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Employee handbooks are commonly saturated with limitations imposed by employers, who do everything in their power to quash any negative writings and/or speech about the company or its personnel.  A company will typically draft rules prohibiting an employee from speaking publicly about a company in a negative light.  This has recently translated to the world of social media, expanding to language that was usually forbidden in the office kitchen or by the water cooler.

A current social media policy will typically contain language fashioned on an employer’s prohibition of any speech that disparages managers, co-workers or the company itself.  A violation of social media policy can even rise to the level of justifying termination.  However, it looks like the National Labor Review Board (NLRB) has something to say about this shift in its recent advisory based on several rulings, including one in the case against of a not-for-profit corporation called Hispanics United of Buffalo. In essence, labor regulators have declared many such blanket restrictions on speech illegal. The NLRB says workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook.

In that case, the New York Times reported that a caseworker threatened to complain to the boss that others were not working hard enough. Another worker, Mariana Cole-Rivera, posted a Facebook message asking, “My fellow co-workers, how do you feel?”

Several of her colleagues posted angry, sometimes expletive-laden, responses. “Try doing my job. I have five programs,” wrote one. “What the hell, we don’t have a life as is,” wrote another. Hispanics United fired Ms. Cole-Rivera and four other caseworkers who responded to her, saying they had violated the company’s harassment policies by going after the caseworker who complained.

In a 3-to-1 decision last month, the NLRB ruled that the caseworkers had been unlawfully terminated. It found that the posts in 2010 were the type of “concerted activity” for “mutual aid” that is expressly protected by the National Labor Relations Act.

In addition to ordering the reinstatement of various workers fired for their posts on social networks, the agency has pushed companies nationwide, including giants like General Motors, Target and Costco, to rewrite their social media rules.

The advisories and rulings have collectively expanded the definition of “concerted activity,” which is derived from a law that was enacted in the industrial era, principally to protect workers’ right to unionize, and now is being applied it to the digital activities of nearly all private-sector workers, union and nonunion alike.

Personally, I feel like this is a bold step, but an important one.  Workers should feel free to express their opinions of the workplace environment between one another without fear of punishment in the office or in the steam of social media.

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 Daily News at it Again

They are at it again. One of New York’s most long standing papers is being accused of age discrimination and disability discrimination. In this case, a picture editor at the Daily News, David Burns, is accusing the paper of being “harassed and overlooked for promotions based on his age and health issues.”

This is not the first time the Daily News is in hot water regarding allegations of age discrimination in the workplace, and I imagine that it will not be the last.  The only way to remedy the problem is to change the culture of discriminating against older workers and levying tougher penalties against the corporate forces that facilitate the discriminatory policies.

In this case, Mr. Burns, a 50-year-old New Jersey resident, specifically accuses the Daily News photo managing editor, Alexander Hitchen, of deliberately withholding reimbursements and causing Mr. Burns high anxiety and panic attacks.

Additionally, it is alleged that Mr. Hitchen passed Mr. Burns over for the position of deputy managing editor after pressuring Mr. Burns to fire 21 freelance photographers. To boot, the Complaint also  claims Mr. Hitchen told Burns he failed to get the promotion because of his “age and health” and that Mr. Hitchen said this was “better for [Burns]” because “at your age, you should be concerned about your health and your family.”

Subsequently, the strain between Mr. Hitchen and Mr. Burns reached a literal boiling point, where Mr. Burns was required a stronger prescription  of anti-anxiety and blood pressure medications.

If these allegations are proven to be true, the Daily News may see a monumental and expensive problem on their hands. Firstly, this does nothing good for public relations.  The population of New Yorkers continues to get older and the worsening economy has taken a serious hit on them already. Secondly, Mr. Burns is the embodiment of a well-rounded worker, who people can relate to and sympathize with, something extremely helpful to the attorney presenting this case to the jury of Mr. Burn’s peers.

It looks like the Daily News needs a gut check and a forensic evaluation of their employment policies in order to prevent these public relations nightmares from continuing to happen. One could only hope.

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.


