Target Settles Claim for Discriminatory Testing Procedure

Target has agreed to pay $2.8 million to settle charges that its testing procedures for potential candidates was discriminatory based on race and sex. The Equal Employment Opportunity Commission (“EEOC”) commenced this litigation after a reasonable cause finding was obtained post-investigation.

The reasonable cause determination held that during its hiring process Target’s exam disproportionately vetted out applicants for exempt-level professional positions based on race and sex, which violated the Title VII of the Civil Rights Act of 1964.

The EEOC also found that an assessment performed by psychologists during Target’s hiring process was a pre-employment medical examination, violating the Americans with Disabilities Act, which prohibits employers from subjecting applicants to medical tests before an offer of employment.

This settlement figure will go toward the individuals adversely impacted by the hiring process.

As we’ve discussed before, discrimination is not isolated to adverse workplace conditions. It can also include the hiring process and certainly testing for hire that disproportionately impacts a protected class of individual.

Risman & Risman, P.C. wants to ensure that while applying for employment, you or your family member is not disproportionately impacted in your hiring based on your membership in a protect class. If this is the case, please do not hesitate to contact the employment attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


New York City Will Lag Behind Federal Contract Workers’ Sick Leave Allowance

The Obama administration is on a mission to expand protections and rights to as many workers as possible until the president’s tenure is complete at the end of 2016.  In fitting style, President Obama signed an executive order on Monday (Labor Day) requiring federal contractors to provide up to seven days of paid sick leave a year.  This is two full days in addition to what private workers are provided under New York City’s paid sick leave act.

Unfortunately, the executive order will have no real effect until after Mr. Obama’s presidency is complete, since it requires a public comment period to pass before the order becomes law.  The hope here is that a standard is set that will prompt lawmakers, private employers, and state and local governments to expand their leave policies.  In the end, it is good business policy for workers not to be fearful of losing their jobs simply because they come down with something as common as the flu.

The business community and some lawmakers are sure to object to the president’s move; the common misconception being that he is always overstepping his boundaries, however, those with adversarial opinions forget that this move will only apply to employees who work for federal contractors, a mere 300,000 workers.

The president’s order will guarantee both full- and part-time federal contract workers an hour of paid sick leave for every 30 hours worked, for a total of up to seven days a year. The workers could use the leave to care for themselves, a member of their family, a domestic partner or another loved one, or they could take the leave to recover from domestic violence, sexual assault or stalking, similar to the class of persons protected under New York City’s paid sick leave act.

The paid leave order is the latest move by the Obama administration to institute changes on a tiny portion of the labor market, being that the president cannot persuade the government to act in concert with him to benefit the nation’s workforce.  Among other things, the president has signed orders, banning retaliation against workers who discuss their compensation, requiring contractors to pay higher minimum wages, protecting gay and transgender workers from discrimination and providing employees additional information about their pay.

New York City is typically ahead of the curve when it comes to providing protections to workers, but not in this case. It looks like we may have to play catch up here to ensure our law does not end up burdening the worker simply they are sick.

Risman & Risman, P.C. wants to make sure that your employer is not depriving you of your right to take off from work in the event you are ill.  If you believe you or your family member was and/or has been retaliated against in the workplace for calling out of work due to illness, please do not hesitate to contact the employment attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


FMLA Still Does Not Provide for Paid Family Leave

Last week, Netflix announced that it would expand its paid family leave policy to give new parents unlimited time off during the first year after the arrival of a new baby. This was a pretty monumental headline considering that corporations are under no obligation in New York (and in the rest of the country for that matter) to provide for paid leave to either parent/employee when a new bundle of joy enters their life.

Typically, the only option for a newborn parent is to take family leave under the Family and Medical Leave Act (FMLA); where companies with 50 or more employees must provide an eligible employee with up to 12 weeks of unpaid leave each year for the birth and care of a newborn child.

