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.
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.
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.
Risman & Risman, P.C. is proud to announce that Jeffrey Risman has been selected to the 2015 American Society of Legal Advocates Top 40 Under 40 Labor/Employment Lawyers in the State of New York.
About the ASLA Selection Process
ASLA’s exclusive membership comprises less than 1.5% of all licensed lawyers nationwide. ASLA is both highly selective in extending invitations and in determining which specialties to include for a given state. Because many specialties typically include listings for Top 100 Lawyers and Top 40 Lawyers Under 40, in order to remain selective we ensure that each specialty in a state has a sufficient number of practicing lawyers to merit inclusion. Those states with relatively low populations of practicing lawyers often will support only one or two specialties. ASLA monitors practice trends from year to year prior to extending invitations in each state.
ASLA’s entire selection process is conducted manually by lawyers. Prospective members initially are evaluated based on publicly-available information, although member nominations also are accepted from current members, other lawyers, and past clients. Self-nominations and nominations from public relations firms or advertising agencies are not accepted.
The selection process consists of a rigorous, manual, multi-stage review:
ASLA’s lawyers comprehensively review available information for each candidate, including a review of firm websites, client assessments, and publicly-available filings, which may include: verdicts, settlement information, and information regarding transactions. Each candidate is assessed based on such criteria as educational accomplishments, involvement and leadership in bar associations and professional organizations, activities within their community, and demonstrated legal achievement. In the case of younger lawyers, ASLA also evaluates indications of developing success, both in a candidate’s day-to-day practice and in serving the profession.
Each area of assessment is considered, and each candidate is assessed on his or her own merits. Just as the student body of an elite university is comprised of individuals with many different backgrounds and strengths, ASLA likewise strives to invite a range of members who have stellar legal credentials as a baseline, but also a range of interests and activities.
After the initial list of nominees is prepared, at least one separate lawyer reviews all compiled data and confirms nominations. To ensure the integrity of the process, no lawyer who participated in the first phase of selection is permitted to conduct the second phase.
In the final stage, the list of finalists is again reviewed and candidates either are confirmed for invitation or placed on a holding list for reconsideration the following year.
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.
Jeffrey Risman has been selected to the 2014 New York Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.
One of the most common inquiries I receive from prospective clients is what is the value of their employment discrimination case. New York employment discrimination cases have a very different calculus compared to a personal injury or mass tort action. The value of a case is firstly dependent on whether you can fulfill all the elements of a discrimination cause of action, and then you move on to the associated remedies, which we will describe in more detail below. However, you should be aware that there is no magic prognosticator that will give you an exact number of what a case is worth – this is simply a tool to assess probable damages.
Commonly, damages available in employment discrimination action can be separated into the following categories:
• Economic damages,
• Compensatory damages,
• Punitive damages,
• Liquidated damages, and
• Attorney fees.
Below is a brief breakdown of what statutes are involved in employment discrimination actions.
Applicable Employment Discrimination Statutes
• Title VII of the Civil Rights Act of 1964 (Title VII)
• The New York State Human Rights Law (NYSHRL)
• The New York City Human Rights Law (NYCHRL)
• The Age Discrimination in Employment Act of 1967 (ADEA)
• The Americans with Disabilities Act of 1990 (ADA)
• Family and Medical Leave Act of 1993 (FMLA)
• The Equal Pay Act of 1963 (EPA)
Categories of Damages
In general, the goal of the law is to put the victim of any injury, including discrimination in the same position in which he or she would have been if the discrimination had not occurred, essentially trying to make the individual whole again. In discrimination actions this is done by providing monetary damages, the categories of which will be briefly described below.
Economic damages include back pay and front pay, and you can derive from their name that this remedy of damages is based in a calculation of wages.
Back pay is the amount the court will award an aggrieved employee to make whole for all compensation lost as a result of the discharge or other adverse action. The back pay period typically begins from the moment of an employee is discharged and continues to the time of trial. In addition to all of an employee’s lost wages, this figure can include the value of bonuses, any lost benefits, and overtime had there been no discharge. The law does require an employee to mitigate damages by looking for and taking a new job if one is available and able to work. Any such provisional compensation would be offset against the back pay. If, however, despite best efforts, an employee is unable to secure a new job, they may not be subject to an offset.
Front pay is the amount the court will award you for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement, although an employer will not commonly offer reinstatement. It is a discretionary award intended to make victims of discrimination whole where the plaintiff has no reasonable prospect of obtaining comparable alternative employment. This type of remedy typically applies in age discrimination claims, where the chances for an older employee to gain willful employment may be less likely.
