Tuesday, November 22, 2011

Third Party Retaliation Claims Get a Little Help From the Supreme Court

Eric and his fiance, Miriam, work for the same employer.  Everyone in the workplace knows of their relationship. One day, Miriam files a charge with the EEOC alleging that she has been discriminated against on the basis of her gender.  After the employer is notified of the charge, Eric is fired.  Does Eric have a claim of retaliation against his employer even though he was not the one who complained about the discrimination?  Well, until recently Eric would not have had a claim of retaliation if he was not engaged in a protected activity at the time of the retaliatory action. However, this year the United States Supreme Court decided that he did.

Prior to the Supreme Court's decision in Thompson v. North American Stainless LP earlier this year, "third-party retaliation" claims were analyzed by reviewing the language of the anti-retaliation provision at issue. And, generally speaking, denial of the claim was based on a conclusion that the person retaliated against must be the same person who had engaged in a protected activity (like Miriam, who had complained about gender discrimination).

Lo and behold the Supreme Court now says that a person aggrieved under Title VII is one who is "within the zone of interests" protected under Title VII, and it concludes that Eric was within the "zone of interest," was aggrieved by the employer's actions, and had standing to sue.

Of course, this holding raises the obvious question: how big is this "zone of interest"? Do we include husbands and wives? Siblings? Cousins?  What about non-familial relationships?  What about a family member who is not employed by the same employer, but whose employer is somehow induced to fire him or her? 

While no New York court has specifically ruled on the question of third-party retaliation claims, recent New York federal court cases decided in the past few weeks seem to have applied the broad intention of the ruling in Thompson.  The Second Circuit, for example, in Tepperwien v. Entergy Nuclear Operations, Inc., (observing the Thompson court's dicta) stated that  “[g]iven the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII's antiretaliation provision is simply not reducible to a comprehensive set of clear rules.”

Tuesday, May 10, 2011

EEOC Expands Definition of Disability

The Equal Employment Opportunity Commission has issued final rules, effective May 24, 2011, interpreting the Americans with Disabilities Act Amendments Act of 2008. The new rules broaden coverage under the Act and change the focus from whether an employee has a disability to whether the employer has satisfied its obligation to accommodate a disability.

Until now, it was generally accepted that the determination of whether a particular condition constituted a legal disability was dependent upon an “individualized assessment.” Under the new regulations, however, the EEOC lists a number of conditions that will “virtually always” constitute a disability, including, for example, cancer, diabetes, HIV infection, bipolar disorder and schizophrenia. The rules also specify that a disability of any duration may be a covered disability, which would include episodic conditions and conditions that are in remission.

Greater protection is also afforded employees who are “regarded as” disabled. These employees are protected if the employer has a perception that the employee has an impairment—regardless of whether the impairment is perceived as an actual disability.


The Amendments Act of 2008 and the new EEOC rules are an attempt to reverse a series of relatively recent Supreme Court decisions that placed greater restrictions on the rights of individuals with disabilities. There is no question that now employers should interpret the concept of “disability” broadly, and that the focus of the employer should be less on whether or not the employee is disabled and more on whether it has policies and procedures in place to reasonably accommodate the disability.

Saturday, April 30, 2011

Change in Employer Wage Notification Requirements

Effective April 9, 2011 the New York Wage Theft Protection Act of 2010 has substantially modified the existing wage notification requirements under New York Labor Law Section 195.

Under prior law, an employer had to simply notify an employee at the time of hiring of the rate of pay and pay date, and obtain a written acknowledgment from the employee. Employers were also required to provide written notification of any changes at least seven days in advance and provide an employee with every wage payment: a statement listing gross wages, deductions net wages. Payroll records were to be maintained for not less than three years.

Now, however, all employers in New York State, regardless of size, must provide written notice to each employee upon hire and annually thereafter, by no later than February 1 ,of the following:

• The rate of pay, both straight time and, if applicable, the overtime rate
• The basis of pay (e.g., hourly, salary, shift, day, week, month)
• Any allowances claimed as part of minimum wage (e.g., tip allowance, meal allowance, lodging allowance )
• The employer's regular pay date
• The name of the employer, including any d/b/a's
• The physical address of the employer and, if different, the mailing address
• The employer's telephone number
• Any "other information" deemed "material and necessary" by the NYS Commissioner of Labor

Further,

• The notice must be written in English and in the employee's primary language as defined in the statute.
• The notice must be provided in duplicate so that the employee may retain a copy.
• The employer must obtain a signed and dated acknowledgement from the employee of receipt of the notice and that it was in the employee's primary language. The acknowledgements must be obtained each and every time an employee is provided with a notice (for example, raises, annual February notices, etc.). The acknowledgements must be retained by the employer for six (6) years.

The penalties for non-compliance and non-payment of wages have also drastically changed. Employers that fail to pay wages as required are subject to a civil fine of $500 for each such failure. Employers failing to pay wages as required are guilty of a misdemeanor and can be fined from $500 to $20,000, or imprisoned for up to one year plus one day OR BOTH. An employee who is not provided the required notifications within ten business days of his first day of employment may recover in a civil action damages of $50 for each workweek that the violations occurred or continue to occur, to a maximum of $2,500, plus costs and reasonable attorneys' fees.

Moreover, in any action brought against the employer, if the employee prevails, the court will allow the employee ordinary costs, expenses (not to exceed $50), plus reasonable attorneys' fees. An additional amount, equal to 100% of the wages due, will also be awarded as liquidated damages.

Employers are well-advised to comply with the new law or risk very substantial penalties.