The Warshawsky Law Firm Blog

Monday, December 21, 2015

Always Consult An Attorney Before Signing A Severance Agreement

The holidays is a festive time of year, full of family celebrations, gift giving, and ringing in the new year.  Unfortunately, it also is a time when many employees are laid off, as businesses look back at their performance over the past year and re-evaluate their budgets and staffing needs going forward.  (Another time when lay offs are common is near the end of the first quarter, before annual bonuses are paid out.)

The Warshawsky Law Firm receives numerous inquiries during the holiday period from laid off employees who want to learn about their legal rights or who have been given severance agreements that they need reviewed and explained.  Perhaps the two most frequent questions we are asked are:  Am I entitled to severance? and Is it possible to get more severance?

The answer to the first question is no, unless the employer has a formal policy of paying severance to laid off employees, or unless the employer has made a promise to the specific employee, in a written employment contract, to pay severance (which many high-level employees receive).

As a general matter, there is no entitlement to severance under federal, state, or city law.  However, some companies "promise" employees that they will receive severance if they are laid off.  This promise usually is found in an employee handbook.  If it is written in nondiscretionary, contractual language, then it may be legally enforceable (meaning, if the employer fails to pay the severance, the employee may be able to sue the company for breach of contract to obtain the severance).  Such a policy needs to be reviewed carefully with an attorney to determine if it is binding on the company and if the laid off employee otherwise qualifies for the severance.

The harder question is whether it is possible to get more severance.  Although each employee's situation must be evaluated individually, for most employees the answer will be no.  Companies that have written severance policies usually will not make exceptions to the "formula" used for calculating how much severance each employee receives (for example, one week pay for every year of service).  But sometimes it may be possible for an employee to make a personal appeal to the company for more severance based on length of service or excellent work performance or hardship or another relevant factor that touches on the "fairness" of the severance amount.  In these situations, the company is under no legal obligation to increase the amount of the severance payment, but it may be willing to do so to help out an especially valued or deserving employee.

Is it possible for an attorney to "write a letter" to the company to obtain more severance for the employee?  Yes and no.  Unless the attorney has a prior relationship with the company, an attorney's letter only will have influence if there are valid legal claims -- usually some kind of discrimination -- that the employee could assert against the company.  Evaluating these potential legal claims is the most important reason for consulting with a qualified employment lawyer before signing any severance agreement.

A severance agreement is a contract between the company and the employee in which the employee agrees to waive any claims he/she may have against the company in exchange for the severance payment.  This "bargain" is the heart of every severance agreement, although these agreements usually impose additional obligations on the employee, including not to disclose the severance agreement and not to disparage the company.  Even "straightforward" severance agreements are full of legalese that requires an attorney to review and explain.

Ultimately, the key question is whether the amount of severance that is being offered is "enough" -- in terms of whether it reasonably compensates the employee for the rights he/she is giving up and the obligations he/she is accepting under the agreement.

Frankly, for most employees, who do not have any viable legal claims against their companies, almost any amount of severance will be better than nothing.  But some employees will have viable legal claims -- which they may not know about until they consult with an attorney -- that may be "worth" more than the amount of severance that is being offered.  For these employees, accepting the severance may be a mistake.  The bottom line is that the decision whether or not to accept a severance agreement should not be made until the employee has consulted with a qualified employment lawyer.       

For more discussion about severance agreements, please see here

The Warshawsky Law Firm has reviewed severance agreements for employees at all levels and in a wide range of industries, including finance, technology, real estate, travel, fashion, publishing, media, entertainment, insurance, medicine, and law.  If you have been offered a severance agreement, please contact us today.

Monday, October 12, 2015

To Settle Or Not To Settle, That Is The Question

Although people speak about "having their day in court," very few civil cases actually go to trial.  The vast majority of civil cases either are dismissed or settle.  According to various online sources, only approximately 10% of civil cases go to trial.  Moreover, research shows that many of the cases that go to trial would have been better off settled.  In this blog post, I want to discuss some of the considerations that go into deciding whether or not to settle a lawsuit.

As I explain to potential clients, in most cases, it is not easy to win a lawsuit.

First, the plaintiff's allegations have to be strong enough to avoid being dismissed for "failure to state a claim for relief."  This is a relatively low hurdle to jump over (but higher in federal court than in state court).  Assuming the plaintiff has a legitimate grievance against the defendant, and assuming that the plaintiff's allegations do not raise novel legal issues, this hurdle is one that a competent lawyer should be able to get over -- or the lawyer should not take the case.

The second, much higher hurdle is called "summary judgment," which is where the defendants ask the judge to throw out the lawsuit because, based on the evidence developed during discovery, there is no basis for the jury to rule in the plaintiff's favor.  Some kinds of cases, e.g., employment discrimination, are especially prone to being dismissed on summary judgment.  Other kinds of cases, e.g., false arrest, are less likely to be dismissed on summary judgment.  Unfortunately, at the start of a lawsuit, it is difficult to predict the chances that any given case will be dismissed on summary judgment.  Nevertheless, the ability to exercise this judgment accurately is a hallmark of an experienced, effective civil litigator.

The last hurdle that a plaintiff must get over to win a lawsuit is the trial.  Even when the plaintiff has a strong case, the jury can side with the defendant.  There are no guarantees once the jury starts deliberating.  The jury's sense of "justice" does not have to coincide with the plaintiff's.  Moreover, depending on the type of case, it can be more or less challenging to persuade the jury to find in favor of the plaintiff.  For example, juries are notoriously reluctant to rule against police officers in civil rights cases.

In short, winning a civil lawsuit isn't easy, but litigation is an all-or-nothing affair in which the only outcomes are win or lose. 

