Unpaid Interns Win Big ... Sort Of

            Although the movie “Black Swan” was commended by moviegoers, it seems as though the Interns working for the movie were not big fans.  In a case filed in 2011, in the Southern District of New York, two Interns took action against Fox Searchlight Pictures Inc. for their work performed during the filming and production of “Black Swan.”   The Interns made claims for compensation as employees pursuant to the Fair Labor Standards Act and New York Labor Law, arguing to have completed work that paid employees normally do.

            In a decision rendered by Judge William H. Pauley III in June of 2013, the Court found that Fox should have paid the Interns on the movie “Black Swan” due to the interns being essentially regular employees.

In 2014, the U.S. Court of Appeals for the Second Circuit reversed partial summary judgment for the Interns, finding that the lower court applied an outdated test to find an employee’s status.  Instead, the Second Circuit applied a new test in determining if intern is the primary beneficiary of the internship, or the company.  Unluckily for Fox, this case will continue to be used as a standard and will set precedent around the country on paying interns.

            Following this decision, Fox Searchlight Pictures Inc. made the right move in agreeing to settle claims for up to $276,600 by Interns in New York and California (Fox included other interns working on other film projects in California as well).   The 557 Interns in California and 80 New York Interns would received a mere $495 each, but at the implications following this suit reaches far beyond monetary value.   It shows a step in the direction that Courts are now swaying with unpaid labor of an entire class of employees normally overlooked by the law.

            Although the counter-argument by employers is usually among the lines of Interns being paid in “experience,” Courts are now seeing past such foolishness and Interns are winning as a result.

For more on this story, visit: http://www.nytimes.com/2013/06/12/business/judge-rules-for-interns-who-sued-fox-searchlight.html?_r=0

For a copy of the motion for preliminary settlement approval, visit: http://www.bloomberglaw.com/public/document/Glatt_et_al_v_Fox_Searchlight_Pictures_Inc_Docket_No_111cv06784_S/2

** This Blog/Website is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Asian Americans Make Moves for the 2016 Election

                A new super PAC, the Asian American Pacific Islander Victory Fund (the “AAPI Victory Fund”) seeks to mobilize the Asian American and Pacific Islander communities during the upcoming 2016 election.  But what exactly is a super PAC you ask? Oxford dictionaries describe the super PAC (Political Action Committee) as a “type of independent political action committee which may raise unlimited sums of money from corporations, unions, and individuals but is not permitted to contribute to or coordinate directly with parties or candidates”[1]

             For example, a super PAC cannot say they specifically support Donald Trump and their funds go directly in Mr. Trump’s pockets, but with the super PAC’s own funds it can run ads that are favorable to Mr. Trump or negative ads that go against competing candidates e.g. Ben Carson or Ted Cruz.  It is no surprise that super PACs are as controversial as they are popular, with super PAC’s currently raising millions (sometimes even hundreds of millions), during election season and providing a monetary backbone for candidates.  Moreover, although super PACs are required to release the names of donors, many PACs avoid disclosure through affiliated nonprofit organizations that are not required to release names of donors and many donors can remain unidentified for months.

                The APPI Victory Fund is an original type of super PAC because its focuses specifically on voter turnout and civic engagement of the APPI community.  As the website states, the AAPI Victory Fund’s ultimate goals are to have “a position of influence for the 2016 Presidential candidates,” to “mobilize a broad population … [to show] AAPI force not just in numbers, but also in its leverage on the issues that impact and matter to us.”  This fund will hopefully combat the surprisingly low number of registered AAPI voters turning out to vote (currently more than one-third of registered AAPI voters do not turn out).  This super PAC is designed to provide a movement toward political advocacy for the over 18 million AAPI persons in the United States.

                In the current 2016 election cycle, with immigration issues taking center stage in many political debates, AAPI voters have an opportunity to have their voices heard nationwide and potentially could be seen as a community that should be focused on more politically.  Hillary Clinton’s campaign is one of the few candidates who see the advantages of obtaining the AAPI vote, with recent functions specifically tailored to obtain AAPI voters, the now fastest-growing racial group in the nation.  As recent as January of 2016, Clinton has made speeches to try and appeal to Asian voters through immigration reform (specifically to shorten wait times for those seeking visas).  She has also aligned herself with Democratic Asian Representatives such as Judy Chu, the chairwoman of the Congressional Asian Pacific American Caucus and has been vocal about her past ties and experiences in the Philippines.

