NYC Litigation Blog

Wednesday, October 15, 2014

Top Model Sues New York City Modeling Agency for Wage Violations

According to model Eva Agerbrink, a New York modeling agency has gone too far in its attempt to wring money from its talent.  In her class action lawsuit against MSA Models, the 48-year old plaintiff claims that the agency, like many others, illegally evaded state and federal wage and hour laws by claiming that its models were "independent contractors."  The agency also penalized models when clients they modeled for failed to pay the agency.  Its practice was to deduct 20 percent from models' commissions and also to charge the clients who hired them 20 percent.  If a client didn't pay, they deducted funds from the model.

Agerbrink says that, relying on such practices, MSA deducted 35 percent of Agerbrink’s earnings for work she did modeling for the QVC shopping network.  

Her complaint against MSA Models and its owner accuses them of minimum wage and overtime violations.

She also says that when, without the agency's help, she found and accepted an in-house position as an administrative assistant and model with Cache, a nationwide specialty retailer, MSA demanded a percentage.  The agency served her with papers claiming the right to $17,946 in wages from her new job.  

Agerbrink claims she has lost tens of thousands of dollars in the course of her three-year contract with MSA and is seeking unpaid wages and other damages.  Models generally are not paid all the wages they have earned, she says, because of their weak bargaining position.  

Agerbrink has a colorful past as a model and actress.  She played the part of a stripper in a movie and was involved in a love-triangle that made gossip pages when one of her lovers allegedly threatened another with a baseball bat. Even so, her plight is no different from that of workers who rely on staffing agencies in less glamorous industries.  

If you have been classified as an independent contractor when you are actually an employee, or if you feel a staffing company is unfairly deducting too much from your earnings, you may have a claim under federal and state wage and overtime laws.  Thomas M. Lancia can help you recover the back pay and damages to which you are entitled.  Call (212)964-3157 for a consultation today.

Friday, September 26, 2014

New All Female Car Service Causing Discrimination Concerns

In the city that never sleeps it is a reality that you might need a ride at 3A.M. Many New York women feel uncomfortable being picked up by a male driver in the late hours of the night or anytime they are alone.  One entrepreneur has the solution:  An all female car service.  But, what are the legal implications of running this type of business?

A new car service called She Rides has been created by Stella Mateo, wife of the leader of the New York State Federation of Taxi Drivers, Fernando Mateo. She Rides is a women only service.  The cars will only pick up women and will be driven by only women.  The service has its own App which women can download.  When they need a ride, they can open the App and request one.  At that point, a female driver in the area will come and pick them up. She Rides will use female drivers from other companies as well as hire their own.  But, hiring only female drivers could cause some legal trouble for Mateo.

According to Title VII and New York State law, employers cannot use gender as a factor in employment decisions. Employers are not permitted to hire or fire based on the gender of the employee.  Experts say that even if the customers want service that revolves around gender, providing the service in this way is still qualifies as employment discrimination.  She Rides therefore creates an interesting situation.  If Mateo is to hire only female drivers she would, in essence, be participating in gender discrimination.  Any man that was not hired for a position with She Rides would have an employment discrimination claim. Mateo points to women using female doctors and going to exclusively female gyms as a basis to deny any discrimination she might become involved in. Unfortunately, the law does not work this way and she will most likely face a claim in the near future.

While gender discrimination has been outlawed for many years, it and many other forms of employment discrimination still exist.  If you think you have been a victim, call New York City attorney Thomas M. Lancia at (212)964-3157 to schedule an appointment to discuss your case.  

Tuesday, September 16, 2014

Agreement Reached in NYC School Safety Agent Gender Discrimination Case

During Mayor Michael Bloomberg’s reign, the Teamsters Local 237 labor union brought suit against the City of New York for gender discrimination.  The case was filed on behalf of school safety agents that were members of the union. The majority of agents are women and the basis of their discrimination claim is that special officers that work for other city agencies, more of which are men, are paid a higher salary.  They allege that under these circumstances, the difference in pay qualifies as gender discrimination.

