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NYC Litigation Blog

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


Friday, June 12, 2015

Employers Beware: New "Ban the Box" Legislation Passes New York City Council

On June 11th, the New York City Council passed legislation prohibiting, among other things, criminal background checks prior to making an offer to prospective employees.  The Mayor is expected to sign the legislation in the coming days and the legislation then takes effect 120 days after he signs the bill.  

In a nutshell, the law prohibits criminal background checks before an offer of employment.  That includes any advertising that discourages or denies any person with a criminal record the right to apply for the job.  It also applies to any application a prospective employee must fill out as well as the interview or other pre-offer meetings or documents required for submission by the applicant.  

After a conditional offer of employment is made a criminal background check can be conducted upon notice to the applicant.  After the results of that criminal background check are received, several statutory factors codified under Section 23-a of the New York State Correction Law must be taken into account when determining the impact of any criminal history the offeree may have on his or her impending employment.  

You should note that any criminal background check required by federal, state of local law or by any “self-regulatory organization” (i.e., FINRA) is exempt from this law.

This is a basic summary of the key components of the law for informational purposes only and should not be considered a comprehensive review of its component parts or any potential obligations you or your company may have under the new law.  Please feel free to contact  if you require a more comprehensive analysis of this new law or if you have any questions or comments.


Thursday, June 4, 2015

Instagram-Based Exhibit Raises Copyright Questions

Can someone be guilty of copyright infringement for using your images?


It seems like everyone in New York is talking about artist Richard Prince’s latest exhibit, “New Portraits” - a collection of screenshots of other people’s Instagram photos that Prince added his own comments to before printing them out on large canvasses. Gothamist is reporting that works in the collection are fetching upwards of $100,000; which has a lot of people questioning if it is fair that Prince is making so much money off of something that is in a large part the work of others.  

Prince is famous for appropriating other people’s work, making slight changes, and then exhibiting and selling it as his own, but this time people are really questioning whether he has gone too.  Copyright law protects artists, which the photo-takers arguably are, from infringement, in other words, outright copying. But Prince isn’t just printing out the work of others and selling it as his own, he’s adding commentary to the work.

Whether the minor changes Prince makes are enough to transform the art into something new allowing it to become protected under the doctrine of “fair use,” is unclear.  According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.”

In past lawsuits over Prince’s work, the artist has defended his work (and won) by arguing that his style of art is commentary and/or criticism, and is thus fair use. Whether that would apply to these new pieces is debatable (despite the fact that Prince literally commented on the original work).  So, unless one of the original Instagram picture-takers takes Prince to court, and the case makes its way all the way up to the United States Supreme Court, this is likely to remain a grey area of law that varies on a case by case basis. 

The lesson that can be learned from all of this is to think carefully about the content you are posting on the internet. Would you be comfortable with someone else taking what you post, adding to it, and then sharing it with others as their own work? If not, you should probably not be posting it. Or you should be prepared to litigate in order to protect it.

Thomas Lancia regularly represents clients in copyright disputes, and has done so for over twenty years. If you think you are the victim of or if you have been accused of infringement, contact New York City copyright attorney Thomas Lancia at (212) 964-3157 for a consultation today. 




Wednesday, May 20, 2015

Considering Copyright Laws This Election Season

Can Political Campaigns Violate Copyright Law?

In some respects, political advertising is given much more leeway than ads for products and services, but not when it comes to copyrights. If you own a copyright to something and it is used as part of political advertising without your permission, it may be a violation of the law.

Because of various state and federal consumer protection and anti-fraud laws, a private business cannot make false claims in advertising, but that is not a problem for political ads, according to Time magazine. If you sell junk food but claim it can be part of a weight loss program, the Federal Trade Commission can order the ad pulled and that the agency review your future ads. If you are a diet pill manufacturer making false claims about your products, you can be fined millions of dollars. 

When it comes to political ads, however, because of first amendment free speech protections, truth is optional. If a broadcaster runs political ads (and they’re a major revenue source come election time) it cannot refuse to air an ad even if it knows the contents are untrue. 