Working at Home May Not Be By Choice

By Maya Risman

To have the choice to work from home can be a total blessing.  Making your own hours.  Not having to converse with annoying co-workers. Working at your own pace and on your own time.

But what if working from home was not a choice?

What if circumstances dictated the necessity to abruptly leave your office desk and quickly shift responsibilities to the taking care of a sick or disabled child, a parent or even a husband for an indefinite period of time?

Many questions begin rushing through your head.  First and foremost, questions regarding your loved one’s health and well-being.  And not far behind, you have questions regarding your job security.  Is your employer required to leave your job open? Is your employer required to pay you while you are out of work?

In these difficult times, it is best to stay composed and educate yourself on the employment rights afforded to you under the law.

What are my rights?

The Family and Medical Leave Act (FMLA) is a federal law that provides an employee to take up to 12 weeks of unpaid leave due to illness or to care for a sick family member.

Some of the protections afforded by the FMLA are listed below:

  • Covered employers must grant an eligible employee up to a total of 12 weeks’ worth of unpaid leave during any 12-month period to care for yourself or an immediate family member (spouse, child or parent) with a serious health condition. The Act also covers child birth.
  • At the end of the leave, when the employee returns to work, the employee must be restored to the same position. If that same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits and responsibility.
  • The employee’s benefits are protected in that they are to continue even while the employee is on leave. And upon returning to work, an employee is entitled to reinstatement to all benefits that the employee was receiving before going on leave.
  • Protection of the employee to not have their rights under the Act denied or interfered with by an employer is granted by the FMLA.
  • An employee is protected from retaliation by an employer for exercising her rights granted under the FMLA.

As discussed, there are federal laws that provide some semblance of security in these difficult situations, outside of accommodations your employer may or may not already provide privately.  It is best to first approach your human resources department to request such accommodation.  Nevertheless, it is equally important to contact a local employment attorney for consultation and to learn of any other state or local laws that may afford additional job protection for medical leave.

Maya Risman is an employment and labor law attorney in New York City.


Pregnancy and Accommodations Go Together Like Peas and Carrots

I imagine that most people believe that pregnant women are provided with accommodations needed to perform their job, but this cannot be further from the truth.  The recently introduced Pregnant Workers Fairness Act (PWFA), by Sen. Jean Shaheen (D-N.H.) and Sen. Bob Casey (D-Pa.), seeks to remedy this injustice and  would require employers to make workplace accommodations available for pregnant women that current Federal and New York law requires them to make for people with disabilities, so long as the accommodation does not amount to an undue burden on the employer.

Under the Americans with Disabilities Act (ADA), these are called “reasonable accommodations,” designed so that employees with disabilities can perform the job functions they were hired to do.

Essentially, the purpose of the PWFA is to eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.

Under the Federal, New York State and New York City Human Rights Law, pregnancy, is not considered a disability. The only legal projection pregnant women are currently provided is under the 1978 Pregnancy Discrimination Act and the parallel New York laws, which makes it illegal to fire a woman because she becomes pregnant. However, employers can still refuse to accommodate pregnant women’s basic, fundamental needs at work, such as barring a pregnant employee from going on light-duty because she is unable to carry heavy objects, or denying the pregnant woman’s right to carry around a water bottle to ensure her and her growing baby is sufficiently hydrated. The Federal and New York laws, as they currently stand, are essentially forcing pregnant women to pick between their job and ensuring the health of their unborn child and themselves. This is a choice a woman should not be compelled to make, as it goes against the universal view that a pregnancy is a blessing and should be nurtured, not jeopardized because of an employer’s discriminatory prerogative.

This PWFA has a long journey ahead and because of the divisive nature and makeup of the current Congress, it is not likely to become law. However, you have a voice, so let it be heard. Speak out to your elected officials and come November, vote with the PWFA in mind.

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.