After feminist protests and media campaigns urging the City and the Mayor to do something about the gender discrimination, a settlement agreement has been reached.  The agreement is contingent on court approval but includes retroactive pay for workers that were discriminated against.  More than 5,000 workers that have been employed for three or more years will be entitled to a $7,000 payment to make up for the lower salary.  The City will be responsible for paying out around $38 million in retro-pay to injured workers. Accompanying the settlement is a new employment contract for Local 237 members that will cost the City approximately $192 million.  Under the new contract, workers will start at a slightly lower salary than they did previously, but their pay will increase significantly by their seventh year of service.  

Local 237 president, Greg Floyd, has said that although it did not happen as quickly as he would have liked, he is happy with the settlement.  All in all, things are looking up for NYC workers under the new mayor.  De Blasio has continuously claimed to be committed to doing the right thing for workers and has negotiated new contracts for a number of unions in recent months.

Employment discrimination is a serious matter that can have an effect on your livelihood.  If you believe that you have been the victim of employment discrimination you should consult with a qualified employment law attorney today.  Call New York City attorney Thomas M. Lancia at (212)964-3157 to schedule an appointment to discuss your case.  

Thursday, August 28, 2014

American Eagle Outfitters Sued for Copyright Infringement

What used to be considered graffiti and vandalism has now come to be known as street art.  Street art is now commonplace, accepted and admired in cities all over the world.  Street art, once thought to lower the quality of life in the areas it was visible, is now thought to be an enhancement, turning once low key areas into up and coming neighborhoods.  Unfortunately, the artists that create this art do not have a lot of options when it comes to protecting their works.  What protections they do have is at the heart of a recent copyright infringement case.

Popular Miami street artist, David Anasagasti a.k.a. AholSniffsGlue, whose work adorns the Wynwood Art District, is well known for his anti-corporate beliefs.  Recently, he discovered that clothier American Eagle Outfitters was using some of his work in their spring campaign.  His work appears in the company’s marketing tools digitally, in print on billboards and advertisements and in stores in a number of countries.  One unauthorized use of his work by American Eagle Outfitters depicts a young model with a can of spray paint which implies that the model created the work himself.

Anasagasti promptly brought a copyright infringement suit in New York against the company for the use of his work without his authorization.  He claims that American Eagle Outfitters failed to attribute the work to him and compensate him for his work.  Anasagasti also alleges that the company knew how to get in touch with him but failed to do so.

Some think that the company did not attempt to attain authorization to use the work because it did not believe it had to.  It is thought that in order for original work to be protected it has to be free of illegality.  The copyright law is unclear when it comes to the standards for original work that is illegal in nature.  As a good amount of street art is done illegally it could be that American Eagle Outfitters did not think that the work was protected by copyright. The U.S. copyright law does not provide that all original works that are done unlawfully are exempt from copyright protection and his might be the saving grace for street artists looking to stop the unauthorized use of their work.

If you believe your copyrighted work is being used unlawfully or you have been accused of copyright infringement you should seek the advice of an attorney experienced in this area.  Thomas Lancia has years of experience representing clients in these matters.  Call (212)964-3157 for a consultation today.

Monday, August 11, 2014

New Protections for Unpaid Interns Under New York Law

Whether in college, transitioning from one career to another or just trying to get your foot in the door, the unpaid internship has become quite popular.  These situations benefit the employer and the intern in that the employer receives free labor while the intern gains valuable experience in the industry they aspire to work in.  Colleges and graduate schools push unpaid internships and some even require them before allowing students to graduate.  Unfortunately, interns are often abused and are afraid to speak up because they do not want to ruin their chances of getting a job.  New York State has now enacted a law that protects interns from these abuses.

Previous case law issued by a Federal District Court in 2013 made unpaid interns exempt from protections for on the job discrimination and harassment.  The new legislation, actually an amendment to the New York State Human Rights Law, makes certain employment laws relating to discrimination, retaliation and harassment applicable to unpaid interns.  This law overturns the previous case law and goes into effect immediately.  The law specifically defines interns as unpaid individuals whom the employer is not required to hire after the internship, that are being closely supervised, do not replace regular employees and that are being trained to make them more employable in the future.  It focuses on discrimination and sexual harassment against interns making these acts specifically illegal.  It also makes it clear that even though these laws apply it does not mean that an employment relationship has been created.  Although New York is not the first state to enact these types of laws, and New York City recently put a similar statute in place, the law will surely make the experience of an unpaid internship much more valuable to those who decide to participate in one in New York.