While being untruthful is not a problem for political ads, violating copyright laws is. The most recent example is a video produced by Rand Paul's presidential campaign which ran for a short time on YouTube, according to the Washington Post. The video was blocked due to a copyright claim from Warner Music Group (WMG) thanks in part to an automated system allowing copyright owners to block material on the popular video sharing website. With this system, YouTube matches submissions against a database of copyrighted material when a video is submitted. If they wish, a copyright owner can block a video from being viewed if permission for use of the copyrighted material was not granted.

Paul’s stumbling block was the use of Shuttin’ Detroit Down, a WMG song by John Rich, which was incorporated into the video without permission. It’s a 2009 song about the poor state of the economy. The Post sought comment from WMG but they did not respond.

If you are a copyright owner in the New York City area and see or hear that your material is being used without your permission, the copyright attorneys at Thomas M. Lancia PLLC can help you enforce your rights and protect your interests. If you have any questions or concerns about copyright laws, contact us today at (212) 964-3157.


Wednesday, May 20, 2015

Issues Involving Employer Wellness Programs

What are the Limits on My Employer’s Wellness Program?

Over the past few years, the use of wellness programs by employers has increased steadily across many sectors. Employers promote these programs, and justify them, by claiming a commitment and focus on the health and happiness of their employees, but many argue that the real driving force behind these programs is money. These programs aim to reduce smoking, obesity rates and chronic illnesses by encouraging employees to have their health monitored, quit smoking and lose weight. The hope of employers is that this will pay off in lower health insurance costs, less absenteeism and increased productivity.

These programs have come under criticism because of privacy concerns (these programs obtain personal health information), the fact that disabled employees simply may be unable to reach some health goals and the fact that their expense may not justify the benefits the employer receives. Those who do not participate, or do not reach certain goals, may be penalized with higher health insurance costs.

The federal Equal Employment Opportunity Commission (EEOC) initially criticized these programs as being discriminatory, if they result in higher costs for disabled employees. They recently reversed course and announced that reducing health insurance premiums to encourage workers to get health screening tests or improve health scores doesn't violate the federal Americans with Disabilities Act (ADA) if the programs do not violate the Affordable Care Act (Obamacare) and federal privacy rules, according to USA Today.

Large employers lobbied hard for the change (last year EEOC sued Honeywell due to its wellness program incentives) and apparently won. An estimated 60% of Americans have health coverage through work and a 2013 Rand Corporation study estimated more than half of companies with at least fifty employees had wellness programs.

Wellness programs may be used as an excuse to raise health insurance premiums on less healthy employees because the evidence showing actual health benefits to employees overall and financial benefits to employers is scarce. Another Rand study suggested that it is mostly the healthiest employees who participate and the health benefits from these programs frequently decrease after a few years.

If you live in the New York City area and have questions about disability discrimination or wellness programs, employment discrimination lawyer Thomas M. Lancia can help.  Call him at (212) 964-3157 today so you can discuss your situation and the applicable laws.


Monday, May 11, 2015

In Workplace Harassment Lawsuit, Employee Sues Over Mockery of His Catholicism

Can an employee sue an employer for discrimination or harassment for denigrating his religion and ethnic background?

Workplace harassment takes many forms.  Workers are sometimes mistreated or discriminated against because of their sexual orientation or ethnic or racial background.  In the case of victim Joseph Modica, the reason involved religion.

His employer, Steven Rosen, allegedly ridiculed him relentlessly for his Catholic beliefs.  Rosen is a former employee of Jordan Belfort, the "Wolf of Wall Street" depicted in a Martin Scorcese film.

The 42-page lawsuit filed in a Manhattan court demands $5 million in damages for the endless abuse Rosen heaped upon Modica for his religious views, as well as his Italian-American heritage.

