NYC Litigation Blog

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. 

Monday, February 15, 2016

Protecting Your Copyrights on Social Media

What are the copyright rules for social media?

As more businesses engage in the digital world, the risk of copyright infringement on the internet has become a significant concern for decision makers. In particular, businesses that rely on social media marketing tools to promote their products and services need to be aware of the fact that copyright laws are applicable on the web. 

In addition, companies that establish websites and conduct digital marketing need to be familiar with the existing protocols in place to protect domain names. The Domain Name System is managed by the Internet Corporation for Assigned Names and Numbers (ICANN), a government sponsored entity that coordinates the designation of registered internet domain names under the Uniform Domain Name Dispute Resolution Policy (UDRP).

 As for the use of social media tools like Facebook and Twitter, existing copyright rules must be followed as well. For example, a business owns the creative works that its employees create while they are working for their company. The creative of work of independent contractors and freelances can only be owned with a work-for-hire agreement in place. If your business posts comments on Facebook or Twitter, it is important to ensure that you own these works.

To some extent, businesses are protected from the potential of infringement lawsuits in certain circumstances. The Digital Millennium Copyright Act (DMCA) provides "safe harbor" to online service providers. It limits their infringement liability by requiring them to take down content that could violate a copyright if the owner sends a take-down request.

How to Protect Your Work from Infringement

In addition to avoiding infringement claims, business owners also need to protect their original content. In order to obtain maximum legal protection, it is essential to register your work with the Copyright Office.  By registering your work, you will have a number of rights, including the exclusive right to reproduce and distribute copies of your work. In short, proper registration establishes prima facie evidence of the validity of the copyright. This grants you legal recourse to bring an infringement lawsuit and obtain statutory damages and attorney's fees.

If your business is engaged in social media marketing, it is essential to understand the applicable copyright laws. A qualified attorney can advise you on how to protect your work from infringement, as well as how to avoid an infringement lawsuit.

Thursday, January 28, 2016

Cross It Off the Bucket List - Caterpillar To Pay $73.6 Million for Stealing Trade Secrets

What are the details of the trade secret lawsuit involving Caterpillar?

In December 2015, the construction equipment maker Caterpillar was ordered by a federal jury to pay $73.6 million for stealing the design of one of its vendors, Miller U.K., Ltd. The vendor had designed a coupling device that links heavy buckets to hydraulic excavation machines and the manufacturing method was deemed to be a trade secret. Caterpillar apparently entered into an agreement to buy the coupling device, but used the design and manufactured the coupling devices instead.

What is a Trade Secret?

A trade secret is confidential information that gives a business a competitive advantage in the marketplace, arising from its manufacturing processes, business practices, formulas, designs or patterns.

The essential elements of trade secret claims include:

  • Information that is generally unknown to the public
  • Information that gives the business an economic advantage over competitors
  • Information the business reasonably attempted to keep confidential
  • Information acquired by a competitor through misconduct

In this case, because Caterpillar had entered into an agreement with Miller, Caterpillar gained access to confidential information about the manufacturing process of the vendors coupling device. The $73.6 million verdict has been reported to be the largest award under the Illinois Trade Secret Act.

One controversial aspect of this case is the growing industry of so-called litigation financing which involved a consulting firm that bankrolled Miller's lawsuit, in return for a percentage of the jury award. Proponents of litigation financing argue that it grants small litigants legal recourse against wealthy defendants.  On the other hand, critics believe that giving investors a stake in the outcome of a case can unduly influence the litigant's decision-making. In any event, Caterpillar intends to appeal the decision.

What can I do if my trade secrets are stolen?

There are a number of ways to protect a trade secret, but even if precautions are taken to keep it confidential, a trade secret can still be stolen. As was the situation in this case, a trade secret can be obtained through breach of confidentiality.  If you believe a trade secret belonging to your business has been stolen, a qualified attorney can file a lawsuit to both obtain monetary damages and obtain an injunction to stop the thief from using the trade secret.

Thursday, January 21, 2016

Court Rules Monkey Can’t Hold Copyright

Have you seen the “monkey selfie”? The charming photo has been making the rounds on the internet as a court has been considering who holds the copyright to the photo. Does the photographer who set up his equipment near the monkeys own the photo, or does the monkey who snapped the shot? We have been following this case for a couple of reasons: 1. Who doesn’t love monkeys?! 2. It might have important implications for copyright law. 

The facts.

