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.
Friday, October 25, 2013
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.
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.
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.
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.
Friday, April 13, 2012
New York Appellate Court Sets Standard for the Preservation of Electronically-Stored Information in Anticipation of Litigation
The preservation of electronically-stored data and documents, including email communications, when parties anticipate litigation, has been the subject of much debate and many court decisions in the past few years.
The obvious concerns are that parties that anticipate litigation may (a) intentionally destroy such data if it is believed to contain harmful evidence against the business, or (b) accidentally destroy the data, or (c) simply destroy the data as a routine part of their practice to purge certain documents and communications.
Until recently, the New York state courts had not articulated a set standard for when a party must implement an appropriate “hold” in order to avoid the destruction of electronic data and documents, including emails. The Federal courts had done so in 2003 with the notable decision in Zubulake v. UBS Warburg, LLC.
Now, at least one appellate court in New York, the Appellate Division, First Department, has adopted the same standard formulated by the Zubulake court. The court in Voom HD Holdings, LLC v. EchoStar Satellite, LLC, 2012 WL 265833 (1st Dept. 2012) so held this past January 2012.
According the Appellate Division, First Department, now, whenever a party reasonably anticipates litigation, the party must take steps to implement a hold policy on the destruction of the data even if litigation has not commenced, no notice of any claim has been served, or the parties are attempting to negotiate a resolution of the dispute.
The obvious concerns are that parties that anticipate litigation may (a) intentionally destroy such data if it is believed to contain harmful evidence against the business, or (b) accidentally destroy the data, or (c) simply destroy the data as a routine part of their practice to purge certain documents and communications.
Until recently, the New York state courts had not articulated a set standard for when a party must implement an appropriate “hold” in order to avoid the destruction of electronic data and documents, including emails. The Federal courts had done so in 2003 with the notable decision in Zubulake v. UBS Warburg, LLC.
Now, at least one appellate court in New York, the Appellate Division, First Department, has adopted the same standard formulated by the Zubulake court. The court in Voom HD Holdings, LLC v. EchoStar Satellite, LLC, 2012 WL 265833 (1st Dept. 2012) so held this past January 2012.
According the Appellate Division, First Department, now, whenever a party reasonably anticipates litigation, the party must take steps to implement a hold policy on the destruction of the data even if litigation has not commenced, no notice of any claim has been served, or the parties are attempting to negotiate a resolution of the dispute.
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.”
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.
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.
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.
Thursday, October 21, 2010
When Your Private Social Networking Site Isn't So Private
One day, Kathleen Romano fell off her chair at work. As a result, she claimed that she sustained "serious permanent personal injuries." She alleged that the chair was defective and sued the manufacturer and the distributor of the chair.
Of course Kathleen also somehow felt compelled to show on her Facebook and MySpace pages just how active her lifestyle was, and where she had recently traveled to--all during the time that she claimed her serious injuries prohibited such activity!
So, based on what it saw on Kathleen's public pages, the defendant manufacturer naturally subpoened Facebook and MySpace to obtain copies of her profiles, including those portions that were not publicly available and marked as "private" using the sites' privacy settings. Although Facebook attempted to object to the Subpoena, it was ultimately compelled to produce not only the current and historical Facebook and MySpace pages, but also the deleted pages and the pages designated by Kathleen as only available to "friends" and connections.
The trial court recently decided in Romano v. Steelcase, Inc. that the production of such information was not a violation of her privacy because the publicly available information, namely the photos of her active lifestyle, supported the belief that the information sought by the Subpoena might be relevant to Kathleen's inconsistent claim of serious injury.
This appears to be a case of first impression. As the trial court pointed out, to date, there does not appear to be a case in New York directly addressing the privacy issue raised. Citing instead a Canadian court case also involving a Facebook page, the court explained that "to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website . . . risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial." Well, now there is case precedent in New York and I am sure we will be seeing other cases on this issue soon.
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