Don’t Sign Your Severance Package Agreement!

You’ve just arrived at your desk at work and find an email on the computer directing you to immediately go to the Human Resources office. You had a slight suspicion that you were going to be let go, but it was just a fleeting feeling that you dismissed as paranoia. You then walk into the Human Resources office and are asked to sit down. You’re finally told, “we’re sorry, you’re being let go.” This is of course a difficult and unsettling reality to face. You can’t comprehend why you were a candidate for termination. All of your work is satisfactory; you come in on time, and are never late. You’ve devoted years of time and energy to this job and without any type of notice, you are being kicked out the door.

Certainly, this is not the identical way a termination will occur for everyone, but one event typically unites all employees being laid off– that moment they are asked to put pen to paper and sign an agreement in exchange for severance. At first glance, the often times lengthy document can be dizzying and confusing to comprehend (especially after the shock of discovering you are being let go). The first thing you need to remember is DON’T SIGN YOUR SEVERANCE AGREEMENT.

A severance agreement can include provisions that: 1) limit your ability to work in the same field for a prolonged period of time; 2) prevent you from soliciting customers you have grown relationships with over the years while with your former employer; 3) contain confidentiality clauses that will prevent you from sharing previously acquired information with a future employer; 4) waivers that will bar you from filing a lawsuit based on discrimination/retaliation/whistleblowing and  many other provisions that may have a significant monetary value to you and your former employer.

Even in the event you do not believe you have anything of value to provide to your former employer and/or were not a target of discrimination/relation/whistleblowing, employers will often prefer to negotiate an equitable package, once an attorney is brought onboard. The smartest and most prudent thing you can do once you receive the severance documents is be gracious, say thank you, and leave your old job with your head held high. Once you’re ready, contact an employment attorney you feel comfortable with handling these matters, and put them to work. Make sure all your questions are asked before representation is commenced and take solace in knowing you will have a competent and accomplished employment attorney negotiating a favorable severance package.  Good luck to you.


Paid Sick Leave to Come to Many New York City Employees

New York City’s legislature has finally come to its senses. New York City has now become the most populous city in the United States to make businesses provide workers with paid sick time equal to five days – after the New York City Counsel overruled Mayor Bloomberg’s veto to pass a law expected to provide protection to over 1 million workers in the event they are sick.

Similar laws have been passed throughout the United Sates, but never to a city of such magnitude. Under the new law, employees of businesses with 20 or more workers would get up to five paid sick days a year beginning in April 2014; the benefit would commence by October 2015 at businesses with 15 to 19 workers. All others categories of business would have to provide five unpaid sick days per year, meaning that workers couldn’t get fired for using those days.

In the event the City takes an economic plunge, there is a provision in the law that will postpone its time to go into effect.

There is also the option that employees who choose to work extra hours instead of taking sick time, can swap shifts rather than stay home sick. That provision could be attractive to restaurant waiters or bartenders, for example, since the paid sick time wouldn’t include tips.

Unfortunately, the City Council decided to exempt manufacturing companies from the paid sick time requirement — the rationale being that they’re apparently struggling, even though an argument can be made that the entire economy of New York City is still battling through the effects of the recession. Luckily, these workers will still be protected from firing for taking unpaid sick days.

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


When a Supervisor is No Longer a Supervisor

With another blow to employee rights, the Supreme Court recently issued a decision in Vance that will demonstrably hurt plaintiffs from filing sustainable employment discrimination suits under Title VII. The Supreme Court decided to put their own spin on how the term “supervisor” is defined in the context of Title VII, severely limiting and burdening potential employees from holding their employers responsible for the discriminatory actions of a superior.

The Supreme Court concluded that a “supervisor” is now someone whom the employer has empowered to take “tangible employment action” against the aggrieved employee. Referring to prior decisions in the Seventh Circuit, the Court described a tangible employment action as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The Court rejected the alternate and clearly fairer interpretation of supervisor, a superior who directs another employee’s work tasks.

By narrowing the definition of “supervisor,” the Supreme Court has now created a loophole for employers to curtail their exposure to liability. A supervisor’s harassment that does not result in a tangible employment action could result in the vicarious liability of the employer if they could not establish an affirmative defense, such as (1) the exercise of reasonable care to prevent and promptly correct harassing behavior, or (2) if the complainant unreasonably fails to take advantage of preventative or corrective measures made available to her.

In contrast, if the harassing employee is a co-worker, a negligence standard applies. To satisfy that standard, the employee must show that the employer knew or should have known of the offensive conduct, but failed to take appropriate corrective action – a much steeper burden. The Supreme Court is denying a generally accepted definition of supervisor, someone who has the ability to direct and affect a subordinate’s terms of employment. Simply because a superior cannot fire, demote, or transfer, does not mean they cannot alter the terms of  employment, thereby creating a discrimination polluted workplace where an employee would likely not feel comfortable to report claims of harassment without fear of retribution. Vance is a truly sad decision.

