New York Employment Lawyer Blog

Employment Law Roundup

Fri, 03 Feb 2012 13:10:48 -0500

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Courthouse New Service: A couple Fridays ago I wrote about the wave of law suits that law students are filing against their alma maters for deceptive employment statistics. And now I am reading about it again. Seems that more law schools are coming under fire across the country for inflated graduate employment numbers. It will be interesting to see what the winning arguments and defenses are in these cases with so many lawyers and legal reputations at stake.

• The Press Enterprise: Police arrested three current and former employees of the state Employment Development Department (California) for participating in an unemployment benefits scheme that involved issuing checks for people who did not qualify for the benefits. Rather than cashing their illegal checks, these three are now facing serious felony charges.
• Huffington Post: Republican or democrat, the Huffington Post asks some tough questions about whether President Obama failed the US economy by not creating enough jobs. This is obviously going to be a big issue in the upcoming election and the HuffPo is a great read about the last 4 years when it comes to job creation.

• Jezebel: I do love a local employment law case. Jezebel write about an unpaid intern suing Haper’s Bazaar for labor violations. The lawsuit brings up interesting issues surrounding the unpaid internships in general and should be good case to follow with such a high profile magazine being accused of some pretty serious issues.

Wherever you are when you are reading this I hope everyone has a great weekend. Got some great articles to add? I would love to hear from you!

The Need for Pregnancy Accomodations

Thu, 02 Feb 2012 10:53:00 -0500

It may seem like there is a law for everything. Sadly, a recent pregnancy case right here in New York shows how a gap in employment and disability laws leads to many pregnant woman getting fired from their jobs, legally. Aptly titled Pregnant and Pushed Out of a Job, The New York Times reports on a seven month pregnant woman who was recently fired from her position as a cashier because she requested extra bathroom breaks.

Where do I begin? I recently wrote about pregnancy discrimination and the state and federal coverage enacted to ensure that females are not discriminated against on account of their pregnancy. This coverage spans the pregnancy and is also intended to ensure that new mothers get their old jobs back. The problem is that in the case written about in the New York Time the firing had nothing to do with her pregnancy leave or employment status. Rather, the case boiled down to an accommodation request – something the state covers (when reasonable to the employer) for individuals with a documented disability. Pregnancy, however is not considered a disability.

Because of this rather gaping loophole, pregnant workers in need of certain accommodations during and shortly after the pregnancy are not covered under pregnancy discrimination laws are not covered under disability accommodations. And then they are fired without any recourse.

So where should the laws come from in order to allow for these necessary accommodations? It really doesn’t matter as long as they exist. While states are beginning to recognize the importance of including this type of accommodation in their laws and seven (so far) have a demand for some type of accommodation there needs to be a national recognition of the problem. Whether encompassed under the general pregnancy discrimination umbrella, within disability laws or created via a whole new set of public health and safety laws, New York and every other state needs to recognize this unfair employment issue taking place. I would love to hear your thoughts on how best to handle this issue, comment on my Facebook page!

The Pros and Cons of the Right to Work

Tue, 31 Jan 2012 08:48:55 -0500

Indiana recently made headlines when it became the 23rd Right to Work state in the country. Those states that follow the right to work philosophy essentially prohibit employers from forcing employees to become members of a union or pay union dues. For those of you that are curious, New York is not one of the 23 states that support Right to Work acts.

Here’s a look at the rationale behind right to work laws…

Those in favor of right to work argue that employees should hold the power when it comes to joining or not joining a union and note that states that do not support this freedom of association are essentially forcing workers to join a union. There is also the argument that this “forced unionization” results in workers having to pay hefty union fees and ultimately “support” ideas they don’t believe in.

There are, of course, two sides to every argument so here goes the counter. Those against the right to work movement note that non union members still benefit from the gains a union makes and because of that are essentially experiencing all the benefits of the union without having to pay the dues. A having your cake and eating it too argument if you will.

So really, the name is slightly deceiving. The issue is not about whether or not an employee can work but what role a union should play for those employees already working. Whether for or against the right to work I hope you are now a little more informed on the issue. If you have something to add to this discussion, I would love to hear from you on our Facebook page!

