New York Employment Attorneys Blog

Know Your Rights: Bonuses.

Sun, 13 May 2012 06:00:00 -0500

Here's, what sounds like, a trick question: Can a company deduct pay before paying it? Usually the answer is no. Sometimes, though, a tax deduction can come first and the pay can be handed over months later.

According to a Forbes article, for pay and bonuses, the IRS has ruled that an accrual-method employer can deduct bonuses payable to a group of employees, even though it does not know the identity of any particular bonus recipient or the amount payable to that individual until after the end of the tax year. As long as the money won't revert to the employer, it's proper to deduct the bonuses for tax purposes.

An important 1986 Supreme Court case set the ground work for this IRS rule. In United States v. Hughes Properties, the Supreme Court held that a casino operator is allowed to deduct guaranteed progressive slot machine jackpots even though the jackpots had not yet been won by casino patrons. The Court reasoned that since the casino had a fixed obligation to pay the guaranteed amounts, its liability was established, even though it didn't yet know who the jackpot recipients would be. Using cases like Hughes and others following it, the IRS now says that as long as an amount will be spread across a group of eligible employees (like jackpot recipients), with no amounts coming back to the company, it's OK to deduct it for taxes purposes.

If you have any employment related questions, contact the Harman Firm.

Universities are not exempt from Federal Laws banning discrimination.

Sat, 12 May 2012 12:48:06 -0500

Daytona State College is looking to settle three separate lawsuits against the college for more than $650,000, including a harassment case by a former employee and a discrimination complaint by three students who are deaf.

The college has been sued three times from 2009 through 2011. Most notably there have been sued for sexual harassment and discrimination by a female worker, Kathleen Flanagan working in the college's television station. And more recently, they faced another suit involving three students, Laura Koschuk, Suzanne Bergman and Paige Allison, who are deaf, claiming discrimination involving lack of disability services, such as interpreters and note-takers.

The first of the two notable suits occurred after Flanagan received positive performance evaluations from 2002 to 2008 under her previous supervisors and then she alleges she was forced to resign after being harassed by her direct female supervisor at the schools television station. Flanagan claimed Susan Johnson harassed her and made "inappropriate sexual gestures."

Flanagan said she complained 10 times to officials and no action was taken. The college denied the claims. The supervisors Johnson's employment contract was not renewed last year and administrators at that time said it was "somewhat" related to the lawsuit.

The Florida Commission on Human Relations, according to Flanagan's complaint, found "reasonable cause" to believe she was subjected to "discipline, harassment, sexual harassment and discharge based upon her sex (female)" and/or in retaliation for her complaint.

The other case mentioned above, concerned three students who filed a lawsuit with the help of the National Association of the Deaf alleging that the college denied them "effective communication," such as sign language interpreters and auxiliary aids, so they could succeed, in violation of the Americans with Disabilities Act.

"We are just glad the (college) has assured us that accommodations are going to be provided" for any students who are deaf, he said.

These two cases along with a third breach of contract case are all being considered for settlement to avoid trials. Universities are not exempt from following federal anti-discrimination statutes concerning the ADA, Sexual Harassment and Retaliation laws. Universities can seem like big entities to case in a suit to defend against your rights but this should not prevent someone from seeking justice and the Harman Firm has had a number of suits against universities and colleges.

Sioux City firefighter files age discrimination lawsuit

Wed, 09 May 2012 10:34:15 -0500

Brian Thiele was 48 years old and had served in the fire department for 27 years when the fire department he worked for elected a 37 year old instead of him as the new fire marshal. Thiele filed suit alleging that he had "superior education, experience and qualifications" and that a review board had ranked him as the top candidate among those eligible for the position but instead the position was given to a younger candidate. He is alleging that Sioux City Fire Chief, Tom Everett, discriminated against him when he named the younger person as the city fire marshal because that person, Thiele said Everett told him, "fit the department's 10-year plan for the position."

Thiele says he met with, the Fire Chief, Everett, about the promotional process and was given several examples of how older employees "did not step up and produce for the fire department" and how younger employees were taking leadership roles.

The lawsuit said that Everett told Thiele that though the younger candidate did not have the desired post high school degree, he was young enough to pursue the additional education. This convinced Thiele that the younger candidate who was not as qualified for the position, as he was, was given the promotion based on the fact that he was younger.

While Thiele remains with the fire department, he is seeking compensatory damages for benefits he said he should have received had it not been for the alleged discrimination and for emotional distress due to being passed up for a position, he had superior qualifications than all other candidates.

The Age Discrimination in Employment Act of 1967 is in place to protect employees who are over the age of 40 from being discriminated against in the workplace. If you believe you are a victim of age discrimination and are considering a lawsuit, contact The Harman Firm.