                Although nothing is guaranteed when the time to vote comes, the potential AAPI vote with the help of super PACs like the AAPI Victory Fund could prove fruitful for AAPI persons nation-wide.  Now is the time for the AAPI to take advantage of its voting power and to not be silent in the next election.*

For more on the AAPI Victory Fund, or to donate to the APPI Victory Fund, visit their website: http://www.aapivictoryfund.com/.


* Please note there is no political affiliation associated with this post.

** This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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[1] See http://www.oxforddictionaries.com/us/definition/american_english/super-pac.

Abercromie & Fitch & No Accommodations

In an 8-1 Supreme Court decision on June 1, 2015, the Court ruled against the retailer Abercrombie and Fitch (“A&F”) regarding claims of religious discrimination in  EEOC v. Abercrombie & Fitch Stores, Inc.

In this case, a Muslim job candidate, Samantha Elauf (“Elauf”), went to an interview in 2008 at an A&F store in Oklahoma wearing a hijab (a headscarf worn for religious reasons).  Shortly after, Elauf was turned down for the position, with A&F stating their reason for the denial was because Elauf did not comply with the employee dress code i.e. the “Look Policy,” that bans hats.  Elauf sued with the assistance of the EEOC claiming A&F violated her Title VII rights by denying her employment based on her religious beliefs and practice.

A&F attempted to stand on some legal footing by arguing there were no discriminatory practices in this hiring because A&F supposedly did not know the scarf was worn for religious reasons (the hijab was never brought up on the interview and Elauf never requested to be accommodated).  However, the Court was not buying this argument, with the justices highlighting that A&F denied her a position with the company because of the headscarf.  Meaning, A&F assumed she would wear the headscarf daily because of her religious practice.  Justice Scalia, delivering the opinion, went on to say that an employer’s employment decision can violate Title VII if the applicant can merely show “that [the candidate’s] need for an accommodation was a motivating factor in the employer’s decision” and such “disparate-treatment claims” to accommodate religious practices are “straightforward.”  Although a big ruling for the EEOC, note that this case does not mean the Court found A&F to have discriminated against Elauf, only that she may now pursue her claim in a lower court with the instructions given by the higher Court.  This decision is a significant one, with the Supreme Court telling companies it is necessary to be more aware and sensitive to religious and cultural matters.

This is not the first court case against the retail giant A&F, with A&F previously having to pay approximately $50 million in a race discrimination settlement in back in 2003 (see, Gonzalez v. Abercrombie and Fitch Stores, Inc.).  Moreover, New York courts have also seen similar cases against A&F. In the Southern District, a race discrimination claim in 2013 arose based on conduct that occurred in A&F’s Fifth Avenue store.  In this case, an African American employee, Dulazia Burchette, alleged that managers of the store would force her and her African American co-workers to frequently change her hair color to black to comply with A&F’s “Look Policy.”  She alleged that this policy made African American employees “retain the hair color they were born with or color their hair only dark brown or black ... to conform with the color of their skin” as a condition of their employment.  She also claimed discrimination, retaliation and a hostile work environment.

However, the Southern District Court found she did not have enough evidence to prevail given that she could not “present any  (non-conclusory) evidence that any of the three Caucasian employees of A&F” that were “similarly situated employees” were “punished differently for actual, comparable incidents” and granted summary judgment for A&F (see, Burchette v. Abercrombie & Fitch Stores, Inc.).  For more New York employment discrimination cases against A&F, see also Perles v. Abercrombie & Fitch Co and Kizer v. Abercrombie & Fitch Co.

A&F has been in the spotlight for controversies sparked by their race and sex intolerance regarding their retail items as well.  Asian American protesters in 2002 refused to purchase from the retailer after the company printed t-shirts with racially insulting slogans.  Such slogans included “Wok-N-Bowl, Chinese food and Bowling,” (featuring a man in a rice hat bowling) and “Pizza Dojo: Eat in or Wok Out,” (with “You love long time” printed in yellow).  Or, the slogan that personally insults me the most, “The Wong Brothers Laundry Service, Two Wongs can Make it White,” seriously?  Although these shirts were (not surprisingly) pulled, A&F obviously did not learn its lesson when printing a girls t-shirt in 2005, which said “Who Needs Brains When You Have These?”

