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Employment Litigation

Friday, June 9, 2017

NYC Employers Should Review Their Hiring Practices


What should NYC employers know about the new salary history law?

A new law signed this month by New York City Mayor Bill de Blasio may mean changes to some New York City employer’s hiring practices.  The bill prevents employers from asking job applicants about their salary history.  It will take effect on October 31, 2017.  Our


Read more . . .


Friday, April 21, 2017

NYC Bill To Ban Employers from Asking Potential Employees About Salary History


What positive effect could banning employer inquiries as to salary histories have on employees citywide?

A New York City bill has proposed preventing private employers in the city from questioning employees about their salary histories.  The bill, number 1253, was approved by the New York City Council on April 5.  It now awaits approval by Mayor Bill de Blasio.  Several other states and cities have taken similar measures to prohibit employers from inquiring about a job applicant’s previous salary.  Our Read more . . .


Monday, March 20, 2017

Major Jewelry Conglomerate Faces Sexual Harassment Lawsuit


What should I do if I am being sexually harassed at work?

Hundreds of former employees have filed claims of sexual harassment and gender discrimination against Sterling Jewelers, the owner of Jared the Galleria of Jewelry and Kay Jewelers.  Female employees claim the work environment in these mega jewelry stores encouraged sexual misconduct, such as groping and sexual favors in exchange for promotions.  The class action lawsuit was first filed in 2008, but the case remains unresolved.
Read more . . .


Tuesday, February 14, 2017

For Your Own Sake Don’t Do THIS to Your Employees


Dumb, dumb, dumb case from Idaho, reversed by the Ninth Circuit Court of Appeals.  You can find the case here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/03/14-35396.
Read more . . .


Tuesday, December 27, 2016

Using Social Media in Employment Litigation


Can  social media info be used in employment litigation?

Now that we are deep in the midst of the Age of Social Media, there is a tremendous amount of evidence available to lawyers dealing with employment litigation. The courts have ruled that, although in most states defendants cannot be forced to reveal their passwords to private accounts, when they have made social media access "public," any words or images that are accessible to the public are fair game as far as legal evidence is concerned. This means that all social media entries -- Facebook, Twitter tweets, Instagram posts, LinkedIn and MySpace information may be tapped for damaging information, as long as such information is publicly available and connected to the identity of the person who posted it.
Read more . . .


Tuesday, July 19, 2016

Employee Wellness Programs & The Obligations Of Employers


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

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


Read more . . .


Sunday, May 15, 2016

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


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

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

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


Friday, April 15, 2016

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


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

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

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

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

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

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

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


Read more . . .


Friday, March 11, 2016

EEOC Proposes New Guidance on Employment Retaliation

How does the EEOC define employment retaliation?

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

What is retaliation?

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

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

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

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

How can an employer minimize the risk of retaliation violations?

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

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

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


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:

 http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2264228&GUID=49F08C11-0166-4618-B6F2-F96967DA6574&Options=ID|Text|&Search=743


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