Rosen allegedly asked Modica if he really believed Jesus was born to a virgin, suggesting that if he did believe it, he was "a moron.”  Rosen also mocked the resurrection as scientifically impossible.  He asked Modica not to wear ashes on his forehead at work on Ash Wednesday.  Modica say Rosen frequently referred to him using ethnic and racial slurs.

The abuse increased after Modica went to the emergency room with a possible heart attack.  Rosen made insensitive comments to Modica about his lifestyle and upbringing.  Holidays were an especially difficult time, as Modica was dragged into conversations in which he was baited and forced to defend his religion.  Some of Rosen's slurs allegedly also impugned Modica's integrity, unfairly implying he was a crook.

According to the lawsuit, the abusive workplace conditions spanned a four-year period, from the beginning of 2010 to mid-2014.

If you have been the victim of behavior you feel is unacceptable - insults, harassment, denigration of your race, ethnicity, sexual orientation, or disability - you may be able to sue your employer for damages. Thomas M. Lancia is an experienced trial lawyer who has handled all types of labor and employment law claims and other litigation.  He is admitted to practice in both New York and New Jersey.  For an evaluation of your claim, contact the law firm of Thomas M. Lancia PLLC today at (212)964-3157.


Friday, May 8, 2015

Questioning Job Candidates About Disabilities

Can I Be Asked About My Disability at a Job Interview?

Potential employers need to limit the questions they ask in order to comply with state and federal anti-discrimination laws. Not all employers are well educated about these laws, and if you have an obvious physical limitation or disability, you may find yourself being asked questions related to your disability. 

Generally, the federal Americans with Disabilities Act and the New York Human Rights Law prohibit employers from asking whether a job applicant has a disability or about the severity of a disability. In fact, any question that is likely to elicit information about a disability should be avoided. This is true for written applications as well as in-person interviews.

Employers are usually within their rights to ask if you can perform the essential functions of the job with or without a reasonable accommodation. If your disability is obvious and that might hinder you in performing the job, you may be asked how you can perform specific job duties.

After a conditional offer of employment, an employer may require you to pass a medical examination, as long as all job candidates need to go through the same process. This may involve questions that would not be allowed during a job interview, but this medical information is supposed to be kept confidential (with exceptions) and separate from your personnel file.

Some medically-related information can be shared; for example,
• Managers who need to be informed of necessary restrictions or accommodations for you,
• Medical departments or safety personnel in case emergency treatment is needed where you work, and
• Government investigators looking into discrimination complaints.

If a physical exam results in a withdrawal of a conditional job offer, the employer must show that: 
• The reasons are job-related consistent with business necessity, or 
• Your disability poses a direct threat to the health or safety of yourself or others, and 
• There is no reasonable accommodation that would enable you to perform the essential job functions without posing a direct threat to the health or safety of you or others.

For more than 20 years, attorney Thomas M. Lancia has been advising both employers and employees regarding employment discrimination. Contact him today by calling (212)964-3157.


Thursday, May 7, 2015

Is it Legal for the Boy Scouts to Discriminate?

In New York, it is illegal to make employment, housing, public accommodations, education, credit and decisions impacting civil rights based on a person’s sexual orientation. In 2000, however, the U.S. Supreme Court ruled in favor of the Boy Scouts in a decision involving a New Jersey public accommodation case which stated the organization need not comply with a state law barring anti-gay discrimination, so it is debatable if New York’s anti-discrimination employment law would apply to the group.

There are no federal laws, and most states also lack laws, prohibiting employment discrimination based on sexual orientation. In the New Jersey case, the organization removed a volunteer scout master when it was discovered he was gay and legal action ensued.

The nationwide organization has lifted its ban on gay youth but it continues to officially ban the use of homosexual volunteers and employment of gay workers. In early April, the New York City chapter announced it hired an openly gay Eagle Scout, eighteen year old Pascal Tessier of Maryland, to work as a summer camp leader, according to the Associated Press (AP), in defiance of the national organization’s policies.

