Friday, June 3, 2016

NYC Says There Are No Longer Just Males and Females

In May of this year, the New York  City Commission on Human Rights announced a list of 31 new genders that are protected by New York City's anti-discrimination laws.  The list includes the terms "androgynous," "gender bender," "gender gifted," "third sex," "genderqueer," "gender fluid" and "pangender."  And the list is by no means intended to be "exhaustive."  I suppose they couldn't think of any other gender types at the moment.

This all comes within the scope of New York City Human Rights Law passed in 2005 known as the 2005 Civil Rights Restoration Act.  Apparently, the law needed updating, or at least further clarification, because such gender terms and different gender concepts were not within the contemplation of the legislators back in 2005, and so now the City wants to make clear who is protected.

The NYC Human Rights Law also requires employers and covered entities to use an individual’s preferred name, pronoun and title (for example, Ms./Mrs.), regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification.

Be careful employers:  the penalties for violating the law are harsh:  $125,000 for each violation or $250,000 if the discriminatory conduct is considered willful.

The times, they are a changin'....

Wednesday, March 18, 2015

Time Off for Bad Weather

With the recent wintry weather that New York has experienced this year, many businesses closed their stores, locations or offices either because of bad weather or in anticipation of bad weather.  The Mayor's and the Governor's decisions to close the transportation system in anticipation of a blizzard that never materialized also did not help matters!

The situation has prompted a number of questions concerning how employees' pay should be treated when a business closes because of weather conditions.

Here are the rules of thumb:

(1) For employees who are exempt from minimum wage and overtime laws, they do not have to be compensated if they do not show up for work because of bad weather if the business remains open; if an employer closes the business due to bad weather, the employee's full salary must be paid for the pay period even if he or she may not have worked the full period.  However, in the case where the business is open, but the employee does not appear for work, if the company has a paid time off policy, then the employee can ask to be paid for the day if he or she has accrued time.

(2) In the case of non-exempt employees, that is, employees that are subject to minimum wage and overtime laws, if the company closes, they are not entitled to be paid, but the company can allow the employee to apply any accrued paid time off if the company has such a policy.

An interesting situation arises with employees that can telecommute.  If an exempt employee works remotely from home on a bad weather day, no deduction can be made if the employee is "absent" from work.  However, because of the difficulty of monitoring whether an employee is actually working at home, non-exempt employees should always be prohibited from working from home.

Paying employees for work when they are not actually in the office or the place of employment is a difficult issue for many business owners.  The rules are complicated enough, so as businesses become more affected by global weather changes, it is a good idea to have a set of rules and policies in place for exempt and non-exempt workers, and to make them known to employees so they are not surprised by any deductions from wages.

Thursday, January 29, 2015

Who Your Employees Associate With May Be Grounds for a Discrimination Suit

Can being married to a Jewish spouse subject your business to a discrimination suit based on religion? Yes, says the state appellate court in the Second Department of New York.

In a recent decision by that court in Jeffrey Chiara v. Town of New Castle, decided on January 14,2015, an appellate panel of judges opined that the plaintiff husband, who was not Jewish, but married a Jewish woman, was found to be discriminated against by virtue of his marriage to his wife.  Coworkers of Mr. Chiara apparently made derogatory comments about the Jewish religion. When he informed his coworkers that his wife was Jewish, the derogatory anti-Semitic remarks and comments continued--for several years.

In 2006, the Town of New Castle brought disciplinary charges against Mr. Chiara for misconduct and insubordination, and his employment was eventually terminated.  He thereafter filed a lawsuit alleging discrimination and hostile work environment based on religion--his wife's!

After losing his case at the trial court level, he argued to the appellate court that he was a member of a "protected class" by virtue of his marriage to a Jewish woman.  His employer argued that no law in New York supports a claim of discrimination based on the religion of a spouse.

The Appellate Division, Second Department, disagreed and held that just as Title VII of the federal law, the New York State Human Rights Law protects employees based on their association with other individuals, including their spouses.

As the first decision of its kind in New York, employers should be very mindful that New York law has now been interpreted broadly enough (at least by this one court) to extend protections to employees even if they are not covered by Title VII of the federal law.  It should also serve as a warning to employers that employees may be deemed to be discriminated against based on who they associate with,even if they are not within a protected class.

Monday, July 14, 2014

"Leering" Does Not Create a Hostile Work Environment

The Second Circuit Court of Appeals recently ruled in Lewis v. City of Norwalk (2d Cir. 2014) that a supervisor's occasional "leering" and "licking of his lips" at a subordinate employee was insufficiently severe and too sporadic to create a hostile work environment.