Given the nature of the legal system, it almost always make sense for the plaintiff to settle for a reasonable amount of money instead of running the risk of losing and obtaining no compensation for the harms the plaintiff has suffered.  (In addition, plaintiffs who lose cases can be required to reimburse the defendants for their costs and attorney's fees -- so the plaintiff ends up even worse off financially.)

OK, but what is a "reasonable amount of money"?  How is this determined?

Unfortunately, there is no formula that can answer this question.  It involves making an educated assessment of the "value" of the case (based on the damages that the applicable law allows a plaintiff to recover) and the "likelihood" of winning or losing at each stage in the litigation process (primarily based on case law).  These variables then must be viewed in light of the plaintiff's financial circumstances and willingness to risk losing the case.  For example, a plaintiff who does not "need" the money from a settlement is going to evaluate a case differently than someone who needs the money to pay bills.  Very few plaintiffs are this fortunate, however.  Most need the money, and sooner than later -- which can be a compelling reason to settle a lawsuit.

But again, it all depends on whether the defendant makes a "reasonable" settlement offer.  Some offers are just too low to accept, even for cases that are worth little and have low chances for success.

In my experience, however, most defendants in most cases will make settlement offers that are "reasonable" based on the facts and law of the case, even if the offers are lower than the plaintiffs would like (as they almost always are, of course).

This brings me to a critical issue:  unrealistic expectations.  In my experience, most plaintiffs believe their cases are "worth" more than they really are (from a legal perspective).  This is understandable, because the plaintiffs have experienced injustice and want compensation.  Unfortunately, the law usually does not provide for the amount of compensation they think is fair.  Usually, the law provides for much less.  In those situations, all I can do is explain to my clients how the legal system values their case and help them make an appropriate settlement decision based on the strengths and weaknesses of their case as well as their personal circumstances.

At The Warshawsky Law Firm, our goal is to obtain as much compensation as possible for our clients.  We screen potential cases carefully.  We research and draft complaints thoroughly.  We conduct aggressive discovery to obtain the evidence needed to defeat a motion for summary judgment.  Above all, we prepare cases with an eye for trial.  We are not afraid to take cases to trial.  Indeed, we had three jury trials this year alone.  But this does not mean that going to trial always is in our clients' best interest.  Often it isn't.  It almost always makes more sense to accept a reasonable settlement than to "roll the dice" at trial.

The decision whether or not to settle ultimately depends on the facts of each case and each plaintiff's personal circumstances.  Sometimes, however, plaintiffs refuse to settle and then obtain a worse outcome later (either a lower settlement, a summary judgment dismissal, or a loss at trial).  This happens much more often than the cases in which the plaintiff "hits a home run" at trial.

If I could offer just one piece of advice to plaintiffs, it would be to lower their expectations and accept settlement offers that they and their attorneys think are "reasonable"; then they should take the money, consider that a victory, and move on with their lives. 

Monday, September 21, 2015

A Tale Of Two Cases: Why Some Employment Discrimination Plaintiffs Win And Others Lose

At The Warshawsky Law Firm, we handle a wide variety of employment discrimination cases.  When first meeting a prospective client, perhaps our most important task is evaluating the strengths and weaknesses of a potential lawsuit.  Indeed, we usually are asked by the client whether he/she "has a case" and "what are the chances of winning."  This is a complicated question that can be difficult to answer based on the limited information and documentation that the client usually has in his/her possession.  Often times the full picture of an employment situation does not emerge until after the lawsuit has been filed and the parties engage in discovery.

The central question in every discrimination case is whether the plaintiff can prove that the employer was motivated by unlawful discriminatory bias, hostility, or animosity.  For example, in a wrongful termination case, was the plaintiff fired because of his/her race or age or religion, etc.?  While the plaintiff may "believe" that he/she was discriminated against by the employer, this is not good enough in court.  To be able to win a lawsuit in court, the plaintiff must have objective evidence that shows that the employer acted from a discriminatory motive.

What kind of evidence?  While each case is different and various factual circumstances can raise an inference of unlawful discrimination, the most common types of evidence that courts look for are discriminatory comments and differential treatment of similarly situated employees.

Discriminatory comments are just that -- spoken or written comments that demonstrate discriminatory animus.  For example, derogatory comments about a person's race or sex or disability, etc.  Comment evidence is the most important type of evidence in an employment discrimination case.   

Differential treatment of similarly situated employees means, for example, that the employer treats black and white employees differently in the same context (for example, when being disciplined for alleged infractions of workplace rules).  This is the second most important type of evidence -- showing that employees are treated differently for no reason other than their race, sex, disability, etc.

Two recent decisions by U.S. District Judge John Gleeson of the Eastern District of New York (a highly respected jurist) illustrate these basic principles. 

The first case is Charles Krugler v. MTA New York City Transit Authority, et al., Case No. 12-CV-2900.  The second case is Russell Herling v. New York City Department of Education, et al., Case No. 13-CV-5287. 

In the Krugler case, the plaintiff was a 57-year old transit employee who alleged that his employer had discriminated against him on the basis of age by rejecting him for 18 promotions that he had applied for between 2001 and 2011.

In a decision issued on September 10, 2015, Judge Gleeson granted the defendants' motion for summary judgment and dismissed the lawsuit.  Why?  Because the plaintiff did not have any evidence, other than his own opinion, that he had been discriminated against based on his age.  There were no discriminatory comments, and the evidence showed that older employees had been interviewed for and in some cases selected for the positions in question -- as Judge Gleeson explained, "[t]his is persuasive evidence that the defendants did not discriminate against Krugler based on his age."  Moreover, "Krugler was eventually promoted to the position of AGS, one of the positions he claims he was passed over for because of his age."  Based on these facts, Judge Gleeson concluded "as a matter of law" that "age discrimination played no role in the failure to promote Krugler."