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 the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


How New York City Anti-Discrimination Laws Protect You (Part II)

As we all know, discrimination can occur in many different forms – yet when we think of sexual harassment, we would not ordinarily categorize it as discrimination, but it is most certainly. Sexual harassment falls under the classification of sex and/or gender discrimination and in continuing our discussion of how the Restoration Act has expanded the bounds of the New York City Human Rights Law, let’s examines how it has affected sexual harassment cases.

Before the Restoration Act had been passed, New York Courts had treated sexual harassment as it had been treated under the Federal law. Under federal law, hostile environment sexual harassment is actionable only when it qualifies as “severe and pervasive.” This is quite a high burden, especially when sexual harassment can often occur in subtle form versus overt action. Luckily, the Restoration Act sought to dispense with this test, and with that in a series of cases the Appellate Division characterized this standard as “routinely barr[ing] the Courthouse door to women who have in fact been treated less well than men because of gender.” As a result, aggrieved victims are now only required to prove that they were treated less well than men in order to get a harassment case to a jury – clearly, a more fair approach.

The New York Court of Appeals has also chosen to draw another distinction between the Federal approach of assessing defenses to hostile environment sexual harassment cases and New York City’s. Under Federal Law employers have a defense to a hostile environment sexual harassment charge if: (1) the employee did not sustain a tangible employment action as part of the alleged harassment; (2) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (3) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

The Court held that the New York City Human Rights Law precluded application of the affirmative defense, as did its legislative history, which specifically provided for “[s]trict liability in the employment context for acts of managers and supervisors.”[3] The court noted that while historically, the court has interpreted state and local civil rights statutes “consistently with federal precedent,” it has done so only where the statutes “are substantively and textually similar to their federal counterparts.”  This decision was a landmark win for the aggrieved and innocent victims that simply seek justice in the face of unwanted sexual advances.

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 the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


How New York City Anti-Discrimination Laws Protect You (Part I)

Since the New York City legislature amended the New York City Human Rights Law in 2005 with the passing of the Restoration Act, New York Courts have liberally applied the Act, following through with the legislature’s intention of providing aggrieved and discriminated employees more access to remedies that had been taken away from them with sweeping Supreme Court decisions. In two parts, I’d like to explore how the Restoration Act has made a marked improvement on the already expansive New York City Human Rights Law.

In the content of disability discrimination – under federal and state law, employees with disabilities are entitled to reasonable accommodation to allow them to perform the essential functions of a job. The employer and employee are encouraged to enter into an interactive process to determine if there is a reasonable accommodation available, but are under no means required to engage in this process. Additionally, an employer is only obligated to offer a reasonable accommodation (one which is not unduly burdensome to the employer) and need not accept an accommodation that is preferred by the individual with a disability.

Beginning with the case of Phillips v. City of New York, the Appellate Division honed in on the city law’s offering more wide-ranging protections than the federal law and state law, going so far as to hold that if said accommodation is one that the employer does not want to implement, the employer will have the burden of proving undue hardship, even if the employer offers an alternative effective accommodation.  This was a great win for employees, since major multi-million/billion dollar corporations would clearly have a tougher time demonstrating that accommodations, which are desperately needed by disabled employees, are cost-prohibitive.

Another great step in the expansion of ant-discrimination laws in New York City came with the loosening of requirements in proving retaliation. An aggrieved employee is still required to demonstrate that they were involved in a protected activity, such as reporting a complaint to Human Resources or filing a claim with the Equal Employment opportunity Commission, but prior to the passage of the Restoration Act, under federal anti-discrimination laws, actionable retaliation required proof of “conduct that has caused a materially adverse impact on the terms and conditions of employment.” New York City decided to do away with that requirement and instead requires: The retaliation or discrimination complained of … need not result in an ultimate action with respect to employment, … or in a materially adverse change in the terms and conditions of employment, … provided, however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity.

With that said, in several landmark cases the Appellate Division indicated that almost any change in duties or place of employment could be considered retaliatory under city law and, therefore, Courts have suggested, this is always a jury question.  Again, the aggrieved employee/victim of retaliation is set to benefit – employers are less likely to get away with subtle retaliatory conduct that would not necessarily qualify as material and adverse under state and federal anti-discrimination laws.

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 the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


Jeffrey Risman of Risman & Risman, P.C. Receives 2013 Clients’ Choice Award

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 2013 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.

 

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New York City Offers New Protections for the Unemployed, Hooray!

