Race discrimination charges increased in FY2007 from FY2006 by 12%.
Pregnancy discrimination charges saw a 14% increase in FY2007 from FY2006. In addition, the number of pregnancy discrimination charges has increased from FY1992 by 65%.
Retaliation charges increased from the prior year by 18%. For the first time ever, charges alleging retaliation represented the second highest number of charges received by the EEOC.
Disability discrimination charges increased by 14% from the prior year.
Age discrimination charges increased from FY2006 by 15%.
The increase in the number of charges filed with the EEOC compels greater funding for the EEOC, which could have used an increase anyway. Increased funding will permit the EEOC to take more of an active role in eliminating discrimination and educating employers on compliance with the law.
]]>The trial began on June 23, 2008 and ended on June 27, 2008. The Court found in favor of the plaintiff and awarded damages totaling $4.6 million.
The case represents another example of alleged exploitation of undocumented workers in violation of federal and state labor and employment laws.
]]>- removing the Supreme Court's requirement that in evaluating whether an
individual is disabled, the mitigating effects of medications and other measures
must be considered;
- including the "operation of a major bodily function" within the meaning of "major
life activity";
- abrogating the requirement that an individual claiming discrimination on the basis of
a perceived disability show that the impairment was regarded as limiting a major life
activity. Under the new law, an individual need only show that the employer
regarded the condition as an impairment;
- in considering whether an impairment is a disability, the impairment must be
considered in its "active" state;
- confirming the definition of "disability" under the Rehabilitation Act, which covers
federal, state and local government employees, with the definition under the ADA;
- requiring courts to interpret and construe the provisions of the ADA liberally.
The ADAA takes effect on January 1, 2009. For more information on the ADAA, please visit the Equal Employment Opportunity Commission's website.
]]>Once the ADAA is signed into law by President Bush, we will provide a summary of its provisions, which bring the ADA closer to the protections offered by the New York State and New York City anti-discrimination statutes.
]]>Stay tuned for greater protection against disability discrimination.
]]>SOX's whistleblower provisions expressly prohibit publicly traded companies or "any other officer, employee, contractor, subcontractor, or agent of such company" from retaliating against any employees who blow the whistle on corporate fraud. The Department of Labor has been dismissing claims of employees who work for nonpublicly traded companies, despite that those companies are subsidiaries of publicly traded companies. An example of such a situation is a nonpublic investment banking subsidiary of a publicly traded bank. Under the Department of Labor's interpretation of SOX, the employees of the bank would be protected under the law, while those employed by the investment subsidiary would not.
According to Senators Leahy and Grassley, the whistleblower provisions of SOX were enacted as a result of the fraud perpetrated by Enron, "through the misuse and abuse of its shell corporations and subsidiaries." Moreover, according to the senators, the plain language of SOX, including the "agent of such company" language, permits its application to subsidiaries of nonpublic companies.
Indeed, the Department of Labor's unduly narrow interpretation of SOX is contrary to both the letter and spirit of the law. Without adequate whistleblower protection, employees will be less likely to complain of corporate fraud.
]]>In 2002, the New York State legislature amended the Human Rights Law to include protection for discrimination on the basis of sexual orientation. New York City's Human Rights Law has long prohibted sexual orientation discrimination. The passge of ENDA would benefit those employees living in states or municipalities that have not enacted laws banning sexual orientation discrimination.
ENDA would reinforce the public policy of encouraging employers to render employment decisions on the basis of qualifications, performance and merit, as opposed to considerations that do not in any way affect an employer's ability to perform the functions of a job.
]]>Specifically, the agreement calls for J. Siebold to pay $1.07 million in overtime pay as well as $160,000 in interest and penalties, while Finklestein-Morgan is required to guarantee that the payments will be made. In addition, the companies are banned from retaliating against employees who came forward to complain about the lack of overtime pay.
]]>The Act differs from New York's general whistleblower law in several respects, but mainly in that an employee complaining under the Act need not be certain that there was an actual violation of law. As long as the employee has a good faith or reasonable belief that a violation has occurred, the Act's whistleblower protection will apply. Under New York law, however, an employee is only protected if he or she complain about an "actual" violation of law that poses a threat to the public health and safety. Consequently, protection under New York law is limited.
]]>The Court of Appeals' decision substantially limits the class of employees, who are protected from retaliation, despite that an argument could be made that it should apply to any employee who observes improper conduct by a health care provider. Nevertheless, New York's high court felt that a narrow interpretation more likely reflected legislative intent.
Unfortunately, the decision is contrary to the statute's purpose: making sure that employees come forward with information relating to patient care without fear of retribution.
