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NYC Litigation Blog

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.


Friday, September 18, 2015

Muslim Flight Attendant Alleges Discrimination by Express Jet

What is "reasonable religious accommodation" and when has an employer violated it?

A female Muslim flight attendant, employed by ExpressJet, Charee Stanley, has been suspended and threatened with termination for refusing to serve alcohol on the job. While serving food and beverages, including alcoholic ones, to passengers is part of the job description of a flight attendant, abstaining from both imbibing and serving alcohol is a tenet of the Muslim faith.

When two years ago, Ms. Stanley, already having been employed by ExpressJet for a year, converted to Islam, she approached her supervisor, requesting that accommodations be made to enable her to maintain her position while adhering to her religious beliefs. The supervisor told her to make arrangements for another attendant to take over the serving of alcoholic beverages, which she did. By all accounts, this arrangement worked well.  Alcoholic beverages were served to those who requested them and Stanley remained comfortable in her work environment.

The peaceful atmosphere changed, however, when, months later, another flight attendant filed a complaint against Stanley, charging that she was not fulfilling her duties by refusing to serve alcohol.  The employee, who has been accused by Stanley and her lawyer of Islamaphobia, also complained that Stanley had a book with "foreign writings" and wore a headdress.

Upon receiving this complaint, the airline sent a letter to Stanley stating that it was rescinding its religious accommodation and placing her on unpaid administrative leave. The airline further advised her that her employment might be terminated after 12 months.

In response to this action, Stanley has recently filed a discrimination complaint with the Equal Employment Opportunity Commission for the revocation of her prior "reasonable religious accommodation."  Stanley's lawyer,  Lena Masri, an attorney with the Michigan chapter of the Council on American-Islamic Relations, has declared that "...no one should have to choose between their career and religion and it's incumbent upon employers to provide a safe environment where employees feel they can practice their religion freely. We are requesting that her employment be reinstated and the accommodation of her religious beliefs be reinstated as well."

According to Stanley and her attorney, the religious accommodation made for Stanley had been made at the explicit direction of the airline itself, had worked smoothly and without incident, and that, therefore, her employment, along with the previous minimal religious accommodations, should be reinstated.

A spokesman for ExpressJet has declined to discuss Stanley's complaint on the grounds that the airline cannot discuss "personnel matters," stating only that ExpressJet has a "long history of diversity in the workplace."

If you are faced with discrimination or other problematic employment issues, please contact one of our highly skilled attorneys at Thomas M. Lancia. Dedicated to serving clients throughout the New York City area on civil litigation and small business matters, we can be reached at 212.964.3157.


Tuesday, September 8, 2015

Federal Judge Grants Class-Action Status to Uber Drivers Relative to Employment Classification

Should Uber drivers be considered employees or contract workers?

A recent decision by a federal judge has granted class-action status to a lawsuit that challenges the employment classification of Uber drivers. This ruling paves the way for a jury to examine the case and decide whether some Uber drivers should be considered employees, rather than 1099 contract workers as they now are.

This case, filed in 2013, has enormous implications relative not only to the multi-billion dollar Uber company itself, but to other companies using Uber as a business model.  At issue in this case are employer responsibilities relative to workers and their vehicles.  As it stands now, in some states Uber is not required to:

  • Pay payroll taxes
  • Apply minimum or overtime laws
  • Provide employee health insurance
  • Provide maintenance of vehicles

Although legal experts agree that this case is not likely to be decided any time in the near future, this recent Federal District Court  ruling means that the case can go forward. If and when the class action suit goes against Uber, the bottom line of the company will be tremendously impacted.  If it is ruled that most Uber workers (160,000 at present) are "employees," deserving of all the rights adhering to that designation, Uber will be required to provide its workers with typical employee benefits and its phenomenal profit margin will decrease sharply. As a result, the company will no longer be in a position to pass on the extremely high profits to its investors it now does.

It is not only Uber's profits or the benefits of its employees that are at stake in this legal wrangling. Passenger safety is also an issue that has to be taken into consideration. There are two aspects to passenger safety.  One involves background checks on drivers;  the other concerns adequate mechanical maintenance of vehicles.  Uber, in addition to its other legal challenges, is now facing lawsuits that question the safety of the rides it offers.