Age Discrimination Damages

Mon, 30 Jan 2012 09:12:57 -0500

Age discrimination in New York can take many forms. Recognizing the uniqueness of every case, it makes sense that there are a several types of damages an individual can be awarded based on the facts of his or her case. Whether you are a victim of age discrimination or just curious about the topic, here’s a look at some of the more common damages awarded in these cases:

• Reinstatement: Whether it was a firing or a demotion, many older employees want to keep working and awarding him or her their job back or the promotion they deserve is a huge victory.

• Lost Wages & Future Earnings: One of the more common awards, lost wages and future earnings represent the income an older employee would have received had it not been for the illegal discrimination. Many older employees have worked for a long time and risen up the ranks in a company, a fact that can often translate into large awards.

• Emotional Distress: Would discrimination make you upset? You betcha. Emotional distress damages in these cases represent financial compensation for the pain and suffering associated with the discrimination.

• Punitive Damages: A high threshold to meet, some employers seem to practically do the work in proving punitive damages in these cases by their malicious and reckless behavior. Punitive damages can vary widely but if an employer’s conduct is not just illegal but something that needs to be further punished, punitive damages are likely to be awarded.

• Attorneys Fees: Legal representation is essential in this cases but it can also be costly. In most situations, an employee is awarded attorneys fees.

Some or all of these damages are available depending on the facts of the case. If you want to discuss your potential recovery in an age discrimination suit, give us a call.

NYC Employment Lawyers

Sun, 29 Jan 2012 08:51:53 -0500

NYC employment lawyers are fortunate to work in one of the most vibrant legal environments in the country. Our law firm, The Ottinger Firm, has been operating in NYC for almost 15 years now representing employees and executives. In that time, we have represented people of all kinds from high level financial executives to sanitation workers. Only NYC has a so much going on in such a small space so the situations we deal with sometimes make television seem boring.

NYC also has one of the most employee friendly laws in the country, the New York City Administrative Code. NYC employment lawyers have three powerful laws available that cover NYC employees: (1) federal law, (2) state law, and (3) the NYC Administrative Code. In my opinion, the NYC Administrative Code has more teeth than the federal and state employment laws. When we bring suits, we typically try to use this law because there are no limits on damages and it offers a wide range of protection for employees.

NYC also has some great judges. Some of the best judges our country has ever produced came from NYC such as Learned Hand and Benjamin Cardozo. NYC is a great place to practice employment law because the cases are interesting, the laws are strong and some of the best lawyers and judges in the country work here.

NYC is also home to a number of excellent employment law firms. If you are an employee in NYC with a legal problem, you are fortunate in the sense that you have a selection of very good employment lawyers and excellent laws available to help you.

NYC Employment Discrimination Law Gets Better for Employees

Sat, 28 Jan 2012 12:32:45 -0500

New York City has its own employment law. It is called the New York City Human Rights Law and it is very good for employees. It is stronger than the federal employment laws that have been watered down by Congress and the US Supreme Court. Whenever we bring law suits, we try to use that law.

The New York City law applies to all employees who work in any of the five boroughs of NYC. It applies to any company that has four or more full-time employees. If you have an employment claim and you work in NYC, make sure your lawyer considers using this law because it can really help. One of the great things about this law is that there are no caps or limits on how much money an employlee can recover. It is also broader in its coverage of potential claims.

Recently, the New York Court Appeals (the highest court in NY) made this law even better for employees by making it harder for employers to dismiss suits brought under the law. Whenever an employee brings suit, most companies try to get the case dismissed on summary judgment. Now the bar has been raised and companies will have an uphill battle.

This new case set out a three-prong test for determining when a case can be dismissed.

First, a court must determine if the story told by the plaintiff constitutes a "prima facie case" of employment discrimination. This is a litmus test to make sure that the employee's case actually holds water.

Second, the court must determine if the defendant (the company) has a winning explanation or defense. For example, can the company prove that the employee was really fired for being drunk on the job - are there solid facts showing that the employee was drunk at work. In many cases, companies can prove that no discrimination occurred and that they had valid non-discriminatory reasons for firing the employee. These cases should be dismissed.