In 2011, British photographer David Slater traveled to the Tangkoko Reserve on the Indonesian island of Sulawesi to do some nature photography. According to Slater:

I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up [of a group of crested macaque monkeys] if they were to approach again for a play. I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens. I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens. Was this what they where afraid of earlier? Perhaps also the sight of the shutter planes moving within the lens also amused or scared them? They played with the camera until of course some images were inevitably taken! I had one hand on the tripod when this was going on, but I was being prodded and poked by would be groomers and a few playful juveniles who nibbled at my arms. Eventually the dominant male at times became overexcited and eventually gave me a whack with his hand as he bounced off my back. I knew then that I had to leave before I possibly got him too upset. The whole experience lasted about 30 minutes.

Slater published a book, “Wildlife Personalities,” that included the pictures, and the images were widely shared online, including without permission by Wikipedia. Slater asked that the photos be taken off Wikipedia, but the site editors refused, claiming that the images were in the public domain since they were not taken by a human.

While Slater’s argument with Wikipedia was unfolding, the animal rights group People for the Ethical Treatment of Animals (PETA) filed a lawsuit in federal court in California arguing that the photos rightly belonged to the monkey, which they identified as Naruto. PETA asked the court to grant Naruto copyright, and to allow PETA to administer funds generated by the copyright on the monkey’s behalf.

Slater asked the judge in the case, U.S. District Judge William Orrick, to dismiss the lawsuit on the grounds that a monkey lacks legal standing.

Judge Orrick recently released a tentative opinion in the case, and he is siding with Slater.

“I’m not the person to weigh into this. This is an issue for Congress and the president,” Orrick said from the bench, according to Ars Technica. “If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that.”

Why this case matters.

This case is important because it highlights the new frontier of copyright law into which the digital age has delivered us. Slater set up his equipment, and worked to compose the shot, but he didn’t actually press the button to take the picture. This is similar to lots of work today where business owners set things up to be created or captured, but they don’t press go, something or someone else does. We are truly in a new frontier, and we must ensure that the law is able to match reality going forward.

Contact Thomas M. Lancia PLLC for your copyright needs.

If you have questions about a copyright issue you or your business has encountered, contact Thomas M. Lancia PLLC to schedule a free, initial consultation

Monday, January 4, 2016

Lost in the Holiday Shuffle - New York City Mayor Bill de Blasio signs law creating Office of Labor Standards

Just after Thanksgiving, and perhaps lost in the holiday shuffle, Mayor Bill de Blasio signed legislation creating an Office of Labor Standards.  The new office will be responsible for investigating and enforcing violations of city labor laws.

It is not clear whether the new office will be under the jurisdiction of another agency or a stand-alone entity.  No director has been appointed yet.

One of the less publicized purposes of the new law is to educate employers on labor laws to avoid labor law violations by unwary employers.   Mirroring the New York State Department of Labor, the Office will also be empowered to conduct investigations, serve subpoenas, and impose civil penalties on businesses that violate NYC’s labor standards.  Employees do not have a right to sue employers for violations under the new law. 

A main reason the Office was created was to assume responsibility for of the Earned Sick Time Act, briefly administered by the Department of Consumer Affairs, which appeared to be a bit of an awkward fit.  The Earned Sick Time Act mandates sick leave for all but the smallest New York City businesses.  

You can read the legislation itself here:|Text|&Search=743

Thursday, December 31, 2015

Former New York Hilton Employee Prevails in Age Discrimination Case

A 64-year-old man who was "forced" to resign by the New York Hilton and subsequently replaced with two workers who were much younger has won a job discrimination lawsuit against the hotel chain. The man, Mohammad Khan, was forced out of his job in 2012 at the age of 61. He had worked in a variety of front-office roles at Hilton's flagship location in Manhattan since 1979.

According to the complaint which was filed in 2013, Mr. Khan had received glowing annual reviews for most of his tenure, but something changed in February 2012. In that review, a new and much younger supervisor found his performance "unsatisfactory." Mr. Khan was then placed on 6 months' probation before being terminated in October of that year.

During his probationary period, the plaintiff noticed that the environment had changed after the corporation was bought out, and new and younger managers were brought on. Not only was Mr. Khan terminated, the new owners refused to give him his pension - and this was a critical element in the lawsuit. After a trial that lasted 5 days, a jury agreed that Hilton had discriminated against Mr. Khan because of his age, and awarded him $250,000.

What is age discrimination?

According to the Equal Employment Opportunity Commission, age discrimination involves treating an employee or job applicant less favorably because of his or her age. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against people who are age 40 or older - these individuals are considered to be members of a "protected class." Moreover, some states have laws that protect workers who are younger than 40. Generally, state and federal laws forbid discrimination based on a person's age in connection with any aspect of employment, including hiring and firing, compensation and benefits, job assignments and promotions and any other term or condition of employment.