Very recently, the district attorneys of San Francisco and Los Angeles asserted  that background checks used by Uber are inadequate, failing to uncover the criminal records of 25 drivers in those two cities. In an even more disturbing case, an Uber driver in India was brought up on charges late last year of having raped a passenger and then accused  of having raped another years before. Although the driver was acquitted of these charges, Uber's process for screening drivers continues to raise international concern.

Questions concerning employment law continue to be important issues in the media and in our own lives.  If you have questions or difficulties involving employment or business litigation, please contact one of the skilled attorneys at Thomas M. Lancia for expert legal guidance and representation.  Serving clients throughout New York City, we can be reached at 212.964.3257.


Thursday, August 20, 2015

When "Purposeful Darwinism" Goes Too Far in the Workplace

Will Recent New York Times Article Prompt a Class-Action Lawsuit Against Amazon?

A powerful piece in a recent issue of The New York Times included much anecdotal evidence about employees  of Amazon, the appropriately named multi-billion dollar corporation, being mistreated and losing their jobs for illegitimate reasons. While it is not against the law for a company and its bosses to be tough and demanding, and is even believed by some to necessary to financial success, some of the accusations against Amazon may point toward unacceptable employment behavior.

The Organization Level Review, a system developed by Amazon to have managers rank subordinates, appears to have some vulnerability in terms of inequitable treatment. Such ranking may be applied unequally to employees with health issues or those who are caregivers (most frequently, women), giving the independent and able-bodied a significant competitive edge. Referred to as "purposeful Darwinism" by a former Amazon director of human relations, this rating system may result in unfair treatment in the workplace or even in unfair dismissal.

An attorney familiar with this argument related the case of a woman with a child who, after serving as an Army captain in Iraq, arranged to have an early work schedule (7 a.m. to 4:30 p.m.) at Amazon to accommodate her childcare responsibilities. Colleagues, unaware of her deliberately altered work schedule, perceived her as slacking off and gave negative feedback to their mutual manager. Because Amazon's policy is to dismiss employees ranked at the bottom of its presumed productivity scale, this woman, and others like her, may have been at the receiving end of some type of discrimination.

Furthermore, it has been pointed out that working shorter hours does not necessarily result in lower production. As a matter of fact, sometimes the reverse is true. Dedicated employees who work during a more condensed period may become extremely well-focused and more efficient than coworkers who spend longer hours on the job.

One area that needs to be investigated in terms of Amazon employment practices is whether a disproportionate number of women are forced to leave the company as a result of ranking reviews. It may still be an uphill climb for workers to prove "commonality" in such practices, however, since a similar class-action suit against Wal-Mart was dismissed by the Supreme Court in 2011 because it could not be proven that centralized company policy was responsible for discriminatory decisions made at a great many separate stores by a great many individual managers.

Although some employment inequities, particularly as class-action suits, are difficult to prove, it is possible that Amazon may face an increasing number of individual lawsuits in the near future now that this issue has been brought to light. The New York Times article quoted an employment attorney as pointing out that more highly paid employees are more likely to be able to engage private attorneys to fight for them and the individual stakes will be much higher.

If you are faced with unequal treatment in the workplace or have any questions or concerns relative to employment law, framed either from the perspective of the employer or the employee, please contact our skilled attorneys at Thomas M. Lancia, PLLC. Proudly serving clients in the New York City metropolitan area with efficient, personal  service, we can be reached at 212.964.3157.


Monday, August 17, 2015

Surprising Aspects of Copyright Laws

How is it possible that the song "Happy Birthday to You" is Still Under Copyright?

The complexities of copyright law can be confusing and even, at times, absurd. At it turns out, the song "Happy Birthday to You," a universal tune used to commemorate birthdays from early childhood through old age, is still considered private property. A recent federal lawsuit has been filed on behalf of  group of independent artists stating that they have proof that the copyright to the song is no longer applicable. The suit alleges that a songbook that is almost a century old proves that the song's copyright, first issued in 1935, is no longer valid.