Sexual harassment case settled.

Sat, 05 May 2012 18:03:49 -0500

Six female dispatchers working for EMA all wanted the same thing: to have a male worker, Hess, fired. They filed suit against him alleging sexual harassment. The lawsuit was brought after an investigation into the matter found that Hess "participated in unprofessional behavior and/or behavior of an inappropriate nature, particularly given his management responsibilities." His punishment, by EMA, was five days off without pay as well as a requirement that he attend non-harassment training and mentoring sessions.

The plaintiffs affected by his behavior were offered the option of being transferred but they allege that even though they requested a change of venue but were not granted transfers. Their supervisor, Teresa Bemiller, is alleged to have turned a blind eye and a deaf ear to complaints by the dispatchers regarding the sexual harassment complaints.

"I would have never ignored allegations of sexual harassment," Bemiller said. "It has been bothersome to me that this was in [the lawsuit]. I never spoke to a dispatcher. I never received a written complaint [per the county's sexual harassment policy]."

In January, the EMA board voted unanimously to terminate Hess' employment for "employee dishonesty and loss of confidence by the board in his ability to lead the agency." This occurred when the dispatchers' attorney presented evidence to the county regarding harassment issues with Hess while he was employed by the Mohican Juvenile Correctional Family in 2005.

The sexual harassment lawsuit brought by the six dispatchers was settled by way of a settlement agreement. According to the Defendant's attorney, Mark Troutman, there were three key factors in the settlement: "One, it lets the county continue business as usual," Troutman said. "Two, there is no county money involved. CORSA (County Risk Sharing Authority), the liability carrier, pays the money. Three, it was CORSA's call and it made a business decision to settle the case."

According to public record, the Knox County defendants objected to a settlement, even though the decision was out of their hands. Since a settlement was reached, there will be no trial on the issue and the parties will file for a dismissal of the case from the Federal Court. The settlement included the sum of $74,000 has been awarded to the group of six plaintiffs.

A lot of cases never make it to trial but justice can oftentimes be achieved by settlement agreements, the Harman Firm brings the experience and know-how to any settlement negotiation concerning employment issues.

Religious Discrimination at IHOP.

Tue, 01 May 2012 16:45:34 -0500

IHOP allegedly fires Muslim employees.The attorney for four former managers working for IHOP, James Vagnini stated: "About a year and a half ago, the rug was pulled underneath simply because of the way their names look, the way they appear, where they come from and the religion they practice," "This is unacceptable in this country in this day and age."

The men worked at franchise restaurants in Fort Worth, Arlington, Plano and Burleson.

After the four employees filed charges with the Equal Employment Opportunity Commission, the EEOC's investigation found that "violations have occurred" at the company.

The plaintiffs allege that their reputations have been damaged and they cannot secure employment. One of the plaintiffs, Joseph Chamseddine, worked for more than a decade at the chain restaurant. He along with the other fired managers would like letters of recommendation from IHOP so that they can secure future employment.

Chamseddine said he feels wronged by the actions of IHOP. "I think what they did to us to me and my managers is unfair, unethical and illegal," he said. If you feel like you have been wronged as a result of religious discrimination and your religious beliefs, contact the Harman Firm.

Boss gets new kidney and then fires employee who donated kidney.

Fri, 27 Apr 2012 12:20:02 -0500

A new lawsuit alleges that a "kind and generous'' Long Island mom donated her kidney to save the life of her boss -- who then turned around after she got what she wanted and helped fire the poor woman, according to an explosive new legal complaint.

Stevens spoke to Brucia about Brucia's health problems and "her need for a kidney transplant." Although Brucia has located a possible donor, Brucia told her that if it was necessary, she would be willing to donate her own kidney to save her boss. Stevens began working for her old employer within a few weeks of having this conversation with her boss, Jackie Brucia at the Atlantic Automotive Group.

Then, two months later, in January 2011, Stevens told The Post, Brucia "called me into her office and said, 'My donor was denied. Were you serious when you said that?' I said, 'Sure, yeah.' She was my boss, I respected her. It's just who I am. I didn't want her to die.''

Stevens was not a close enough match and instead donated her kidney so that her boss, Brucia was able to move up the waiting list and was subsequently received from a donor in San Francisco.

"I decided to become a kidney donor to my boss, and she took my heart,'' Debbie Stevens, a 47-year-old divorced mother of two stated.