In the Herling case, the plaintiff was a white Jewish physical education teacher at a public high school in Brooklyn who alleged that his employer had discriminated against him on the basis of race and religion by disciplining him for workplace infractions, giving him an unsatisfactory rating, and denying him opportunities for additional pay.

In a decision also issued on September 10, 2015, Judge Gleeson denied the defendants' motion for summary judgment and allowed the plaintiff's case to proceed to trial.  Why?  Unlike the plaintiff in the Krugler case, the plaintiff in the Herling case offered objective evidence of his supervisor's discriminatory animus.  This evidence included several discriminatory comments and specific examples of non-white and non-Jewish teachers receiving preferential treatment.  For example, the plaintiff showed that black employees who committed the same alleged rules infractions (e.g., being late to work, not submitting student grades properly) were not disciplined for the same or worse conduct for which he was disciplined.  Judge Gleeson agreed with the plaintiff that this evidence was sufficient to raise an inference of discrimination.  Although the defendants offered various non-discriminatory reasons for the plaintiff's workplace treatment, Judge Gleeson ruled that the plaintiff's evidence was strong enough to require a jury to decide whether or not he had been discriminated against.

The outcomes in these two cases highlight the crucial importance in an employment discrimination case for the plaintiff to present objective evidence -- usually in the form of discriminatory comments and/or differential treatment of similarly situated employees -- that the employer was motivated by discriminatory animus.  Without such evidence, it is very difficult for a plaintiff to persuade a court to allow the case to go to trial.


If you or someone you know has been the victim of workplace discrimination, please contact The Warshawsky Law Firm today.

Monday, August 3, 2015

Second Circuit Adopts Pro-Employer "Primary Beneficiary" Test For Unpaid Internships

In a previous blog post, I discussed whether unpaid internships for private businesses run afoul of federal and state wage laws.  At that time (September 2013), the prevailing view was that such internships were prohibited by the U.S. Department of Labor's six-factor test (DOL Fact Sheet #71). 

The DOL test was applied in the case of Glatt v. Fox Searchlight Pictures, Inc., by the federal district judge who ruled that the plaintiff interns who worked without pay for Fox Searchlight Pictures were "employees" entitled to minimum wage and overtime under federal and state wage laws.  On Appeal, however, this ruling was reversed by the U.S. Court of Appeals for the Second Circuit (which has jurisdiction over federal courts in New York, Connecticut, and Vermont).

In its decision, issued on July 2, 2015, the Second Circuit held that the DOL's six-factor test is not controlling and instead adopted a "primary beneficiary" test that examines, under the totality of the circumstances, "whether the intern or the employer is the primary beneficiary of the relationship."  This test is much more favorable to employers than the DOL's test.  The Second Circuit remanded the case for a new decision by the district judge using this new legal standard.

The Second Circuit explained the "primary beneficiary" test as follows (legal citations omitted):

The primary beneficiary test has two salient features. First, it focuses on what the intern receives in exchange for his work.  Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.

Although the flexibility of the primary beneficiary test is primarily a virtue, this virtue is not unalloyed.  The defendants’ conception of the primary beneficiary test requires courts to weigh a diverse set of benefits to the intern against an equally diverse set of benefits received by the employer without specifying the relevance of particular facts.  In somewhat analogous contexts, we have articulated a set of non-exhaustive factors to aid courts in determining whether a worker is an employee for purposes of the FLSA.

In the context of unpaid internships, we think a non‐exhaustive set of considerations should include:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation.  Any promise of compensation, express or implied, suggests that the intern is an employee -- and vice versa.

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands‐on training provided by educational institutions.

3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Applying these considerations requires weighing and balancing all of the circumstances.  No one factor is dispositive and every factor need not point in the same direction for the court to conclude that the intern is not an employee entitled to the minimum wage.  In addition, the factors we specify are non‐exhaustive -- courts may consider relevant evidence beyond the specified factors in appropriate cases.

Even more important for employers than the wording of this new "primary beneficiary" test is the Second Circuit's repeated emphasis that the test requires "a highly individualized inquiry."  This is legal lingo for "cannot be proved through common, generalized, class-wide evidence."  Consequently, although the Second Circuit coyly declined to answer the question in its opinion, this new test probably does not lend itself to collective actions (under the FLSA) and class actions (under state wage laws).  As a result, plaintiffs will have to pursue their claims individually and not as part of larger lawsuits.  While this will protect employers from expensive litigation, it also will disincentivize interns with meritorious but small claims from pursuing compensation in court.

Not surprisingly, the employment defense bar is very happy with the Second Circuit's decision.  For management-side commentary on this decision, see, e.g., here (Orrick), here (Littler), and here (Seyfarth Shaw).

If you or someone you know has worked as an unpaid intern and would like more information about the possibility of obtaining compensation under federal and state wage laws, please contact The Warshawsky Law Firm today.    

Wednesday, June 3, 2015

U.S. Supreme Court Clarifies Broad Scope Of Religious Protection Under Title VII

On June 1, 2015, the U.S. Supreme Court issued its eagerly anticipated decision in the case of Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., which presented the question whether an applicant for employment is required to inform the employer of her need for a religious accommodation in order to be protected by Title VII of the Civil Rights Act of 1964.  The Court (in an 8-1 decision written by Justice Scalia) said no, holding that "[a]n employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."  This important decision clarifies the broad scope of religious protection under Title VII.

Title VII is a federal statute that prohibits discrimination in employment based on race, color, religion, sex, or national origin.  Title VII applies to employers throughout the country with at least 15 employees, including federal, state, and local government agencies.  Under Title VII, it is an “unlawful employment practice” for a covered employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”  42 U.S.C. § 2000e-2(a).