While the plaintiff in this case prevailed, age discrimination cases are hard to prove. Because of this, these cases often do not go to trial, and if/when they do, plaintiff's frequently do not win. The evidence is often circumstantial, and the intentions of employers involved in these cases are not readily apparent.

However, in Mr. Khan's case, his attorneys relied on the testimony of past and present employees of Hilton who had worked with the plaintiff. The fact that Mr. Khan was denied his pension benefits may have also weighed in his favor.

If you believe you have been the victim age discrimination, you should speak to a qualified employment attorney.

Monday, December 21, 2015

Taylor Swift Has Shaken Off a Copyright Infringement Lawsuit

Are similar lyrics enough to prove copyright infringement?


Copyright infringement is the unauthorized use of another’s artistic work.  This type of infringement often occurs with works of art, photographs, writing and songs.  Recently, a fellow musician filed a copyright infringement lawsuit against pop singer Taylor Swift.

Jesse Braham filed lawsuit against Swift in a United States District Court in California.  He claimed that Swift used lyrics from his song in her 2014 hit “Shake It Off”.  Specifically, he alleged that Swift stole the phrases “haters gonna hate” and “players gonna play” from his 2013 song “Haters Gone Hate”.  Braham claimed that it was impossible that Swift came up with the phrases without hearing his song.  After Sony representatives denied his requests for writing credit and a selfie with Swift, he filed suit without representation for $42 million.

The court ultimately found that Braham had not made a prima facie case for copyright infringement and dismissed the claims.  Apparently, similar lyrics alone are not enough to prove a copyright infringement claim.  In her opinion Judge Gail Standish paraphrased the lyrics of a number of Swift’s songs... “the court is not saying Braham can never, ever, ever get his case back in court” and “we have got problems and the court is not sure Braham can solve them.”  She even went as far as to say that the “defendants have shaken off this lawsuit.”

Copyright infringement is a complex area of law.  If you have an issue in this area you need a qualified attorney to assist you. 


Monday, November 30, 2015

The Use of Non-compete Agreements Surge in Retail, Hospitality & Tech Industries

Can I require my employees in my retail outlet to sign a non-compete agreement?

Non-compete agreements are surging in popularity – and for good reason. With the employee-longevity factor decreasing alongside the exciting growth in the private sector, entrepreneurs in virtually every industry are implementing safeguards against the disparaging dissemination of trade secrets and the like. While these agreements are useful and highly necessary in certain industries, the increase of non-compete clauses in areas like hospitality (e.g., restaurants) or retail has some courts raising a skeptical eyebrow – and refusing to enforce the terms in certain instances.

In New York, a non-compete agreement must be reasonable in scope, duration and geographic coverage area. First, a non-compete agreement cannot be so vast that it effectively eliminates the employee’s opportunity to ever make a future living. In the technology space, for instance, an agreement prohibiting the employee from ever working in the IT field again would very likely be unenforceable for having an unreasonable scope.

Secondly, a non-compete agreement must be reasonable in duration and breadth. There are no hard-and-fast rules with regard to the precise number of days or weeks the employee must agree not to compete, but two years has generally been considered the maximum amount of time an employer can impose limitations. Likewise, the employer must impose a reasonable region within which the provisions are enforceable – and cannot prohibit the employee from competing in a geographical area that does not pose a commercial threat to the employer.

Aside from these factors, a non-compete agreement must have a reasonable business purpose. In recent years, courts have seen an influx of agreements within industries like hospitality, dining, and retail – and have declined to enforce these restrictions as unduly prohibitive of one’s right to earn a living. Unless a retail store is engaged in selling highly-proprietary or unique goods that involve some sort of trade secret, restricting employees from seeking subsequent retail employment at a competitor will likely be deemed unlawful.

If you are considering signing a no-compete agreement or already have signed such an agreement, an employment attorney can help you evaluate your rights.

Saturday, November 21, 2015

Governor Cuomo Enacts New Laws to Quell Sex Discrimination in New York State

What do employers need to know about recently enacted sex discrimination laws?

Gender-based employment discrimination is still a major problem in New York, even though it is illegal at both the state and federal level. In late October of 2015, Governor Cuomo approved several new laws to enhance discrimination laws.

Under the new Achieve Pay Equality Law, the punishments for breaking the current state law were greatly increased. Employees must be allowed to disclose and discuss their wages with one another, although this exchange must take place at a reasonable time and place. The law also forbids one employee from discussing another employees pay information without consent, even if this employee is privy to this information due to the nature of his job.