Stevens legal papers allege that she was clearly set up by, her once-ailing boss who she believes was "apparently grooming her to be her 'backup plan,' " Stevens said she did not realize that she was in for serious pain, discomfort in her legs and digestive problems after the surgery on Aug. 10, 2011. After Stevens felt pressured to return to work before she was ready -- she took off days due to her pain and was faced by Brucia who called her to berate her stating: 'You can't come and go as you please. People are going to think you're getting special treatment.'

Since donating her kidney and turning to work, Stevens said that her office and overtime were eventually taken away and that she was demoted to a dealership 50 miles from her home in a high-crime neighborhood that co-workers jokingly called "Siberia.'' Experiencing mental anguish, she consulted a psychiatrist. and her lawyers wrote a letter to the company -- after which Stevens was quickly fired.

"I feel very betrayed. This has been a very hurtful and horrible experience for me. She just took this gift and put it on the ground and kicked it.''

AutoZone to Pay $75,000 for Religious Discrimination Against Employee.

Wed, 25 Apr 2012 06:00:00 -0500

The EEOC filed a law suit against AutoZone in September 2010, alleging that AutoZone violated federal law when it subjected Frank Mahoney Burroughs, an employee who had converted to the Sikh religion, to harassment and refused to accommodate his religious need to wear a turban.

According to the suit, AutoZone managers at its Massachusetts location harassed Mahoney Burroughs by disparaging his religion, asking if he had joined Al-Qaeda and whether he was a terrorist. Further, the company failed to intervene when customers referred to him as "Bin Laden" and made terrorist jokes. Moreover, AutoZone refused to let Mahoney Burroughs wear a religiously mandated turban and kara (a religious bracelet). Finally, the EEOC alleged that AutoZone terminated him because of his religion and in retaliation for asking for an accommodation and complaining about discrimination.

Such religious discrimination and harassment are all violations of Title VII of the Civil Rights Act of 1964 which also protects against retaliation against employees who asserts their Title VII rights.

On Jan. 11, Judge William Young decided in favor of the EEOC on its claim that AutoZone had failed to accommodate Mahoney Burroughs' need to wear a turban. The company will pay $75,000 plus attorneys' fees and provide other nationwide relief to settle a discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission, the agency announced today. Further, in addition to the monetary relief, the decree requires AutoZone to adopt a policy prohibiting religious discrimination; train its managers and human resource employees on religious discrimination and the new policy; report to the EEOC on its handling of all requests for religious accommodation and complaints of religious harassment; distribute the new policy; and a notice regarding the consent decree to its 65,000 employees in more than 4,500 U.S. stores.

"Employers must be vigilant in watching out for such misconduct and resolute in stopping it if they find it" said Elizabeth Grossman, regional attorney for the EEOC's New York District Office. If you have any complaints of religious discrimination or harassment, you can contact the Harman Firm.

Marymount Manhattan College Sued for Age Discrimination

Mon, 23 Apr 2012 14:28:26 -0500

The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Marymount Manhattan College because they refused to hire a choreography instructor for a tenure-track assistant professorship because of her age in violation of the Age Discrimination in Employment Act (ADEA) which protects against age discrimination against employees and job applicants who are age 40 or older.

According to the EEOC's suit, Marymount initially selected a 64-year-old choreography instructor and two other applicants as finalists for an assistant professorship in dance composition. According to the suit, after Marymount has determined that the 64-year-old was the leading candidate, the college's search committee expanded its search to include a less qualified, 37-year-old applicant as a fourth finalist because it considered her to be "at the right moment of her life for commitment to a full-time position." The suit charges that Marymount passed over the 64-year-old applicant and instead hired the 37-year-old applicant because of age.

"Our suit charges that age was the deciding factor in this case," said EEOC trial attorney Justin Mulaire. "Under the law, age has no place in hiring decisions -- and tenure-track positions in academia are no exception."

The EEOC enforces federal laws prohibiting employment discrimination and the Harman Firm is ready to answer any questions you may have if you or someone you know is a victim of age discrimination.

Whistleblower Protections.

Sun, 22 Apr 2012 11:48:18 -0500

Recently, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) ordered a Newark-based Jersey Window Factory & Building Supply Inc. to reinstate a truck driver who was fired after reporting safety concerns about the commercial vehicle he was driving.

The employee raised concerns verbally and in a letter about vehicle defects, including broken side-view mirrors, a driver's door that couldn't be opened properly, a broken window handle and a deficient steering mechanism. After submitting a second letter, outlining further safety concerns and questioned whether the company's safety practices were in violation of the Federal Motor Carrier Safety Regulations, the employee's hours were reduced in response to his "whistle blowing" actions. The employee then filed an OSHA safety complaint and was terminated on July 2, 2008.  An investigation by OSHA's Whistleblower Protection Program found reasonable cause that the termination violated the whistleblower provision of the Surface Transportation Assistance Act. OSHA ordered the company to pay the former worker back wages and bonuses as well as $18,000 in compensatory damages. 