If you feel you are currently being discriminated against, harassed or retaliated against at your unpaid internship you need the advice of an experienced employment law attorney to navigate the new law and decide whether you have a claim.  Call New York City attorney Thomas M. Lancia at (212)964-3157 for a consultation.

Thursday, July 31, 2014

Two Recent Lawsuits Challenging New York City Teacher Tenure Laws

In June of this year, a California court issued a decision striking down teacher tenure laws in the state as unconstitutional.  The basis of the decision was that teacher tenure laws violate student’s rights to an education as they allow incompetent educators to keep their jobs.  Tenure laws are job protection laws that sometimes make it nearly impossible to remove a poorly performing teacher from the system.  Based on the California case, two lawsuits have been filed by parent organizations challenging New York City tenure laws.

In New York City, teachers are eligible for tenure after three years of employment.  Once they gain tenure, they can only be punished or fired for poor performance after going through the City disciplinary system.  Some reports have shown that it can take years and hundreds of thousands of dollars in city resources to remove a teacher through the disciplinary system.  One study showed that in a ten-year period only 12 teachers were removed on the basis incompetence.

The pending lawsuits, including one by the New York City Parents Union, allege that the current system is not working and that it keeps ineffective teachers in the system violating the constitutional right to an education held by students.  They also allege that laying off teachers with the least seniority first in a bad economy, regardless of their skills, is bad policy.  The plaintiffs seem to be particularly focused on how tenure laws affect low-income and poverty stricken schools and students.  

The United Federation of Teachers (UFT), a union that represents a large number of New York City educators, entered a memo opposing the lawsuit and waging support for tenure laws as necessary job protections for teachers.  An attorney for UFT characterized the lawsuits as misleading stating that the proposition that even incompetent teachers will not lose their jobs is incorrect.

For teachers that are capable, knowledgeable and experienced, tenure laws can be a great protection against unsubstantiated claims by students and parents.  If you are a teacher and are involved in a matter where tenure issues are present, or you have any other employment law issue you would like to discuss, call New York City attorney Thomas M. Lancia at (212)964-3157 for a consultation.

Tuesday, July 15, 2014

Beastie Boys Win Copyright Infringement Lawsuit

Copyright infringement cases have always been common among recording artists.  Artists in the hip-hop genre have traditionally been more prone to these types of suits as the borrowing of hooks and beats is widespread. Musicians such as David Bowie and Rick James have been involved in copyright infringement.  More recently, work by the musical group LMFAO has been the subject of this type of litigation.

The Beastie Boys have recently made and won a claim of copyright infringement.   After group member Adam “MCA” Yauch passed away in 2012, Monster Beverage Inc., the company that produces Monster energy drinks, put out a video with a compilation of Beastie Boys tracks played by DJ Z-Trip.  A download of these songs was also issued along-side the video.  The video was sponsored by Monster and the download was available through their site.
Unfortunately for them, Monster overlooked one important factor before issuing the video and download.  The Beastie Boys have traditionally been against the use of their music in a commercial capacity.  Adam “MCA” Yauch was particularly against this as evidenced by a specific clause in his Last Will and Testament.  So, the remaining members of the group, Michael “Mike D” Diamond and Adam “Ad-Rock” Horovits, brought suit seeking $2.5 million in damages.  The court eventually found for them and awarded $1.7 million.  The group members seemed to be pleased with the ruling.

Using someone else’s copyrighted work without permission often results in a legal problem.  In a case where the owners of the copyright are openly against the use of their work, one should be exceptionally careful.  Copyright infringement is a very serious matter that often involves very complicated issues.  In order to get the best possible outcome in these types of cases, it is important to obtain the representation of an experienced intellectual property attorney.

