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.


Filing a Discrimination Complaint With the New York State Division of Human Rights or New York City Commission on Human Rights

In New York State, as an aggrieved employee you have the right file a discrimination complaint with several administrative agencies – the New York State administrative agency, which is known as the New York State Division of Human Rights (“SDHR”) or the Federal counterpart, the Equal Employment Opportunity Commission (“EEOC”). If you work in New York City, you also have the option to file a discrimination complaint with the New York City Commission on Human Rights (“CCHR”). These agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process and investigate claims. There is no requirement to file a complaint with each agency as long as you indicate to one of the agencies that you want it to “cross-file” the complaint with the other agencies.

The New York State and New York City anti-discrimination statutes (New York State Human Rights Law and New York City Human Rights Law, respectively) cover some smaller employers that are not covered by Federal law. Therefore, if your workplace has between 4 and 14 employees, you can file with the CCHR (if you live in New York City) or SDHR, as the EEOC enforces Federal law, which covers only employers with 15 or more employees; otherwise, as explained below, you can file with the EEOC.

You should remember that filing with the SDHR or CCHR is not a prerequisite or condition to filing a discrimination cause of action in New York State Court, unlike discrimination actions in Federal Court, which require going filing a charge with the EEOC, and then receiving a 90-day Right to Sue Letter.

Now for the potential titanic pitfall when filing with the SDHR or CCHR – you can be barred from pursuing your New York State discrimination claim, unless your case is dismissed for reasons of “administrative convenience.” This is what is defined as an “election of remedies.” The failure to have your case dismissed based on administrative convenience and/or the receipt of a no probable cause determination can be a death knell to your discrimination claim and can severely hurt your chances at obtaining a proper remedy at law against your employer.

Fortunately, filing with the EEOC first and cross-filing with the SDHR or CCHR is not considered an election of remedies, and does not prevent you from further pursuing your New York State discrimination claim. The most prudent thing you can do prior to approaching the SDHR or CCHR is to contact an employment attorney well versed in the intricacies of discrimination law. The employment attorneys of Risman & Risman, P.C. have a long-standing history of assisting aggrieved employees in discrimination claims.

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.


Disability Accommodation Requests and the Interactive Process

Normally, when an employee is faced with the tall task of approaching their employer to request an accommodation for a disability, a first inclination is hesitation – whether an employer will react with disbelief or disdain, or even suggest that maybe the job at hand is not “a good fit” and it’s time to move on. Collectively, this amounts to a terrifying proposition. In this entry, I wanted to quickly explore what is required of an employer in such situations under the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL), to better equip an employee if this situation ever presents itself.

The first step required under the NYSHRL is for an employer to engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested. The interactive process continues until, if possible, an accommodation reasonable to the employee and employer is reached.

The legislative purpose of the NYSHRL cannot be achieved without requiring that employers, in every case, consider the requested accommodations by engaging in an individualized, interactive process.  A failure to consider the accommodation is a violation of the NYSHRL, since the “employer has the responsibility to investigate an employee’s request for accommodation and determine its feasibility” (Pimentel v. Citibank, N.A., 29 A.D.3d 141, 149, 811 N.Y.S.2d 381 [2006], lv. denied 7 N.Y.3d 707, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006]; cf. Parker v. Columbia Pictures Indus., 204 F.3d 326, 338 [2d Cir.2000], an ADA case in which the court ruled that “[a]t the very least … an employee who proposes an accommodation while still on short-term leave … triggers a responsibility on the employer’s part to investigate that request and determine its feasibility. An employer who fails to do so, and instead terminates the employee based on exhaustion of leave, has discriminated ‘because of’ disability within the meaning of the ADA”).

The NYCHRL has an even more expansive definition of interactive process and requires an individualized interactive process, and its absence represents a violation of the NYCHRL.  The NYCHRL goal of preventing discrimination (which includes failures to accommodate) “from playing any role in actions relating to employment, public accommodations, and housing and other real estate” (Administrative Code § 8–101) would otherwise be undermined.  The relief available to a plaintiff for an employer’s failure to engage in the interactive process depends on whether the process could have yielded a substantive accommodation that was reasonable.

As every employee’s situation is different, it is most prudent to contact a disability discrimination attorney to flesh out the facts to determine whether your claim is meritorious.

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 disability discrimination attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

 

 


New York City’s Pregnant Workers Fairness Act in Effect

On January 30, 2014, New York City entered a new phase of combatting pregnancy discrimination in the workplace with the Pregnant Workers Fairness Act finally going into effect. The law will now require employers to reasonably accommodate pregnant workers, similar to the reasonable accommodation that is required to be provided for disabled employees under the New York City Human Right Law. This law passed with little fanfare, as most believed something like this was already on the books, but in reality was not. Prior to the passage of the Pregnant Workers Fairness Act, pregnancy was not considered a disability, rather, it was held to be short-term disability that did not require an employer to make any adjustments, which could range from allowing for water breaks, providing for a more comfortable chair, or simply allowing a pregnant employee to see a doctor.

The New York Times recently published an article where Floralba Fernandez Espinal, a clerk at a national chain thrift shop, was three months pregnant and was worried about losing her child from being overstressed at work. She was told by her employer to bring in a doctor’s note stating she was seeking some type of accommodation. The letter from her doctor at New York-Presbyterian Hospital was clear: “No lifting, pushing or carrying heavy objects or loads.” Despite doing what her manager had asked of her, Ms. Fernandez was placed on unpaid leave because according to her employer, she could no longer do her job. Ms. Fernandez, fearing something was askew, decided to record the conversation she had with her manger, where she had stated that all she was restricted from doing was heavy lifting, but she could perform other tasks around the store. Her proclamation made no difference and was still asked to leave. Ms. Fernandez smartly lawyered up and is now seeking back pay and reinstatement from her former employer.

Ms. Fernandez’ situation will now be treated in a starkly different fashion because the Pregnancy Workers Fairness Act is in effect. Prior to the law’s passage, Ms. Fernandez’ condition would not have required the company to accommodate and she would have no actionable rights. However, it will be interesting to see if the claim does segue into the realm of litigation, and how the Courts will treat this case since Ms. Fernandez was put on unpaid leave before the January 30, 2014 effect date of the law. We will keep you apprised of any developments in this case and with the roll out of the 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 pregnancy discrimination attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.