A spokesman for the national group stated they were looking into the matter and their policies hadn’t changed. New York City Council Board Member Richard Mason told the AP that they notified the national office about the hiring but received "no comment or feedback" about it.

The AP reports that some local Boy Scout groups have accepted openly gay employees but the New York City’s Council's hiring is an unusual public departure from the national policy, possibly the first time a council publicly announced that one of its adult employees is gay. The issue of homosexuality is sharply dividing the organization, with many local groups strongly in support of the ban on homosexual leaders and employees while others sharply disagree with it.

The Greater New York Councils serve approximately 46,000 young people in scout troops and other programs. About 9,000 boys (and girls) are expected in its summer camps this year.

After the controversial hiring of Tessier, New York's Attorney General's Civil Rights Bureau Chief Kristen Clarke wrote to the national Boy Scouts of America organization, reminding it that state and city laws prohibit hiring discrimination based on sexual orientation, according to another Associated Press story. Clarke cited state and city laws covering employment and stated, "Entities that operate in or are registered to do business in the state of New York must comply with these anti-discrimination requirements."

If you live in the New York City area and feel you’ve been discriminated against because of your sexual orientation, Thomas M. Lancia can help. He handles all types of employment discrimination cases.  Call him at (212) 964-3157 today so you can talk about the situation, the applicable laws and your legal options for moving forward.


Monday, May 4, 2015

The “At Will” Employment Doctrine and Wrongful Termination

When Can New York State Employers Fire an At Will Employee?

Employees in New York State need to understand that, under at-will employment laws, they may be fired by their employers for almost any reason and without warning.  Although some exceptions to at-will employment exist (for reasons relating to, for instance, sexual harassment and discrimination) workers in New York State actually have less protection than workers in most other states.

New York is one of seven states that does not have public policy exceptions to the at-will employment doctrine. Public policy exceptions forbid firings for reasons such as:

  • Reporting of workplace safety hazards;
  • Opposition to an employer’s criminal activities;
  • Reporting of business practices that could harm the public in violation of specific laws, regulations and acts; and
  • Other acts relating to business practices that are inconsistent with public policies.

A wrongful termination case that recently concluded in the District of Columbia demonstrates the difficulties workers may face when challenging a wrongful termination.

In 2013, Alvin Hoff sued his former employer Wiley Rein LLP following his dismissal. Mr. Hoff claimed that:

  • He had been pressured by his superior to falsely give a direct report a satisfactory review;
  • When an unsatisfactory review was issued, the direct report claimed he had been given the poor review because the he had refused to lend Mr. Hoff money; and

That he was fired as a result of the direct report’s accusation.

Following his termination, Mr. Hoff filed a wrongful termination suit, arguing that the request by his superior to falsify the employee review violated laws prohibiting fraudulent business activities and the local Human Rights Act. That violation, he continued, would have put him within the exception to the “at will” doctrine because it involved legal fraud provisions, and because his discharge resulted directly from refusing to commit these violations.

The trial court disagreed, as did the appeals court that handled the case last month, stating that Hoff did not prove fraud would have occurred had he followed his employer’s directions.

Employee terminations can feel unfair and even heinous; yet prove to be fully legal under at-will employment laws. If you have questions regarding employment termination in New York, get answers and, if warranted, knowledgeable and aggressive legal help. Contact Thomas M. Lancia in Manhattan by calling (212)964-3157 for a consultation today.


Friday, April 24, 2015

Jury Verdict In "Blurred Lines" Controversy Finds Copyright Infringement

What do courts consider when determining whether a song infringes on another's copyright?

In a highly-publicized copyright infringement lawsuit, family members of legendary singer Marvin Gaye contended that pop icons Robin Thicke and Pharrell Williams unlawfully encroached on the unique sounds of Mr. Gaye’s hit 1977 song "Got to Give it Up" with their Summer 2013 mega-hit "Blurred Lines."