As you can imagine, there are a ton of problems with the aforementioned law. FMLA doesn’t cover a large segment of the workforce since not everyone works for companies that employ more than 50 people. This leave is also unpaid; so for those employees that don’t have the luxury of company paid family leave, they must endure a loss of income where the need for it is heightened because of the new addition to the family.

Lately, some companies are stepping up and implementing a paid leave policy for newborn parents, but the percentage of companies that have done so in the US is alarmingly low, only 13%. As such, the only certain way to change how family leave is provided is by having a law mandate paid leave; something to consider next time you elect your representative.

Risman & Risman, P.C. is here to ensure that your employer properly follows FMLA. If you believe you or your family member was and/or has been retaliated against in the workplace for asking or taking family or medical leave, please do not hesitate to contact the employment attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


Millions of Workers to See a Boost in Overtime Wages

A couple of weeks ago President Obama announced that he would be amending a rule applicable to salary thresholds for overtime entitlement under the Fair Labor and Standards Act. The rule would raise the salary threshold below, which workers automatically qualify for time-and-a-half overtime wages to $50,440 a year from $23,660. This is clearly a revolutionary ruling that could potentially affect millions of Americans, including ones in New York State and New York City

Unlike what most believe, this rule is not required to be approved by the Congress – the executive branch has the power to issue the regulation, which would restore the overtime salary threshold to roughly where it stood in 1975 in terms of purchasing power, without congressional approval, according the New York Times.

This is a strong first step by the administration to bridge the enormous wage discrepancy gap in the country. Let us hope for more decisions that follow this trajectory.


New “Sheriff” Coming to New York City Commission on Human Rights

In a blog post from March 2014, I discussed the pros and cons of filing a claim with the New York City Commission on Human Rights. That post focused on the election of remedies aspect of filing an employment discrimination claim and the potential risk of a Commission’s finding of no probable cause. This finding can often act as a bar to filing a discrimination lawsuit in New York State Court.

Aside from this apparent negative, there are others (which I have detailed below); but with the appointment of a new commissioner to lead the Commission, the tide may be turning.

Ms. Malalis, a former plaintiff’s employment attorney, has vowed to enforce the New York City Human Rights law and to invigorate the habitually underfinanced agency, which primarily serves residents who cannot afford to hire their own lawyers.

With that said, the current statistics speak volumes. New York City only finances 11 positions at the Commission, while the federal government provides funding for an additional 55 positions. This is highly concerning and may explain why most claims that get processed through the commission take well over the one-year timeframe.

Additionally, according to city statistics, the Commission received 4,975 inquiries from the public in 2014, but formally opened only 633 cases. Of the cases resolved that year, only 10 percent were found to have probable cause to move forward. This is a vastly underwhelming number and that is why I urge prospective clients to carefully measure whether they should pursue their claim via the Commission. It’s always best to discuss these matters with a qualified employment attorney before proceeding.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at Risman & Risman, P.C. at (212) 233-6400 or contact us online.


Wage Increases Coming for Tipped Workers in New York

In a very courageous push by New York State legislators and the Governor, New York has finally made a move to provide higher wages for the state’s lowest-paid workers. This new regulation will most benefits servers, which include, waiters, waitresses and others who work for tips, and will be soon be receiving a raise of their minimum wage to $7.50 an hour.

This increase will go in effect at the end of 2015. The regulation will result in the merger of three categories of tipped workers — whose minimum hourly wages range from $4.90 to $5.65 — into a single class to be paid at least $7.50 an hour.

The restaurant industry has quickly criticized the wage increase as too large and counterproductive. Major complaints have revolved around owners claiming that they will not be able to absorb the cost increase or pass all of it along to their customers in the form of price increases. They further claim that this increase will lead to layoffs. Personally, I would be comfortable with paying a little extra for my meal knowing that the workers serving me will not require living hand to mouth.

Additionally, the statewide minimum wage for non-tipped workers is scheduled to rise to $9.00 an hour, from $8.75, at the end of the year. Despite this being $2.25 more than the Federal minimum wage of $7.25 an hour, this increase pales in comparison to other metropolitan cities around the country that have elected to increase their minimum wage to levels that allow workers to live above the poverty line when working a full time schedule. We should look to follow suit.

