tag:blogger.com,1999:blog-19000532396260152012024-03-13T08:39:29.580-07:00Brendan's Employment Law BlogAnonymoushttp://www.blogger.com/profile/08839850413778863814noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-1900053239626015201.post-10353552740860598052016-08-04T09:32:00.002-07:002016-08-04T09:42:33.587-07:00Unpaid Interns Win Big ... Sort Of<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /> 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.</span><br />
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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. </span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;">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applied an outdated test to find an employee’s status.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.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.<br />
<!--[if !supportLineBreakNewLine]--><br />
<!--[endif]--></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"><b>For more on this
story, visit:</b> http://www.nytimes.com/2013/06/12/business/judge-rules-for-interns-who-sued-fox-searchlight.html?_r=0
</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif;"><b>For a copy of the motion for preliminary settlement approval, visit: </b>http://www.bloomberglaw.com/public/document/Glatt_et_al_v_Fox_Searchlight_Pictures_Inc_Docket_No_111cv06784_S/2</span></div>
<div class="MsoNormal">
<div class="MsoNormal">
<span style="color: white; mso-themecolor: background1;"><o:p></o:p></span></div>
<span style="background-color: #441500; color: #ffeedd; font-family: "arial" , "helvetica" , sans-serif; font-size: xx-small; line-height: 18.2px;"><br /><br /><br />** 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.</span></div>
Anonymoushttp://www.blogger.com/profile/08839850413778863814noreply@blogger.com0tag:blogger.com,1999:blog-1900053239626015201.post-34817375942286598312016-01-22T12:40:00.001-08:002016-01-22T12:49:17.328-08:00Asian Americans Make Moves for the 2016 Election<span style="font-family: arial, helvetica, sans-serif;"> 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”</span><span class="MsoFootnoteReference" style="font-family: arial, helvetica, sans-serif;"><span class="MsoFootnoteReference"><span style="font-size: 11pt; line-height: 115%;"><a href="file:///C:/Documents%20and%20Settings/Intern/Desktop/Blog%20Posts/1.22.16%20AAPI%20Article.docx#_ftn1" title="">[1]</a></span></span></span><br />
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span class="MsoFootnoteReference"><a href="file:///C:/Documents%20and%20Settings/Intern/Desktop/Blog%20Posts/1.22.16%20AAPI%20Article.docx#_ftn1" title=""><!--[endif]--></a></span></span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span style="font-size: 11pt; line-height: 115%;"><a href="file:///C:/Documents%20and%20Settings/Intern/Desktop/Blog%20Posts/1.22.16%20AAPI%20Article.docx#_ftn1" title=""><br /></a></span></span></span></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.*</span><br />
<br /><span style="font-family: "arial" , "helvetica" , sans-serif;">For more on the AAPI Victory Fund, or to donate to the APPI Victory Fund, visit
their website: http://www.aapivictoryfund.com/.</span><br /><br /><span style="font-size: x-small;"><br /><span style="font-family: "arial" , "helvetica" , sans-serif; font-size: xx-small;">* Please note there is no political affiliation associated with this post.</span></span></span></div>
<span style="font-family: "arial" , "helvetica" , sans-serif; font-size: x-small; line-height: 18.2px;"><br /><br /><br />** 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.</span><br />
<div>
<!--[if !supportFootnotes]--><span style="font-family: "arial" , "helvetica" , sans-serif;"><br clear="all" />
</span><br />
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<br />
<div id="ftn1">
<div class="MsoFootnoteText">
<span style="font-family: "arial" , "helvetica" , sans-serif;"><a href="file:///C:/Documents%20and%20Settings/Intern/Desktop/Blog%20Posts/1.22.16%20AAPI%20Article.docx#_ftnref1" name="_ftn1" title=""><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span style="font-size: 10pt; line-height: 115%;">[1]</span></span><!--[endif]--></span></a>
See http://www.oxforddictionaries.com/us/definition/american_english/super-pac.</span></div>
</div>
</div>
Anonymoushttp://www.blogger.com/profile/08839850413778863814noreply@blogger.com0tag:blogger.com,1999:blog-1900053239626015201.post-78683666907117233492016-01-04T13:26:00.003-08:002016-01-22T12:45:50.117-08:00Abercromie & Fitch & No Accommodations<span style="font-family: "arial" , "helvetica" , sans-serif;"><span class="Apple-tab-span" style="white-space: pre;"> </span>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.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span class="Apple-tab-span" style="white-space: pre;"> </span>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.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span class="Apple-tab-span" style="white-space: pre;"> </span>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.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span><span style="font-family: "arial" , "helvetica" , sans-serif; white-space: pre;"> </span><span style="font-family: "arial" , "helvetica" , sans-serif;">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.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span><span style="font-family: "arial" , "helvetica" , sans-serif; white-space: pre;"> </span><span style="font-family: "arial" , "helvetica" , sans-serif;">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.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span><span style="font-family: "arial" , "helvetica" , sans-serif; white-space: pre;"> </span><span style="font-family: "arial" , "helvetica" , sans-serif;">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?”</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span><span style="font-family: "arial" , "helvetica" , sans-serif; white-space: pre;"> </span><span style="font-family: "arial" , "helvetica" , sans-serif;">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.<br /></span><br />