Some of the difficulties about "Happy Birthday" derive from its odd publishing history; it was first published in 1893 under the title "Good Morning to All" written my Mildred and Patty Hill, two sisters in Kentucky. By the early 1900s, variations of the song appeared with birthday themes, until eventually the song became as well known as any folk tune.

It is expected that the judge involved may rule on the case in less than a month. If the judge rules that the copyright on the song is no longer valid, Warner Music Group, holder of the rights to the song, will lose millions of dollars in licensing fees.

The case illustrates the difficulties inherent in copyright laws which may extend ownership well beyond the lifetime of the composer and, as in this case, well into a time period in which it appears to be in the public domain. As a general rule, copyright protection for works created after January 1, 1978 extends for the lifetime of the author plus 70 years. For works published before 1978, there are a number bewildering exceptions. Variables for copyrights depend on several factors, including:

  • Whether and when publication has actually taken place
  • Date of first publication
  • Whether copyright has been renewed (if the work was published prior to 1978)

Strange as it seems, until the judge rules on the copyright questions surrounding "Happy Birthday," just about all of us have infringed on copyright laws and could, theoretically, be held accountable.

Because of the complicated nature of copyright laws, if you intend to copyright original material of any kind, you would be wise to consult with a well-informed attorney experienced in copyright law. Please don't hesitate to contact Thomas M. Lancia, providing clients in New York and New Jersey with excellent service. We can be reached at 212.964.3157.


Wednesday, July 29, 2015

New York City to Raise Fast Food Minimum Wage

How will the increase in minimum wage for fast food employees in New York City work?

After almost three years of protest, on July 22, 2015, New York City passed a law that will gradually increase the wages of employees of fast-food chain establishments to $15 an hour over the next few years. Recommended by a panel appointed by Governor Andrew Cuomo, this wage increase will move forward at an accelerated pace for workers in New York City, an area where the cost of living is higher than in the rest of the state. 

For supporters of increasing the minimum wage to lessen income disparity, these latest recommendations by the appointed panel are a welcomed step in the right direction. The law, expected to be made effective by the state's acting commissioner of labor, Mario J. Musolino, is designed to ensure that employees of chains like McDonald's will soon earn enough to meet the basic needs of themselves and their families. As the minimum wage existed prior to the implementation of this law, fast food workers had been earning $8.75 per hour, in many cases subsisting only with the assistance of welfare benefits like food stamps.

Keeping up with newly enacted laws, such as the increased minimum wage in New York State, ensures that companies remain on the cutting edge of impactful information. Whether or not firms are located in New York, remaining in touch with current changes and trends is important for growth and prosperity. 

Lancia is a firm well-versed in the complexities of the employment laws of New York City, adept at assisting our clients in navigating Division of Labor Standards and avoiding dangerous pitfalls. Whether you are a start-up company or a well-established firm, knowing the ins and outs of employment law is crucial to running your company effectively and avoiding possible snags. Situations invariably arise that require informed judgment calls. For assistance in all aspects of employment law, please contact the New York City employment attorneys of Thomas M. Lancia  by calling (212) 964-3157.

 


Friday, July 24, 2015

Copyright Suit Against Nike Dismissed

How similar do two works have to be in order for a court to find copyright infringement?

Popular shoe and apparel manufacturer Nike was recently the target of a copyright suit involving it’s famous Jordan brand.  Jumpman, as the logo is referred to, is a silhouette image of basketball star Michael Jordan, jumping to dunk the ball with his left hand.  A photographer recently claimed that this image was taken from a photograph he shot in 1984 and that Nike had been using it for years without permission.

Jacobus Rentmeester filed suit for copyright infringement in federal court in Oregon claiming that the Jumpman logo was derived from the photo he took for LIFE Magazine in the 1980’s.  In 1985, Nike contracted with Rentmeester to use the image for marketing purposes for a 2 year time period.  The Jumpman logo was subsequently created in 1987 and Rentmeester alleged that Nike had been benefitting from the logo derived from his work for almost 30 years.  He claimed that he “guided” Jordan into this pose and that he was therefore entitled to copyright protection.

Nike argued that they took a photo of Jordan in the same pose and used that photo to create the logo.  They also argued that Rentmeester does not have a claim to all images of Jordan in that position and should only be afforded copyright protection in relation to the specific photo he took.  

