Articles Posted in Uncategorized

by Harrison Paige

In Martin v. SIMOS, the District Court for the Middle District of Pennsylvania ruled that Pennsylvania’s Criminal History Records Information Act (“CHRIA”) only protects employee applicants from criminal conviction discrimination, not those who are already employed. SIMOS, an insourcing solution job center, terminated Robert Martin, who was hired through SIMOS to unload trucks for Lowe’s, because of his criminal history. Martin brought suit against SIMOS, claiming that SIMOS had violated the CHRIA.

When applying, Martin disclosed his criminal history and was told he was “good to go,” starting work at Lowe’s shortly thereafter. Not long after his hire, Martin was suspended because a female employee alleged that he had harassed her. Although the allegations turned out to be false and Martin returned to work, a human resources representative told him only one day after he returned that he would be terminated because of his criminal history. About a week after that conversation, SIMOS terminated Martin’s employment.

Shelby Krzastek

Hello, readers of the blog! My name is Shelby, and I have been working as a legal intern at The Harman Firm, LLP, for the past five months. In that time, I hope you’ve been able to read some of my posts about employment law and workers’ issues. Today is my last day, and I wanted to leave you with some insights about my time here.

The Harman Firm is small, but I benefited from this experience because I got to work closely with everyone. To be honest, I was extremely nervous when starting this position. I had never worked in a law office before and am glad The Harman Firm believed in my capabilities and gave me this chance to work as their legal intern.

Given the result of last night’s election, we at The Harman Firm are concerned that employers may feel free to follow Donald Trump’s lead with respect to their treatment of employees.   We want to remind workers in New York and elsewhere that legal protections against discrimination still exist.

If your employer says that you can’t do your job because of your national origin, contact The Harman Firm, LLP.

If your employer forbids you from entering the workplace because of your religion, contact The Harman Firm, LLP.

Owen H. Laird, Esq.

Earlier this year, The Harman Firm blog covered the Equal Employment Opportunity Commission’s (“EEOC”) notice of proposed rule-making concerning employer “Wellness Plans”;

The EEOC issued these rules governing Wellness Plans in May of this year. The rules permit employers to discount the health insurance cost of Plan participants by up to 30%. However, a recent lawsuit filed by AARP – a lobbying and advocacy organization representing retired and other older Americans – seeks to block the implementation of the EEOC’s rules.

Rose Asaf

On September 7, 2016, Koya Abe, a former faculty member at the Steinhardt School of Culture, Education and Human Development at New York University (“NYU”), filed a lawsuit against his former employer. Mr. Abe, a photography instructor, is a middle-aged man of Japanese heritage. Mr. Abe alleges that NYU discriminated against him because of his race, national origin, and age, and retaliated against him for raising complaints of discrimination. NYU terminated Mr. Abe in 2009, shortly after Mr. Abe alleges that he complained about being discriminated against for being Japanese.

This is not the first lawsuit that Mr. Abe has filed against NYU. According to an opinion and order by District Judge Richard J. Sullivan of the United States District Court Southern District of New York, Mr. Abe “has been embroiled in at least eight lawsuits in a host of venues against Defendant, [NYU], and many of its administrators, deans, faculty, and staff.” The most recent lawsuit alleges that NYU has retaliated against him for bringing those earlier actions.

Edgar M. Rivera, Esq.

On August 29, 2016, in Vasquez v. Empress Ambulance Service, Inc., the Second Circuit vacated the Southern District’s decision and held that “retaliatory intent may be imputed to an employer where the employer’s negligence gives effect to the employee’s retaliatory animus and causes the victim to suffer an adverse employment decision.” In other words, where an employee with a discriminatory motive tricks the employer into discriminating against another employee, the employer may be liable.

Tyrell Gray, an Empress Ambulance Service dispatcher, began making unwanted sexual advances to Andrea Vasquez, a emergency medical technician (EMT), upon her hire in July 2013. He asked her out on dates, attempted to flirt with her, and touched her shoulder, making Vasquez extremely uncomfortable. After harassing Vasquez for six months, Gray escalated the situation. On January 8, 2014, Gray told Vasquez, “I bet I can make you leave your man,” and promised to “send … something between you and me.” Around midnight that night, while out on a shift, Vazquez received a text message of Gray’s erect penis, captioned: “Wat u think.”