Thomas M. Lancia is experienced in the litigation of copyright infringement cases.  He represents clients who are claiming copyright infringement or are accused of it.  If you have a copyright infringement issue, call Thomas M. Lancia at (212)964-3157 for a consultation today.

Monday, June 30, 2014

A Shift in Federal Employment Discrimination Based On Sexual Orientation

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate based on race, color, religion, gender or national origin. What Title VII does not cover is employment discrimination based on sexual orientation or gender identity. The issue of rights of LGBT citizens has been growing over the last few years, especially in the context of same-sex marriage. Now President Obama intends to formalize LGBT rights in the workplace.

Many states have legislation making it illegal to discriminate against employees based on sexual orientation or gender identity. But, the Federal government does not. Therefore, members of the LGBT community are still vulnerable to employment discrimination on a Federal level. President Obama is planning on signing an Executive Order making this type of employment discrimination by Federal contractors illegal. It is important to realize that this Executive Order will not make this type of employment discrimination illegal for all employers. It only applies to Federal Contractors i.e. those who enter into contracts to do work for the Federal government.

All of the details of the executive order are not known at this time and are most likely not finalized. Writers also don’t know when the Executive Order will be finalized or signed by President Obama. But, it is likely that the Executive Order will be very similar to a recent employment discrimination Senate Bill of the same nature that was offered up but failed due to a Republican led house.

The proposed Executive Order has been applauded by LGBT rights organizations. But, these organizations are not totally happy with it. They think that the country needs a more comprehensive bill that would cover more than Federal contractors. In essence, they want Federal legislation that makes employment discrimination based on sexual orientation or gender identity that applies to all employers.

Thomas M. Lancia, Esq. is experienced in representing victims of employment discrimination based on race, gender, religion, disability and sexual orientation. If you or someone you know has been the victim of this type of discrimination, call Thomas M. Lancia PLLC at (212)964-3157.

Thursday, June 26, 2014

Religious Discrimination in Employment Is Not Always What You Might Think

If someone asked you to explain employment discrimination due to religion (which is illegal under state and federal law), you might cite a situation where an employer learns of an employee’s religious beliefs that they find to be offensive or unreasonable. As a result, the employer takes action against the employee. It doesn’t always work that way.

A lawsuit filed by the federal Equal Employment Opportunity Commission (EEOC)  against a company not far from New York City, in Syosset, earlier this month showcases a different form of religious discrimination. It’s something employers need to be aware of, especially if they want, or feel a need, to share their faith.

The EEOC claims health network United Health Programs of America, Inc., and its parent company, Cost Containment Group, Inc., violated federal law when it forced employees to take part in religious activities in the workplace. It also alleged the defendants fired employees who opposed such activities (resulting in another legal claim for retaliation). If true, these alleged acts would violate Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on religion and retaliation. According to the complaint, defendants provide customer service on behalf of insurance providers.

The EEOC alleges that the defendants:

  • Coerced employees to participate in ongoing religious activities since 2007.
  • This included group prayers, candle burning and discussions of spiritual texts.
  • These practices are part of a belief system that the defendants' family member created, called "Onionhead" or “Harnessing Happiness.”
  • Employees were told to wear Onionhead buttons, pull Onionhead cards to place near their work stations and keep only dim lighting in the workplace.

The New York Daily News, citing the complaint, reports that a Cost Containment official, allegedly the leader of Onionhead practices at the company, is accused of retaliating against three employees who balked at attending one-on-one sessions to discuss "divine plans" and "moral codes." As part of these religious practices, employees allegedly needed to say “I love you” to other employees and management.

These practices were not work-related, according to the EEOC, and when employees opposed taking part in these religious activities or did not participate fully, they were terminated.

Robert D. Rose, regional attorney of EEOC's New York District Office, is quoted in an EEOC press release as stating, "Individuals are free to practice religion or not in line with their own personal beliefs. Employers are not permitted to dictate this area of workers' lives. Workplace pressure to conform to the employers' spiritual or religious practices violates federal employment law."

If you own or manage a business in New York City and your religion is part of the work atmosphere, or are an employee uncomfortable with your employer’s religious practices or attempts to convert you, contact my office so we can discuss your situation and talk about what is, and is not, allowed under the law.

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