New York Employment Attorney Blog

The ADA Amendments Act of 2008 ("ADAAA") amended the Americans with Disabilities Act to expand the definition of "disability," which had been limited over the years by court decisions. In enacting the ADAAA, Congress specifically rejected United States Supreme Court interpretations of the meaning of the term "disability." The result of the ADAAA was to make it easier for individuals with impairments to demonstrate that they satisfy the definition of "disability."

On May 15, 2013, the Equal Employment Opportunity Commission ("EEOC") revised its guidance as it relates to several types of impairments, namely, cancer, disability, epilepsy, and intellectual disabilities. As stated by the EEOC Chair, Jacqueline A. Berrien, "Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability. Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions."

Continue reading "EEOC Issues Revised Guidance on Specific Disabilities" »

The U.S. Equal Employment Opportunity Commission (EEOC) has scheduled a meeting for May 8, 2013 at its main headquarters in Washington, D.C., to address whether employer wellness programs may implicate, among other things, the confidentiality and permissible inquiry provisions of the Americans with Disabilities Act (ADA), the Genetic Nondiscrimination Act (GENDA), and other statutes enforced by the EEOC.

In Gail Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., et al., 12-3489-cv, April 26, 2013, the plaintiff filed claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, alleging that an affair that one of her brothers had with another worker in their family business created a sexually hostile work environment, and that following her complaints, both of her brothers retaliated against her. The lower court dismissed both claims, and the plaintiff appealed only the dismissal of her retaliation claims.

Continue reading "U.S. Second Circuit Court of Appeals Upholds Dismissal of Retaliation Claim Made in Connection with "Paramour Preference" Claim" »

In 2005, the New York City Council amended the New York City Human Rights Law ("NYCHRL") to make it clear that courts should construe New York City's anti-discrimination protections more broadly than federal discrimination protections. Under the Local Civil Rights Restoration Act of 2005, the New York City Council alerted courts to their mistaken assumption that interpretations of the NYCHRL should be coextensive with federal and New York State discrimination law. Consequently, courts began construing the NYCHRL much more broadly and in favor of discrimination claimants. Now, the Second Circuit Court of Appeals (which covers New York, Connecticut and Vermont) has confirmed that the NYCHRL is broader in its protections and application.

In Mihalik v. Credit Agricole Cheuvreaux North America Inc. (11-3361-cv) (April 26, 2013) , the Second Circuit reversed a grant of summary judgment in favor of the employer on plaintiff's sexual discrimination, sexual harassment, and retaliation claims. Specifically, the Second Circuit found that the District Court had applied federal standards in determining whether the employer was liable under the NYCHRL

The court summed up its conclusions as follows:

Continue reading "U.S. Second Circuit Court of Appeals Confirms Broader Construction Under New York City Human Rights Law " »

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in employment. In 1998, the United States Supreme Court held in Oncale v. Sundowner Offshore Servs., Inc. that sexual harassment also included same-sex harassment and violated Title VII. Recently, the United States Court of Appeals for the Second Circuit, which covers New York, Vermont and Connecticut, reversed a decision of a District Court in the Western District of New York, dismissing a same-sex harassment claim on summary judgment grounds. The Second Circuit concluded that there was ample evidence and issues of fact that could support a jury verdict in favor of the harassed employee.

In Barrows v. Seneca Foods Corp., Jeffrey Barrows alleged that his male supervisor, Victor Sanabria, sexually harassed him by touching his genitals and otherwise creating a hostile working environment on the basis of sex. Among other things, Sanabria referred to Barrows as a "faggot" and leveled vulgar sexual comments at him during work. In addition, Barrows alleged that Sanabria had likewise harassed other men in similar fashion, but not women. The District Court for the Western District of New York had previously dismissed the lawsuit, holding that "there was no evidence that [Barrows] had suffered discrimination because of his sex." (emphasis in original).

The Second Circuit reversed, noting that under the Supreme Court's decision in Oncale, the focus on whether sexual harassment has occurred is on "whether members of one sex are exposed to disadvantageous terms or conditions of employment [e.g. hostile work environment] to which members of the other sex are not." Indeed, this is the very essence of a sexual harassment claim, and it does not matter that the harasser and victim are of the same sex. In addition, in order for the sexual harassment to be illegal, it needed to be "severe or pervasive." The Second Circuit held that a jury could find that "Sanabria treated women better than men and that, therefore, men were 'exposed to [a] disadvantageous term[ ] or condition [ ] of employment to which [women] were not.'" (alterations in original).

Same-sex harassment cases tend to cause difficulties for courts because Title VII does not prohibit sexual orientation discrimination. Consequently, the same-sex harassment must rise to the level of sex discrimination in order to be illegal under Title VII. Under the New York State Human Rights Law and New York City Human Rights law, sexual orientation discrimination, including harassment, is illegal. Thus, many same-sex harassment cases are asserted as sexual orientation harassment claims under those New York laws.

Earlier this month, on March 5, 2013, a bill was introduced to increase the federal minimum wage from the current hourly rate of $7.25 to $10.10. According to the proposed Fair Minimum Wage Act of 2013 (S.460, H.R. 1010), the minimum wage would increase by .95 each year for three years. Thereafter, the minimum wage would increase automatically as a result of cost of living factors. A hearing on the bill will be held on March 13, 2013 before the Senate Committee on Health Education, Labor and Pensions.

Last week, on March 4, 2013, the United States Court of Appeals for the Second Circuit (which covers New York, Connecticut and Vermont), reaffirmed the importance for an employer to conduct a fact-specific analysis in considering requests for reasonable accommodation under the Americans with Disabilities Act (ADA).