The subordinate complained that beginning in 2006, his supervisor, who was openly gay, "leered" at him and "made gestures with his tongue."  Although it began in 2006 and went on for years thereafter, it became merely sporadic over time.

Eventually, the employee was up for a performance review and his review reflected unacceptable work performance.  He was offered to resign with a severance package, or the employer would fire him.  He refused to resign--so he was fired.  The employee then commenced suit for sexual harassment against his supervisor and former employer.  His claims, however, were dismissed by the federal district court and, on appeal to the Second Circuit, he lost again, the Court holding that the supervisor's conduct was insufficiently severe and too sporadic to constitute sexual harassment.

This case is a reminder that in New York what constitutes conduct that is sufficiently "severe" in the context of a claim of sexual harassment must reach a very high threshold.

Wednesday, January 8, 2014

The Stakes are High for Misclassifying Employees in 2014

Misclassifying a worker as an independent contractor instead of an employee is creating potentially greater problems for business in 2014.   And it may well prove to be a banner year for the IRS, the U.S. Department of Labor and the  EEOC, which have all articulated their aggressive pursuit of misclassification claims against employers this year.

I have warned about the danger of misclassifying workers as independent contractors in the past, and the penalties imposed for doing so.  This year, with an increase in the minimum wage in NY to $8.00 per hour, the implementation of the Affordable Care Act  (ObamaCare) and certain amendments to the Americans with Disabilities Act (ADA), the stakes are even higher.

In addition, the U.S. Senate is introducing a bill in Congress (the Payroll Fraud and Prevention Act) to impose more requirements and penalties for misclassification.    Under the new law, among other things, an employer will be required to give written notice to each worker that he/she is considered a non-employee.  If wrongly classified, and the result is a wage underpayment, then the additional amounts already imposed under the Fair Labor Standards Act as a liquidated penalty for violation will be doubled.  The law will also allow the Department of Labor to target certain industries with "frequent incidence of misclassifying employees...."  For example, the construction industry and the restaurant industry.

What makes it difficult for businesses to comply with the classification rules is that each government agency has a different definition and a different test for making the determination.  Therefore, employers need to make sure they fit all of the definitions.


Friday, October 25, 2013

"Indefinite Leave" Declared a Reasonable Accomodation!

New York's highest court has ruled this month in Romanello v. Intesa San Paolo, S.p.a. that under the New York City Human Rights Law, an indefinite leave of absence for a disability is not in and of itself an unreasonable accommodation. Instead, says the court, it is up to the employer to prove that such an accommodation would be an undue hardship.

This new ruling stands in stark contrast to the New York State and federal disability discrimination statutes. The courts interpreting those statutes have consistently held that an indefinite leave of absence as the result of a disability is not a reasonable accommodation.

The Court's ruling is significant to employers who must now meet an additional pleading requirement, that is, that the indefinite leave will result in an undue hardship, to satisfy their burden under the New York City law.

Wednesday, July 3, 2013

Supreme Court Defines the Term "Supervisor" Under Title VII

Last October 2012, I wrote about the case of Vance v. Ball State University, a Seventh Circuit federal appeals court case that addressed the question of who a "supervisor" is for purposes of employer harassment claims alleged under Title VII.

The question is important because under federal law, when the alleged harasser is a co-worker, the employer will only be liable for the harasser's actions if the employee proves that the employer was negligent.  But when the employee is a supervisor who creates a hostile work environment, the employer is liable unless it can prove a defense, for instance, that it had an anti-harassment policy and that the employee who was the victim of the harassment failed to take advantage of such a policy.

The Seventh Circuit in Vance adopted a narrow definition of the term and ruled that a supervisor is  someone who has the authority to make tangible decisions about an employee's work conditions, including hiring, firing, demoting, promoting, transferring and disciplining.  To contrast this definition, the Second Circuit federal court in New York, defines a supervisor less restrictively as anyone who simply has authority to direct the employee's daily work activities.

Vance was appealed to the United States Supreme Court and the Supreme Court's decision was handed down this past June 24, 2013.  In a 5-4 majority opinion the Supreme Court has sided with the Seventh Circuit and ruled that a "supervisor" is someone with the authority to effect significant change in an employee's employment status or has the ability to cause a significant change in benefits.  If such a person is responsible for the harassment, then the employer may be liable, but the harasser's mere ability to direct or supervise another employee's work is not enough to hold the employer vicariously liable.

The Supreme Court's decision, at the same time, explicitly rejects the EEOC's broad definition of the term supervisor.

No doubt the decision will have a significant impact on employee harassment lawsuits going forward; giving employers a decided advantage in this area.