According to the Protect Women from Pregnancy Discrimination Law, employers must consider reasonable accommodations for every pregnant woman individually. Standard accommodations provided to every worker are no longer enough to satisfy the law.

The new Protect Victims of Sexual Harassment Law allows those that work for a company with less than 4 employees to file a sexual harassment lawsuit against his or her employer. Under the Remove Barriers to Remedying Discrimination Law, plaintiffs that win employment sex discrimination lawsuits are permitted to collect attorney’s fees from their adversaries.

The End Family Status Discrimination Law makes it illegal for employers to base employment decisions on an employee’s familial status, such as parent or child.

In addition to these new laws, Governor Cuomo is also supporting legislation that would address employment discrimination based on gender identity. This law would classify discrimination based on gender identity as sex discrimination and also designate gender dysphonia as a disability entitled to legal protection from discrimination.

It is illegal for employers to discriminate against employees or potential employees based on protected characteristics such as race, religion or age. If you believe you have been discriminated against, an experienced discrimination attorney can help to protect your rights and secure monetary damages.

Wednesday, October 21, 2015

Sacramento Jury Awards $4.75 Million in Age/Gender Discrimination Suit

What constitutes bias in employee termination?

Barbara Anderton has won a case against Bass Underwriters in which she claimed that her dismissal from the company in 2013 was a result of age and gender bias.  A Sacramento jury awarded her $4.75 million in damages, $2.75 million in punitive damages and $2 million in compensation.

In spite of the fact that the plaintiff had been a very successful broker at the firm for almost 15 years, earning a six-figure salary, she was terminated and replaced by a younger male colleague. In Anderton's lawsuit, she claimed that the company discriminated against her because of her age (61) and her gender.

What Constitutes Discrimination in the Workplace?

Bass attorneys have denied her claim, stating that Anderton walked off the job as the result of a "family dispute," noting that her brother is an executive vice-president of the organization. Nonetheless, a Sacramento jury decided the case in her favor, ruling that she was discriminated against and harassed because she was a woman and because she was nearing retirement age, and that Bass had violated California's Fair Employment and Housing Act.

The prevalence of discrimination in the workplace is well-substantiated. The fact that such behavior is illegal, as well as immoral, does not appear to keep it from occurring. Anderton's reportage of a "boys' club culture" is a common complaint at many places of business, as is the ugly reality of age discrimination.  According to Anderton, she was repeatedly asked her age and questioned about when she was planning to retire. In addition, she was retaliated against for questioning policies that promoted men over women in the company, and excluded women from events like golfing excursions.

Despite the jury's decision, Bass denies any wrongdoing, stating that they need not review or change any of their employment policies. They plan to appeal the verdict.

Thursday, October 8, 2015

Morgan Stanley’s Employee Arbitration and Class Action Waiver Policies Questioned

Should employees be forced to give up their right to litigate their discrimination claim in court and as part of a class?

A discrimination claim has been filed against Morgan Stanley. While these types of claims are numerous, an allegation within the complaint is noteworthy. The plaintiff claims that Morgan Stanley is using forced arbitration and a waiver of the right to form a class action to protect itself from suits brought by employees.

Morgan Stanley’s policy is that employees who have workplace claims against the company will not be permitted to bring those claims in court, and also will not be allowed to collaborate as part of a class. The argument against this policy is that it eliminates two important options for a prospective plaintiff who is considering a claim against Morgan Stanley. A Morgan Stanley representative defended the company by stating that the new policy does not disadvantage employees.

This policy is actually an agreement between the employee and the company, Morgan Stanley. Lawyers know these agreements as “negative consent” agreements. Here, Morgan Stanley gave employees 30 days during which they could reply that they did not consent to the policy. If the 30 days passed without a response, then Morgan Stanley would presume that the employee consented.

Certain claims are not included in the policy, such as unemployment benefits, workers' compensation benefits, and claims under the National Labor Relations Act.

It is important to recognize that your attorney will always consider every available option when it comes to resolving a claim. There are advantages and disadvantages to negotiating, mediating, litigating, or arbitrating a claim on your behalf. Arbitration can be beneficial for both parties in that it allows for a fast and private settlement. Litigation, however, is an important option for plaintiffs who desire a public forum and the ability to appeal the court’s decision.

If you are an employee who receives notice of this type of policy from your employer, or you are an employer who is considering implementing this type of policy, contact Thomas M. Lancia PLLC to speak to an experienced attorney before you act. Serving the greater New York City metropolitan area, we can be reached at: 212-964-3157.

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