New York Employment Attorney Blog

New York Federal Appellate Court Rules that Employee Claiming Sexual Harassment May not be Required to Complain to Multiple Managers about Harassment

2010-03-03T20:38:39Z

The plaintiff, Diane Gorzynski, brought forth claims alleging hostile work enviornment, age and sex discrimination, as well as retaliation for complaints of race and age discrimination, against JetBlue, her employer. Gorzynski v. JetBlue Airways, Corp. (February 19, 2010).

]]> Gorzynski, a 54-year-old woman, worked as a customer service agent for JetBlue's Buffalo, New York station. She alleged that her supervisor made multiple sexually inappropriate comments and statements, frequently grabbed her and other women around the waist, or attempted to tickle female employees, over a 7 month period. She also alleged she received disparate treatment due to her age. She was given a negative performance review by her supervisor, who at the time had only supervised her for two weeks. Younger male and female employees, who had performance and/or disciplinary issues, were given good performance evaluations and even promoted.

Gorzynski complained to her supervisor, and another manager, about the gender and age discrimination, and she was subsequently put on 60 days probation. During this time, Gorzynski also witnessed her supervisor exhibit behavior, and make comments, that were racially offensive.

Gorzynski, and several co-workers, made complaints of race discrimination. Approximately one month after she complained about race discrimination, and four months after she alleged age and gender discrimination, Gorzynski was terminated and replaced by a 22-year-old co-worker with a history of disciplinary problems.

Typically, when the harasser is a supervisor, the harassing conduct is automatically imputed to the employer. The employer, however, is entitled to raise the Faragher/Ellerth affirmative defense. The Faragher/Ellerth affirmative defense consists of two elements. The first, is that "employer exercised reasonable care to prevent and correct promptly any harassing behavior." The second is that the plaintiff "unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise."

Jet Blue moved for summary judgment dismissing the case on the ground that Gorzynski had taken advantage of Jet Blue's internal harassment complaint procedures. The lower court agreed with Jet Blue and dismissed the case, finding that that Gorzynski should have complained to other members of management or to its human resources department.

The United States Court of Appeals for the Second Circuit, which covers New York, Vermont and Connecticut, reversed the lower court's decision. The Second Circuit found that Jet Blue was not entitled to the Faragher/Ellerth affirmative defense. The Court found that the Gorzynski was not required to go from "manager to manager" until she found someone to address her complaints. A harassed employee is not required to exhaust every avenue available to her, especially when doing so would be "ineffective or antagonistic." There may be instances where it would be unreasonable for an employee to only complain to the harasser, but Gorzynski's actions, under these circumstances, were not unreasonable. The Second Circuit further held that a determination of what is "unreasonable" should be made on a case by case basis and upon the facts and circumstances particular to that case.

The Second Circuit's decision relates to sexual harassment violations under federal law-- Title VII of the Civil Rights Act of 1964. The standard of liability is quite different under the New York City Human Rights Law, which automaticaly imposes liability on the employer if the harassment is perpetuated by a supervisor or manager. Even where the employer has a sexual harassment complaint policy, under New York City law an employer will not be completely released from liability. At best, under the New York City law such a policy can be considered by a jury in determining the amount of damages the employee would be entitled to receive. Consequently, employees working in New York City have substantially more protection against sexual and other types of harassment, than employees working throughout New York State.

Second Circuit Considers Academic Requirements for FLSA Professional Exemption

2010-02-20T05:58:41Z

A recent decision by the United States Court of Appeals for the Second Circuit (which covers New York, Connecticut and Vermont) clarified the "academic requirements condition" pertaining to the FLSA's professional exemption. In Young v. Cooper Cameron Corp., No. 08-5847 (2d Cir. Nov. 12, 2009), the court held that the plaintiff was not exempt from the FLSA's overtime provisions.

]]> Plaintiff, Andrew Young, a high school graduate, worked in a position requiring technical expertise. The technical position did not require a college degree, but rather, 12 years of relevant experience. After Mr. Young was laid off, he brought suit alleging he was misclassified by his employer as "exempt" and should have been paid overtime.