Finally, even if the company has a winning defense, can the employee show that this defense is invalid or made up? Sometimes an employee can show that the company's so called "excuse" is really a lie. For example, if the company claims that the employee was fired for being drunk on the job, the employee might have proof that they were not drunk. If there is a conflict of proof then the case cannot be dismissed. Cases can only be dismissed if it is clear that the company had a valid non-discriminatory reason for firing the employee. But if the employee can cast doubt on that excuse, then the case cannot be dismissed and a jury will need to decide who to believe. It is now harder for companies to dismiss employment cases brought under the New York City Human Rights Law.

Employment Law Roundup

Fri, 27 Jan 2012 13:47:36 -0500

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Job Mouse: Big news for the 20 states that borrowed money from the federal government to cover their increased unemployment insurance needs…payback deadline is at the end of this month. The back story here is that many states were financially ill-equipped to handle the huge increase in unemployment claims following the recession and had to borrow money to meet these demands. Let’s hope they fixed their accounting and are ready to start paying their debts.

• Reuters: Sheltered workshops are facilities funded by state and local agencies to provide jobs for disabled employees. The work is comprised of basic tasks and workers are typically paid less than minimum wage. Reuters reports on a recent class action lawsuit out of Portland, Oregon claiming that many of these disabled employees are being exploited and unfairly stereotyped. Look out for my blog delving into this interesting topic.

• The Bulletin: Are companies only seeking to hire employees that are currently working? The somewhat ironic question is one being discussed by The Bulletin in an article examining whether there need to be laws to protect currently unemployed workers from bias in their job hunt.

• Furley Page: And last but not least some news from our friends over in the UK. In a bid to reduce regulation and stimulate growth the government is making some big changes to employment law over there. The Furley Page does a nice job breaking down how these changes will affect employers and employees when put into effect.

Wherever you are when you are reading this I hope everyone has a great weekend. Got some great articles to add? I would love to hear from you!

Three Types of People who Should be Fired

Fri, 27 Jan 2012 06:15:27 -0500

Today in Bloomberg Business Week, there is a great article about three types of people who should be fired immediately. They are:

1. Victims: You know the type - the people who complain about everything and feel that life is just a struggle. They see problems everywhere and feel persecuted.

2. Nonbelievers: People who have a negative attitude and see failure at every turn.

3. Know-It-Alls: People who think they know the answer and the answer is usually no. The Bloomberg article cites people who predicted that radio and telephones had no commercial value. You know the type.

But - it is legal to fire these kinds of people. Can a company just fire them without cause or without due notice? Yes they can. An employee can be fired for no reason at all and no warning or notice is legally required. Just like an employee can quit for any reason and without notice, a company can fire it's employees at-will.
Believe it or not, employees do not normally have a legal right to their job. The best way to keep your job is to be valuable and pleasant to work with. Don't fall into one of the three categories in the Bloomberg article.

Not Your Everyday Gender Discrimination Case

Thu, 26 Jan 2012 07:40:54 -0500

It is interesting to see how a bizarre news story can actually lead to a blog post about a general employment law issue. So here I go about a story in a state very close to many of the New York employment law issues I usually write about: Pennsylvania

A 45-year-old Pennsylvania women believes she was fired from her position with a frozen treats making company after she wore a fake penis to work. The prosthetic device was worn to help her decide whether she wanted a sex change. Her complaint alleges both gender and gender identity discrimination.

You may be asking, was the gender discrimination against her as a women or her as a man? In this scenario, it was because she was being treated differently as a female dressed as a man. Hmmm, not sure that sentence really clarified anything.

In the employment context, gender discrimination occurs when an individual is treated differently simply because of his or her sex. Although a unique set of facts, if the woman in this scenario was in fact fired simply because she was a women dressing as a man and was otherwise competent in her job, then she has a very good case.

Perhaps the best argument the women has in this case is the fact that a male coworker was undergoing a similar sex change decision and dressed as a female to work without any negative repercussions. Who knew she would be so lucky with a similar fact pattern?!

As you can see, gender discrimination takes many forms. If you feel like you may have a unique or more textbook case of gender discrimination, give us a call.