The New York minimum wage and overtime attorneys of Risman & Risman, P.C. are ready to aggressively pursue your wage claim. There is no charge for the consultation. Please feel free to call us at (212) 233-6400 or contact us online.


Making Sense of Federal Whistleblower Statutes

Prospective clients call the office all the time with questions regarding Federal Whistleblower laws and how those laws seek to protect individuals in the workplace. Below, I have provided a list of Federal Whistleblower laws and their respective statutes of limitation to file a complaint with the Occupational Safety and Health Administration. Each one of these laws, depending on the language of the law, allows for potential economic damages, compensatory damages, punitive damages and attorney’s fees.

Federal Whistleblower Statutes – Filing Time Limits

Environmental and Nuclear Safety Laws:

Section 11(c) of the Occupational Safety & Health Act (OSHA). [29 U.S.C. §660(c)] Section 11(c) provides protection for employees who exercise a variety of rights guaranteed under the Act, such as filing a safety and health complaint with OSHA, participating in an inspection, etc. 29 CFR 1977 – 30 days to file

Asbestos Hazard Emergency Response Act (AHERA). [15 U.S.C. §2651] Protects employees who report violations of the law relating to asbestos in public or private non-profit elementary and secondary school systems. 29 CFR 1977 – 90 days to file

Clean Air Act (CAA). [42 U.S.C. §7622] Prohibits retaliation against any employee who reports violations regarding air emissions from area, stationary, and mobile sources. 29 CFR 24 – 30 days to file

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). [42 U.S.C. §9610] a.k.a. “Superfund,” prohibits retaliation against any employee who reports alleged violations relating to cleanup of hazardous waste sites, as well as accidents, spills, and other emergency releases of pollutants and contaminants. 29 CFR 24 – 30 days to file

Energy Reorganization Act (ERA). [42 U.S.C. §5851] Prohibits retaliation against any employee who reports violations or refuses to engage in violations of the ERA or the Atomic Energy Act. Protected employees include employees of operators, contractors and subcontractors of nuclear power plants licensed by the Nuclear Regulatory Commission, and employees of contractors working with the Department of Energy under a contract pursuant to the Atomic Energy Act. 29 CFR 24 – 180 days to file

Federal Water Pollution Control Act (FWPCA). [33 U.S.C. §1367] a.k.a. “Clean Water Act,” prohibits retaliation against any employee who reports alleged violations relating to discharge of pollutants into water. 29 CFR 24 – 30 days to file

Safe Drinking Water Act (SDWA.) [42 U. S. C. §300j-9(i)] Prohibits retaliation or potentially designated for drinking. 29 CFR 24 – 30 days to file

Solid Waste Disposal Act (SWDA). [42 U.S.C. §6971] Prohibits retaliation against any employee who reports alleged violations relating to the disposal of solid and hazardous waste (including medical waste) at active and future facilities. This statute is also known as the Resource Conservation and Recovery Act. 29 CFR 24 – 30 days to file

Toxic Substances Control Act (TSCA). [15 U.S.C. §2622] Prohibits retaliation against any employee who reports alleged violations relating to industrial chemicals produced or imported into the United States, and supplements the Clean Air Act (CAA) and the Toxic Release Inventory under Emergency Planning & Community Right to Know Act (EPCRA). 29 CFR 24 – 30 days to file

Transportation Industry Laws:

Federal Railroad Safety Act (FRSA). [49 U.S.C §20109] Protects employees of railroad carriers and their contractors and subcontractors who report a hazardous safety or security condition, a violation of any federal law or regulation relating to railroad safety or security, or the abuse of public funds appropriated for railroad safety. In addition, the statute protects employees who refuse to work when confronted by a hazardous safety or security condition. 29 CFR 1982 – 180 days to file

International Safe Container Act (ISCA) [46 U.S.C. §80507] Protects employees involved in international shipping who report to the Coast Guard the existence of an unsafe intermodal cargo container or another violation of the Act. 29 CFR 1977 – 60 days to file