The FLSA requires employers to pay non-exempt employees one and a half times their regular rate of pay for any hours worked in excess of 40 hours during any given workweek. A "Professional" is exempt from the FLSA's overtime provision if his or her work requires "advanced knowledge" (i.e., work that is intellectual in character), if the advanced knowledge is in a field of science or learning, and the "advanced knowledge was acquired through a prolonged course of specialized intellectual instruction."

The Second Circuit held that the professional exemption applied to employees in positions that require "knowledge that is customarily acquired after a prolonged course of specialized, intellectual instruction or study." The professional exemption will not apply to a job that does not require this type of knowlege, regardless of the job duties performed. The court also took into consideration the fact that no employee in plaintiff's job had needed advanced education or instruction. Ultimately, the court held that Mr. Young was not an exempt professional under the FLSA, and was entitled to overtime compensation.

EEOC Releases 2009 Charge Statistics

2010-01-07T21:52:33Z

On January 6, 2010, the Equal Employment Opportunity Commission ("EEOC") released data concerning charges of discrimination filed with the agency in FY2009. The EEOC resolved a record number of charges alleging harassment and violations of Title VII of the Civil Rights Act. FY2009 saw the second highest number of charge filings nationwide, 93,277 --just about 2,000 filings less than the record high set for FY2008.

]]> The EEOC reported an increase in charge filings for certain types of discrimination, such as disability, religion and national origin discrimination. Charges alleging age discrimination reached their second highest level, while charges alleging race, retaliation and sex discrimination continued to be the most frequent type of charge filed with the EEOC. The EEOC attributes such historic levels of filings to the public's increased awareness of their rights, greater accessibility of the public to the EEOC, current economic conditions, as well as demographic changes within the labor force.

FY2009 also showed an increase in investigator producitivity. In FY 2009, Investigators resolved the second highest number of charges, per investigator, in the past 20 years. Ultimately, the EEOC collected approximately $376 million in monetary relief for victims of discrimination and resolved 85,980 charges nationwide in FY2009.

Historically the EEOC has been both underfunded and understaffed, which has affected its ability to timely handle the record numbers of charges filed with the Commission each year. Despite a hiring frenzy by the EEOC in FY2009, expect the backlog in the resolution of charges to continue.

U.S. Court of Appeals, Second Circuit Finds Loan Underwriters Entitled to Overtime Pay

2009-11-28T03:51:12Z

In Whalen v. J.P. Morgan Chase, the United States Court of Appeals for the Second Circuit, held that a loan underwriter, whose job involved approving loans, in accordance with specific guidelines provided by his employer, was not exempt from the Fair Labor Standards Act ("FLSA"). The Second Circuit covers New York, Connecticut, and Vermont.

]]> Whalen claimed that he frequently worked in excess of 40 hours per week, requiring the payment of overtime under the FLSA as well as New York's Minimum Wage Act and regulations. His employer, Chase, treated underwriters as exempt from overtime. Chase relied upon the "bona fide administrative" exemption recognized under the FLSA and New York law. The lower court had ruled in favor of Chase.

A worker is employed in a bona fide administrative capacity if he or she performs work "directly related to management policies or general business operations" and "customarily and regularly exercises discretion and independent judgment." 29 C.F.R. § 541.2(a). However, production or sales-related work does not constitute "administrative" type work sufficient to trigger the exception. The Second Circuit reversed the district court, and found that Whalen was employed in a "production" and not administrative capacity.

According to the court,

we have drawn an important distinction between employees directly producing the good or service that is the primary output of a business and employees performing general administrative work applicable to the running of any business.

Congress Poised to Overturn Supreme Court's Recent Case on Age Discrimination

2009-11-04T13:51:00Z

Congress is considering legislation overturning a recent Supreme Court decision holding that plaintiffs asserting claims of age discrimination under the Age Discrimination and Employment Act of 1967 ("ADEA") must prove that age was the "but for" cause of the challenged adverse employment action.

