|March 27, 2014||What is a retaliation claim and why are they so popular?||no comments|
|March 19, 2014||National Labor Relations Board finds employee’s Facebook posts not protected||no comments|
|February 18, 2014||Protect your company from discrimination complaints and lawsuits||no comments|
|November 13, 2013||The Penalties for Employment Discrimination||no comments|
|November 04, 2013||Frequently Asked Questions About New York Employment Law||no comments|
|October 23, 2013||Are contestants of reality shows, employees?||no comments|
|October 15, 2013||Appeals court determines award is subject to withholding||no comments|
|October 10, 2013||New laws restrict access to employee social media accounts||no comments|
|September 11, 2013||Supreme Court Ruling puts limits on employer liability in harassment cases||no comments|
|August 29, 2013||Obama NLRB Appointments Overturned by 3rd Appeals Court||no comments|
According to the U.S. Equal Employment Opportunity Commission (EEOC), in 2012, 38 percent of all EEOC claims were for retaliation.
The reason retaliation claims have become so popular in recent years is because case law and legislative developments have:
Broadened the field of people protected against retaliation
Relaxed the burden for establishing retaliation
Expanded the damages available to a plaintiff in such a claim
Further, retaliation claims have a much higher success rate than discrimination claims.
The basics of a retaliation claim
In essence, a retaliation claim is that the employer ‘took revenge’ or retaliated for an action the employee took that was legally within the scope of employment law.
For an employee to establish an unlawful retaliation claim, he or she must show that:
They took part in a protected activity (such as file a claim)
Their employer took an unfavorable action against them
There was a connection between the protected activity and the unfavorable employer action.
For an employee to establish protected activity they must show the participation in the activity was protected by employment law such as:
The Supreme Court and Congress have broadened coverage and damages
A number of U.S. Supreme Court rulings have expanded anti-retaliation protection to cover things such as:
Broadening the term “employee” to include former employees
Allowing oral complaints to have a comparable weight as filed complaints
The “scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm”
Further, legislation passed by Congress has expanded the range of damages and expanded anti-retaliation protections, including compensatory and punitive damages and protections for a wider range of individuals.
Retaliation is easier to believe than discrimination
The other side of this coin is that it is generally easier to believe that a person could retaliate against an accusation of wrongdoing rather than just blindly discriminate against someone because of their race, religion or age. Individuals who are tasked with fact finding are after all human beings and often make a connection between an accusation and a reaction of retaliation. And chances are, plaintiffs in retaliation claims are on counting on that.
Retaliation claims require an experienced NY business litigation attorney to navigate
A retaliation claim can be tricky for a variety of reason but maybe moreso because of that intangible human factor. People generally believe that others seek revenge and often have personal experiences of such occurrences. This alone can make a juror sympathetic toward a plaintiff. If you face a retaliation claim you should speak to an experienced NY business litigation attorney immediately. A skillful attorney can help you determine the legal remedies available in your situation.
Author: Stephen D. Hans
In recent years, thousands of companies have felt the impact of a slumped economy, increased costs and regulations. These conditions have forced employers to cut costs, reduce hours and downsize staffs. Consequently, employee lawsuits and job discrimination charges have risen. In fact, the U.S. Equal Employment Opportunity Commission (EEOC) reported that in both 2010 and 2011, there were a 100,000 workplace discrimination complaints filed.
After all the time and energy you have put into your business, it can be very stressful to receive notice that you are being sued by a former employee. It is easy to imagine all of your blood, sweat and tears circling the drain and leaving you with nothing. However, rather than panicking, you should take the following steps:
What to do:
What not to do:
Discuss employee claims with an experienced NY business litigation attorney
The fact is that just being named in a suit or complaint does not mean you will lose your company or that you will even end up in court. Plaintiffs often name several defendants in an attempt to hit all the bases. Your company may only be named because if it is in a related field or thought to be involved. If so, your attorney may be able to get your company dismissed from the suit. Employee disputes and claims can be nerve-wracking but a NY business litigation attorney can help you determine the best strategy to take in your situation.