Racial Bias is in the Air

Time to examine the latest race discrimination suit making headlines.  Two dozen black pilots allege in a lawsuit that United Continental Holdings, the parent of United Airlines, passed them over for management promotions because of their race.  The pilots allege a long history of discriminatory behavior on behalf of United across multiple U.S. states.  The suit was ultimately filed in the U.S. District Court for the Northern District of California in San Francisco.  These pilots further claim the carrier punished them by withholding promotions and special assignments because of their participation steaming from a charge with the Equal Employment opportunity commission in 2010.  As always, United vehemently denies all of the allegations made by the pilots.

What are the chances of success for these pilots? What do they have to prove in order to be successful? Let’s take a look at the law (Title VII) and what is required in order to prevail in a race discrimination suit for disparate treatment.

Claims of discrimination under Title VII  are governed by a tripartite burden-shifting test established by McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, the pilots first must make a prima facie case for race discrimination. The prima facie elements of a claim for disparate treatment are that: (1) the pilots are a member of a protected class under the statute; (2) the pilots applied and were qualified for a job or promotion for which United was seeking applicants; (3) despite their qualifications, they were rejected; and (4) the positions remained open and United continued to seek applicants, or the positions were given to someone outside the protected class.

Once the aforementioned is established, the burden then shifts to United to articulate a legitimate, non-discriminatory reason for not selecting the pilots for promotion.  If United satisfies this burden, the pilots must prove that the alleged legitimate reasons offered by United were not its true reasons, but were a pretext for discrimination.  To sum this all up, the ultimate burden lies with the pilots to prove that they were passed over for promotion because of their race.

As you can see, the pilots have a pretty heavy burden facing them.  Even if they are able to demonstrate all of the above elements, including providing statistical evidence that United tended to hire more whites over minorities for managerial positions, all United is required to show under the law is a “legitimate reason” for this trend.  Often in cases where denial of promotion is the primary cause of action, an employer may provide a variety of of reasons for promoting one candidate over another, such as, familiarity with a unit, years of experience in a particular field, or educational background.  Once United is able to establish that reason, the pilots are required to show that they were clearly better qualified than the employee selected for the promotion at issue.  However, the bar is set very high for this kind of evidence because differences in qualifications are generally not probative evidence of discrimination unless those disparities are of such weight and significance that no reasonable person, in the exercise of unbiased judgment, could have chosen the candidate selected over the pilots for the job in question.

So let’s see how this all plays out.  Despite the burden being extremely high in race discrimination actions, it is still very possible that these pilots have a legitimate chance of prevailing if they can show they were clearly the better candidates for the managerial positions.

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.


Employment Discrimination and Adverse Employment Action Qualification

My supervisor told me my performance was terrible the last few weeks and is threatening to put me on probation, and I’m certain he feels that way because I’m Jewish, and he overtly displays his dislike for Jewish people. This feels like an adverse employment action, but is it?

Title VII, the New York Executive Law and the New York City Human Rights Law makes an employer liable for discriminating against its employees based on agegender, national origin, race, religion, or for retaliating against an employee for having challenged such discrimination. Courts recognize that most discrimination and retaliation is not carried out so openly as to provide direct proof of it.  Accordingly, a wronged party may use circumstantial evidence to assert a prima facie case of discrimination (or retaliation) by alleging: 1) [she] belonged to a protected class; 2)[she] was qualified for the position; 3) [she] suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. But what really is an adverse employment action?  Sounds like so many different events can fall under such a category, including the one above.

Courts have traditionally defined an adverse employment action as a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of such a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation.

So, when assessing whether an action taken by your employer is “adverse” under the law, you should make sure the action is substantial in nature.  Even though an action may feel substantial, does not necessarily mean that it qualifies the same under the law.  It is always best to consult with an employment discrimination attorney to better determine whether any action taken against you is materially adverse.

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.


Discrimination During Interview, No Way

New York employment discrimination runs rampant, even if the actions of the violators may not be overt or obvious.  And employers should certainly know it is illegal to discriminate against employees or prospective employees based on their age, gender, national origin, race, religion, sexual orientation, a pregnancy or a disability or perceived disability. Often, employees who are forced to endure employment discrimination suffer anxiety, humiliation, fear, anger or financial problems due to the unjust acts of their superiors, or even their coworkers.  Fortunately, there are laws which protect victims of employment discrimination from injustice.