June 11, 2013 is the date that New York City’s new law prohibiting discrimination in the hiring process of persons based on employment status finally goes into effect, specifically focusing on the “unemployed.” The legislative intent behind this amendment of the New York City Human Rights Law (“NYCHRL”) is steeped in the reality that the unemployed are having an extremely difficult time gaining new employment because of: 1) extended time they’ve been out of the workforce; or 2)the preconceived notion of an employer that a prospective hire is unemployed because they are a “bad” employee, or for several other unsubstantiated and predetermined reasons an employer may have for discriminating against someone for being unemployed.  This amendment to the NYCHRL will constitute another beneficial addition to the already broad and expansive anti-discrimination laws of New York City.

In order to truly understand what this amendment will prohibit, we need to examine the definition of what unemployment means.  “Unemployment” under the NYCHRL is defined as “not having a job, being available for work, and seeking employment.”  The amendment prohibits an employer from basing “an employment decision with regard to hiring, compensation or the terms, conditions or privileges of employment on an applicant’s unemployment.” The amendment additionally forbids employment advertisements that require current employment as a qualification for employment or disqualify applicants based on previous unemployment.  Lastly, the amendment further prohibits policies and practices that may have a disparate impact on unemployed potential hires, unless the employer proves as an affirmative defense that the policy is based on a substantially job-related qualification or the policy or practice does not contribute to the disparate impact.

As always, the NYCHRL applies to employers that employ four or more individuals (whether as employees or independent contractors (who are not themselves employers)), and where the impact of the employer’s alleged discriminatory conduct will be felt within the boundaries of New York City. Additionally, the NYCHRL provides for a broad array of remedies, including unlimited compensatory and punitive damages and attorneys fees awards.

Seeing that this is a brand new law, it’s unclear how employers will react – if they will adjust their interviewing or advertising processes proactively or wait until it’s too late and they’re being hauled into court.  There are also many unresolved questions since the law has not been litigated in court – does the law only bar considering current unemployment, or does it also bar taking into account a history of unemployment? What are examples of a substantially job-related reason for considering unemployment? Many questions are left unanswered about this new amendment to the NYCHRL, but what’s clear is the intent behind this legislation is virtuous and will hopefully provide much needed protection to the unemployed.

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 the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

 


Discriminatory Harassment at Work in New York City, What Can I do?

Targeted discriminatory harassment occurs every day in New York City, regardless of the type and size of workplace.  It can happen at a mammoth Fortune 500 company on Wall Street or even a small business specializing in graphic design in a shared space in Brooklyn. What if the target of this discriminatory harassment is you?  What if you are being incessantly harassed at work by a supervisor or coworker and you believe the harasser has a certain discriminatory motive?  Sadly, the victim of harassment typically feels like they have no one to turn to.  Your coworkers will not likely help your cause for fear of losing their jobs.  You are scared to go directly to your Human Resources manager since they are basically a biased extension of your employer, only looking to preserve the company’s interests.  You are unsure whether your employer will retaliate against you, and possibly fire you from your position, simply for speaking up.

What can you do?  First thing, take a deep breath and take solace in the fact there are knowledgeable, well versed specialists in this field who are willing to guide you through this daunting and nerve-racking process.  Below, I have outlined a few steps that will help ensure the preservation of your civil rights under Federal, New York State and New York City employment discrimination laws, but before you do ANYTHING, contact an attorney.

Some Helpful Steps

  1. When you first sense that a supervisor or coworker is harassing you based on a discriminatory animus, try to deduce the true reason.  That animus can fall under a myriad of protected categories, including, but not limited to, age, gender, national origin, race, religion, military status, sexual orientation, a pregnancy or a disability or perceived disability.  Please be aware that if the harassment taking place does not fall under a protected category, the harassment is not actionable under Federal, New York State and New York City employment discrimination laws.
  2. You should next memorialize the event. You can do this in a variety of ways, but the main purpose of this step is to put your employer on notice of the harassment.  Clearly, if the employer in unaware of the inappropriate behavior, they will claim they could not do anything to remedy it and will deny ever knowing it occurred.  One example of giving proper notice would be by sending a letter or email to Human Resources summarizing the harassment.  This step is anything but easy, and fear may prevent you from initiating the process, but failing to do so may cause major difficulties if your employer decides to terminate and retaliate against you in the future.
  3. At this point, if you haven’t already, contact an attorney.  Waiting only leads to an escalation of the discriminatory acts against you and may complicate issues facing the attorney.