In the Abercrombie case, the plaintiff was a practicing Muslim who applied for a position in an Abercrombie store.  She was wearing a traditional headscarf during her interview.  She was interviewed by an assistant store manager, who considered the plaintiff qualified to be hired, but was concerned that the headscarf would conflict with the company's "Look Policy," which strictly prohibited employees from wearing "caps" at work.  The assistant store manager raised this concern to the store manager, who provided no guidance, then she spoke with the district manager, who told her that the headscarf would violate the Look Policy.  The assistant store manager mentioned that she believed the plaintiff wore the headscarf because of her faith, but the district manager said that the Look Policy applied to all headwear, religious or otherwise, and he decided that the plaintiff could not be hired.

The U.S. Equal Employment Opportunity Commission (EEOC) filed the lawsuit on behalf of the Muslim applicant, claiming that the company's Look Policy violated the plaintiff's rights under Title VII.  The district court ruled in favor of the plaintiff, but the Tenth Circuit reversed on the grounds that the Look Policy was a "neutral" job requirement.  The EEOC appealed to the U.S. Supreme Court, which ruled in favor of the plaintiff.

The Supreme Court explained that Title VII by its terms protects "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate" the employee's religious observance or practice "without undue hardship on the conduct of the employer's business."  See 42 U.S.C. § 2000e(j).  In other words, Title VII imposes an affirmative duty on employers to reasonably accommodate an employee's religious practices, unless doing so would impose an "undue hardship" on the business.  Contrary to the company's position, the Supreme Court emphasized that "Title VII does not demand mere neutrality with regard to religious practices - that they be treated no worse than other practices.  Rather, it gives them favored treatment, affirmatively obligating employers not 'to fail or refuse to hire or discharge any individual . . . because of such individual's' 'religious observance and practice'."  Consequently, "Title VII requires otherwise-neutral policies to give way to the need for an accommodation."

Based on these principles, the outcome in the Abercrombie case was clear:  The company could not refuse to hire the plaintiff based on its Look Policy merely because she wore a Muslim headscarf.  The Court did not decide if accommodating the plaintiff's headscarf by making an exception to the company's Look Policy would impose an "undue burden" on Abercrombie; that issue will be considered by the lower courts on remand (unless the case is settled). 

Importantly, the Court held that the employer does not have to "know" as a fact that the employee needs a religious accommodation for the protections of Title VII to apply.  Even a mere suspicion or belief is enough, because the statute focuses on the employer's motive not its knowledge.  As the Court explained:

"Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge.  Motive and knowledge are separate concepts.  An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed."

"Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward:  An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.  For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays.  If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII."

Title VII's "disparate treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice.  A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability."

In sum, under Title VII an employer may not base employment decisions on an applicant's or employee's known or suspected religion, including beliefs, observances, and practices, and must accommodate an employee's religion, unless doing so would impose an undue burden on the business.

For additional commentary on the Abercrombie decision, see here (SCOTUS blog) and here (Politico).

If you or someone you know has been the victim of religious discrimination in the workplace, please contact The Warshawsky Law Firm today. 

Monday, September 15, 2014

Workplace Bullying Is Not Illegal Unless It Is Motivated By The Victim's Membership In A Protected Class

Workplace bullying is a too common experience for too many employees, whether blue collar or white collar, hourly or salaried, administrative, technical, or professional.  As an employment lawyer, I frequently am called and emailed by people who have been bullied at work by coworkers, supervisors, and/or managers and who want to know their rights.  Unfortunately, unless the bullying was motivated by the victim's membership in a protected class, the victim essentially has no "rights" under existing federal, state, and city employment laws.

This important issue -- one that most people are not aware of -- was highlighted in a decision issued today by the U.S. District Court for the Southern District of New York (SDNY) in the case of Alfred Johnson v. City University of New York, No. 14-CV-587 (Hon. Valerie Caproni).  The plaintiff in Johnson was a lecturer in the music department of CUNY's Medgar Evers College.  He alleged that, for more than three years, he had been "bullied" and "harassed" by his department chairman.  After complaining about the bullying, first to the college and then to the U.S. Equal Employment Opportunity Commission (EEOC), his appointment was not renewed, which he alleged was retaliation for his complaints. 

The plaintiff then filed a lawsuit against CUNY, representing himself (pro se), in which he charged the college with wrongful discharge, failure to hire, failure to promote, and retaliation.  However, he did not allege that this mistreatment was based on his race, sex, age, national origin, religion, disability, or any other protected characteristic.  At a court conference, the plaintiff confirmed to the judge that "he was not alleging that his Chair's hostility was motivated by his race, sex, age, or national origin."  Consequently, the judge granted CUNY's motion to dismiss the lawsuit.  The judge explained the basis of her ruling in the opening paragraph of her decision:

"Bullying and harassment have no place in the workplace, but unless they are motivated by the victim's membership in a protected class, they do not provide the basis for an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2 (Title VII), and any complaint to the Equal Employment Opportunity Commission (EEOC) based on them does not constitute 'protected activity' under Title VII.  Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due.  The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin."

The key point is that Title VII and other employment discrimination laws -- including, for example, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the New York State Human Rights Law, and the New York City Human Rights Law -- only protect employees from mistreatment that is motivated by one or more of their protected characteristics.  The term "protected characteristic" refers to certain physical and social traits that are deemed by the law to be unrelated to a worker's occupational abilities, including age, sex/gender, race/color, national origin, religion, marital status, pregnancy, disability, and sexual orientation.  Importantly, different laws protect different characteristics.  For example, just about every law prohibits race and sex discrimination, but only the state and city laws prohibit sexual orientation discrimination.  A qualified employment lawyer will know which laws potentially apply in each particular situation.