The U.S. Equal Employment Opportunity Commission (EEOC) reported it obtained a record $372.1 million in monetary relief for victims of private sector employment discrimination in year ending 2013. This amount is nearly seven million more than was recovered in 2012 and is the highest amount of financial compensation ever recovered in the agency’s history.
The EEOC is the federal agency that enforces federal laws prohibiting employment discrimination, and obtains monetary and non-monetary compensation for individuals who have been discriminated against by employers through:
• Administrative enforcement
• Conciliations (alternative dispute resolution)
What this means for employers
While according to its report, the EEOC received 14,000 fewer filings the fact that they recovered the record amounts this past year may not bode well for employers. In our politically correct society, discrimination can be construed by what most people may consider minor incidents. And unfortunately, with each passing day more regulations, laws and rules are passed that make ordinary behavior something sinister or questionable. More than ever, employers must remain ever vigilant in their awareness of and compliance to the new rules.
In order to protect your company from unnecessary complaints you should:
• Always give honest employee evaluations. Employees with the responsibility of providing evaluations must do so honestly and resist the urge to ‘be nice’ because they do not want to hurt someone’s feelings. If a complaint should arise for poor work performance, the employee evaluations should back that statement up by showing that it was drawn from honest employee evaluations.
• Provide anti-discrimination/harassment training. Your anti-discrimination policies must be clearly written and disseminated to all employees. And you must take e reasonable steps to ensure everyone from management to entry level employees know, understand and can use the complaint process. Annual or bi-annual training on these matters can help achieve this end.
• Do not allow retaliation. When one employee complains about another it is natural for the accused employee to want to retaliate against the accuser. You must not tolerate this for any reason. Conduct a non-biased investigation and do everything possible to rectify the matter without letting it get out of hand with warring employees escalating the situation.
• Be fair and consistent. You will open your company up to scrutiny and liability if you treat one employee differently from another. Your policies should treat all employees fairly and consistently.
Talk to an experienced NY employment law attorney about employee disputes
Running a business and keeping your staff happy and productive can be a formidable task. However, it goes with the territory of having a successful business. An experienced attorney can help you develop company policies that will help provide a safe and productive work environment for your employees and protect you from the risk of litigation. For more information about how an employment law attorney can help you with employee disputes or any other business matter, contact us online today.
The U.S. Equal Employment Opportunity Commission (EEOC) has filed another suit for employment discrimination which could end up costing the employer hundreds of thousands of dollars. The is on behalf of a former employee who claims disability discrimination and retaliation when she sought federal relief.
The civil suit alleges the health care company "failed to provide a reasonable accommodation, fired, and later refused to rehire a pulmonary function technologist because of her disability and in retaliation for her requesting an accommodation and complaining about discrimination," according to a news release issued Friday by the EEOC.
The former employee, Deborah Ropiski was:
And given the former employee’s efforts, the outcome of the lawsuit may turn in her favor.
Under anti-discrimination laws, an employer who is found liable for employment discrimination can be made to pay damages and provide injunctive relief to the injured party and penalties may include:
Depending on the case, the plaintiff may also be entitled to damages for pain and suffering as well as punitive damages.
Author: Stephen D. Hans
Employment law can be complex and confusing for both the employer and the employee. Following, are frequently asked questions concerning employment matters:
Is an employer required to give a reason for firing or laying off an employee in New York?
New York Employment Law does not require an employer to tell an employee why he or she is being fired or laid off.
Must an employer have cause to fire his or her employee?
An employee can be fired by an employer for any reason or no reason, providing it does not violate anti-discrimination laws.
Does an employee have a right to a copy of their personnel file?
Typically, unless state or local law state otherwise, an employee has no right to his or her employee file and an employer does not have to provide it.
Are employers required to provide health insurance, sick leave, or vacation pay to his or her employees?
Although many employers offer such benefits, an employer is not automatically required to provide them. However, the Affordable Healthcare Act does affect healthcare benefit requirements for larger companies with 50 employees or more.
Can an employer eliminate employee benefits?
Benefits such as vacation pay that has already been earned cannot be taken away from an employee – however, an employer can change its benefits policy going forward at any time.
Is an employer required to give severance pay to a fired employee?