Retaliation at Work in New York

Wed, 25 Jan 2012 10:36:18 -0500

It seems so high school. You tell on someone for doing something wrong and they try to get back at you. But when the high school quad meets the New York workplace, the revenge for reporting is actually called retaliation. And it’s illegal.

Let’s start from the beginning. An employee reports a situation, an employee experiences negative repercussions that he or she believes is the result of vocalizing their concerns.

There is not one specific type of reporting that makes a retaliation situation illegal. Rather, when an employee reports to supervisors about a workplace issue and then has some sort of adverse reaction take place…that is a form of retaliation. That means that reporting any type of employment discrimination (whether against the employee or someone else), illegal pay practices, harassment or other workplace issue is something that is not only encouraged but protected. I should also point out that whether the initial complaint is true or not is completely irrelevant when it comes to retaliation in the workplace issue.

Just like there are so many types of reporting protected under state and federal retaliation laws, there are also various types of retaliation situations to look out for. Firing, demotion and reduced pay are just a few of the forms of retaliation that an employee may experience from reporting.

Reporting a company’s potentially illegal activities should be something an employee feels comfortable discussing and a company feels compelled to listen to and fix. If you are concerned that you have been retaliated against, give us a call.

New York Banker Bonus Disputes

Wed, 25 Jan 2012 08:55:06 -0500

Many New York bankers work hard all year for their bonuses. But some of those bankers don't get what they were expecting, and some get nothing. I recently met with a banker who was fired after working all year and the bank will not pay the bonus. Not fair for the banker, but is it illegal?

The law that applies to banker bonuses is pretty simple. It applies to non-bankers as well. The root of the issue goes to whether or not the parties agreed, expressly or implicitly, that the bonus would be paid. If the circumstances indicate that the banker and the bank both knew that the bonus would be paid at year end, then the banker may have the right to recover that bonus. In order to evaluate these claims, the following factors are typically considered:

- was the bonus a substantial part of the banker's total annual compensation?

- is there a pattern of paying the banker such a bonus?

- did the banker do anything that would justify non-payment of the bonus?

- did anything happen at the bank (like poor earnings) to justify non-payment?

These banker bonus disputes are handled by FINRA through arbitration. Typically a panel of arbitrators handles these matters and FINRA has a good record of treating bankers and banks fairly. If you have a question about a bonus dispute, please give us a call.

Disability Discrimination in New York

Tue, 24 Jan 2012 19:11:04 -0500

In New York, and every place else in America, it is illegal to fire an employee due to a disability. It is also illegal to fire an employee who asks for time off for a medical procedure - this conduct is prohibited by the Family Medical Leave Act. The Family Medical Leave Act applies to companies with 50 or more employees and the employee has to have been employed continuously for a year to be protected.

The disability discrimination laws and the FMLA have been around for a long time. But still companies act like these laws don't exist. Just the other day, a woman came to see us who was fired several days after she told her boss that she needed time off for an operation. This employee, lets call her Gertrude for fun (real names not used here) had a heart condition and she needed to have an operation to prevent another heart attack from happening. She told her boss about the operation on Tuesday and on Friday she was fired after 8 years with the company. No warnings.

So does Gertrude have a case? She sure does. First, Gertrude has a disability discrimination case because she had a serious heart condition and she told her boss about her condition. Since she was fired soon after telling her boss about her heart condition, it looks very much like she was fired because her boss viewed her as disabled and likely to need time off and slow things down at work. She has a disability claim under the New York City Administrative Code and possibly under the Americans with Disabilities Act. I prefer the NYC law because it is broader than the ADA.

Gertrude also has a claim under the FMLA. Under that law, an employer cannot retaliate against an employee who seeks to exercise their rights under the FMLA. The company is also prohibited from interfering with an employees right to take time off under the Family Medical Leave Act.

Gertrude most likely has viable legal claims for disability discrimination and for violations of the FMLA. We see a lot of disability discrimination cases. For some reason, companies think it is OK to fire people when they need time off for serious illnesses (their own illness or to care for a sick family member) or when they learn that an employee has a serious illness. Just last week another person hired us after her boss fired her soon after she disclosed that she had MS.