]]> The Supreme Court's decision in Gross v. Financial Services modified the standard of proof in age discrimination cases. Prior to Gross, courts had deemed the standard of proof in age discrimination cases to be the same as that which applies in other types of discrimination cases, arising under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). Title VII applies to discrimination on the basis of race, color, religion, sex, and national origin.

Under Title VII, a plaintiff is not required to prove that the discriminatory basis was the "but for" reason for the adverse employment action. Rather, a plaintiff suing under Title VII only need prove that the discriminatory basis was a "motivating" reason for the adverse action, which means that a plaintiff can still prevail under Title VII even if there are other reasons for the adverse action taken.

The Supreme Court in Gross distinguished age discrimination matters from other matters, based upon the different statutory language used in the ADEA, which, according to the Supreme Court, did not appear to support a "motivating factor" standard.

The Protecting Older Workers Against Discrimination Act would overrule Gross by amending the ADEA to state that a plaintiff could prevail under the ADEA by demonstrating that age was a "motivating factor" for the complained of practice.

Although it appears that the amendment will become law, for the time being the decision in Gross should have no effect on age discrimination cases asserted under the New York State and New York City Human Rights Laws. Unlike federal law, New York State's and New York City's laws do not distinguish between different types of discrimination. Consequently, although New York state and federal courts look to federal law in interpreting New York State's and New York City's anti-discrimination laws, nothing in the New York State and City laws would support the interpretation applied in Gross.

The Protecting Older Workers Against Discrimination Act was introduced in the House and Senate as H.R. 3721/ S. 1756.

An Important Amendment to Take Effect Under New York Labor Law

2009-10-14T03:09:17Z

An important amendment to Article 6 of the New York Labor Law is to become effective on October 26, 2009. The amendment affects New York Labor Law section 195, and requires New York employers to advise all new employees in writing of their regular rate of pay and pay day.

]]> Employers are also require to provide employees who are entitled to overtime under New York State and federal law their regular hourly rate and overtime rate. The amendment to New York Labor Law 195 requires that the employer obtain a written acknowledgment from the employee confirming that the employee has received the notification under the amendment.

The amendment does not apply retroactively. Rather, the notice must only be provided to employees hired on or after October 26, 2009.

You can review the amendment by clicking here: New York Labor Law Amendment.

Student Interns Cannot Work for Free

2009-09-29T23:52:08Z

Many students accept unpaid jobs with the belief that the work experience is the ultimate payoff. However, with the current economic recession, students cannot afford to work for free, and believe it or not, free student labor is against the law.

]]> Under the Fair Labor Standards Act, student interns must be paid at least the minimum wage or supplied with academic credits from their respective schools. The current minimum wage in New York State and Fair Labor Standards Act is $7.25 per hour.

According to an article on forbes.com, "Unpaid internships can leave employers open to increased liability by financially binding them to students' universities if liabilities arise, such as workers compensation obligations. At present, one in five internships in the U.S. has an illegal compensation structure."

U.S. Court of Appeals for the 2nd Circuit Holds Employer Liable for Age Discrimination Based on its Contractor's Conduct

2009-09-13T03:26:45Z

On September 10, 2009, the U.S. Court of Appeals for the Second Circuit, which covers New York, Connecticut and Vermont, held that an employer may be held liable for age discrimination based upon the acts of others, including its independent contractors. According to the court, an employer can be held liable for the acts of independent contractors if the independent contractor is acting on behalf of the employer.

]]> In Halpert v. Manhattan Apartments, Inc., Halpert applied for a position with Manhattan Apartments, Inc. to show apartments to prospective buyers. Manhattan Apartments retained Brooks, an independent contractor, to interview Halpert for the position. According to Halpert, Brooks told him that he was "too old" for the position.

According to the court, Manhattan Apartments' potential liability depended upon whether Brooks was its hiring agent, or apparent hiring agent, when Halpert was interviewed for the position. The court determined that there were issues of fact precluding dismissal of the case because it was not clear whether Brooks was acting on his or Manhattan Apartments' behalf.