Sadly, A&F still continues to stay open given boycotts and lawsuits galore, but at least their discriminatory ways are no longer being overlooked.  Discrimination in any form should not be allowed, but employment law cases being brought can help fight such intolerance. It is important to be aware of one’s rights, even when being hired, and to seek an attorney when you feel your rights have been violated.

* This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Sexual Orientation in New York: Are You Protected?

            The Court of Appeals for the Second Circuit recently heard on a case from a pro se appellant, Robert Dingle, regarding allegations of harassment in the workplace based on his perceived sexual orientation.  See Dingle v. Bimbo Bakeries USA/Entenmann's, No. 14-1215-CV, 2015 WL 8952903 (2d Cir. Dec. 16, 2015).  This former employee of Bimbo Bakeries USA (no, I am not making that name up) otherwise known as Entemann’s, sued his former employer claiming a hostile work environment while employed for the large bakery distributor.  Dingle raised claims under Title VII, the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”).

In his second complaint, he alleged a nude photo of a man that looked similar to him was distributed among employees at Bimbo Bakeries.  Following the picture incident, Dingle said he was subjected to “degrading comments about his genitals,” was questioned about his sexual orientation and faced a month of degrading and obscene remarks about him, e.g. that he is homosexual. Id.  None of Dingle’s co-workers making such comments were disciplined. Here, the Secord Circuit ruled that no Title VII claim existed, but remanded his claims of retaliation and hostile work environment under the NYSHRL and NYCHRL.

This is definitely not the first time New York has dealt with sexual orientation claims.  In fact, perceived sexual orientation is a category that is expressly protected under the NYSHRL and the NYCHRL. But what exactly is sexual orientation? N.Y. Executive Law § 292(27) defines “sexual orientation” to mean “heterosexuality, homosexuality, bisexuality or asexuality, whether actual or perceived” (emphasis added).  Under N.Y. Executive Law § 296(1)(a), it is an unlawful discriminatory practice for an employer, “because of an individual's age, race, creed, color […] sexual orientation…to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”  This law works in congruence with New York’s SONDA Act (the Sexual Orientation Non-discrimination Act) that also protects people in the employment context based on their actual or perceived sexual orientation.  Lastly, the N.Y.C. Administrative Code § 8-107(1)(a) also provides protections in the workplace, stating that it is unlawful for an employer to discriminate based on the “actual or perceived” sexual orientation in hiring and firing decisions, or “to discriminate against such person in compensation, and the terms or privileges of employment.

The use of such laws and acts were demonstrated in the Roberts v. United Parcel Service, Inc. et al, Docket No. 1:13-cv-06161 (E.D.N.Y. Nov 07, 2013). In an Eastern District case, a woman named Tameeka Roberts sued the United Parcel Service, Inc. (“UPS”), after much discrimination regarding her being a lesbian and having a lesbian partner.  Ms. Roberts raised claims under the NYSHRL and NYCHRL regarding her sexual orientation being the focus of her discrimination in the workplace.  Ms. Roberts faced harsh comments such as “being lesbian is wrong” and “being lesbian is a sin because it says so in the Bible” “had demons in her and was going to hell.”  Moreover, even after complaining about these comments to UPS, no corrective actions or measures were taken by UPS and allowed the comments to discrimination to ensue.  Ultimately, on July 27, 2015, Judge Jack B. Weinstein found there was a “sufficient evidentiary basis to support the jury’s verdict that defendant UPS subjected plaintiff to a hostile work environment based on her sexual orientation” and “retaliated against her for complaining” He then ordered over $25,000 for each claim and denied UPS both their motion for judgment as a matter of law and their motion to vacate the punitive damage award.

A case recently filed in Eastern District on Sepember 21, 2015, involves a lesbian woman is claiming her employer made comments stating she should wear her hair down to “look prettier” and a co-worker telling the lesbian woman’s wife on the phone she was unavailable to answer her call because “her wife wanted to be with a real man” Thomson v Odyssey House, 14-CV-3857 MKB, 2015 WL 5561209, at *2 [EDNY Sept. 21, 2015].  Thus, these cases will be continue to be brought and fought, and sexual orientation cases will continue to rise, especially in New York.

