they paid time and a half for overtime. Many other supermarket employees had also worked in excess of 40 hours per week, but were not paid overtime wages.

Under the terms of the settlement, the supermarket owners will pay restitution to over 50 of their employees for unpaid wages totaling $1,125,000, in addition to the penalties that will be paid to the State of New York. Each worker covered by the agreement will get about $20,000.

In a separate criminal action, the two owners of the Associated Supermarket pleaded guilty to failure to pay wages and failure to maintain payroll records, both misdemeanors. Each received a one-year suspended sentence and must comply with a deal to surrender payroll and time records to the Attorney General's Office on the first of each month for five years to ensure compliance.

See: 2 Bushwick Supermarkets Settle Labor Charges

As I've written about on this blog earlier, there seems to be a recurring problem with bakeries refusing to treat their employees properly. This time, a Federal law judge has ordered the Stella D'oro Company to reinstate workers who had been on strike since last August, as well as pay them back wages through May.

The workers went on strike after the company went to their union demanding that the union accept a $5 an hour wage decrease for groups of workers. As well, the company had demanded that the employees take cuts in their pensions as well as their health care benefits.

The National Labor Relations Board had found the company at fault during the negotiation process, claiming that the company had not negotiated fairly with the union by withholding necessary audits, as well as declaring an impasse in negotiations without having satisfied the conditions necessary to do so.

This drawn out process brings some closure to the workers who had been on strike and picketing for almost a year now. The workers, who had been living on unemployment, had stuck together throughout this long process and should be proud of taking on the unfair employment practices of the company.

See:http://cityroom.blogs.nytimes.com/2009/07/01/bronx-cookie-plant-is-ordered-to-reinstate-striking-workers/

In a new Wall Street Journal article titled "Only the Employed Need Apply" has some interesting advice for potential job seekers. While the job market is most certainly titled in favor of employers, the article gives some advice to potential job seekers on the best way to find a new job- and that's to currently be employed.

The article discusses the experience of management and HR representatives, and their strategies for finding the right employees during the current recession. Quoting one executive, "If they're employed in today's economy, they have to be first string", emphasizing the idea that the best employees are the ones who have held on to their jobs, while others who have been shed may not be as ideal candidates.

This is unsettling advice for the unemployed worker, especially considering the fact that the nature of layoffs has been incredibly unpredictable, and that this philosophy does not take into account the state of the economy, which has forced businesses into unforeseen situations. These situations- like businesses declaring bankruptcy or closing factories, have put many out of work despite being outstanding, skilled employees.

Others who employ the tactics of targeting currently employed workers state that they do so to avoid a lengthy search in which many candidates are either over or under qualified for the position, and can directly search candidates would be a good fit in the position. This will cut down on weeding through the mass of responses employers get when posting job openings.

In any situation, this advice is counter intuitive, and does little to help the currently unemployed. What have been your experiences with finding work? Do you perceive a bias in employers for workers who are already employed?