You have certain rights as a potential employee afforded by Federal, New York State, and New York City law.  The protections of Title VII of the Civil Rights Act of 1964, New York Executive Law, and New York City Human Rights Law even apply to the interview process.  Know before you go. There are certain questions regarding your identity which are off limits during the interview. The interviewer is barred from asking you about your birthplace, nationality, religion, maiden name, marital status, which church you attend, whether you have (or plan to have) a family, whether you need time off for a religious holiday, whether you are pregnant, whether you are the head of a household, or whether you have physical disabilities. It certainly makes sense why these areas are forbidden territory during an interview. A prospective employee should be measured on the quality of their education, work history and character, not unessential characteristics which have no bearing on their potential for workplace success.

By educating yourself concerning the type of questions an employer may not ask, you can safeguard yourself against improper questioning, voice your concerns, and determine whether you would like to work for a company.  And if you truly believe that an employer has overtly discriminated against you in the interview process, there are several legal avenues you may choose to entertain, and the attorneys at the Law Offices of Maya Risman, P.C. can help you choose the best one to follow.

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


Can my employer really deduct that from my wages?

The answer is probably not. New York employers should be very wary of the type of wages they withhold from employees, since certain deductions are in violation of § 193 of the New York Labor Law. § 193 of the New York Labor Law prohibits all deductions other than those expressly identified therein.  If an employer chooses to make prohibited deductions, the penalty is severe.  The violating employer is required to  pay compensatory damages equal to the illicit deduction, 25 percent liquidated damages if the violation was willful, in addition to attorney’s fees.  Additionally, § 198-a of the New York Labor Law  provides for criminal penalties for violation of article 6, which includes § 193. In order to ensure your rights are not being violated, it is imperative you carefully examine your pay-stubs to see if any deductions were made in violation of the law.

§ 193 of the New York Labor Law provides that:

1. No employer shall make any deduction from the wages of an employee, except deductions which:

a.  Are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency; or

b. Are expressly authorized in writing by the employee and are for the benefit of the employee; provided that such authorization is kept on file on the employer’s premises. Such authorized deductions shall be limited to payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments for the benefit of the employee.

It must be noted that § 193 only applies to “wages.” § 190(1)  of the New York Labor Law defines “wages” as:

The earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis. The term “wages” also includes benefits or wage supplements as defined in section one hundred ninety-eight-c of this article, except for the purposes of sections one hundred ninety-one and one hundred ninety-two of this article.

Wages do not apply to discretionary additional remuneration, which is not considered “wages” under the statute.  This would include compensation which is contingent and discretionary, such as bonuses paid out at the end of the year based on performance.

Additionally, in many cases, if one employee is being deprived of their fair share of wages, other equally situated employees are being deprived as well.  This is when a class-action suit against the violating employer is employed.  Employees should remain vigilant, and unify if necessary to combat illicit employment practices in connection with wage deductions.

If you believe you have been a victim of  illegal wage deductions, please do not hesitate to contact the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

 

 


Discriminatory Taunts and Fat Albert

The NY Post recently reported (http://nyp.st/IN8Ojh) an ex-AIG employee commenced an employment discrimination lawsuit in Federal Court, claiming he was the subject of a hostile-work environment under Title VII and the Americans with Disabilities Act (ADA), stemming from taunts about his race and weight. Earl Brown, 43, an African-American Ivy league-educated lawyer, claimed that on occasion his superior taunted him saying, “Hey! Hey! Hey! It’s Fat Albert!” and in similarly disparaging fashion, “Make sure you grab a bite to eat before this one does! He’s been known to clean out a Danish platter.” No, I am not making this up, as silly and far-fetched as it may seem.  Nevertheless, all claims of hostile-work environment should be taken very seriously and analyzed carefully.