<div>
<span style="font-size: x-small;"><br /></span>
<span style="line-height: 18.2px;"><span style="font-family: "arial" , "helvetica" , sans-serif; font-size: x-small;">* 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.</span></span></div>
Anonymoushttp://www.blogger.com/profile/08839850413778863814noreply@blogger.com0tag:blogger.com,1999:blog-1900053239626015201.post-33310723342833807512016-01-04T13:09:00.003-08:002016-01-22T12:48:14.288-08:00Sexual Orientation in New York: Are You Protected?<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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. </span><i style="font-family: Arial, Helvetica, sans-serif;">See</i><span style="font-family: "arial" , "helvetica" , sans-serif;"> </span><u style="font-family: Arial, Helvetica, sans-serif;">Dingle v. Bimbo
Bakeries USA/Entenmann's</u><span style="font-family: "arial" , "helvetica" , sans-serif;">, 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”).</span><br />
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-indent: 0.5in;">
<span style="font-family: "arial" , "helvetica" , sans-serif;">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. <u>Id</u>. 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.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-indent: 0.5in;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-indent: 0.5in;">
<span style="font-family: "arial" , "helvetica" , sans-serif;">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 <i>is</i> sexual
orientation? N.Y. Executive Law <span style="background: white;">§</span> 292(27) defines “sexual orientation” to
mean “heterosexuality, homosexuality, bisexuality or asexuality, whether actual
or <i>perceived</i>” (emphasis added). Under N.Y. Executive Law <span style="background: white;">§</span>
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 <span style="background: white;">§</span>
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.<br /></span></div>
<span style="font-family: "arial" , "helvetica" , sans-serif;">
<!--[endif]--><o:p></o:p></span>
<br />
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-indent: 0.5in;">
<span style="font-family: "arial" , "helvetica" , sans-serif;">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.<br /><br />
<!--[if !supportLineBreakNewLine]--></span><span style="font-family: "arial" , "helvetica" , sans-serif;">
<!--[endif]--><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-indent: 0.5in;">
<span style="font-family: "arial" , "helvetica" , sans-serif;">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” <u>Thomson v Odyssey House</u>,
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.<br />
<!--[if !supportLineBreakNewLine]--></span><span style="font-family: "arial" , "helvetica" , sans-serif;">
<!--[endif]--><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt; text-indent: 0.5in;">
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span></div>
<span style="line-height: 115%;"><span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.</span><br /><br /><br style="line-height: normal;" /><span style="line-height: 18.2px;"><span style="font-family: "arial" , "helvetica" , sans-serif; font-size: x-small;">* 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.</span></span>
<!--[endif]--></span>Anonymoushttp://www.blogger.com/profile/08839850413778863814noreply@blogger.com0tag:blogger.com,1999:blog-1900053239626015201.post-34907249288376661322016-01-04T13:08:00.003-08:002016-01-22T12:46:41.060-08:00How Obergefell Effects Employment Laws<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<span style="color: white; font-family: "arial" , "helvetica" , sans-serif;"> 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.</span><br />
<span style="color: white;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span class="Apple-tab-span" style="white-space: pre;"> </span>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.</span></span><br />
<span style="color: white;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span class="Apple-tab-span" style="white-space: pre;"> </span>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.</span></span><br />
<span style="color: white;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span class="Apple-tab-span" style="white-space: pre;"> </span>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.</span></span><br />
<span style="color: white;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span class="Apple-tab-span" style="white-space: pre;"> </span>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.*</span></span><br />
<span style="color: white; font-family: "arial" , "helvetica" , sans-serif;"><br />______________________________</span><br />
<span style="color: white;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif; font-size: x-small;">* 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.<br /><br style="font-family: 'Times New Roman'; font-size: medium;" /><span style="font-family: "times new roman"; line-height: 18.2px;"><span style="font-family: "arial" , "helvetica" , sans-serif;">** 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.</span></span></span></span><br />
<div>
<br /></div>
</div>
Anonymoushttp://www.blogger.com/profile/08839850413778863814noreply@blogger.com0tag:blogger.com,1999:blog-1900053239626015201.post-46298142934422613682016-01-04T13:04:00.000-08:002016-01-22T12:47:59.190-08:00Facebook Drama: When Status Updates Become Terminations<span style="font-family: "arial" , sans-serif;"> 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.</span><br />
<div class="MsoNormal">