            In the ever changing field of employment discrimination and the advancements of protections of sexual orientation and gender-identity, knowing what is actionable under New York law and federal law is vital to protect anyone falling within these classes.  If you believe you have been subjected to discriminatory treatment in the workplace, contact our firm now to determine if you have an actionable claim.


* This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

How Obergefell Effects Employment Laws

        The recent historic Supreme Court ruling in Obergefell v. Hoges, legalizing same-sex marriage throughout the nation, left some employers and employees questioning how this will apply to the workplace.  More specifically, if Obergefell will have any impact on federal law and Title VII employment discrimination protections.

Title VII of the Civil Rights Act of 1964 is a federal law that protects employees and applicants from employer discrimination based on their “protected status,” e.g. race, color, national origin, gender, and religion. Note that the employer must have 15 or more employees and Title VII also prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin (e.g. interracial marriage).  However, there are no federal protections afforded for sexual orientation or gender identity under Title VII or federal law … yet.

Currently, twenty one (21) states, as well as the District of Columbia, have passed laws prohibiting employment discrimination, with approximately 48% of the LGBT community living in these states.  In our progressive state of New York for example, we have The Sexual Orientation Non-Discrimination Act (“SONDA”).  SONDA, passed in 2003, adds the term “sexual orientation” as a protected status in State laws such as the Human Rights Law, the Education Law, and the Civil Rights Law.

Groups such as the Human Rights Campaign and other LGBT advocates have been pushing for federal laws that protect lesbian, gay, bisexual or transgender individuals from employment discrimination for several years.  For example, Congress has consistently failed to pass the Employment Non-Discrimination Act (“EDNA”) protecting such individuals.  On the other hand, a federal law signed by President Obama in July of 2014 and effective since April 8th, 2015, offers discrimination protections for sexual orientation and gender identity in the federal contracting industry.

Now these groups and advocates can push even further, with Obergefell providing a legal foundation to stand on.  Obergefell does not mention extending protections for sexual orientation or those in same-sex marriages to the workplace, but it did provide a glimpse of what’s possibly next to come, a new political landscape.  The reasoning goes, if same sex marriages now have to be recognized in every state and marriage licenses must be issued to these couples, how is it these individuals can still be fired due to their sexual orientation in many states?  At a crossroads with this are the lower courts and state legislatures that now must take a stance and interpret the implications of Obergefell in the employment arena.  In light of the giant steps taken towards marriage equality and the small steps towards protections of gender identity and sexual orientation in employment, I think the future of employment law and Title VII will change dramatically in the upcoming years, and Obergefell might be the reason.*

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* Please note that since the writing of this article, legislation called the Equality Act has been proposed to possibly expand federal protections for LBGT Americans.  As of November 10, 2015, President Obama has announced his support of the Equality Act (especially with pressure from many big companies such as Apple, Nike, Facebook and Google).  Also in support of the Equality Act is Presidential Nominee Hillary client. The federal protections under the Equality Act would include employment and other major areas where LGBT are not covered, such as housing and public education.  The Equality Act also aims to amend the Civil Rights Act of 1964 to include sexual orientation and gender identity as protected classes.

** This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Facebook Drama: When Status Updates Become Terminations

            With social media now in every aspect our lives, it’s no surprise that Facebook and employment laws are intermingling now more than ever.  But what does this mean for employees?  That your boss might fire you for posting too many Instagram pictures of your food?  Or that you have too many selfies?  Not exactly, but a recent case shows your online footprint is not protected as you probably think.

            An employee of Tasker Healthcase Group learned the lesson of what not to say online the hard way when complaining in a group message on Facebook.  This group message discussion, which was intended to organize a social event between employees of Tasker, wound up being a therapy session for one employee who wrote about their dissatisfaction with the company.  The comments included “F*** … FIRE ME … MAKE my day,” and that the company is “full of sh**.”  Following these posts, this employee was immediately terminated after another employee part of the group discussion showed their employer.

            Obviously this termination did not exactly “make her day,” because she then filed a charge claiming that firing her violated the National Labor Relations Act (“NLRA”), which protects certain concerted activity on behalf of employees to improve working conditions or wages.  Experts have said the claim will probably be dismissed because her posts proved to be more of a personal problem with the company rather than a violation of the NLRA regarding her working conditions.