This decision highlights the importance for employees to ensure that they are legally protected from retaliation before making any complaint. Indeed, the whistleblower laws do not cover everyone or all kinds of conduct.
Recently, the Commissioner of Labor released guidelines for the application of Section 206-c. The law and guidelines address a growing public health concern as more and more recent mothers return to work shortly after giving birth.
]]>Such agreements in the broadcasting industry had the effect of either requiring broadcasters to move out of their geographical areas or ending their careers.
The Broadcasting Freedom Work Act alleviates this problem by providing that “a broadcasting industry employer shall not require as a condition of employment, whether in an employment contract or otherwise, that a broadcast employee or prospective employee refrain from obtaining employment: (a) in any specified geographic area; (b) for a specific period of time; or (c) with a particular employer” following termination of employment. This protection cannot be waived and would apply to all broadcasting industry on-air and off-air employees excluding those holding management positions.
Governor Paterson notes that this Act will provide employment independence and options to broadcasters who “play an important role in our democracy by providing the public with critical news and analysis that help us shape the ongoing discourse about the future of our society.”
Peters involved an employee of Gilead who suffered a shoulder injury. On December 5, 2002, Peters took what he thought was FMLA leave in order to undergo corrective surgery. The day after he left for his leave he received a letter from his employer discussing both that the Family Medical Leave Act went into effect on August 5, 1993 and how an employee was eligible to take FMLA leave. This letter, like the employee handbook, mentioned nothing regarding a 50/75 exception. The letter informed Peter that if he returned to work before “[his] FMLA” leave was expired he would get back his position. The letter stated that he would have to return to work by February 28, 2003. Peter returned to work on December 16, 2002 but had to take another leave when his medical treatment changed. Again he received a letter from his employer calculating when he would have to return to work from his FMLA leave to keep his position- this time subtracting the time he already took off during his first leave. Peters was prepared to return to work before his 12 weeks expired but was informed that his position was given to another employee. Peters was offered another position but refused it and was ultimately terminated, this suit was brought in response to his termination.
Peters argued that Gilead was “equitably stopped” from claiming FMLA’s 50/75 exception because of the representations the company made to Peters in its employee handbook and the subsequent letters to Peters regarding his entitlement to a 12 week medical leave. The District Court, focusing on Peters FMLA claim, found that all the elements of equitable estoppel were not met and granted summary judgment in favor of Gilead.
The 7th Circuit reversed and remanded the case for further consideration of Peters’ contract based liability claim of promissory estoppel- an affirmative cause of action that “steps in where a promise lacks the elements of a binding contract but has induced detrimental reliance on the part of the promisee,” in this case, the employee. Under this cause of action, the court notes, Peters' statuary ineligibility for FMLA leave would be irrelevant since the Family and Medical Care Leave provision of Gilead’s handbook did not exclude any employee from receiving 12 weeks of leave except those that did not meet the 12 months/ 1,250 hours requirement.
Although the 7th Circuit does not encompass New York State, this case appears to be one of first impression and New York state and federal courts would likely look to it when faced with a similar issue. Moreover, even though New York law generally does not view employee handbook provisions as contractual, particularly if accompanied by a prominent disclaimer, because the facts of Peters implicated FMLA rights, a court might be swayed that equity requires that an employee not be punished for being misled by a faulty FMLA policy. This is particularly true because the FMLA requires that employees be informed of their rights through policy manuals.
The warning to employers: One size does not fit all. It is imperative that employee handbooks be geared toward the actual employment practices of the company in a specific geographical location. “Generic” policies that do not reflect the employment practices of a company can result in liability.
Under the current reading of the EPA an employer can mount an affirmative defense that pay differentials between women and men in the same position are due to “factors other than sex.” With the proposed amendments to the Bona Fide Factor Defense provision employers would only be able to raise this defense where they could show that the relied upon factor “(i) is not based upon or derived from a sex-based differential in compensation; (ii) is job-related with respect to the position in question; and(iii) is consistent with business necessity.” Such an affirmative defense would not apply if an employee could show that there is an alternative practice that would serve the same business purpose without creating such differential wages and that the employer refused to employ such an alternative.
In addition, the proposed Act calls for the establishment of financial grants that public agencies would use to establish programs geared to training girls and women in the art of effective negotiation. The aim of the program is to address critics that argue pay differentials can be attributed to the female lack of skill, or assertiveness, in salary negotiations.
New York has its own equal pay statute, which is based upon the federal EPA. Although the Paycheck Fairness Act does not amend the New York statute in any respect, New York employers and employees are protected by the federal Paycheck Fairness Act, as are employees of other states.
Jessica Nelson, a summer associate, assisted in the preparation of this blog.
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