Moving Ahead for Progress in the 21st Century Act (MAP-21). [49 U.S.C. §30171] Prohibits retaliation by motor vehicle manufacturers, part suppliers, and dealerships against employees for providing information to the employer or the U.S. Department of Transportation about motor vehicle defects, noncompliance, or violations of the notification or reporting requirements enforced by the National Highway Traffic Safety Administration or for engaging in related protected activities as set forth in the provision. – 180 days to file

National Transit Systems Security Act (NTSSA). [6 U.S.C. §1142] Protects transit employees who report a hazardous safety or security condition, a violation of any federal law relating to public transportation agency safety, or the abuse of federal grants or other public funds appropriated for public transportation. The Act also protects public transit employees who refuse to work when confronted by a hazardous safety or security condition or refuse to violate a federal law related to public transportation safety. 29 CFR 1982 – 180 days to file

Pipeline Safety Improvement Act (PSIA). [49 U.S.C. §60129] Protects employees who report violations of federal laws related to pipeline safety and security or who refuse to violate such laws. 29 CFR 1981 – 180 days to file

Seaman’s Protection Act, 46 U.S.C. §2114 (SPA), as amended by §611 of the Coast Guard Authorization Act of 2010, Public Law 111-281. Protects employees who report to the Coast Guard or another federal agency a violation of a maritime safety law or regulation. The Act also protects seamen who refuse to work when they reasonably believe an assigned task would result in serious injury or impairment of health to themselves, other seamen, or the public. – 180 days to file

Surface Transportation Assistance Act (STAA). [49 U.S.C §31105] Protects truck drivers and other employees who refuse to violate regulations related to the safety of commercial motor vehicles or who report violations of those regulations. 29 CFR 1978 – 180 days to file

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21). [49 U.S.C. §42121] Protects employees of air carriers and contractors and subcontractors of air carriers who, among other things, report violations of laws related to aviation safety. 29 CFR 1979 – 90 days to file

Consumer and Investor Protection Laws:

Affordable Care Act. 29 U.S.C. §218C (ACA) Protects employees who report violations of any provision of title I of the ACA, including but not limited to discrimination based on an individual’s receipt of health insurance subsidies, the denial of coverage based on a preexisting condition, or an insurer’s failure to rebate a portion of an excess premium. – 180 days to file

Consumer Financial Protection Act (CFPA). [12 U.S.C. §5567]. Employees are protected for blowing the whistle on reasonably perceived violations of any provision of the Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any other provision of law that is subject to the jurisdiction of the Bureau of Consumer Financial, Protection, or any rule, order, standard, or prohibition prescribed by the Bureau. – 180 days to file

Sarbanes-Oxley Act (SOX). [18 U.S.C. §1514A] Protects employees of certain companies who report alleged mail, wire, bank or securities fraud; violations of the SEC rules and regulations; or violation of federal laws related to fraud against shareholders. The Act covers employees of publicly traded companies and their subsidiaries, as well as employees of nationally-recognized statistical rating organizations. 29 CFR 1980 – 180 days to file

Consumer Product Safety Improvement Act (CPSIA). [15 U.S.C. §2087] Protects employees who report to their employer, the federal government, or a state attorney general reasonably perceived violations of any statute or regulation within the jurisdiction of the Consumer Safety Product Safety Commission (CPSC). CPSIA covers employees of consumer product manufacturers, importers, distributors, retailers, and private labelers. 29 CFR 1983 – 180 days to file

FDA Food Safety Modernization Act (FSMA) [21 U.S.C. 399d]. Protects employees of food manufacturers, distributors, packers, and transporters from reporting a violation of the Food, Drug, and Cosmetic Act, or a regulation promulgated under the Act. Employees are also protected from retaliation for refusing to participate in a practice that violates the Act. – 180 days to file

As always, if you believe you or your family member was and/or has been retaliated against in the workplace, please do not hesitate to contact the employment attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


Gender Neutral Employment Postings Are the Way to Go

Today, the New York Post reported a story where the New York City’s Human Rights Commission spent three years pursuing a Greenwich Village restaurant for placing an ad for waitresses instead of gender-neutral servers — and is now bizarrely considering whether it should collect the $5,000 fine imposed by a the administrative law judge assigned to the matter.