The bottom line is that, for a victim of workplace bullying to be able to sue in court, the bullying must have been motivated by the employee's protected characteristic(s).  This is because the employment discrimination laws only protect against certain kinds of mistreatment, specifically defined in each law.  These laws do not protect against bullying, harassment, hostility, meanness, and unfairness in general.  Unfortunately for the plaintiff in the Johnson case, this means that his lawsuit against CUNY was doomed from the start.  Judge Caproni had no choice but to dismiss the case. 

If you or someone you know has been the victim of workplace discrimination, please contact The Warshawsky Law Firm today.  

Friday, May 9, 2014

Employment Laws Prohibiting Sex Discrimination In The Workplace

According to the U.S. Bureau of Labor Statistics, women make up 47% of the American work force (in 2013). Although a lower percentage of women (57.2%) than men (69.7%) participate in the labor market overall, women are disproportionately represented in “management, professional, and related occupations” and “sales and office occupations,” comprising 51.4% and 61.9% of these fields respectively.

Specific examples of women’s share of various occupations include: 71.9% of human resources managers; 69.7% of health services managers; 62.1% of accountants; 58.1% of market research analysts; 34.9% of computer systems analysts; 73.8% of psychologists; 33.1% of lawyers; 37.3% of producers and directors; 63.3% of public relations specialists; 56% of pharmacists; 35.5% of doctors; 60.6% of physical therapists; 54.7% of veterinarians; 47.2% of advertising sales agents; 57.6% of real estate brokers and sales agents; 49.7% of retail salespersons; and 94.4% of secretaries and administrative assistants. Complete statistics for 2013 may be found here.

Read more . . .

Thursday, January 30, 2014

An Overview Of The Law Governing Overtime Pay Claims

One of the most important rights afforded by federal and state employment laws is the right to overtime pay.  In this blog entry, I am going to discuss some of the basic legal rules surrounding this issue.  Please note:  This is a very complex issue and an employee's eligibility for overtime and the amount of overtime owed to the employee will depend on the circumstances of each case.  Any worker or company with questions about overtime pay should consult a qualified employment lawyer.

Generally speaking, overtime pay means the extra pay that an employee is owed for working more than 40 hours in a workweek.  In recent years, there has been an explosion of individual and class action lawsuits filed by workers who were not paid the overtime owed to them.  Unfortunately, many employers either do not know or do not follow the rules governing overtime pay.  This can result in large amounts of back pay and liquidated damages being owed to employees, which hurts both the employee (who should have been paid in a correct and timely manner) and the employer (who will have to pay significant penalties).

When is an employee entitled to overtime pay?

Assuming an employee is eligible for overtime pay (more on that below), the law normally requires the payment of overtime whenever the employee works more than 40 hours in a workweek (defined as seven consecutive 24-hour periods).  Importantly, overtime pay is not owed for working more than 8 hours in a day or for working on weekends or holidays; it only applies when the employee works more than 40 hours in a workweek.  For example, if an employee works three 12-hour shifts per workweek (36 hours total), he is not owed overtime; if he works six 7-hour shifts (42 hours total), he is.

How much overtime pay is required?

Generally speaking, if an eligible employee works more than 40 hours in a workweek, he must be paid time-and-a-half for every hour over 40.  In other words, an employee is owed a "premium" of an additional 50% pay for every overtime hour.  The overtime rate is based on the employee's "regular rate" of pay, usually his regular hourly wage.  The overtime rate is the regular rate times 1.5.  For example, assume an employee is paid $20 per hour; his overtime rate would be $30 per hour.  This is the amount he must be paid for every hour over 40.

Are all employees entitled to overtime?

No.  Many categories of workers are exempted from the overtime requirement, meaning they do not receive any extra pay for working more than 40 hours in a workweek.

The most common categories of exempt workers include:

Executive employees (who manage business operations and supervise at least two other employees);

Professional employees (who perform intellectual work requiring advanced knowledge and specialized training);

Administrative employees (who exercise responsibility and discretion related to the business operations of the company); and

Computer professionals (who perform high-level work involving computer systems and programs). 

A complete listing of exemptions may be found here.

Please note:  Whether or not an employee is exempt can be complicated and depends on the circumstances of each case.  A qualified employment lawyer can provide guidance on this issue.

If an employee is paid a salary, does that mean he is not entitled to overtime?

Not necessarily.

It is a common misconception that, so long as an employee is paid a salary, he is not entitled to overtime. This often is not the case.

It is true that many overtime exemptions include, among their various requirements, that an employee be paid a certain minimum salary.  For example, the executive, professional, and administrative exemptions require a minimum salary of $455 per week.  (However, the minimim salary requirement does not apply to teachers, lawyers, and doctors.)  Being paid a "salary" means that an employee receives a predetermined amount of compensation each pay period, which does not depend on the quantity or quality of the employee's work.  But these exemptions have additional requirements besides the salary requirement -- requirements that pertain to the nature of the employee's work and the amount of responsibility exercised by the employee. 

For example, suppose a receptionist in an office is paid a salary of $1000 per week.  If he works 50 hours per week, is he owed overtime?  Generally speaking, yes, he is owed for 10 hours of overtime, unless he falls under one of the exemptions.  But which exemption?

Companies often claim that ordinary office workers, like receptionists and secretaries and assistants, are "administrative" employees.  However, to qualify for the administrative exemption, an employee's "primary duty" must be the performance of office work "directly related to the management or general business operations" of the company and must involve "the exercise of discretion and independent judgment with respect to matters of significance."  In most cases, ordinary office workers do not perform work that meets these requirements.  Therefore, they are not exempt and are owed overtime.

