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NYC Litigation Blog

Tuesday, July 19, 2016

Important Information about the Defend Trade Secrets Act


What is the Defend Trade Secrets Act?

When President Obama signed the Defend Trade Secrets Act (DTSA) last month, he provided business owners with another tool to protect the confidential information that gives them an economic advantage over their competitors. There is now a new cause of action in federal court designed to prevent and/or punish the misappropriation of trade secrets. Significantly, the DTSA does not preempt state laws regarding these matters, so employers and owners can now bring legal actions under both DTSA and state laws. It is always wise to engage the services of an experienced, well-reputed employment and copyright law attorney when dealing with such issues and disputes since they can be crucial to the success, or even the survival, of your business.


Read more . . .


Tuesday, July 19, 2016

Employee Wellness Programs & The Obligations Of Employers


Employers sometimes desire to implement health programs for their workers, which serve to facilitate healthy lifestyles and decrease healthcare overheads.  These employee programs are usually referred to as “participatory” or “health-contingent” wellness programs, depending on whether the worker is required to partake in a certain health arrangement.  However, employers have a plethora of requirements that they must follow in order for these programs to be legally acceptable. 

For example, when employers desire to promote and foster the health of their employees through certain “employee wellness programs,” they have to ensure that the employees’ personally identifiable and health details are kept confidential.


Read more . . .


Monday, June 27, 2016

Your Work—How To Protect It With Copyright Registration


Are you a musician, artist, or writer and have an authentic work that you would like to protect?  

Your creation does not need to be published in order to file for protection.  However, it cannot merely be an idea.  An idea must, instead, be established in a “tangible medium of expression,” such as through a book, photo, drawing, or piece of architecture.  Moreover, you must be the true owner or author of the work in order to protect it.    

Copyright registration is optional and protection attaches to your work upon creation; however, registration is especially beneficial if you become involved in a lawsuit.


Read more . . .


Thursday, June 16, 2016

Pregnancy Discrimination


What constitutes pregnancy discrimination?

As of May 6, 2016 the definition of pregnancy discrimination was clarified by the New York City Commission on Human Rights under the New York City Human Rights Law (NYCHRL) which gives clear examples of the particular accommodations employers have to make for women relative to pregnancy-and-childbirth-related medical conditions.

Previous Laws Prohibiting Gender Discrimination

Before the new law, the Pregnant Workers Fairness Act (New York City Administrative Code § 8-107(22)(a) already required employers to provide accommodations to pregnant workers to allow them to continue performing their regular duties at work. New York's State Legislature bill, "Protect Women from Pregnancy Discrimination," provided for the expansion of these protections statewide.

Defining Discrimination

The recent guidance offered by the New York City law makes it unlawful to treat an employee or job applicant "less well than others" because of her actual or perceived pregnancy. The following actions are specifically prohibited:

 

  • Refusing to hire someone qualified because she appears to be, or states that she is, pregnant
  • Firing an employee because of her pregnancy
  • Harassing a pregnant employee by commenting on her weight, appearance, age, job commitment or ability to concentrate
  • Excluding pregnant workers from particular job categories
  • Requiring pregnant employees to take unpaid leave at a certain time during their pregnancies
  • Requiring pregnant workers to obtain medical clearance to perform certain tasks if such medical clearance is not required of other employees

     

    Prohibitions of pregnancy discrimination apply in situations in which a woman is expected to become pregnant in the near future as well as in situations in which she is already with child.


Read more . . .


Tuesday, May 31, 2016

What to know about the new overtime laws


Overtime pay can be a great income boost, particularly since eligible recipients are entitled to one and one-half times their regular rate for staying late. However, until recently, a significantly large portion of the private sector was left excluded from these benefits under the overly-broad concept of “exempt employees.” The list of exempt employees, as provided by the Department of Labor, included everything from executives to agriculturalists, as well as seasonal employees, salesmen and computer technicians. Moreover, the rules included an “income threshold” of just $23,660 -- meaning anyone earning more than that could be legally excluded from overtime pay.

Fortunately, this threshold was recently expanded -- in a big way.


Read more . . .