There seem to be two major issues herein. First, the claim for hostile work environment is pretty weak on its face. Mr. Brown has an enormous hurdle to climb in proving such a claim, since Courts normally require an employee show an overly inhospitable and borderline threatening workplace environment. In determining whether Mr. Brown has sufficiently alleged a hostile-work environment claim, the Court will assess a number of factors including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. These factors will be evaluated from both a reasonable person’s standpoint as well as from the plaintiff’s subjective perception. Generally, occasional events of harassment or isolated remarks will not merit relief under Title VII. In order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive. However, a single event can create a hostile environment if the employer’s conduct is sufficiently severe, as in the case of sexual assault. Ultimately, whether a workplace will be viewed as hostile or abusive depends on the totality of the circumstances. Despite Mr. Brown’s claim that these comments severely affected his workplace environment, a reasonable person could argue these comments were simply made in jest. Even if taken to be certifiably serious, the target characteristic of these comments was Mr. Brown’s obesity, and not his race, which unlike his obesity, qualifies him under a protected class. Now, onto the second major problem for Mr. Brown, whether his obesity qualifies as a disability under the ADA.

Under the ADA, “disability” is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” The first prong of this definition, physical or mental impairment, is further defined as: “any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body system: … musculoskeletal, … respiratory … cardiovascular…”

Mr. Brown should have no problem demonstrating that his obesity affects his musculoskeletal, respiratory, and cardiovascular systems.   However, the second prong requires that he prove a substantial limitation, in other words, show he is unable to perform a major life activity that the average person can perform or show he is significantly restricted as to the condition, manner or duration under which he can perform a particular major life activity compared to the average person. In determining whether an individual is substantially limited, the nature and severity of the impairment, the duration or expected duration of the impairment, and the actual or expected permanent or long term impact of or resulting from the impairment is considered. Mr. Brown simply claims that he has difficulty walking long distances.  This is not going to cut it under the ADA requirements.  Additionally, the interpretative guidelines for the ADA indicate that obesity should not be considered a disabling impairment, except in rare circumstances. However, it is important to note that New York Courts tend to be more lenient in their assessment of a disability and have held that gross obesity can qualify as a disability under the New York Executive Law and New York City Human Rights Law.

Although many employees are subjected to a hostile work environment for a variety of different reasons such as discrimination based on age, race, genderdisability, pregnancyreligion, national origin, and sexual orientation (only in New York City), unfortunately, this looks like a losing battle for Mr. Brown.

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


Striving for Equal Pay for Women

The Equal Pay Act (EPA) requires that men and women employed at the same workplace be paid equally for equal work. A majority in Congress passed this Act in 1963. The subject employment need not be identical, but it must be noticeably equal. Job responsibilities and content (not job titles) determines whether jobs are substantially equal. All forms of pay are covered by this law, including salary, profit sharing, bonuses overtime pay, stock options, and bonus plans, life insurance, holiday pay and vacation, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and all types of fringe benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.

An individual alleging a violation of the EPA may go directly to court and is not required to file an Equal Employment Opportunity Commission (EEOC) charge beforehand. The time limit for filing an EPA charge with the EEOC and the time limit for going to court are the same: within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years. The filing of an EEOC charge under the EPA does not extend the time frame for going to court.

Title VII also makes it illegal to discriminate based on sex in pay and benefits. Therefore, someone who has an EPA claim may also have a claim under Title VII.

Although this Act has been on the books for several decades, one can argue there has not been enough change to shore up the disparity between how men and women are compensated in the workplace. Statistics tend to support this contention. Women working full time, on a yearly basis in the United States earn a median annual salary of $36,931, compared to men’s $47,715. That translates to American women earning $10,784 less than men each year. Fortunately, Sen. Kirsten Gillibrand of New York is trying to curb this trend and create more transparency and equality in the workplace. Specifically, Sen. Gillibrand, is trying to promote the Paycheck Fairness Act. She has stated “it’s illegal to discriminate against women in pay and if we have better enforcement mechanisms, we can hold more companies accountable.”

If this bill passes it would allow employees to openly discuss and share wage information without fear of retaliation, one of the primary challenges faced by Lilly Ledbetter, who inspired the Lilly Ledbetter Fair Pay Act signed in 2009.

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