Consequently, the court reversed the decision of the District Court (Southern District of New York) and reinstated the claim.

Although the case involves age discrimination, its reasoning applies equally to all types of discrimination claims.

New York Increases Damages Potential for Workers with Amendment to New York Labor Law

2009-09-12T03:22:33Z

On August 26, 2009, the New York State legislature amended the damages provision of New York's "Payment of Wages" law, set forth in Article 6 of the Labor Law. Among other things, the amendment modifies the standard for recovering the 25% liquidated damages authorized by section 198 of the Labor Law.

]]> Prior to the amendment, which takes effect on November 24, 2009, employees alleging violations of the wage payment provisions of Article 6 had to prove that the employer's violation of the law was "willful" in order to recover liquidated damages.

The amendment appears to shift the burden of proof on this point directly upon the employer. Thus, in a case in which an employer is found to have violated New York's Payment of Wages law, an employer will be required to pay liquidated damages, unless it can show that it acted in good faith and believed that its nonpayment of wages complied with the law.

Clearly, this amendment benefits employees, who will no longer need to demonstrate willfulness in order to recover liquidated damages under New York's Labor Law.

New York City Council Considers Paid Sick Leave Bill

2009-09-09T04:39:53Z

The New York City Council has proposed a law that would provide paid sick days to all private sector workers.

According to the Department of Justice Office of Domestic Social Development, as of February 2009, 76% of low wage workers and 48% of full-time private sector workers are not paid for sick days.

]]> Under the Earned Sick Leave Bill, New York employees would be paid for up to 9 sick days per year or 1 hour for each 30 hours worked. Workers who work for employers with 10 or fewer employees would earn up to 5 sick days per year.

The proposed New York City law is limited in that employees cannot earn the paid sick days until they have been employed for 90 days. Employees also have to provide the employer with notice of how much sick time is needed and the reason for the requested sick days.

Mayor Bloomberg is reported to support the bill.

The Earned Paid Sick Leave bill is yet another example of the New York City Council's progressive stance on employee rights. Indeed, the New York City Human Rights Law is viewed as being much broader than the New York State Human Rights law and federal anti-discrimination law.

Congress Considers Legislation Banning Employment Discrimination on the Basis of Sexual Orientation

2009-08-29T05:54:51Z

The Senate and House are considering legislation to ban employment discrimination on the basis of actual or perceived sexual orientation and gender identity. The Employment Non-Discrimination Act of 2009 is intended to amend Title VII, which currently prohibits discrimination on the basis of sex, race, national origin, religious discrimination. In addition, the bills would ban retaliation against an employee for complaining of sexual orientation discrimination.

]]> The proposed statute would not apply to religious organizations or the military.

Despite the current absence of federal protections against sexual orientation discrimination, New York State's Human Rights Law and New York City's Human Rights Law each prohibit employment discrimination on the basis of sexual orientation. The passage of federal prohibitions against such discrimination would benefit those employees living in states or municipalities that have not enacted laws banning sexual orientation discrimination.

New York State Human Rights Law Amended to Protect Domestic Violence Victims

2009-08-03T05:22:59Z

Recently, Governor David Patterson signed legislation amending the New York State Human Rights Law to prohibit an employer from discriminating against an individual based on his or her status as a victim of domestic violence. This extension of the New York law fills a gap in federal law, which does not contain any such protection. In 2001, New York City amended the New York City Human Rights Law to prohibit similar discrimination. Now, New York employees outside of New York City will be entitled to the same protections.

]]> According to the amendment, a domestic violence victim is defined as an individual who has been subjected to acts or offenses addressed under section 812(1) of the New York Family Court Act.
The amendment to the New York State Human Rights Law (A0075/S958), reflects New York's strong commitment to protecting employment opportunities for victims of domestic violence in New York State.