Unless an employer has an established policy or practice of giving severance pay upon termination, it is not required.
Get your questions answered by a NY employment law attorney
Running a business and managing employees can be a challenge. And new laws and regulations seem to go into effect everyday. To avoid penalties and stay in compliance you should talk to an experienced attorney. To get any questions you may have about employment matters answered, contact an experienced NY employment defense attorney today.
American Idol faces a discrimination lawsuit filed by 10 black former contestants who were disqualified from the show. The plaintiffs claim they were disqualified for reasons other than singing, including criminal history, and were given the “right to sue” by the Equal Employment Opportunity Commission (EEOC), allowing the lawsuit they filed in July to move forward.
The lawsuit alleges that over the course of a 10-year period, Idol producers engaged in a pattern of racial discrimination by using the arrest history of black male contestants as a reason for disqualification. The suit also claims that 31 percent of all black Idol semi-finalists were disqualified for reasons unrelated to their singing ability. And further alleges that white and non-black contestants were not subjected to the same standard for disqualification.
Proving the claims
In order to prove that American Idol discriminated against the plaintiffs after asking about arrest histories, the young men must first prove that they were employees of the show. This is a significant hurdle to overcome for the plaintiffs because asking an employee or a job applicant about previous arrests is a violation of California law. Additionally, the plaintiffs must also prove that the discrimination took place within 300 days of filing their lawsuit.
Independent contractors and employees are not the same
Treating an employee as an independent contractor, can get you in hot water and subject you to possible lawsuits and heavy fines. In order to prevent future liability, as a business owner it is important to understand the difference between an independent contractor and an employee:
An independent contractor:
• Operates under a business name
• Has their own employees
• Maintains a separate business checking account
• Advertises business services
• Invoices for work completed
• Has more than one client
• Has own tools and sets own hours
• Keeps business records
• Performs duties dictated or controlled by others
• Is given training for work to be done
• Works for only one employer
Talk to a NY employment law attorney about your employment issues today
Running a business is a challenge in today’s world and employers can often make unintended mistakes for which they pay dearly. Treating an employee as an independent contractor is just one of the many things that can put you and your business at risk. To discuss your employee issues, contract needs or other employment matters, contact an experienced NY labor & employment law attorney today.
In Noel v. New York State Office of Mental Health Central New York State Psychiatric Center, an employee sued his employer under Title VII and won a $318,217 judgment. Part of that judgment included $280,000 for back and front pay. The employer sent a check directly to the employee for the net amount after withholding of $139,582.
The employee returned to court and argued that he was entitled to the full award. Stating that since the settlement was a jury award the payment wasn’t wages subject to withholding because was a judgment against a liable party. The employer, argued that according to the tax code that the award was taxable wages—and the Internal Revenue Service took the employer’s side. The trial court ruled in favor of the employee and instructed the employer to repay the withheld taxes.
However, the federal appeals court reversed that decision and ruled that the award was wages and subject to withholding. Stating that Title VII awards for back and front pay are wages, and employers have a duty to withhold federal and state income taxes and FICA taxes.
This is a good illustration to employers who are involved in employment litigation. Ensure that your management and HR personnel know that back and front wages are subject to withholding and fully taxable. And settlement agreements should include language that clearly spells this out so there is no confusion regarding the taxability of payments.
Talk to an employment law attorney today
Whenever possible, it is preferable to avoid litigation with current and former employees. However, when you need to go to court an experienced NY employment law attorney be an invaluable resource. If you are facing an employment lawsuit or investigation or if you need help to avoid employment disputes contact us online or call 718-275-6700 to schedule a consultation today.
In 2012, state legislatures started introducing laws to restrict employers from obtaining user names and passwords to employees' personal and private social media accounts. As 2013 rolls forward, the trend is continuing with proposed legislation 26 states . Twelve states already have such laws in place enacted since the beginning of 2012.
Champions of keeping employers out of employee’s personal social media accounts site privacy as the issue and claim that employer’s concerns about protecting proprietary company information is already covered by other laws. Further they claim that employers screening social media accounts of job applicants are dancing dangerously close to discrimination issues, which is expressly illegal.
