New York Employment Attorney Blog

U.S. House of Representatives Passes Compensatory Time Amendment to Fair Labor Standards Act

2013-05-22T15:12:45Z

The U.S. House of Representatives have taken a major step toward a significant amendment to the 75 year old Fair Labor Standards Act (FLSA). On May 8, 2013, the U.S. House of Representatives passed the "Working Families Flexibility Act of 2013" (H.R. 1406). The bill, which is now in the Senate, proposes that employers be permitted to provide compensatory time instead of overtime pay of 1-1/2 times an employee's regular hourly rate for hours worked in excess of 40 in a workweek.

Employers would be permitted to provide compensatory time only if authorized by a collective bargaining agreement, or, for nonunion employees, if the employer and employee enter into a clear written agreement providing for compensatory time. An employee could not be forced to enter into such an agreement. The bill contains other requirements and limitations. Nevertheless, the bill provides employees with an option other than receiving overtime pay for hours worked in excess of 40.

The bill is backed by business groups, while other groups see it as an attack on workers' rights. Much of the objection stems from the fact that the bill does not permit an employee to unilaterally decide when to take any compensatory time off. At the same time, employers would still be able to mandate that the employee work extra hours, without having to pay overtime.

EEOC Issues Revised Guidance on Specific Disabilities

2013-05-16T17:56:59Z

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."

]]> New York State and New York City each has laws prohibiting discrimination on the basis of disability. The definitions of "disability" contained within the New York State and New York City laws were always substantially broader than the definition contained within the ADA. This remains true, even after the ADAAA was enacted.

Do Employee Wellness Programs Violate Federal Law?

2013-05-02T15:08:55Z

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.

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

2013-05-01T14:23:22Z

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.

]]> The court noted that although the plaintiff was not appealing the dismissal of her hostile work environment claim, the dismissal was proper, because the claim was similar to a "paramour preference" claim, in which an employee complains that a romantic relationship between the employer and another employee results in preferential treatment for that employee. The Second Circuit noted that such claims do not result in "discrimination on the basis of sex." In order to prevail on a sex-based hostile work environment claim, the discrimination must be because of the employee's sex.

As far as the retaliation claim was concerned, the Second Circuit held that the plaintiff's internal complaint was not based upon a "reasonable belief that the underlying challenged actions of the employer violated the law." Moreover, the court rejected the contention that the plaintiff had a "good faith reasonable belief that she was opposing" an unlawful discriminatory practice. The court's assessment was based upon the "totality of circumstances." Finally, the Second Circuit found that the plaintiff could not satisfy the requirement that she engaged in "protected activity" of which the employer was aware. While there was no dispute that she did complain about the relationship, the complaint did not appear to be premised upon the fact that she believed the conduct to violate Title VII and New York law. Rather, the plaintiff's complaints appeared to be based upon her belief that the relationship was undermining her authority as Human Resources manager. The court concluded that the plaintiff's belief that the conduct was unlawful was not objectively reasonable, and even called into question the plaintiff's subjective belief that the conduct she complained of constituted unlawful discrimination.

Nevertheless, the court left the door open to the possibility that "protests about a 'paramour preference' scenario could amount to protected activity. Had [the plaintiff] complained, or even suggested, that she was being discriminated against because of her sex (or some other trait), we would have a different case."

Consequently, the court affirmed the dismissal of the plaintiff's sexual harassment and retaliation claims under Title VII and New York State Human Rights Law.

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

2013-04-29T19:25:13Z

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:

]]> (1) NYCHRL claims must be analyzed separately and independently from federal and state discrimination claims, . . . (citations omitted);

(2) the totality of the circumstances must be considered because “the overall context in which [the challenged conduct occurs] cannot be ignored,” . . . (citations omitted);

(3) the federal severe or pervasive standard of liability no longer applies to NYCHRL claims, and the severity or pervasiveness of conduct is relevant only to the scope of damages. . . .(citations omitted);

(4) the NYCHRL is not a general civility code, . . . (citations omitted), and a defendant is not liable if the plaintiff fails to prove the conduct is caused at least in part by discriminatory or retaliatory motives, . . . (citations omitted), or if the defendant proves the conduct was nothing more than “petty slights or trivial inconveniences,” . . . (citations omitted);

(5) while courts may still dismiss “truly insubstantial cases,” even a single comment may be actionable in the proper context, . . . (citations omitted); and

(6) summary judgment is still appropriate in NYCHRL cases, but only if the record establishes as a matter of law that a reasonable jury could not find the employer liable under any theory . . . (citations omitted).