Thursday, June 6, 2013

An Employer's Job Description of "Essential Job Functions" Carries Great Weight

What constitutes an "essential job function" under the Americans with Disabilities Act?  It is a question that the courts grapple with everyday because it is a critical element of any disability discrimination claim.  Well, the federal court for the Eighth Circuit Court of Appeals has recently answered the question and has decided that an employer's judgment carries great weight in making the determination. The court held that the job description by the employer, not the employee's specific experience on the job, is what counts most.

 In Knutson v. Schwan's Home Service Inc. (April 2013) an employee was terminated after two years on the job on the ground that the employer claimed that the employee was no longer able to meet the physical standards described in his job description. The employee sued under the ADA alleging discrimination. He claimed that he rarely drove a commercial vehicle as part of his normal job duties, and so, when he suffered a serious eye injury and could not obtain Department of Transportation certification to drive a commercial vehicle (a requirement in his job description), he could nevertheless perform "the essential job functions" of his work. His termination, he claimed, therefore violated the ADA.  The employer, however, proved that the employee's ability to drive a commercial vehicle was essential to the job no matter how infrequently this ability was used, and that it was listed in the job description as a qualification for the position.

 The Eighth Circuit agreed with the employer and held that the job description is what counts when determining whether an employee can perform the essential functions of the job.

Whether or not state or federal courts in New York presently agree with the Eighth Circuit, the decision underscores the importance of clear, complete and up-to-date job descriptions, and documented business-related reasons for decisions affecting employees.  Being able to document a consistent application of job requirements and the necessity of those requirements will bring employer's one step closer to successfully defending against a disability discrimination claim under the ADA.

Wednesday, October 31, 2012

Supreme Court to Decide Who's the Boss in Sexual Harassment Cases

Increasingly, individual employees are being named in employment lawsuits because of their perceived involvement in adverse employment decisions made by their employer.  The reason is:  if the employee is involved in an alleged incident of sexual harassment, for example, and he or she is a "supervisor," the employer may be held liable for the acts of that employee.

However, federal employment law, at least in the context of sexual harassment claims, makes a distinction between supervisors and non-supervisors or co-workers.  Under federal law, when the alleged harasser is a co-worker, the employer will only be liable for the harasser's actions if the employee proves that the employer was negligent.  But when the employee is a supervisor who creates a hostile work environment, the employer is liable unless it can prove a defense, for instance, that it had anti-harassment policy and that the employee who was the victim of the harassment failed to take advantage of such a policy.

This term, the U.S. Supreme Court is expected to decide, in the case of Vance v. Ball State, 2008 U.S. Dist. LEXIS 69288 (S.D. Ind. 2008) aff'd 646 F.3d 461 (7th Cir. 2011), the issue of the scope of supervisor liability, and resolve the question of who qualifies as a supervisor.  Here in the Second Circuit, the court of appeals has defined the term supervisor broadly to include any individual with the power to direct and oversee the work of the alleged victim. This is also the definition adopted by the EEOC.  More specifically, the Second Circuit has held that for the purpose of supervisor liability, a supervisor is one who possesses "authority to direct the employee's daily work activities" even if he lacks the authority to take tangible employment actions against the victim.  Mack v. Otis Elevator, 326 F.3d 116, 127 (2d Cir. 2003).  Other federal courts have applied more narrow definitions of the term.

The Supreme Court will likely adopt either a broad or a narrow definition, but until then employers in New York are well advised to follow the broader definition of "supervisor" and understand that they will be liable to an alleged victim of harassment for the acts of an employee who is responsible for directing and supervising work, not just one who has the authority to make employment decisions.

Stay posted for the Supreme Court's decision.

Tuesday, July 17, 2012

Defending Against Age Discrimination Claims Has Just Become a Little More Difficult

Recently, the EEOC issued a final rule making it more difficult for employers to establish the "reasonable factor other than age" defense for disparate impact age discrimination claims by employees.

Under the Age Discrimination in Employment Act an employee may bring an action against his or her employer for either disparate treatment or disparate impact.  A disparate impact claim alleges that the employer has a policy or procedure that may appear neutral, but in fact adversely affects employees who are older than 40 years of age.

One defense that employers have typically raised in the face of a disparate impact claim is that the policy or procedure was "reasonable and based upon factors other than age."  But now that defense has been heightened.

The new EEOC rule, which took effect on April 30, 2012, requires an employer to establish not only that the policy or procedure was based on reasonable factors other than age, but that it was reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known or should have been known to the employer at the time.

What this means to employers is that a much more thorough analysis of the business' circumstances and its needs must be conducted before changing or implementing any new policy or procedure that could impact the older employees even if there is a reasonable basis for the change.