This all started when the ad was placed on Craigslist for a waitress, a term which is not gender-neutral, instead of a server.

Under the New York City Human Rights law, staffing ads may not specify one sex or the other; this is considered an inherently discriminatory act.

The Human Rights Commission spent a lot of time investigating the matter; setting up a sting operation to demonstrate that the restaurant was openly discriminating based on gender. Despite all of these efforts, they have yet to collect on the $5,000 fine imposed by the judge.

I have previously spoken to the pros and cons of filing a discrimination complaint via the City, State and Federal agencies. With that being said, we always recommend that you contact an attorney prior to reaching out to one of the agencies in order to best evaluate the options in pursuing your discrimination claim.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at Risman & Risman, P.C. at (212) 233-6400 or contact us online.


Termination Indiciators and Preserving Your Employment in New York City

It’s the sad truth living in New York City, a population in the millions, but you so often hear of the story of someone who was working (rather happily) and was suddenly fired – this news coming as a total surprise. In reality, this subjectively perceived status quo was chock full of warning signs. Upon closer examination and in hindsight, the employee recognizes these signs, but unfortunately, it’s too late to proactively address them by either looking for another job or taking corrective measures.

This article explores eight distinct warning signs of an employee who is on the path to termination. The purpose of this article is for you to be on the lookout for these signs and to preemptively tackle them before it’s too late.

What to Look For If You Are Being Set Up For Termination

Although most employment in New York is “at will,” most employers are prudent in having proper documentation to demonstrate just cause in termination, although typically not required under law. When an employer can show there was just cause to terminate, the employer is more likely to be insulated from claims of discrimination, harassment or retaliation. Normally, employers try to build up cases for termination by documenting the employee’s fall from productive employee to the insubordinate, lazy, and ineffective former employee.

Here are a few situations that should trigger the termination antennae of an employee::

1. Your Supervisor Starts Expressing Unhappiness With You – A telling sign of an impending problem at work is any type of supervisor dissatisfaction with your work product. This can manifest in the form of oral criticism, sniping comments at department meetings, in an e-mail, in an internal memo or other communications. Whenever a supervisor expresses any form of discontent with you, you should take that as an early red flag that something needs to be corrected.

2. You Get Written Up – One major way for an employer to justify a termination is by way of documenting the how and why behind the termination. In the event an employee makes a mistake or breaks a company rule, it is not unusual for them to be written up with some kind of warning, corrective action or other form of documentation. If you are written up, and there is a good reason for that write up, it may be that the write up was appropriate and written in good faith to address the issue. Conversely, if you have been written up unjustifiably or if you were written up when an oral warning for something minor would have sufficed, that should raise an immediate concern that you’re on your way out.

3. The Escalation of Write-Ups – It is a significant red flag if you are written up more than once in a short period of time. Most supervisors decide they want someone terminated and then start writing them up for any little deviation. If you get written up more than once and the reasons seem rather petty, then you’re likely not remaining at your position for much longer.

4. You Get Excluded From The Group – You may now find yourself being excluded from meetings, lunches, get-togethers or events that are being held, which you have received no notice of. You’re being held off of emails, memos and the like. You inquire about whether this is a mistake but the repetitiveness and ongoing nature of the exclusion is apparent. The pejorative writing is on the wall, you’re probably being set up for termination

5. You get demoted – You were the leading a group of 10 and you’ve been asked to step down and take on the role of a subordinate – that’s the clear demotion. Alternatively, it can occur in subtle forms as well. Authority is slowing being removed; you have less reporting responsibilities, less duties and often times less work. These are telltale signs of a set up for termination.

6. Meetings are canceled – If you have scheduled weekly meetings with your supervisor that are now occurring monthly or not at all, this can be a sign that you’re no longer wanted at the company.