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 the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

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 State Seeks to Expand LGBT Rights

One could easily assume that New York State and New York City share identical laws giving equal protections for victims of workplace discrimination, with employees failing under a myriad of protected classifications.  Unfortunately, despite it being 2013, this is not the case in fact.  In particular, despite great strides having been made in protecting the civil rights of the gay and lesbian community in New York State, like the legalization of same-sex marriage, many, if asked, would still tell you that they are in constant fear of workplace discrimination and violence, simply because of their sexual orientation.

The New York State legislature is looking to further remedy this ongoing problem of sexual orientation discrimination with the recent proposal of the Gender Expression Non-Discrimination Act (GENDA), which calls for protections against discrimination for New York’s transgender and gender-nonconforming population. With its enforcement the Act will outlaw discrimination based on gender identity or expression.

GENDA passed the Assembly a few weeks back, but there seems to be a lone wolf seeming to undermine and prevent this Act from becoming law, New York’s State Senate Conservative Party.  The Senate Republican’s opposition is based on the inability n getting reelected in areas that typically do not support expansion of civil rights for the gay and lesbian community.  Unsurprisingly, this is not reason that has been declared by the State Senate Republican leadership.

“Naturally, we’re opposed to it,” said Michael Long, chairman of the New York Conservative Party, in an interview with The Wall Street Journal. “They should be protected, as we all are. We are for equal rights for all human beings. There is no need to create special classifications for individuals.”

Fortunately, the measure has some powerful Democratic sponsors, which could be enough to barely carry the bill. Versions of it have been pushed for years by gay and transgender advocates who won the landmark law legalizing same-sex marriage in 2011.

Additionally, the District of Columbia, 16 states and several cities already have passed similar laws protecting gender identity and expression.  New York City is also among the cities with protections for gender identity.  Let’s follow suit and bring these protections to all the citizens of New York State.

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 the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

 


FMLA Makes Great New Leap for Care of Adult Children

In a progressive step in the right direction, the Department of Labor (DOL) recently expanded the definition of “son or daughter” to now allow an eligible employee to take medical leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is unable to care for themselves because of disability related limitations, not considering the age of the child when they were inflicted with the disability.

If you’re not familiar with FMLA, it is a federal law that allows an employee to take up to 12 weeks of unpaid leave due to illness or to care for a sick family member, including a son or daughter.  The FMLA ensures that you are able to take extended leaves of absence from work to due to illness or to care for a sick family member.  The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild ,a legal ward, or a child of a person standing in loco parentis, who is—(A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”  The DOL’s regulations hold that the FMLA does not require that a biological or legal relationship exist between the employee and the child.  Therefore, the regulations interpret “son or daughter” under the FMLA to include a child of a person standing in loco parentis – those with day-to-day responsibilities to care for or financially support a child.

Initially, “son or daughter” had been defined by a child who was under the age of 18, regardless of whether or not they have a disability.  A qualified employee requesting FMLA leave to care for a son or daughter under 18 years of age is now only required to show they need to care for the child due to a serious health condition, not necessarily a disability.

On January 14, 2013, the DOL issued Administrator’s Interpretation (AI) No 2013-1, expounding on the definition of “son or daughter.”  In order to meet the FMLA’s definition of a “son or daughter,” an adult child (i.e., an adult child who is 18 years of age or older) must have a mental or physical disability and be incapable of self-care because of that disability.

In defining mental or physical disability, the FMLA regulations implement the Americans with Disabilities Act’s (ADA) definition of “disability” – a physical or mental impairment that substantially limits a major life activity (as interpreted by the EEOC).  The AI also incorporates the Americans with Disabilities Act Amendments Act (ADAAA)’s expansions to the definition of disability, noting that the clear language of the ADAAA provides that the definition of disability is to be “construed in favor of broad coverage.”

The AI also now requires that the adult child must be incapable of self-care because of his or her disability in order to meet the definition of son or daughter. The FMLA regulations define “incapable of self-care because of mental or physical disability” as when an adult son or daughter “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs).”  Assuming the other requirements of the FMLA are met, a parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:

1.      has a disability as defined by the ADA;

2.      is incapable of self-care due to that disability;

3.      has a serious health condition; and

4.      is in need of care due to the serious health condition

It is only when all four requirements are met that an eligible employee is entitled to FMLA protected leave to care for his or her adult son or daughter.

Lastly, the AI makes clear that the age of the son or daughter at the start of a disability is irrelevant in determining a parent’s right to FMLA leave.  “An employee is entitled to take FMLA leave to care for a son or daughter with a serious health condition who is 18 years of age or older and incapable of self-care because of a disability regardless of when the disability commenced.”

This is a great step in enlarging the protections of FMLA, especially in an area that is typically forgotten and set aside. Now, caregivers with adult children who are incapable of caring for them can get the much needed assistance from a parent, without the parent fearing retribution for taking time off of from work.

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 the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.