In the example of the receptionist, he is owed for 10 hours of overtime.  How much is he owed?  His overtime rate is 1.5 times his "regular rate" of pay.  Because he is paid by salary, his "regular rate" is determined by dividing his salary by the total number of hours worked in that workweek, i.e., $1000 divided by 50 hours = $20 per hour.  His overtime rate, therefore, is $30 per hour.  However, this does not mean he is owed an additional $300.  Why not?  Because he already was paid $20 for each hour of overtime.  Rather, he is owed the overtime premium that he did not get paid, i.e., the extra $10 per hour.  In sum, he is owed $100.

Of course, in some cases, companies actually refuse to pay employees for hours worked over 40.  For example, some businesses have a "policy" that hourly employees will be paid only for 40 hours each week, even if they work more than 40 hours.  Some businesses instruct their employees to work "off the clock" once they have reached 40 hours in a workweek.  These types of policies are blatantly illegal.  In those cases, the employees are owed full overtime pay (1.5 times their hourly wage) for every hour over 40.

What if an employer fails or refuses to pay overtime?

Both federal and state laws provide powerful legal remedies for employees who are not paid the overtime they are owed.  These remedies include back pay (compensation for the amount of overtime owed) and liquidated damages (double damages), as well as attorney's fees and costs.  Moreover, overtime laws intentionally favor employees, making it easier for them to prevail in these cases.  The statute of limitations for bringing an overtime claim under federal law is two years (three years for willful violations) and six years under state law.  Although these sound like long periods of time, if an employee believes he or she is owed overtime, it is very important to contact an employment attorney right away.  Likewise, companies should not wait to correct overtime problems, as the potential damages and penalties quickly add up to very large amounts.

Additional information about federal and state overtime laws can be found here (US DOL website) and here (NY DOL website). 

The Warshawsky Law Firm represents employees and employers in overtime pay cases. 

Wednesday, September 25, 2013

Unpaid Internships Are Illegal In Most Employment Situations

Unpaid internships are considered by many to be a “rite of passage” for young persons starting their careers.  College students and recent graduates alike often find that the only entry-level positions open to them are unpaid internships.  Such positions are common in media, publishing, art, fashion, entertainment, politics, and other industries with a creative or intellectual bent, but they are found throughout the business world.

Young persons supposedly gain valuable job experience and “make connections” through unpaid internships, but more often they work long hours doing menial work for disinterested bosses who take them for granted.  Indeed, unpaid internships have become a way for many employers to obtain free labor, to avoid paying taxes, and to artificially lower the cost of doing business.   Even when unpaid internships provide worthwhile experience, only persons with other means of support (from parents, spouse, savings, etc.) are able to enjoy their benefits.

Unpaid internships are unfair to young persons.

They also are illegal in most employment situations.

UPDATE:  A 2015 decision by the U.S. Court of Appeals for the Second Circuit has changed the legal standard that applies to unpaid internships in New York, Connecticut, and Vermont, making them more likely to pass muster under federal law.  Please see here for more information.

The general rule, under federal and state law, is that private, for-profit employers must pay their employees at least minimum wage (currently $7.25 per hour; the minimum wage in New York will rise to $8.00 per hour on December 31, 2013), plus overtime (time-and-a-half) for any hours over 40 in a workweek.

There are several exceptions to this rule, of course, including an exception for “interns."  However, these exceptions are narrowly construed and only apply in specific, limited circumstances.

Regarding unpaid internships, the U.S. Department of Labor explains “[t]here are some circumstances under which individuals who participate in ‘for profit’ private sector internships or training programs may do so without compensation.”  The DOL applies six criteria in determining whether or not an unpaid internship is lawful (see DOL Fact Sheet #71):

1.  The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2.  The internship experience is for the benefit of the intern;

3.  The intern does not displace regular employees, but works under close supervision of existing staff;

4.  The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;

5.  The intern is not necessarily entitled to a job at the conclusion of the internship; and

6.  The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The New York Department of Labor applies a similar set of factors.

Only if each of these factors is satisfied is it lawful not to pay interns for their work.

If these factors are not met, then the interns must be paid the required wages.

In recent years, several lawsuits have been filed on behalf of interns seeking compensation for unpaid wages.  In June of this year, a federal district judge in Manhattan ruled that unpaid interns working for Fox Searchlight Pictures were “employees” protected by federal and state minimum wage laws.  In his decision, the judge applied the six factors listed above, observing as follows:

Regarding factor #1:  “While classroom training is not a prerequisite, internships must provide something beyond on-the-job training that employees receive.”

Regarding factor #2:  “Resume listings and job references result from any work relationship, paid or unpaid, and are not the academic or vocational training benefits envisioned by this factor.”

Regarding factor #3:  The interns “performed routine tasks that would otherwise have been performed by regular employees”; if the interns “had not performed these tasks for free, a paid employee would have been needed.”

Regarding factor #4:  “Searchlight does not dispute that it obtained an immediate advantage from [the interns’] work.  They performed tasks that would have required paid employees. . . . The fact they were beginners is irrelevant.”

Regarding factor #5:  “There is no evidence [the interns] were entitled to jobs at the end of their internships.”

Regarding factor #6:  Although the interns “understood they would not be paid . . . this factor adds little, because the FLSA does not allow employees to waive their entitlement to wages.”

The judge concluded, the interns were “were classified improperly as unpaid interns and are ‘employees’ covered by the FLSA and NYLL.  They worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training.  The benefits they may have received – such as knowledge of how a production or accounting office functions or references for future jobs – are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer.  They received nothing approximating the education they would receive in an academic setting or vocational school.”


If you or someone you know is owed wages for work performed during an unpaid internship, please contact The Warshawsky Law Firm today.          

Tuesday, September 17, 2013

Can I Be Fired For Being Pregnant?

