New York Employment Attorneys Blog

The Electronic Communications Privacy Act, 18 U.S.C. § 2510, et seq., and its subsection, the Stored Communications Act ("SCA"), 18 U.S.C. § 2701, et seq., prohibit individuals from accessing, without authorization, stored electronic communications, and provide criminal and civil penalties for unauthorized access to electronic communications and data.

"The purpose of the SCA was, in part to protect privacy interests in personal and proprietary information and to address the growing problem of unauthorized persons deliberately gaining access to, and sometimes tampering with, electronic or wire communications that are not intended to be available to the public." Penrose Computer Marketgroup, Inc. v. Camin.

A person violates the SCA if she accesses an electronic communication service, or obtains an electronic communication while it is still in electronic storage, without authorization. Pure Power Boot Camp v. Warrior Fitness Boot Camp. Thus, employers that own their employees' cell phones, pay the bills and are parties to the cellular service contracts may still violate the SCA where they access employees' personal text messages via the wireless provider, without authorization from the employee.

Wireless providers also risk violating the SCA where they disclose employees' text message content to employers. See Quon v. Arch Wireless Operating Co. (wireless provider violated SCA by disclosing to employer transcripts of employee's text messages sent to and from employer-issued device).

For violations of the SCA, employees may obtain an award of actual damages and, even without proof of actual damages, statutory damages, attorneys' fees and costs, and punitive damages where the violation was intentional. See Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp. (employees were entitled to statutory damages of $1,000 per SCA violation whether or not they suffered actual damages); Pietrylo v. Hillstone Rest. Group. (district court upheld jury's award of back pay and punitive damages based on the jury's finding that defendants' SCA violations were malicious).

Teresa R. Wagner, a former student at the University of Iowa College of Law and a former teacher at the George Mason University School of Law, was refused employment at the University of Iowa College of Law. Ms. Wagner is a conservative Republican activist and believes her political beliefs are the cause for this refusal. Consequently, she has sued the University of Iowa for discrimination based on political motivation.

In December 2011, the Court of Appeals for the Eighth Circuit decided that Ms. Wagner's case should go to trial, as there was sufficient evidence suggesting that the University's refusal to employ Ms. Wagner was based on Ms. Wagner's political beliefs. This preliminary victory for the application of First Amendment rights related to political beliefs and association to academic hiring might enable professors who have been discriminated against because of their political beliefs to take action and affirm their rights.

Follow the story as it develops here.

NBA players filed an anti-trust lawsuit in the Northern District of California on Tuesday in an attempt force talks with the team owners. The suit seeks monetary damages for lost wages and an end to an "illegal boycott of the work force."

The N.B.P.A (National Basketball Player's Association) is collaborating in the suit, naming Carmello Anthony and Chauncey Billups (New York Knicks), Kevin Durant (Oklahoma City Thunder), Leon Power (free agent) and Kawhi Leonard (San Antonio Spurs) as lead plaintiffs.

Now that the collective bargaining agreement has fallen apart and the union disbanned, more lawsuits are expected to be filed. One such suit, also filed on Tuesday, is asking for monetary damages and a permanent injunction on behalf of Caron Butler (free agent), Ben Gordon (Detroit Pistons), Anthony Tolliver (Minnesota Timberwolves), and Derrick Williams (Minnesota Timberwolves draft pick). Another suit is expected on behalf of the rookies.

Tuesday coincided with the players' first missed paychecks; which amounted to more than $170 million for the league. David Boise, attorney for the California suit, said that the Commissioner's ultimatum regarding league's proposal last Thursday "turned out to be a mistake." The monetary damages under antitrust law are triple, which may prove to be incentive for owners to head back into negotiations. However, in an interview with ESPN on Monday, NBA Commissioner David Stern said because there is no union, he is unsure with whom they would be negotiating and "we won't be doing anything soon."

In August 2011, the United States District Court for the Eastern District of New York ruled that four Caucasian flight engineers can pursue their employment discrimination claims in New York, against a Japanese air cargo carrier.