Edgar M. Rivera, Esq.

On August 8, 2016, the American Bar Association (“ABA”) voted at its 2016 Annual Meeting in San Francisco to prohibit discrimination and harassment in the practice of law. The ABA’s House of Delegates adopted Resolution 109, which amends Rule 8.4 of the ABA’s Model Rules of Professional Conduct to “make it clear that it is professional misconduct to engage in conduct that a lawyer knows or reasonably should know constitutes harassment or discrimination while engaged in conduct related to the practice of law,” which includes “representing clients, interacting with witnesses, coworkers, court personnel, lawyers and others while practicing law, operating a law firm and participating in bar association, business or social activities in connection with the practice of law.”  The rule prohibits harassment or discrimination based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.”

This amendment is necessary because “explicit and implicit discrimination is still pervasive in our institutions as well as across a counsel table,” said Marsha Anastasia, president of the National Association of Women Lawyers. In particular, many female lawyers have complained of undermining sexist remarks and gestures toward them while they are trying to practice their profession. Without a prohibition, advocates of the rule said, using “demeaning and misogynistic terms and actions to undermine opposing counsel and others too often does not have consequences.”  “A sexist remark,” said the Judge Paul S. Grewal of the U.S. Federal District Court in San Jose, California, “is not just a professional discourtesy, although that in itself is regrettable and all too common.”

Yarelyn Mena

Last year, on June 29, 2015, the Department of Labor and President Obama announced a proposed rule change to the Fair Labor Standards Act (“FLSA”) that would increase the number of Americans eligible for overtime pay by increasing the salary threshold for overtime from $23,660 to $47,470. On May 18, 2016, the Obama administration issued the official rule changes, which goes into effect December 1, 2016.

The FLSA requires that employers pay certain employees overtime. Specifically, employers must pay eligible employees overtime for all hours worked above forty each week, at a rate of one and a half times their normal rate. Not all employees are entitled to overtime under the FLSA; for example, employers do not need to pay overtime to administrative, executive, or professional employees. Employees who are not entitled to overtime pay under the FLSA are “exempt.” However, the FLSA also creates an exception to these exemptions: if the employee earns less than a certain salary threshold – currently set at approximately $23,660 per year—then the employee is entitled to overtime pay no matter what their job duties.

Yarelyn Mena

On January 5, 2016, New York City Mayor Bill de Blasio signed Intro. 108-A, which expands the list of protected characteristics under the New York City Human Rights Law (NYCHRL) to include “caregiver status.” The NYCHRL currently prohibits employment discrimination on the basis of a number of protected characteristics, such as age, race, creed, color, national origin, gender (including gender identity and sexual harassment), disability, marital status, partnership status, sexual orientation, alienage, and citizenship status. The amendment is aimed at protecting the City’s family caregivers, who provide an estimated $31 billion of unpaid care per year for an increasingly large population of children, the disabled and elderly people. Mayor de Blasio expressed the importance of this legislation stating, “Caregivers are our unsung heroes. They literally keep families together. It’s critical we give them the employment protection they need and deserve.” Carmelyn P. Malalis, the New York City Human Rights Commissioner agreed, saying:

No one should be discriminated against because of their status as a caregiver. Intro. 108 guarantees that every parent and family member caring for a loved one receives the same rights and opportunities in the workplace as everyone else. The Commission will vigorously enforce this much-needed protection and looks forward to working with the Mayor’s Office and the New York City Council to further advance the rights of caregivers under the law so that every New Yorker can live and work free from discrimination.

Yarelyn Mena and Edgar M. Rivera, Esq.

On February 5, 2016, the District Court of Arkansas ruled on Tyson Foods, Inc.’s motion for summary judgment, which sought, the dismissal of former employee Tammy Hesterberg’s sex and age discrimination claims and unequal pay claims.

In 2007, Tyson hired Ms. Hesterberg, at the age of forty-six, as the director of value added. Throughout her employment, she held several director positions. In August 2014, Tyson purportedly terminated her as part of a reduction in force (RIF). At that time, she was one of only three female employees in her twenty-three member group and the only female out of Tyson’s five directors in her group.