Being fired when expecting a child is one of the most difficult, upsetting, and unfair experiences that an employee can face.  Unfortunately, pregnancy discrimination occurs every day, at all levels of the economy, affecting blue collar and white collar workers – and their families – alike. 

For employees who are the victims of pregnancy discrimination, there are federal, state, and city laws that protect their rights and may allow them to get their jobs back and receive just compensation for the mistreatment they have suffered.

Pregnancy discrimination is a complex topic.  Anyone who believes she has been the victim of pregnancy discrimination should consult with a qualified employment lawyer immediately.

The U.S. Equal Employment Opportunity Commission (EEOC) defines pregnancy discrimination as “treating a woman (applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.” 

The main federal law protecting the rights of pregnant workers is the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964 to clarify that unlawful sex discrimination includes discrimination based on “pregnancy, childbirth, or related medical conditions.”  This law applies to private employers with 15 or more employees, federal, state, and local governments, labor unions, and employment agencies that supply workers to covered employers.  As the EEOC explains, the law “forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.”

The New York State Human Rights Law provides similar protection to pregnant employees who work for businesses in New York with 4 or more employees.  The New York City Human Rights Law likewise protects pregnant employees who work for businesses in New York City with 4 or more employees.

As a general rule, a covered employer must treat a pregnant employee in the same manner – no better and no worse – than other employees with similar abilities and limitations

This does not mean that pregnancy can be used as an excuse for poor attendance or poor performance or workplace misconduct.  An employer is permitted to discipline or fire a pregnant employee for legitimate reasons unrelated to her condition.

What may an employer not do?

An employer may not refuse to hire a job applicant who is pregnant or who plans to become pregnant.  Employers should not inquire about a job applicant’s pregnancy status or childbearing plans.

An employer may not fire an employee who is pregnant or who plans to become pregnant.  Employers may not base any employment decisions on the employee’s pregnancy status or childbearing plans.

An employer may not single-out pregnant employees for special conditions or procedures not required of other employees.  For example, sick leave policies must be applied the same to pregnant employees as non-pregnant employees.

An employer may not require pregnant employees to take maternity leave.  Pregnant employees must be permitted to work so long as they are able to perform their jobs.

An employer may not refuse to cover pregnancy-related conditions as part of a company’s health insurance plan.

An employer may not condition the receipt of maternity leave, health insurance benefits, or other privileges of employment on a pregnant employee’s marital status.

Is an employer required to provide “reasonable accommodations” for pregnant employees? 

No, unless the pregnant employee is considered “disabled” within the meaning of federal, state, or city law.  Generally, a “normal” pregnancy does not qualify as a disabling condition.  However, if the employer provides workplace accommodations for other employees with health-related conditions, then pregnant employees must be afforded the same consideration.

Is an employer required to allow pregnant employees to take maternity leave?

No, unless the employer is covered by the Family and Medical Leave Act (FMLA), which is a federal law that applies to businesses with 50 or more employees, federal, state, and local governments, and public and private elementary and secondary schools.  Under the FMLA, a pregnant employee who has worked the requisite number of hours is entitled to up to 12 weeks of job-protected leave for the birth of a child or to care for a newborn.   Currently there are no New York state or city laws comparable to the FMLA.  However, regardless of the FMLA, if the employer provides temporary or short-term disability leave, then pregnancy-related conditions must be treated the same as non-pregnancy-related conditions.

Do nursing mothers have the right to express breast milk at work?

Yes.  Under New York State Labor Law § 206-c:

An employer shall provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following child birth. The employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy. No employer shall discriminate in any way against an employee who chooses to express breast milk in the workplace.

This law applies to all public and private employers in the state, regardless of the size or nature of their business.

Under federal law, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207, was recently amended to add subsection r:

Reasonable break time for nursing mothers

(1) An employer shall provide –

(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and

(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

The FLSA applies to almost every employer in the country, including federal, state, and local governments, schools and universities, hospitals and institutions, and private businesses with annual sales or revenues of $500,000 or more.

If you or someone you know has been the victim of pregnancy discrimination, please contact The Warshawsky Law Firm today.


Monday, February 4, 2013

Are Illegal Immigrants Protected By Labor And Employment Laws?

There are an estimated 12 million illegal immigrants in the United States, including more than 500,000 in New York City.  Many thousands of illegal immigrants participate in the labor force, frequently in the restaurant, janitorial, construction, and domestic service industries.  Are these workers protected by federal, state, and local employment laws?  Generally speaking, yes.

Minimum Wage and Overtime Laws

The federal and state governments require employers to pay minimum wages and overtime (time-and-a-half for every hour over 40 in a work week) to most workers.  The minimum wage and overtime laws are complex and require a case-by-case analysis. 

Currently the federal minimum wage for covered nonexempt employees is $7.25 per hour.  The New York minimum wage is the same.  Where federal and state minimum wages are different, the higher wage applies.  Several states, including California, mandate minimum wages above $7.25 per hour; legislation is pending in New York to raise the minimum wage in this state to $8.50 per hour.

Note:  Employees who customarily receive tips as part of their jobs may be paid a lower cash minimum wage (for example, $5.00 per hour for food service workers).  The amounts of these so-called "tip credits" are established on a state-by-state basis. 

Do these laws apply to illegal immigrants?  Yes.

The federal wage laws are set forth in the Fair Labor Standards Act (FLSA), which covers employees engaged in interstate commerce (very broadly defined) or who work for businesses with at least two employees and total sales of $500,000.  The FLSA does not contain an exception for illegal immigrants.  Neither does the New York Labor Law, which defines an employee as "any individual employed or permitted to work by an employer in any occupation" (although certain occupations are excluded from the law).  Accordingly, illegal immigrants in New York City (and elsewhere) are entitled to the same minimum wage and overtime pay as other workers.