<span style="font-family: "arial" , "sans-serif";"><br /><o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "sans-serif";"> An employee of Tasker Healthcase
Group learned the lesson of what <i>not</i>
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.<br /><br /><o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "sans-serif";"> 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.<br />
<br />
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.<br /><br /><o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "sans-serif";"> 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.</span><br />
<br /></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "sans-serif";"> 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.<br /><br /><br /><br style="font-family: 'Times New Roman';" /><span style="font-family: "times new roman"; line-height: 18.2px;"><span style="font-family: "arial" , "helvetica" , sans-serif; font-size: x-small;">* 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.</span></span><o:p></o:p></span></div>
Anonymoushttp://www.blogger.com/profile/08839850413778863814noreply@blogger.com0tag:blogger.com,1999:blog-1900053239626015201.post-78029700964203993692016-01-04T13:02:00.001-08:002016-01-22T12:48:41.426-08:00Obama’s New Overtime<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<br />
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.<br /><br /><o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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).<br /><br /><o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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. <u>See</u>
http://www.pewresearch.org/fact-tank/2015/08/24/proposal-could-make-nearly-5-million-workers-newly-eligible-for-overtime/.<br /><br /><o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.<br /><br /><o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.” <br /><br /><o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.</span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> 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.<br />
</span></div>
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span><span style="font-family: "arial" , "helvetica" , sans-serif;">
For more on this, visit <a href="http://www.dol.gov/featured/overtime/">http://www.dol.gov/featured/overtime/#</a><br /><br /><br /><br style="font-family: 'Times New Roman';" /><span style="font-family: "times new roman"; line-height: 18.2px;"><span style="font-family: "arial" , "helvetica" , sans-serif; font-size: x-small;">* 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.</span></span></span>Anonymoushttp://www.blogger.com/profile/08839850413778863814noreply@blogger.com0tag:blogger.com,1999:blog-1900053239626015201.post-5034946813713151682016-01-04T13:00:00.002-08:002016-01-22T12:47:51.319-08:00New York City “Bans the Box”<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<br />
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;">As of June
10, 2015, New York City has officially become the largest city in the nation to
“ban the box,” with the passing of the Fair chance Act (“FCA” or “Intro 318”)
by the New York City Council. Even more
recently on June 30, 2015, Mayor Bill de Blasio officially signed the FCA into
law and the law has been in effect as of October 27, 2015. <br /><br /><o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> New York City is now part of the
ever-growing list of a hundred cities in seventeen states that have recognized
certain boundaries to place on employers in the hiring process. With this “banning,” employers (both in the
private and public sector) are no longer allowed to inquire about any criminal
record history until <i>after</i> a
conditional job offer has been offered.
Thus, the “box” that requires potential job candidates to check if they
have a previous criminal history will no longer hold any weight. The FCA gives job applicants with a criminal
history a somewhat fair playing field when being considered for a job based on
their experience and qualifications rather than their criminal record.<br /><br /><o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> This does <u>not</u> mean that
employers are required to hire potential candidates with a criminal history; it
merely delays the hiring process until the employer makes a conditional job
offer. An employer can still inquire
about a candidate’s criminal record after the job offer has been made, such as
conducting a background check, and is not prohibited from asking about criminal
convictions at a later stage in the hiring process. If an employer then chooses to withdraw the
offer, the candidate must be given a written explanation by the employer
regarding their decision, which must include the existing New York law that
prohibits discrimination based on criminal records. Moreover, the position must be held open for
three days so the employer can discuss the candidate’s evidence of good conduct
and the employer’s requirements. Also,
applicants can still contest an employer’s decision.<br /><br /><o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "arial" , "helvetica" , sans-serif;"> Many employers are also exempt from
the law. Exempt employers include:
employers with fewer than four employees, employers hiring for certain licensed
trades or professions and employers hiring for particular positions that past
convictions bar their employment to that position under New York State or
Federal Law. Additionally, employers
that are legally required to run background checks, e.g. daycares and home
health aides, still must abide by these regulations. <br /><br /><o:p></o:p></span></div>
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="line-height: 115%;"> As for employers in New York City,
this new act should be considered when instituting your business policies in
order to conform to the new law.