Compensatory damages generally compensate employment discrimination victims for losses such as out-of-pocket expenses caused by the discrimination (such as costs associated with a job search or medical expenses) and any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life).
Punitive damages are designed to punish an employer who has engaged in exceptionally malicious or reckless acts of discrimination. They are recoverable for violations of various statutes, including Title VII and the NYCHRL, but not under the NYSHRL.
Punitive damages can be established either where the employer (1) discriminated or retaliated against the employee with conscious knowledge it was violating the law, or (2) engaged in egregious or outrageous conduct from which an inference of malice or reckless indifference could be drawn.
These limits are as follows under Title VII:
• $50,000 for employers with 15-100 employees;
• $100,000 for employers with 101-200 employees;
• $200,000 for employers with 201-500 employees; and
• $300,000 for employers with more than 500 employees.
No such cap exists for punitive damages under the NYCHRL.
Liquidated damages are damages set by statute including the ADEA, EPA, and the Family and FMLA.
Under the ADEA, a prevailing plaintiff is entitled to liquidated damages in an amount equal to unpaid wages, but only where there was a “willful violation” of the statute.
Such a violation is found to be willful when the employer knew that its conduct violated federal law or showed reckless disregard of that fact.
Attorney’s fees aren’t typically awarded in actions, unless the remedy is prescribed in a statute.
For example, Title VII, the ADEA, the ADA, the FMLA, 42 U.S.C. § 1981, and the NYCHRL (but not the NYSHRL) authorize an award of attorney fees to the prevailing party.
The purpose behind the availability of statutory attorney fees is to encourage aggrieved employees to bring meritorious lawsuits by providing them with a source of funds for retaining competent counsel they may not typically have.
Whether the plaintiff is a prevailing party and what is a reasonable attorney fee are issues that often require careful analysis and may be the subject of extended motion practice.
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.
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.
Jeffrey Risman has been recognized as a Top 40 Under 40 attorney for the State of New York by the National Trial Lawyers. Membership into The National Trial Lawyers Top 40 Under 40 is by invitation only, and is extended exclusively to those individuals who meet stringent qualifications and specialize in the legal practice of civil plaintiff or criminal defense.
An individual must exemplify superior qualifications, trial results, and leadership as a young lawyer to gain membership into The National Trial Lawyers: Top 40 under 40 selection involves a multi-phase process including peer nominations and third-party research. This results in a credible, comprehensive and impressive record of young attorneys chosen to represent their state.
Every attorney from the distinguished Top 40 under 40 strives to build law practices which encompass the knowledge, skill, experience and success of the best lawyers in America. The National Trial Lawyers’ mission includes promoting unique and professional networking opportunities for young lawyers, in conjunction with developing innovative ideas to further justice for those injured by the carelessness of others, to instruct the public about the significance of access to Courts that are free of undue influence and bias, and to shield the uniquely American right of trial by jury.
We here at Risman & Risman, P.C. are proud of our track record and appreciate the recognition bestowed by the National Trial Lawyers.
When you choose to use a service or a product, it’s nice to know that you are getting the best. When it comes to legal representation for employment actions, the quality of the service you receive is even more crucial—it can mean the difference of a case won or lost, the difference between a future of financial stability or of financial hardship. When retaining New York Employment Attorney Jeffrey Risman of Risman & Risman, P.C., you can rest assured you are working with a legal professional who only provides the highest caliber of legal representation—clients have attested to it. This attorney recently received the Clients’ Choice Award for 2014 from Avvo due to the high level of top-ranking client reviews he received on his Avvo profile.
Avvo, a lawyer-rating website that is well known in the industry, provides its Clients’ Choice Award to attorneys who have received five or more client reviews with either 4-star or 5-star ratings. Not only has Mr. Risman met that requirement, but he has far exceeded it. His client reviews show that every single category of every single one of his client reviews has attained a 5-star “Excellent” rating (the highest client review rating available).
That means that those who have reviewed Mr. Risman on his profile believed he did the best job possible in multiple areas, which are titled “Trustworthy,” “Responsive,” “Knowledgeable,” and “Kept me informed.” There is also a place where clients can score the attorney’s overall rating.
Mr. Risman and his firm handle a broad spectrum of employment cases. By contacting the firm, you can work with a strong legal professional whose skills have been acknowledged by former clients, but also from his peers from inside and outside of the industry. Contact us today to set up a free initial consultation.