In McMillan v. City of New York, it was undisputed that McMillan's disability necessitated treatment that prevented him from arriving to work at a consistent time each day. The Second Circuit noted that although in most contexts, timely arrival at work is considered an essential function of the job, which could render futile any attempts to reasonably accommodate the situation, it was not at all entirely clear whether timely arrival at work was an essential function of McMillan's job. Under McMillan's circumstances, he could offset the time missed with additional work hours in order to complete the essential functions of his job.

Ultimately, McMillan sued the City under the ADA, the New York State Human Rights Law, and the New York City Human Rights Law, alleging among other things that because the office remained open until 10:00pm, and he often worked past 7:00pm, he would still be able to arrive late and work the requisite number of full time hours per week.

Continue reading "Second Circuit Holds that Timely Arrival to Work Is not Always an Essential Function of the Job Under Disability Discrimination Laws" »

On March 4, 2013, AMC Entertainment Inc. was named a defendant in an overtime lawsuit, alleging violations of the Fair Labor Standards Act (FLSA) and New York Labor Law. The complaint, which was filed in the United States District Court for the Southern District of New York, alleges that AMC failed to provide overtime pay to employees, who worked as ticket sellers, ushers, concession workers and ticket takers, for the period commencing in March 2007 to the present.

According to the overtime complaint, the named plaintiff was not permitted to "punch in" until after she changed into her uniform, and was forced to punch out prior to changing out of her uniform at the end of her shift. The complaint alleges that, as a result of this "time shaving," her time cards do not accurately reflect the number of hours she was required to work.

On January 15, 2013, a federal court in Connecticut held that an employee who was fired for excessive absences based upon taking off several days to care for his wife following her hip replacement surgery and their son who was ill, suffered unlawful retaliation under the Family and Medical Leave Act (FMLA). Notably, the employee never asked for FMLA leave. However, the court in McNamara v. Trinity College held that where an employer is on notice of an employee's request for time off, and such time could potentially qualify as FMLA leave, then the employer may not terminate the employee for taking such leave. Of course, if the employer is unaware of the reasons for taking time off, then it would be difficult for an employee to prove that he or she was fired for taking FMLA leave.

On January 14, 2013, the Wage and Hour Division of the U.S. Department of Labor issued guidance in the form of an Administrator Interpretation, which seeks to clarify the definition of "son or daughter" under the Family and Medical Leave Act ("FMLA") as it pertains to a child 18 years old or older and is incapable of self-care.

The FMLA entitles eligible employees of covered employers to take unpaid leave for a medical or family reason. Among other things, the FMLA entitles an eligible employee to twelve weeks of leave in a 12-month period to care for the "serious health condition" of a son or daughter. In situations where the son or daughter is 18 years old or older, an employee is not permitted to take leave to care for such child unless the child is incapable of self-care because of a mental or physical disability at the time the FMLA leave begins.

In determining whether the condition qualifies as a mental or physical disability, employer considering leave requests must look to the Americans with Disability Act and related regulations issued by the Equal Employment Opportunity Commission, which provide a definition of such disabilities.

An individual is incapable of self-care when such individual requires active assistance or supervision to provide daily self-care in three or more of the "activities of daily living" or "instrumental activities of daily living."

Determinations under the FMLA depend upon the specific facts and circumstances of a particular situation.

On December 17, 2012, the United States Equal Employment Opportunity Commission ("EEOC") approved its Strategic Enforcement Plan for Fiscal Years 2013-2016 ("SEP"). The SEP establishes priorities and integrates all components of the EEOC's enforcement. In so doing, the SEP adopted the following national priorities:

1- Eliminating Barriers in Recruitment and Hiring. The EEOC intends to target class-based recruitment and hiring practices that discriminate on the basis of race, ethnicity or national origin, religion, age, gender (women), and disability.

2- Protecting Immigrant, Migrant and Other Vulnerable Workers. Among other things, the EEOC intends to target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting those workers who may not be aware of their rights to equal employment opportunity, or are otherwise reluctant to exercise them.

3- Addressing Emerging and Developing Issues.

4- Enforcing Equal Pay Laws. The EEOC will continue to target compensation disparities and practices in the area of gender or sex discrimination.

5- Preserving Access to the Legal System. The EEOC will scrutinize policies and practices that have the effect of discouraging employees from seeking relief under the applicable employment discrimination statutes.

6- Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

Continue reading "EEOC Approves Strategic Enforcement Plan for 2013-2016" »

Section 196-d of the New York State Labor Law prohibits an employer or his "agent" from participating in a tip pool intended for employees. At issue in Barenboim v. Starbucks Corporation, No. 10-4912-cv, ("Barenboim"), is whether a Starbucks "shift supervisor" is an "agent," and, thus, not permitted to share in tips with baristas, over whom they exercise limited supervisory functions. At issue in a related case, Winans v. Starbucks Corporation, No. 11-3199-cv, ("Winans") is whether "assistant store managers," whom Starbucks does exclude from participation in the tip pool, must be permitted to share in tips pursuant to section 196-d of the New York State Labor Law.

The issue in Barenboim turns on the meaning of the term "agent." In Winans, the issue is whether New York Labor Law § 196-d, although prohibiting certain classes of employees from participating in a tip pool, mandates that certain employees be included.

Both cases were filed in federal District Court for the Southern District of New York. The lower courts dismissed both cases, and the plaintiffs appealed. The Second Circuit Court of Appeals determined that because the issues were novel under New York State law, it would defer their determination and certify them for resolution to New York's highest court -- the New York State Court of Appeals.

Consequently, these fact-specific issues will remain unresolved for now.