The Second Circuit's decision in Mihalik confirmed that although the NYCHRL is not a "general civility code," a single discriminatory comment could result in a finding of discrimination under the NYCHRL. By further reinforcing the notion that conduct need not be "severe or pervasive," the Second Circuit emphasizes that the true test is whether employees of one sex are being treated differently from employees of the opposite sex.

U.S. Second Circuit Court of Appeals Upholds Same-Sex Harassment Claim

2013-03-14T19:39:56Z

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.

Congress Considers Bill to Increase Minimum Wage

2013-03-12T18:24:05Z

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.

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

2013-03-11T15:28:37Z

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.

]]> The District Court (Southern District of New York) had dismissed his claims of disability discrimination, under the ADA and New York State and New York City laws. The Second Circuit reversed, and stated the following:

"For many years prior to 2008, McMillan’s late arrivals were explicitly or implicitly approved. Similarly, the fact that the City’s flex-time policy permits all employees to arrive and leave within one-hour windows implies that punctuality and presence at precise times may not be essential. Interpreting these facts in McMillan’s favor, along with his long work history, whether McMillan’s late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute. . . . Physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. While a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the non-moving party. Such an inquiry was not conducted here."

The Second Circuit concluded that dismissal of the claims was premature, and that a jury could find in McMillan's favor.

Movie Chain Sued in Putative Class Action for Overtime Pay in New York

2013-03-06T15:03:06Z

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.

Employee Could Proceed with FMLA Retaliation Claim Even Though He Never Requested FMLA Leave

2013-01-22T17:03:23Z

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.

U.S. Department of Labor Issues Guidance on Family Leave to Care for Adult Child

2013-01-16T22:45:12Z

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.

EEOC Approves Strategic Enforcement Plan for 2013-2016

2013-01-09T14:45:45Z

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.

]]> The EEOC noted in its SEP that over the last decade, the number of charges filed against private and public employers increased by more than 22%.

For more detailed information concerning the SEP, click here: U.S. Equal Employment Opportunity Strategic Enforcement Plan FY 2013-2016.

Second Circuit Defers Decision and Certifies Questions Arising Under New York Labor Law to New York Court of Appeals

2012-10-24T18:02:59Z

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.

Second Circuit Rules that Lower Court Erred By Declining to Order Injunctive Relief Ensuring Sexual Harasser was no Longer in a Position to Sexually Harass

2012-10-22T15:31:46Z

Following a two-week trial, a jury returned a verdict finding that the employer had subjected a class of female employees to a sexually hostile work environment. The jury awarded compensatory and punitive damages to the class of employees who had been sexually harassed. The court, however, declined to impose injunctive relief to ensure that the sexual harasser would not be in a position to harass women in the future.

The Second Circuit Court of Appeals, which covers New York, Connecticut and Vermont, reversed and held that under the circumstances of the case, injunctive relief was necessary to prevent future sexual harassment.

In Equal Employment Opportunity Commission v. KarenKim, Inc., 11-3309-cv, the Second Circuit determined that the employer had not adopted adequate measures to ensure that the sexual harassment would not recur. The court noted that the sexual harasser and owner of KarenKim were involved in a romantic relationship, which meant that he might still have access to the employees even if he were no longer technically employed as a supervisor. In addition, the court noted that the complaint procedure adopted by KarenKim to prevent future sexual harassment following the lawsuit was ineffective in that it required that complaints be made in writing and within 30 days of the alleged harassment in order to be acted upon. This coupled with the fact that the initial sexual harassment went unchecked for years prompted the Second Circuit to order the New York federal district court to impose the injunctive relief requested by the EEOC.

Salvatore G. Gangemi Named to Super Lawyers Four Years in a Row

2012-10-09T16:49:15Z

Salvatore G. Gangemi has been named by Super Lawyers list as one of the top attorneys in New York State for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For information about Super Lawyers, go to superlawyers.com.

The first Super Lawyers list was published in 1991 and by 2009 the rating service had expanded nationwide. In February 2010 Super Lawyers was acquired by Thomson Reuters the world's leading source of intelligent information for business and professionals.