While the court did find that the images were similar to one another, they eventually sided with Nike.  The court explained that copyright protections vary on a case-to-case basis, and that depending upon the specific facts they can range from broad to narrow.  When there is a wide range of expression, works are entitled to broad protections.  When there is a narrow range of expression, the copyright protections are thin and images must be extremely similar in order to find copyright infringement.  In this case, there was a narrow range of expression and therefore thin protections existed.  The images were not similar enough for them to find copyright infringement.

Thomas M. Lancia handles all types of cases relating to copyright infringement. If you are involved in a copyright infringement issue in the New York City area, contact his office by calling (212) 964-3157 for a consultation today.

Monday, July 13, 2015

New Law Allows New York City Human Rights Commission to Conduct Investigations of Hiring Practices

How does the City of New York deal with employment discrimination?

Even in this day and age, employment discrimination is a serious problem.   So much so that new laws are going into effect all over the country relating to discriminatory hiring practices.  New York City is one of the local governments that has recently passed this type of law.

Mayor Bill de Blasio passed five new pieces of legislation that relate to the New York City Human Rights Commission’s powers in uncovering employment discrimination.  Essentially, the Human Rights Commission will now be able to investigate and test employers in the search for discriminatory hiring practices.  These investigations will be conducted using “matched pair testing”.  This is where two parties who possess all of the same characteristics, except one relating to race, age, religion, sexual orientation or another protected attribute, apply for the same job with the same employer.  When one of the pair is hired, the Human Rights Commission will investigate as to whether one was chosen over the other based on one of the protected characteristics.  If this was the case, the employer could be prosecuted.

These investigations will start in October of this year and all employers are urged to review their hiring practices at this point, as well as to reinforce with those that do the hiring that these decisions should be made based on qualifications for the job as opposed to the protected personal characteristics of the applicants.

If you have been accused of employment discrimination and are facing consequences, Thomas M. Lancia can help.  He handles all types of cases relating to employment discrimination in the New York City area.  Contact him by calling (212)964-3157 today for a consultation.



Monday, June 29, 2015

I've won! Can we please continue to litigate this case?

Uh . . . probably not.  Today's case is a recent trial court decision in Suffolk County. 

Tamai was employed by SAA as an anesthesiologist in Suffolk County.  Her contract with SAA had a restrictive covenant prohibiting her from holding medical staff privileges at four hospitals, including St. Charles and Mather Hospitals, for three years after leaving SAA.  She decided to leave SAA and accept a position at LIAP, which provided anesthesiology services at St. Charles and Mather.

SAA sent a letter to Tamai and LIAP, threatening legal action if she violated the restrictive covenant.  Tamai sued for declaratory, injunctive and other relief on February 25, 2015, after LIAP withdrew its offer of employment. She also moved for a temporary restraining order, which was granted in part, and a preliminary injunction, which was set down for a hearing on June 8, 2015. SAA cross moved for summary judgment dismissing the complaint. In a letter dated April 14, 2015, Tamai informed the Court that she had found other employment that did not require her to maintain medical staff privileges at any of the four hospitals named in the restrictive covenant. She also advised the court that she was seeking leave to discontinue this case against SAA without prejudice. SAA objected to discontinuing the case and argued that any discontinuance should be with prejudice. Tamai then moved to discontinue the action without prejudice.

The Court held that the case would be discontinued without prejudice because: (1) the case was mooted after Tamai obtained a job that didn't violate the restrictive covenant; 2) the action had not progressed far enough to prejudice defendant in any way.  The Court reasoned that even though this controversy was capable of repetition in the next three years or so, there was no novel legal question presented because it is well-settled that such restrictive covenants for anesthesiologists are subject to the same analysis of reasonableness in duration, location and so on as those for other professionals. 