This was the issue in two recent federal district court cases:  Solis v. Cindy's Total Care, Inc., Case No. 10-CIV-7242 (PAE), 2011 WL 6013844 (S.D.N.Y. Dec. 2, 2011), and Angamarca v. Da Ciro, Inc., Case No. 10-CIV-4792 (RLE), 2012 WL 5077480 (S.D.N.Y. Oct. 15, 2012).  In Solis, the court held that an employee's immigration status was not relevant to his or her claims for unpaid wages under the FLSA.  In Angamarca, the court adopted that holding and further ruled that the plaintiff, who had returned to his home country, would be permitted to appear remotely (via videoconference) for his deposition and for trial -- thus making it possible for him to pursue his lawsuit from outside the United States.

New York state courts similarly have held that illegal immigrants are covered by the state wage laws.  For example, in Pineda v. Kel-Tech Construction, Inc., 15 Misc.3d 176, 832 N.Y.S.2d 386 (N.Y. Sup. 2007), the court held that illegal immgrants who worked on municipal construction projects were entitled to be paid "prevailing wages" as mandated by state law.  Likewise, in Garcia v. Pasquareto, 11 Misc.3d 1, 812 N.Y.S.2d 216 (N.Y. Sup. App. Term 2004), the court held that illegal immigrants could bring an action in court for wages earned but not paid.   

In sum, illegal immigrants must be paid proper minimum wages and overtime for all work they actually perform, and they may bring actions in federal or state court to recover unpaid wages, even though they are not authorized to work in this country.

Employment Discrimination Laws

In addition to minimum wage and overtime laws, the federal and state governments (and many local governments, including New York City) prohibit employers from discriminating against employees based on race, sex, age, religion, disability, national origin, and other protected characteristics (which are different depending on the law).

Of course, under federal immigration law, employers can -- indeed must -- discriminate against employees on the basis of immigration status.  That is, employers are prohibited from hiring and employing workers who are not authorized to live and work in the United States.  Technically speaking, therefore, no illegal immigrants should be working in the country, but many do.  Just as they are protected by minimum wage and overtime laws, are they protected by employment discrimination laws?  Yes, but with certain limitations.

The various federal, state, and city anti-discrimination laws do not contain exceptions for illegal immigrants.  For example, the main federal anti-discrimination law, Title VII of the Civil Rights Act of 1964, applies to persons "employed by an employer."  The U.S. Equal Employment Opportunity Commission (EEOC) has declared it a "settled principle" that "undocumented workers are covered by the federal employment discrimination statutes and that it is as illegal for employers to discriminate against them as it is to discriminate against individuals authorized to work."  Likewise, the New York City Human Rights Law, which is one of the most protective laws, prohibits employers from discriminating against "any person."

Consequently, employers who employ illegal immigrants are not allowed to discriminate against them, any more than they are allowed to discriminate against other employees.  But this does not mean that illegal immigrants are entitled to all of the protections and remedies provided by these laws.

In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the U.S. Supreme Court held that an illegal immigrant who had been illegally terminated in retaliation for union activity was not entitled to receive back pay for the period following his termination.  Back pay is a common remedy in wrongful termination cases and refers to the amount of money that the employee would have been paid if he had not been terminated.  That is, it refers to income that the employee theoretically would have earned, not to income that the employee in fact earned. Under Hoffman, illegal immigrants are not entitled to back pay, i.e., pay for work they did not in fact perform.  The Hoffman ruling applies to federal law claims.

Consequently, if an illegal immigrant is terminated from his employment based, for example, on religion or age or disability, under federal law (Title VII or the ADEA or the ADA) he will not be allowed to recover back pay as part of any lawsuit.  Logically, the Hoffman ruling also covers non-promotion claims, i.e., where the employee claims he should have been promoted to a higher-paying position but was not due to some form of illegal discrimination.  In those situations, the employee seeks compensation for work he did not actually perform, which is barred to illegal immigrants under Hoffman.  (As several courts have noted, Hoffman does not bar illegal immigrants from recovering wages owed to them for work they performed.  See, e.g., Flores v. Amigon, 233 F. Supp.2d 462 (E.D.N.Y. 2002).)       

Nothing in the Hoffman decision, however, appears to preclude an illegal immigrant from being compensated for mental and emotional distress caused by harassment and other forms of workplace discrimination that he or she actually suffered.

Moreover, New York courts have not applied the Hoffman ruling to state law claims.  The New York Court of Appeals has held that illegal immigrants who are injured on the job may recover lost income damages (i.e., for work they did not actually perform) as part of the compensation they receive under state labor law.  See Balbuena v. IDR Realty, LLC, 6 N.Y.3d 338 (2006); see also Janda v. Michael Rienzi Trust, 78 A.D.3d 899, 912 N.Y.S.2d 237 (2d Dept 2010) (same).  Importantly, the U.S. Court of Appeals for the Second Circuit (which covers New York) has held that federal immigration law does not preempt state labor law on this issue.  See Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219 (2d CIr. 2006).  Arguably, the Balbuena decision supports the position that illegal immigrants are entitled to back pay damages under state and city anti-discrimination laws.

The bottom line is that illegal immigrants are protected by federal, state, and local employment laws, are entitled to be paid for all hours worked (including overtime and other forms of mandatory pay), and are entitled to work in an environment free from illegal discrimination.  But they may not be entitled to the full range of remedies available under these laws, particularly under federal law.  This is a complex issue that requires careful case-by-case analysis.

Lastly, it must be emphasized that, even if illegal immigrants are covered by employment laws, this does not mean that they cannot be detained, prosecuted, and/or deported by federal immigration authorities.  This factor must be considered very seriously when deciding whether or not to file an employment lawsuit on behalf of an illegal immigrant.   

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