"In [the case of] Baker v. Nippon Cargo Airlines, 09-CV-3374 (RRM), four former flight engineers sued for discrimination, based on national origin, race, and age, when they were fired, while their younger, Japanese counterparts were offered new opportunities when Nippon Cargo Airlines changed its equipment."

The Court held that the case should remain under New York jurisdiction due to three of the Plaintiffs having a New York choice of law provision in their written employment agreements which preserves jurisdiction for any suits arising from the employment based on the agreement. While none of the Plaintiffs live in New York, their employment is based at the NCA hub at the John F. Kennedy International Airport located in Queens, New York.

In response to Defendants' objection to jurisdiction being held in New York, the Court states: "Surely, [D]efendants cannot be suggesting that [P]laintiffs' primary place of employment, where they 'spent most of their working hours' is in the air, and that therefore, there is no physical location that can serve as a proper forum for the litigation of plaintiffs' employment discrimination claims."

The Plaintiffs were flight engineers who had flown 747-Cargo planes for at least seven years prior to being terminated from employment. The Plaintiff's sue under federal, state and city anti-discrimination laws, including Title VII, ADEA, Sec. 1981, NYS & NYC Human Rights Law and will now be able to litigate this matter in New York Courts.

The recent dismissal of a "popular but controversial history teacher" has stirred up a debate between parents, students, and the administration of a progressive Bronx private school. How far is a teacher allowed to go in the classroom in terms of comments to students? And who gets to decide what "how far" really is?

Barry Sirmon, a 58-year old veteran of the school and a political refuge from South Africa, made what some have called controversial and racially provocative comments to a few students. Those comments not only led to Mr. Sirmon's termination from Fieldston School, but also sparked the current controversy. Already, almost 350 of the 592 students in the school have signed a petition calling for Mr. Simon's reinstatement.

According to various employees within the school, an investigation was never even conducted regarding the comments before Mr. Sirmon was questioned by the school administration and then terminated. Additionally, although having been asked to immediately resign, Mr. Sirmon refused, asserting that he felt he had done nothing wrong.

Follow the story as it develops here.

Do you feel you have been terminated unfairly? Contact The Harman Firm today.

Today, Wednesday October 5, 2011, the Supreme Court will hear oral arguments in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553. The case concerns the scope of protection for parochial school teachers from discrimination in their religious-based workplace.

The Supreme Court has never explicitly held whether there is a "ministerial exception" implicit in the religious clause of the First Amendment, thereby protecting religious institutions' rights to hire and fire clergy without being constrained by employment discrimination laws. The twelve courts of appeals that have heard similar cases have held that this exception does exist and, at a minimum, applies to pastors, rabbis, and priests. The outcome of this case will determine whether parochial school teachers are considered "ministers," therefore shielding the religious organizations from the confines of employment discrimination laws or whether they should be considered like any other employee under these laws.

So, should Churches fall outside of the parameters of employment laws and not have to answer for potential infractions against employees? Follow the outcome of the case.

The City of New York and its Fire Department are being accused of discriminating against black and hispanics during the hiring examination to apply to become firefighters. In 2010, the FDNY was ordered by Courts to change the recruitment policy to allow more blacks and hispanics to join the FDNY as they only represent 9% of firefighters in New York City today.

As of last Monday, the case has been set to go to trial before Federal Courts in Brooklyn. The Plaintiffs were allegedly discriminated against as applicants. The Judge already ruled that the tests did, in fact, discriminate against blacks and hispanics but City officials and its Department of Justice dispute that they were not doing enough before the trial to be fair in hiring practices.

"In order to be a firefighter, one does not need to know the history of the department and nor does one need to be a volunteer firefighter" said John Coombs, president of the Vulcan Society, a fraternal black association.

The first phase of the trial, which involves determining the discrimination, will likely last a week. Then, the second two phases of the trial, which involve damages to Plaintiffs, will likely last a week each.

The Fire Department just unveiled last July a new million-dollar ad campaign aimed at increasing the minority applicant pool for a newly designed entrance exam. This method seems to be working: the FDNY reported that there is a three-fold rise in black applicants this year. According to the New York Post, 640 black candidates have signed up for the test, compared to 184 in 2007 when the test was last given. The Post also says about three times as many white people have also applied.