In dictum, the Court discussed SAA's motive for seeking to continue the case.  It speculated that the motive was to seek a ruling affirming the viability of the restrictive covenant and then using that as a sword against Tamai and other employees in the future should the need arise.  Going slightly further, I suspect that a favorable decision would also be used as a "moat" to prevent or discourage valuable anesthesiologists from leaving the employer's "castle" for higher pay, better benefits, etc.  In any event, the Court declined to gild SAA's victory by bestowing the gift of an advisory opinion it did not need to write.

http://www.nycourts.gov/reporter/3dseries/2015/2015_50885.htm

 


Monday, June 22, 2015

Transgender Plaintiff's Case Revived by Second Circuit Court of Appeals

Cole Fowlkes, who self‐identifies as male but was born biologically female, alleged in his complaint that his labor union and two of its business agents discriminated against him on the basis of sex and retaliated against him for filing an earlier action against them.   The District Court held that Fowlkes’ failure to exhaust administrative remedies deprived the District Court of subject matter jurisdiction over his Title VII claims. The District Court thus also dismissed Fowlkes’ state‐ and city‐law claims for lack of jurisdiction.

 

The Second Circuit held that the administrative exhaustion requirement of Title VII is not jurisdictional but rather a precondition to suit and is subject to equitable defenses. In this case, at least two equitable defenses were raised on appeal: (1) whether the EEOC filing would be “futile” and (2) whether the claim was “reasonably related” to a prior EEOC claim Fowlkes had made on similar grounds. 

 

The Court vacated the District Court’s judgment dismissing Fowlkes’ federal claims for lack of jurisdiction and remanded the case to the District Court to determine whether any equitable defenses excuse Fowlkes’ failure to exhaust his administrative remedies. The District Court was also directed to entertain Fowlkes’ claim under the National Labor Relations Act, 29 U.S.C § 151, et seq., for breach of the duty of fair representation.  The decision can be found at http://law.justia.com/cases/federal/appellate-courts/ca2/12-336/12-336-2015-06-19.html.

 

In fairness to the District Court, because the plaintiff appeared pro se, the District Court was deprived of the assistance of counsel where the equitable defenses and the fair representation claim may have been raised, forcing the District Court into the difficult role of divining that on its own.

 

As the Second Circuit pointed out, whether an EEOC filing was a “precondition” rather than a jurisdictional requirement has not always been clearly articulated.  Whether this ruling now excuses such filings in a broader context remains to be seen.

 


Tuesday, June 16, 2015

Former Store Detectives Sue CVS for Employment Discrimination And Racial Profiling

Can former employees sue an employer for discriminatory behavior against them and customers?

Four store detectives formerly employed by the CVS drugstore chain have commenced a class action lawsuit, alleging that the chain of drugstores engaged in racial profiling of customers and discrimination against workers.

According to the suit, brought in a New York Federal District Court, the detectives were told by supervisors to focus their attention on non-white customers. Store supervisors described African Americans and Hispanics in disparaging and crude terms and also directed racially offensive comments at the detectives.  

One plaintiff was once told to "get his black ass" back to the store to apologize to a manager he had offended. Another was ordered to “hide like a monkey” to spot shoplifters.

When the detectives complained, the lawsuit says, they were subjected to increased scrutiny, excessive supervision of their work, and unfair criticism of their job performance. They were ultimately terminated.

There are many employment discrimination cases brought in New York every year, as well as a number of "shop-and-frisk" cases in which customers have complained of racial profiling.  According to the plaintiffs’ attorney, however, this is the first case in which a group of ex-employees has joined forces to provide an insider's view of systematic racial profiling at a large chain store.

In other cases against such stores as Barney's and Macy's, private discrimination lawsuits have been accompanied by state enforcement actions, fines, and agreements by stores to reform their policies. It is not yet clear whether the lawsuit against CVS will prompt action by the New York State Attorney General.

A spokesperson for CVS said that the company does not tolerate discriminatory practices and that it rigorously enforces nondiscrimination policies. It said it was shocked by the charges and would defend against them forcefully.

If you are an employee who has been subjected to racially insensitive comments or other discriminatory behavior in the workplace, you may be entitled to damages from your employer. Experienced trial lawyer Thomas M. Lancia has helped employees assert their rights and receive compensation in all types of labor and employment discrimination lawsuits. To discuss whether you have a strong claim, contact the law firm of Thomas M. Lancia PLLC today at 212-964-3157 or request a consultation online


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