Businesses are fighting back and state that the new laws keeping them out of employee’s social media accounts provide a venue for employees to divulge proprietary information and inhibit their ability to investigate such matters. Some states, are trying to add amendments to allow companies to require access to personal digital accounts when investigating allegations that the employee has given away proprietary company information or has engaged in other forms of workplace misconduct In Colorado, employers can request access to their employees' personal accounts when investigating reported breaches of compliance, regulatory and securities laws; and company proprietary information or financial data
However, it is clear in the Colorado law that fishing expeditions are forbidden and the employer must have supporting information to pursue this avenue of investigation—and fines can be assessed against employers for violations.
The states and legal guidance
States with such laws already on the books include:
• New Mexico
States with pending legislation include:
• New Hampshire
• New Jersey
• New York
• North Carolina
• North Dakota
• Rhode Island
• West Virginia
In Vance v. Ball State University, the Supreme Court considered the definition of supervisor to determine employers’ liability for workplace harassment . At the heart of the case was the issue of whether a supervisor was an employee with authority to direct and oversee work or, an employee who had the power to take employment actions such as hiring, firing, demotion, promotion, or discipline on a harassment victim.
The importance of the distinction
Making this distinction was important because under the Civil Rights Act, the position of the harasser affects the level of employer liability. For example, if the harasser is only the victim’s coworker, the employer is only liable if it failed to control working conditions. However, if the harasser is a supervisor and some action is taken against the victim, the employer is exposed to a higher level of liability.
Even when no definitive action is taken, the employer is still required to show that reasonable action was taken to prevent and quickly correct any harassment. Further, the employer would also need to show that the harassed employee failed to avail themselves of preventive or corrective opportunities the employer provided.
In the Vance case, a female employee filed a suit against her employer, alleging that another employee created a racially hostile work environment. In both the district court and the appeals court, the employer was found not liable because the harassing employee was not a supervisor.
The plaintive took the case to the Supreme Court. In a 5-4 vote the high court ruled that, for the purposes of vicarious liability under Title VII, an employee is a supervisor only if they have the authority to take tangible employment actions against the victim.
Talk to a NY Employment Law Attorney About Your Harassment Policies
A harassment lawsuit against your company can have devastating effects. A NY employment law attorney can provide advice and guidance on how to best craft your harassment policies so your company is protected. Stephen D. Hans & Associates has helped New York employers develop company policies that protect them against lawsuits for 34 years. To discuss your harassment policies or other employment law matters, contact our office or call (718)275-6700 to schedule an appointment.
On July 17th the U.S. Court of Appeals in Richmond, VA became the third court to rule that President Obama’s recess appointments of National Labor Review Board members last year was unlawful.
In the majority opinion, Circuit Judge Clyde Hamilton wrote: “We conclude that the president’s three Jan. 4, 2012, appointments to the board are constitutionally infirm, because the appointments were not made during ‘the recess of the Senate.’”
In 2012, appeals courts both in Washington and Philadelphia had also ruled that the appointments violated the Constitution’s Recess Appointments Clause, which threw hundreds of previous NLRB decisions into question after the rulings.
Employers win because of the court’s ruling
The latest ruling by the Virginia court canceled NLRB decisions against two employers who contended that the board lacked a legally appointed quorum.
The Richmond case is National Labor Relations Board v. Enterprise Leasing Co.-Southeast LLC, 12-01514, U.S. Court of Appeals for the Fourth Circuit (Richmond). The Washington case is Noel Canning v. National Labor Relations Board, 12-01115, 12-01153, U.S. Court of Appeals for the District of Columbia (Washington).
Contact an Employment Law Attorney
If the trend continues in the courts and ultimately in the Supreme Court, where the Obama Administration intends to be heard on the matter, many employers could benefit by having NLRB rulings overturned. Employers who have pending cases before the board or anticipate other dealings before the NLRB are advised to discuss the matter with an experienced employment law attorney. Stephen D. Hans & Associates, P.C., have advocated for New York employer for 34 years. To discuss your NLRB or other employment law matter, contact our office or call 718-275-6700 to schedule an appointment.