Whistleblower cases seem to fly under the radar in the news but at the Harman Firm we deal with whistleblower cases on a regular basis. "Workers have the right to voice safety concerns without fear of retaliation or termination," said Robert Kulick, OSHA's regional administrator in New York. "Employers found in violation of whistleblower protection provisions will be held accountable."  

Whistleblower protection statutes state that employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or the government. Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance.

Workplace Pregnancy Discrimination on the Rise.

Tue, 17 Apr 2012 06:00:00 -0500

Work place pregnancy discrimination cases are on the rise even though it has been outlawed since 34 years ago with the passage of the Pregnancy Discrimination Act of 1978 prohibits employers with 15 or more workers from discriminating based on pregnancy or childbirth, and pregnant women must be permitted to work as long as they are able, with any absences treated the same as any other disability leave. While it may shock many people that this sort of discrimination still exists, it comes to no shock to the Harman Firm as we have handles numerous pregnancy discrimination matters.

Three notable cases brought to the EEOC, show how expansive pregnancy discrimination is and how it ranges throughout a variety of different fields of work. One case involves a housekeeper who alleged she was fired after disclosing her pregnancy, even though her doctor had cleared her to work with no restrictions. The other involved two women at a fast-growing government contractor who allege they were forced to resign because they were pregnant; later they were awarded back wages and damages. And yet another involved an attorney who was offered a job with a small law firm in DC, only to report that it was rescinded when she told her boss she was expecting.

Some interesting statistics are also highlighted in the article. In 2011, women filed 5,797 complaints with the EEOC alleging pregnancy discrimination at work or in hiring, which is a 23 percent increase from fiscal 2005. Three-quarters of the 268 pregnancy-related EEOC lawsuits in the past decade alleged wrongful firing, while 10 percent brought claims of unlawful failure to hire.

Companies as diverse as Delta Air Lines, Chesapeake Bay Golf Club, Imagine Schools, Rehab Management of Maryland and Verizon have all paid restitution related to pregnancy discrimination, according to EEOC records. Some settlements include payment of back wages to workers who were let go as well as the implementation of work place policies banning pregnancy discrimination.

EEOC general counsel David Lopez stated: "At the core, all of these cases involve employers who held stereotypical assumptions about pregnant women."

Female principal files discrimination complaint with EEOC.

Fri, 13 Apr 2012 06:00:00 -0500

Middle School Principal Katherine Mulderig filed a gender-discrimination complaint last March, stemming from comments Richards made to her in proposing a job change in February. Dr. Randy Richards, Lake Placid School Superintendent, who made comments referring to female teachers as "bitchy", is now faced with an Equal Employment Opportunity Commission complaint filed by Mulderig.

Mulderig stated: "I filed a complaint under Title VII discrimination for gender bias, sex discrimination and harassment in the place of employment with the EEOC." The Adirondack Daily Enterprise reported that Richards told Mulderig he wanted her to switch to elementary-school principal because he needed someone "bitchier to govern the bitchy" female teachers in the elementary school.

Parents, former teachers and students have responded to the allegations with furor, going so far as to demand Richards's resignation. Theresa Goddeau, a Lake Placid Elementary School teacher said she considers the words "bitchy" and "bitchier" references to female teachers, suggesting it is an issue of gender discrimination.

So far there has been no resignation and the case will proceed through the EEOC and a potential gender discrimination law suit.

Strippers: employees or independent contractors?

Wed, 11 Apr 2012 06:00:00 -0500

A class of current and former exotic dancers filed a claim against The Executive Club LLC d/b/a The Penthouse Executive Club, in the United States District Court for the Southern District of New York, alleging wage and hour violations. Specifically, the lawsuit against the New York club alleges that the dancers were not paid the applicable minimum wage and overtime pay. In addition, the dancers allege that their tips were misappropriated by the club's management. The complaint asserts claims under the New York Labor Law as well as the federal Fair Labor Standards Act.

The exotic dancers allege that they are required to pay the house a fee for each dance segment. The entertainers do not earn minimum wage as independent contractors yet the employer takes a portion of their tips. Also, the dancers, like most strippers, are required to wear a certain thong and they must pay for it themselves and want their employer to cover the cost as a "uniform."

The case turns on the issue of whether the dancers were properly classified as independent contractors. The dancers allege that they were actually "employees" based upon the club's exercise of control over their work. If the court finds that the dancers were, in fact, common law employees, then the New York Labor Law and Fair Labor Standards Act will apply to the dancers, and could result in liability for unpaid wages.