If you have been fired due to an illness or disability, give us a call. There is no charge for the first consultation and during that meeting we will try to determine if you have a viable legal claim.

Sexual Stereotypes in the Workplace

Tue, 24 Jan 2012 12:42:23 -0500

A women’s place is in the kitchen. Did I catch your attention with that stereotype? Thought so. Sexual stereotyping is an employment issue in New York and other states that men and women often struggle with. Simply put, women and men must be held to the same behavioral standards at the workplace. When this does not happen, there is a name for it: sexual stereotyping.

In the employment context, sexual stereotyping can result in lost promotions and other types of unfair job limitations. Interestingly enough, the legal profession is often guilty of sexual stereotyping, especially when it comes to promotions.

So what does a sexual stereotype look like? If a woman is being told that she is too macho and needs to take a more feminine approach to her style and overall appearance before she can be promoted to partner, then she is having stereotypes illegally used against her.

Or if a man is told to stop acting in a feminine way and speak with a deeper voice at work, that is also a form of sexual stereotypes.

Everyone is different and that diversity is what makes for a great work environment. When colleagues and employers are asking an employee to better fit within their gender role, there is a sexual stereotyping issue, especially when a promotion is contingent on conforming to certain gender roles. There are legal implications for an employer that demands this type of conformity from his or her employees. The first step to stopping this stereotyping is to speak out against it. If that doesn’t work, give us a call.

Defining New York Sexual Harassment

Mon, 23 Jan 2012 14:03:21 -0500

Let’s talk about sex. Sexual harassment that is. When it comes to working in New York, there are a lot of questionable situations that may fall under the definition of sexual harassment. Generally speaking, any unwelcome physical or verbal conduct directed at an employee because of his or her sex can constitute sexual harassment.
The definition seems simple enough but there are a lot of caveats and misconceptions about sexual harassment that I want highlight in my blog today. Picking the above definition apart, a New York sexual harassment case does not have to be physical but it can also be words (this would include emails, text messages, etc) and it does not just apply to women but men too.
Here are some other misconceptions about sexual harassment that I want to point out:

• Same Sex Sexual Harassment: Although the majority of sexual harassment cases are between a man and a woman, that does not make it any less illegal for a man to harass another man or vice versa.

• Let’s Hear It For The Boys: Piggybacking on the above point, men can be the victims of harassment in the workplace.

• Title Doesn’t Matter: Sure, there are a lot of public instances in which a male boss is acting in an inappropriate and illegal manner towards a female employee. But the title of an employee does not matter when it comes to sexual harassment. It is not just the boss that can be on the giving end, there are many instances in which an employer is the victim.

Hopefully you now have a more informed definition of sexual harassment. If you feel like you are being sexually harassed at work, give us a call.

Employment Law Roundup

Fri, 20 Jan 2012 15:18:26 -0500

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Huffington Post: Unemployment is going to be a big issue in presidential campaigning. With a national unemployment average of 8.5% this is not a surprise but will still be interesting to see how politicians attempt to tackle the problem. One issue that the Huffington Post is currently covering in South Carolina is whether the receipt of unemployment benefits should be contingent on passing a drug test. The HuffPo reports that, in addition to drug testing, Republicans are also arguing for mandatory volunteer work for long term joblessness.

• NPR: Law schools have been getting a lot of heat in the past couple of years over their employment numbers. NPR explores the issue with the apt title, “Do Law Schools Cook Their Employment Numbers?” The article and issues surrounding it isn’t necessarily about employment law but as an attorney looking to the future of the profession, there are interesting issues being raised about the importance of a law school being up front about their graduates’ job prospects.

• Boston Herald: Big news out of Massachusetts for their roughly 33,000 transgender employees. The Boston Herald reports that Massachusetts just passed a new law that prohibits discrimination in the workplace.

• The Vancouver Sun: The Vancouver Sun covers an employment law case out of Chicago about a woman who was fired for doing extra work during her lunch break. After bringing a successful suit (representing herself I should add) she will now be receiving unemployment benefits.

Have a great weekend everyone. Got some great articles to add? I would love to hear from you!