Eight jurors have now agreed and rendered a verdict of $7.4 million in favor of the Gaye family. According to accounting statements entered into evidence during the trial, "Blurred Lines" earned approximately $16 million. Rapper T.I., who was also named in the suit, was not found liable in the matter since his lyrical contribution to the song was considered in no way related or similar to Gaye's song.

When it comes to copyright laws, those holding the rights also hold the opportunity to defend against any subsequent content or creation that comes close to the protected version. The issue lies, however, in determining how similar a creation must be in order to infringe the copyright – as freedom of speech also comes into play to protect against overly broad or vague copyrights.

When discerning between a similar sound and a true infringement, courts are required to decide if the challenged piece contains “substantial similarity” to the original. Of course, this inquiry involves some level of subjective analysis; what sounds identical to one may sound completely distinguishable to another. Plagiarized music need not be identical to its source, but court opinions have hinged on some of the following issues: 
* Whether chords and notes used are identical
* Using the same title
* Whether lyrics are identical or near-identical
* Whether the copied version contains only a very minor change (e.g., altering the baseline).

For some juries, making a decision on this issue can be extremely difficult. In one famous copyright infringement case between Eagles front man John Fogarty and 1970s icons Creedence Clearwater Revival, the jury actually requested John Fogarty appear in the courtroom to perform the alleged copyrighted song – and determined it sounded similar, not identical.

The attorneys at Thomas M. Lancia PLLC have experience with copyright infringement litigation and will zealously represent your interests. Contact us today at (212)964-3157.


Tuesday, April 7, 2015

Successful Defense of Growing Startup that Provides Meals to Schoolchildren

Here is the appellate decision in recent case we successfully defended on behalf of a startup and its principal. The growing company, Red Rabbit, provides healthy meals for schoolchildren. The Appellate Division unanimously affirmed the lower court decision, dismissing all remaining claims for fraud and breach of fiduciary duty because the non-disclosed information was not material to, or relied upon in, the transaction.

Brummer v Red Rabbit, LLC
2015 NY Slip Op 02912
Decided on April 7, 2015
Appellate Division, First Department
 

Friedman, J.P., Acosta, Moskowitz, Richter, Kapnick, JJ.

14731 652565/12

[*1] John Brummer, Plaintiff-Appellant-Respondent,

v

Red Rabbit, LLC, et al., Defendants-Respondents-Appellants.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about July 28, 2014, which granted defendants' motion for summary judgment dismissing the complaint and plaintiff's cross motion for summary judgment dismissing the counterclaim, unanimously affirmed, without costs.

The complaint alleges that defendant Rhys Powell was a patient of plaintiff John Brummer, a podiatrist. In 2005, Powell formed defendant Red Rabbit, LLC to provide healthy lunches to New York City preschools. Powell used his own funds and those of other investors, including a total of $25,000 from Brummer at the inception of the business, giving Brummer a 7% interest.

In the summer of 2010, Powell approached Brummer and offered him $40,000 for 6% of the company (leaving Brummer with 1%), but without disclosing that he had been in negotiations for a large investment in Red Rabbit by two investors. Powell allegedly based his valuation of Brummer's interest on a percentage of Red Rabbit's average income for the past year and the next year as projected, and, in September 2010, Brummer accepted the $40,000.

The evidence of plaintiff's long-held desire to sell back his interest in defendant Red Rabbit, LLC demonstrates that the alleged false representations regarding the company's value and alleged concealment of impending investments from additional investors were neither relied upon nor material to plaintiff's decision to sell. Accordingly, dismissal of both the fraud and breach of fiduciary duty claims was warranted (see generally Lama Holding Co. v Smith Barney Inc., 88 NY2d 413, 421 [1996]).

Absent an allegation of actual loss by plaintiff, his unjust enrichment claim is also deficient (see Edelman v Starwood Capital Group, LLC, 70 AD3d 246, 250-251 [1st Dept 2009], lv denied 14 NY3d 706 [2010]).

The counterclaim failed to allege the breach of any duty found in defendant Red Rabbit's operating agreement.

Accordingly, it was properly dismissed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 7, 2015

CLERK


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