Proposed Legislation: Driver Fatigue Prevention Act.

Mon, 09 Apr 2012 06:00:00 -0500

Senator Charles Schumer introduced a bill amending the Fair Labor Standards Act (FLSA) to cover over-the-road bus drivers and requiring that they be paid overtime for hours worked in excess of 40 in a workweek. The bill would add an amendment to the FLSA within Section 13(b)(1), by inserting the words: "except a driver of an over-the-road bus."

Currently, over-the-road bus drivers are exempt from the maximum hours provisions of the FLSA. The bill, The Driver Fatigue Prevention Act (S. 1977), revises the FLSA, to eliminate the overtime exemption, which applies to "any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service." As a result, over-the-road bus drivers will be entitled to overtime for hours worked in excess of 40 in a given workweek. An 'over-the-road bus' "means a bus characterized by an elevated passenger deck located over a baggage compartment."

According to this article, professional drivers do not work 70 hours per week because they want to, but because it is the only way to earn a living wage and for many, seventy hours in a week can still fall short of a decent paycheck.

Is alcoholism protected by the ADA and FMLA?

Fri, 06 Apr 2012 06:00:00 -0500

Vandenbroek worked as a boiler utility operator at PSEG Power. His job entailed him being responsible for monitoring boilers and responding to alarms. His employer, PSEG, had in place a strict attendance policy for its employees. For example, the policy rules provided that any employee who violated the "no call/no show" policy was subject to discharge for the first offense.

Vandenbroek was an alcoholic, and his condition required him to take Family and Medical Leave Act (FMLA) leave for alcoholism treatment. After receiving treatment, he admitted that "he didn't know how to take control of his life." Following his return from leave, he experienced attendance problems in violation of PSEG's strict attendance policy and he was ultimately fired for his erratic attendance.

Vandenbroek filed suit against PSEG, alleging that he was terminated for being an alcoholic and for taking medical leave in violation of the ADA and the FMLA. The Second Circuit court held that Vandenbroek failed to show that PSEG violated the ADA when it fired him for alcoholism. The court concluded that "reliable attendance at scheduled shifts was an essential function of a boiler utility operator" to ensure against a power outage or explosion.

Since the court reached its conclusion on other grounds, the court didn't decide whether his alcoholism was a qualifying disability under the ADA. This case outlines that there is no set formula for determining whether alcoholism is a qualifying disability. Further, despite their condition, you can hold alcoholics to the same qualifications and essential job functions as other employees. The second being quite interesting in the face of the statistics about alcoholics: according to the National Institute on Alcohol Abuse and Alcoholism, 17.6 million people -- about one in 12 adults -- abuse alcohol. What the court has said in this case is that they will be expected to fulfill their job requirements just as all other employees.

Court finds sex stereotyping for hotel worker with "tomboyish" look.

Wed, 04 Apr 2012 06:45:38 -0500

In Brenna Lewis v. Heartland Inns of America, a front desk hotel clerk was allegedly fired because of her "tomboyish" appearance. The 8th U.S. Circuit Court of Appeals has held that she can pursue employment discrimination and retaliation claims against her former employer.

The employee, Lewis, was promoted from nights to days at a hotel operated by Waterloo, Iowa-based Heartland Inns in December 2006. "Lewis prefers to wear loose-fitting clothing, including men's button-down shirts and slacks," the appeals court said in its ruling. "She avoids makeup and wore her hair short at the time. Lewis has been mistaken for a male and referred to as 'tomboyish.' "

The hotel's director of operations, Barbara Cullinan, first noticed Lewis, after her promotion to the day shift, and said Lewis lacked the "Midwestern girl look." At a meeting, Cullinan told Lewis she would need a second interview to confirm her new post, after which Lewis protested that other staff members were not required to have a second interview. Lewis was thereafter fired three days later.

Lewis filed suit, alleging sex discrimination and retaliation. A district court granted summary judgment in Heartland Inn's favor, but a panel of the appeals court overturned the lower court in a 2-1 ruling. The appeals court cited the 1989 U.S. Supreme Court decision in Price Waterhouse v. Ann Hopkins, in which it ruled a gender stereotyping claim could be filed under Title VII of the Civil Rights Act of 1964 for the woman allegedly denied a partnership because she did not act feminine.

Subsequently, other federal appeals courts have upheld Title VII claims based on sex stereotyping, according to the 8th Circuit ruling. The Court stated "Cullinan's criticism of Lewis for lack of 'prettiness' and the 'Midwestern girl look' before terminating her may also be found by a reasonable fact finder to be evidence of wrongful sex stereotyping."