New York Modifies Minimum Wage Rates Effective July 24, 2009

2009-07-23T05:21:51Z

In our last blog, we reported that the federal minimum wage was set to increase on July 24, 2009, which would result in an increase from $6.55 to $7.25 per hour, thereby making the minimum wage rate under federal law higher than the minimum wage under New York law, which was $7.15. Under such circumstances, the New York minimum wage would be replaced by the higher rate under the federal Fair Labor Standards Act. Nevertheless, the New York State Department of Labor has acted by formerly increasing the wage rate under New York law to $7.25.

]]> The New York minimum wage rate increases are reflected in a July 23, 2009 modified wage order, which is to be effective on July 24, 2009.

Among other things, the New York Department of Labor increased the "tip credit" that restaurants are entitled to take, but which still result in an increase to the minimum wage for food service workers. Consequently, food service workers who receive tips must now be paid a minimum wage of $4.65, instead of the prior $4.60. This increase in the minimum wage also affects the overtime premium to be paid New York food service workers.

In addition, the amount a New York employer has to pay to employees for uniform maintenance has increased from $8.90 to $9.00 per week for employees who work more than 30 hours per week, from $7.00 to $7.10 per week for those who work over 20 hours per week, and $4.25 to $4.30 for employees who work fewer hours.

The New York Department of Labor made no changes to the permitted meal allowance and lodging allowance rates employers are entitled to take.

Finally, the New York Department of Labor incorporated a modest increase in the minimum weekly salary required in order for an employee to be deemed exempt from payment of overtime under New York law. In order to satisfy this minimum salary test, employees must be paid at least a minimum weekly salary of $543.75, increased from $536.10.

Federal Minimum Wage Increase to Take Effect on July 24, 2009

2009-07-22T03:39:46Z

Based upon 2007 amendments to the Fair Labor Standards Act (FLSA), the federal minimum wage is set to increase from $6.55 to $7.25. This increase results in the federal minimum wage rate once again being higher than the minimum wage required under New York law. Currently, New York law requires that employers pay a minimum wage of no less than $7.15. Because the New York minimum wage was higher than that required under the FLSA, employers were required to comply with the New York State minimum wage.

]]> As a result, for New York employers that were already required to pay employees a minimum wage of $7.15 under New York law, this latest increase under the FLSA only results in an increase of 10 cents.

The FLSA minimum wage increase will impact employers in those states in which the minimum wage under state law was less than that provided under the FLSA. Thus, employers in those states will be required to increase their minimum wage payments by 70 cents per hour.

The 2007 amendments do not contemplate any further increase to the minimum wage rate, and there is no increase currently proposed to the New York minimum wage rate.

Thus, for now, the laws governing the payment of minimum wage and overtime pay under the FLSA and New York law will remain the same barring any further legislative action.

New York Area Car Washes Agree to Pay Employees $3.4 Million for Wage Violations

2009-07-01T15:29:24Z

Several New York City and area car washes, together with their corporate president, have agreed to pay 1,187 current and former employees a total of $3.4 million, reflecting back pay and liquidated damages in order to resolve a lawsuit filed by the U.S. Department of Labor under the Fair Labor Standards Act (FLSA). The lawsuit was filed in the United States District Court for the Southern District of New York.

]]> The agreement incorporates a final partial consent judgment. Prior to this agreement, the New York car washes had already agreed to pay $1,348,489 in back wages, liquidated damages, and interest for over 200 employees of the New York car washes' related corporations. Thus, the lawsuit filed in the Southern District of New York has resulted in a total recovery of over $4.7 million for more than 1,200 employees.

According to the Secretary of Labor, Hilda L. Solis, who commented on the New York FLSA dispute, "[t]his case should be a loud wake up call to other employers of vulnerable workers that the U.S. Department of Labor will not hesitate to pursue them in federal court in order to compel them to pay employees properly for all hours worked."

In addition to the FLSA, the New York Labor Law requires employers to pay the minimum wage and overtime pay for hours worked over 40 in a workweek. In addition, the New York minimum wage rate is currently higher than that required under the FLSA.