7. You’re Being Set Up To Fail – You’ve been given a list of assignments that you’re asked to complete in one week, but would typically take one month. This isn’t your supervisor giving you more responsibility because he/she has so much faith in your abilities, rather, your failure to complete this unreasonable demand is likely to become the reason you are being let go.

8. Totality of the Circumstances – If you see some of the aforementioned red flags, you should make sure you’re prepared to handle them proactively. At a minimum, it means something is off at work. However, if you are experiencing several of these, it probably means that you are targeted for termination. If so, you need to think about it, analyze what is happening and decide you are to proceed.

Options in Combatting Alleged Deficiencies at Work

It may be that the decision is made and it is just a matter of time before you are gone. If that is so, there is nothing you can do to avoid the termination and you should be looking for new employment. However, it may be that the red flags are just that – warnings that there are major problems that will lead to employment termination if things are not corrected.

Here are some ideas that you might consider if you do feel that you are being set up for termination:

1. Paper v. Paper – Whenever something bad is said about you in writing, respond and address it immediately. If it is wrong, say so. If the criticism is justified, admit it and promise to fix it. Regardless, you need to respond in the same format as the initial criticism (e-mail to e-mail, memo to memo, etc.) and you need to write to the same people who received the first criticism. It is always important to have your side of the story contemporaneously memorialized for what may later be a “paper war.”

2. What’s wrong– Another strategy is to sit down with your supervisor and determine why you are being targeted. Again, it may very well be that you are being unjustly targeted for termination. Conversely, you may be receiving you a warning for need of improvement. Open communications might tell you not only what is happening, but also what you may need to do to improve the outcome.

3. Fix the Problem – Although obvious, if there is a problem, fix it. Consider talking to co-workers, peers, customers or others about what you could do better, and then improve your performance.

4. Bring Some Value – Another way to prove your value would be to ensure you are irreplaceable. It may be that you are worth more than you think you are. Think about what you have brought to the company, whether in savings, efficiencies or other benefits and find some way to professionally brag about it.

5. Become Indispensable – Yet another approach might be to prove your value by reports, memos, attendance at meetings or other activity that visibly shows what you have brought to the company, how good a job you have been doing, and what a loss you would be if replaced.

6. Creativity – There are undoubtedly many other ideas that you can think of to enhance your position, improve your relationship with those you work with and increase your chances of preserving your job, and all you can do is try. It may be that it is too late, or it may be that you can still save your job. It’s best to put forth the effort.

7. Time to Say Goodbye – If the red flags are red enough, it is time to look elsewhere. It is always better, and usually easier, to lateral from job to job when you’re still employed.

8. Give Us a Ring – If the red flags are there, it is best to seek the counsel of a seasoned employment attorney. They may be able to assist you with strategies to prolong your employment or they help you develop and pursue a legal claim against your employer.

In today’s climate, it is challenging to find a job and sometimes even harder to be successful at it. If you start seeing the aforementioned red flags at work, be proactive and take steps to preserve your employment – it may make all the difference.

DISCLAIMER:

The information at this site has been prepared for general informational purposes only and is offered as a public service. Information on this site does not constitute legal advice and is presented without any representation or warranty whatsoever, including as to the accuracy or completeness of the information.


New York City Unpaid Interns Finally Have Equal Footing With Paid Employees

Unpaid interns in New York City are finally receiving the safeguards against discrimination/harassment that should have been afforded to them long ago. The New York City Council voted unanimously to extend the protections of the New York City Human Rights Law to unpaid interns. Interns will now be protected from illegal discrimination and harassment, similar to how paid employees have been since the New York City Human Rights law had gone into into effect.

The amendment is as follows and defines an “intern” covered by the statute as “an individual who performs work for an employer on a temporary basis whose work: (a) provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced; (b) provides experience for the benefit of the individual performing the work; and (c) is performed under the close supervision of existing staff.”

The amendment will be in effect 60 days after Mayor De Blasio signs into law.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.