            According to the National Labor Relations Board (“NLRB”), the NLRA protects both union and non employees, and employees can come together to address their working conditions.  This includes “certain work-relation conversations” on social media outlets.  Be sure to note that many of these decisions are case specific, but based on much recent case law the NLRA has been somewhat expanding its scope of social media activities that are protected.

            As seen in another case, the NLRB upheld and administrative law judge’s decision that a New York City catering company violated the NLRA when it fired an employee that verbally attacked a insulted a supervisor on Facebook.  The post included foul language stating his supervisor is a “NASTY MOTHER F**KER” and “F**k his entire f**king family.”  Interestingly, the NLRB in this case felt that this employee still deserves protection and the catering company violated the NLRA when terminating him because of this post.

            These cases highlight the need for employers to be aware of the NLRA, to reevaluate social media policies in the workplace and to consult with an employment law attorney.  Such policies cannot “inhibit concerted activity,” but employers can still have some control over employees that use these outlets disapprovingly, i.e. if the employee greatly interrupts the employers operations or engage in conduct that hinders morale.



* This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Obama’s New Overtime

            Middle class workers, rejoice!  An overhaul on overtime regulations is on the horizon with the Department of Labor now finalizing its recommendations for the amended overtime rules.  The finalization is based on the previous 2014 Presidential Memorandum signed President Obama, which was then followed by the proper federal rulemaking procedures i.e. the Notice of Proposed Rulemaking in July, 2015 and a 60-day comment period elapsing this fall.

            Presently, under the current rules for overtime (last restructured in 2004) certain salaried workers cannot qualify for overtime work if they are making over $23,600 a year (a mere $455 a week).  However, with the new rules the threshold will rise to $50,440.  Meaning, over an estimated five million workers in the United States will now be able to receive overtime benefits (according to the Department of Labor and the Obama administration).

            Pew Research Center has conducted an analysis of the jobs most likely to benefit from the new overtime rule that allows these white-collar workers to become eligible for overtime.  At the top of the list “First-line managers of retail sales workers,” with a staggering 325,783 estimated number of affected workers.  Following this category: accountants and auditors, Managers (all other), First-line managers of office and administrative support workers, etc.  See http://www.pewresearch.org/fact-tank/2015/08/24/proposal-could-make-nearly-5-million-workers-newly-eligible-for-overtime/.

            To exemplify this, take for instance a man named Rick.  Rick is an employee of a local restaurant chain.  Rick worked his way up the restaurant management food-chain, starting at as a dishwasher and is now a shift manager, in charge of 50 employees.  Rick works hard to pay for his college loans, his mortgage, and to put clothes and food on the table for his wife and three children.  Making $460 a week, a measly $23,920 a year, Rick needs to keep his job even if this means staying longer hours to fulfill his managerial responsibilities.  Yet all those long hours do not amount to any extra overtime pay because Rick is considered an exempt employee under the current threshold.  Therefore, Rick, like many middle class workers in the same situation, are stuck working long hours for wages that don’t provide nearly enough to support a decent lifestyle.

            With the threshold change now being raised to $50,440, a threshold that hasn’t been as high since 1975, those workers (like Rick) falling below this amount will now qualify for overtime pay.  Employers can no longer exempt employees from overtime benefits that make over the $23, 600 threshold merely because these salaried workers are considered “management” or “administrative personnel.”

            But of course change does not come without backlash.  Those in opposition, such as congressional Republicans and business groups, worry the potential side effects this proposal could prove to hurt the workforce more than help.  These groups argue employers (especially small businesses) will now give less hours to avoid giving paid overtime to workers by spreading the work out in such a way to avoid employees from being non-exempt from overtime benefits.  For example, hiring more part-time workers and cutting down the availability to earn managerial jobs might be a way for employers to avoid the extra costs.

            Keep in mind that the proposed rules are not official yet, meaning employers have time to reevaluate how to comply with these standards and should seek legal help in making sure they do.  This drastic rule could potentially leave a lasting legacy for the Obama administration, whether that leaves distaste in employer’s mouths or not.

For more on this, visit http://www.dol.gov/featured/overtime/#



* This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.