Sunday, May 15, 2016

Recent NY Employment Law Amendment Will Allow 12-Week Paid Family Leave Law


What is the 12-week paid family leave law and how will it affect NY employees?

Until recently, major family changes were made much more difficult because of employment obligations. The birth of a new baby, the illness of a close family member, or the call to active duty of a family member in the military often threw the whole family constellation out of whack. The new legislation, signed by New York Gov. Andrew Cuomo on April 4th, however, will help to give peace of mind to a great many families in the state. As of the implementation of this legislation, referred to as the "Paid Leave Law," an employee in New York will be  permitted up to 12 weeks of paid leave under any of the following circumstances:

  1. To care for a new child in the family.
    Read more . . .


Friday, April 29, 2016

What New Yorkers Need to Know About the New Paid Family Leave Act


Most New Yorkers are aware of the recent updates to the state human rights laws which provide paid family leave for eligible workers. Fortunately, New York has taken a nationwide leadership role in securing fair and adequate compensation for workers in need of paid maternity leave or medical leave -- a measure which has historically been ignored within the legislative landscape. The following details the law -- which is scheduled to roll out fully by 2018.

In addition, employers within the city of New York are also strongly advised to become familiar with the specific guidelines on medical leave, as wrongfully withholding paid time off could result in costly and unnecessary litigation.

First, much of the paid leave is funded through a deduction from the employee’s pay, and employees are not eligible for paid medical leave until they have worked at least six months for the organization.


Read more . . .


Friday, April 15, 2016

NYC Human Rights Law Strengthened by Amendments to Employment and Public Accommodations


What recent and significant changes have been made to NYC's human rights laws?

Mayor Bill de Blasio has recently signed into law amendments intended to remediate and strengthen the New York City Human Rights Law (NYCHRL), particularly in regard to franchisers, franchisees and lessors. In keeping with the Mayor's stated purpose of improving legislation to protect employees and tenants from having their civil rights violated, he has signed into law amendments designed to:

  • Remove language regarding sexual orientation
  • Give the New York City Human Rights Commission the authority to award attorney fees
  • Add franchiser, franchisee and lessor to the list of those forbidden to discriminate on the basis of gender, race, disability, or any other protected class
  • Make it illegal to deny housing to anyone because he or she is a victim of domestic violence, sex offenses or stalking
  • Make it illegal to use discriminatory advertisements and public statements

It is important for all employers, businesses, and lessors to review their procedures to ensure that they are in compliance with the newly amended NYCHRL. The new legislation requires that "exceptions and exemptions from the NYCHRL be narrowly construed in an effort “to maximize deterrence of discriminatory conduct.”

Another aspect of the amendments to NYCHRL's protections addresses the manner in which discrimination on the basis of sexual orientation should be construed. The new wording states that language of the law should not be construed to:

  • Restrict an employer’s right to require that employees meet certain actual job qualifications
  • Permit employers to inquire about the sexual orientation of their current or potential employees or to adopt affirmative action quotas based on sexual orientation
  • Limit or override any pre-existing exemptions under NYCHRL
  • Legalize any act that violates New York Penal Law
  • Endorse any particular behavior or way of life

In addition, the amendments make it unlawful to "offer benefits, services or privileges" to anyone who is (or is presumed to be) a member of a protected class in such a way that such a person is deprived of the full and equal enjoyment” of those benefits on “equal terms and conditions” as all others who are not members of a protected class.


Read more . . .


Wednesday, March 30, 2016

Non-Compete Agreements on the Campaign Trail


Non-compete agreements can creep up in virtually any industry, from technology to food service. In some cases, these agreements are a fair and adequate tool that balances a former employer’s rights to protect confidential proprietary information with a former employee’s right to seek new employment and enter into contractual agreements with subsequent employers.

With campaign season in full swing, it stands to reason that candidates may wish to impose similar restrictions on their staff members, particularly against those considering a defection to another candidate.
Read more . . .


Friday, March 11, 2016

EEOC Proposes New Guidance on Employment Retaliation

How does the EEOC define employment retaliation?