A Texas company accused of exploiting mentally disabled men who worked at a turkey plant in Iowa has agreed to follow minimum wage, overtime and record-keepings laws in the future.

Hills Country Farms agreed to these measures Monday; an injunction approved by a federal judge settles the complaint brought by the US Department of Labor. In order to obtain such a settlement, the latter decided not to seek back-pay and damages related to non-disabled workers who were also allegedly not paid overtime and minimum wage.

In a separate lawsuit last April, a federal Judge ordered the company to pay $1.76 million in back wages and damages to 31 disabled men who worked at the same plant in Iowa. The Judge found the disabled workers received only $65 a month in wages even though many worked more than 40 hours a week. The company argued that they paid that amount because any wage above $65 would have reduced the men's Social Security benefits.

The case of six non disabled employees seeking the same remedies is still pending and expected to go to trial soon. Hills Country Farms is also facing a separate lawsuit pending in front of the EEOC claiming the disabled men were subjected to verbal and physical abuse, substandard living conditions, poor medical care, excessive discipline, and discriminatory wages.

The EEOC is filing a class action on the behalf of three female employees of Fred Meyer's local branch in Oak Grove (OR) alleging the company did not protect them against harassment inflicted by a regular costumer.

According to the Federal Agency, the costumer touched one of the employee's breasts, groped her knee and and rubbed up against her body. Although many employees complained, they were instructed to continue serving the costumer

Fred Meyer has already dealt with issues regarding sexual harassment in the workplace in the past. In 2008, at the EEOC's urging, the company agreed to settle a case involving a manager harassing his subordinates, and paid $485,000.

Back then, Fred Meyer agreed to provide its employees with specific anti-discrimination training. As this training does not seem to be entirely successful, the suit the EEOC just filed seeks damages not only for the three alleged victims but also aims at changing Fred Meyer's policies and training in order to prevent such issues in the future.

In a today's decision, the Ohio Supreme Court expanded protection for workers injured on the job. An employee who is injured on the job but does not have a workers' compensation claim is nonetheless protected from retaliation.

In this case, the Plaintiff injured his back in April 2008 and got fired less than an hour after he reported the injury to the company's president. Although the worker filed suit alleging retaliation, he did not at the time file a workers' compensation claim at the time of his dismissal.

The Court ruled that the intent of the statute is to protect all injured workers, regardless of workers compensation claim status. Leaving a gap in protection before the filing of a claim would create a too disparate gap between employer and employee rights following an injury. Despite that, the Court did not find that the timing of the firing was sufficient to establish retaliation in the case.

In what has become a seemingly weekly occurrence, another New York City restaurant has been accused of wage and hour violations, as well as allegations of tip misappropriation.

The lawsuit, filed in Federal Court, Southern District of New York, alleges that the restaurant failed to pay proper overtime to it's employees throughout the chains New York City locations. The lawsuit alleges that the chain violated a rarely used provision of wage and hour law, called the "spread of hours" pay, which requires tipped employees to receive at least one hour at full minimum wage for all hours worked over ten hours in a given day.

The lawsuit could have a potentially huge impact on both the chain, which operates eight locations in the New York City area and is currently expanding, as well as raising awareness of this law for tipped employees across the state.

The suit, if given class action status, could swell with numerous current and past employees being eligible to be class members.

Check out our site for more information on wage and hour laws, and find out if your employer is in compliance with the State and Federal guidelines for overtime and pay: FLSA/Wage and Hour Cases.

Nicolette Sheridan, one of the stars of ABC's "Desperate Housewives" has filed a lawsuit against a former producer of the show, Marc Cherry, claiming among other things, that he assaulted her while working on lines. The suit claims that Mr. Cherry hit Sheridan in the face and head after she had a question regarding a line during a taping.

Further, the star claims that following the incident, she complained up the ABC hierarchy, only to be stonewalled at every turn. Eventually, Sheridan's character was killed off of the show, and was not rehired for future seasons.

These claims are interesting given the types of blood thirsty and power-hungry characters are portrayed on Desperate Housewives. In this case, it seems like this ridiculous behavior has migrated off the screen and on to the set of the show.

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.

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/