Employers should take note of this new act and immediately reconsider or
update their hiring policies, review the terms of the new law, or consult an
attorney to help with this process.<br />
<br />
For more on the Fair Chance Act visit: </span><span style="line-height: 115%;"><a href="https://fairchancenyc.wordpress.com/">https://fairchancenyc.wordpress.com/</a><br /><br /><br /><span style="font-size: x-small;"><br style="font-family: 'Times New Roman'; line-height: normal;" /><span style="font-family: "times new roman"; line-height: 18.2px;"><span style="font-family: "arial" , "helvetica" , sans-serif;">* 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.</span></span></span></span></span>Anonymoushttp://www.blogger.com/profile/08839850413778863814noreply@blogger.com0tag:blogger.com,1999:blog-1900053239626015201.post-23973584740850862642016-01-04T12:58:00.003-08:002016-01-22T12:47:43.623-08:00Georgia Jury Award Plaintiffs $2.2 million For Employer's Demand They Give DNA Samples<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif;">In an effort to find out who was defecating in one of its warehouses, a Georgia company, Atlas Logistics Group, requested that several of its employees have their cheeks swabbed to compare their DNA to that of the scat left on the warehouse floor.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif;">The swab samples exonerated the employees, and they kept their jobs. The warehouse pooper was never caught, and the employees filed suit citing a violation of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). The GINA Act states that it is "...illegal for an employer to request, require, or purchase genetic information with respect to an employee."</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif;">According to a U.S. District Court Judge, Amy Totenberg, the employer's demand for DNA samples amounted to a violation of the GINA Act, and she granted summary judgment in the plaintiffs' favor.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;"><br /></span>
<span style="font-family: "arial" , "helvetica" , sans-serif;">On June 22, 2015, a federal jury awarded the plaintiffs $2.2 million for their employer's violation of the GINA Act.<br /><br /><br /><br style="font-family: 'Times New Roman';" /><span style="font-family: "times new roman"; line-height: 18.2px;"><span style="font-family: "arial" , "helvetica" , sans-serif; font-size: x-small;">* 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.</span></span></span>Anonymoushttp://www.blogger.com/profile/08839850413778863814noreply@blogger.com0tag:blogger.com,1999:blog-1900053239626015201.post-55705606443989113742016-01-04T12:43:00.000-08:002016-01-22T12:47:35.984-08:00New York State to Allow Attorney's Fees For Successful Plaintiffs In Gender Discrimination Cases<div align="center" class="MsoNormal" style="text-align: center;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0in;">
<span style="font-family: "arial" , "helvetica" , sans-serif;">On June 2nd, the New York State
Assembly passed A7189, a bill that amends the New York State Human Rights Law
to allow plaintiffs who prove gender discrimination in employment, housing, or
the provision of credit to recover attorney’s fees. The same bill, which is
part of the larger Women’s Equality Agenda, was passed by the State Senate as
S3 in January and is expected to be signed by the Governor soon.<o:p></o:p></span></div>
<div style="margin: 0in 0in 0.0001pt;">
<br /></div>
<div style="margin-bottom: .0001pt; margin: 0in;">
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="font-family: "arial" , "helvetica" , sans-serif;">The text of the bill can be read by
clicking </span><span style="color: #888888;"><a href="http://assembly.state.ny.us/leg/?default_fld=%0D%0A&bn=A7189&term=&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y" style="color: #888888; font-family: arial, helvetica, sans-serif;">http://assembly.state.ny.us/leg/?default_fld=%0D%0A&bn=A7189&term=&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y</a><br /><br /><br /></span></span><br />
<span style="font-family: "arial" , "sans-serif"; font-size: x-small; line-height: 115%;">* 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.</span></div>
Anonymoushttp://www.blogger.com/profile/08839850413778863814noreply@blogger.com0