Federal and state laws prohibit employers from retaliating against employees who complain about violations of the law, harassment or discrimination by taking adverse actions such as harassing, demoting, or firing these individuals. Now, the Equal Employment Opportunity Commission (EEOC) has proposed new enforcement guidance that expands the definition of retaliation. The commission recently released a document, "Enforcement Guidance on Retaliation and Related Issues" which includes new standards defining retaliation under civil rights and anti-discrimination laws.

What is retaliation?

Currently, it is illegal for an employer to fire, harass or demote employees who complain about violations of the law, harassment or discrimination.  Other adverse actions include discipline, negative evaluations, issuing warnings, salary reductions, and changing shifts or job assignments. Some employees may also be passed over for a promotion. Retaliation may also involve hostile attitudes or behavior by employers, including managers, supervisors or co-workers toward an employee who has complained.

The EEOC relies upon three elements to prove a retaliation case:

  • The employee participated in a protected activity — typically a complaint of discrimination or harassment
  • The employer or manager took an adverse action against the employee
  • There is a causal connection between the protected activity and the adverse action

The EEOC's proposed guidance expands the meaning of each element. First, the protected activity can occur explicitly or implicitly by the employee making a complaint directly or providing information during an investigation. Further, adverse actions can include anything that could be "reasonably likely' to interfere with protected activity, including activities that are not work-related or take place outside of the workplace or actions against third parties such as family members. Finally, the guide lines broaden the scope of causal connection by creating "a convincing mosaic of circumstantial evidence."

How can an employer minimize the risk of retaliation violations?

Employers need to be familiar with applicable state and federal discrimination laws, particularly those related to wrongful termination due to retaliation. In order to be proactive and create a workplace environment that minimizes the risk of retaliation violations employers should:

  • Establish and implement an anti-retaliation policy that defines retaliation and provides specific examples of legally actionable retaliation for managers and supervisors
  • Provide regular training to executives, managers, supervisors and employees on the anti-retaliation policy
  • Create a procedure for employees to report concerns and instances of retaliation
  • Provide a disciplinary measures for retaliation, up to and including termination

While the EEOC's guidance is only a proposal, it comes as retaliation claims are becoming more common. If you are facing a retaliation lawsuit or have questions about how to establish an anti-retaliation policy, you should engage the services of a qualified attorney.


Tuesday, February 23, 2016

Employment Discrimination Protection for Caregivers

What new rights have been established to protect caregivers from employment discrimination?

For many years, caregivers of children, aging parents or disabled loved ones have experienced discrimination both at the workplace and in terms of obtaining employment. Under a new measure signed by New York City Mayor Bill de Blasio on January 5, 2016, caregivers will finally have protections in place to prevent employment discrimination. This law will become effective on May 4, 2016.

Sensitive to the important need caregivers fill in their own homes and in the community at large, Mayor de Blasio referred to them during a ceremony at the Council Chambers in City Hall, as "unsung heroes" who "literally keep families together in times of distress." He further stated, much to the satisfaction of those who have been meeting the challenges of employment discrimination while simultaneously fighting economic, emotional, and health challenges on the home front: "It's critical that we give them the employment protection they deserve."

New Yorkers have been protected for some time from discrimination based on race, religion, age or sexual orientation. Now, as a result of the passage of this new law proposed by Council woman Debi Rose, New Yorkers are also given "caregiver status" class protection under an amendment to the New York City Human Rights Law.

This new protection means that would-be or current employers can't discriminate against caregivers either during the hiring process or in terms of conditions of employment. Conditions of employment include work hours, pay raises and promotions.

Caregivers are defined as those who provide direct and ongoing care for children under the age of 18 or family members relying on them for daily assistance. The law protects employees who care for "covered relatives," including biological, foster, step- and adopted children, or children for whom they are legal guardians, siblings (including half- and step-siblings), parents, grandchildren or grandparents, or children of the caregiver's spouse or domestic partner. Since the definition of a "covered relative" is left open to the Commission's interpretation, it may be expanded to include other family members at the Commission's discretion.

By giving caregivers equal protection under the law, caregivers no longer have to fear losing their jobs because of the necessity of fulfilling essential family obligations. Caregivers now have the same rights to sue their employers for discrimination as do all other protected classes of employees.

If you are experiencing discrimination for any reason in the hiring process or in the workplace, you should contact a competent and compassionate employment law attorney to assist you. 


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