Sunday, December 04, 2011 What Is An Adjournment In Contemplation of Dismissal (ACD)? How Does It Affect My Rights To Sue For Civil Rights Violations?
Consider the following scenario: A young person is arrested by a police officer for disorderly conduct and resisting arrest late one Friday night, held in jail over the weekend, then arraigned on Monday before a judge and released on his own recognizance. He is charged with a violation under N.Y. Penal Law 240.20 (disorderly conduct) and a misdemeanor under N.Y. Penal Law 205.30 (resisting arrest). He denies both charges and believes he was falsely arrested and falsely imprisoned in violation of his civil rights. At his first criminal court appearance, the prosecutor offers him an "adjournment in contemplation of dismissal," commonly known as an ACD. What does this mean? How does it affect his rights? Should he accept the ACD?
What is an ACD?
An ACD is a special type of dismissal of criminal charges, set forth in N.Y. Criminal Procedure Law 170.55. It applies in misdemeanor cases, and may be entered at any time before the defendant pleads guilty or the criminal trial commences. It may be entered upon motion by the prosecutor, the defendant, or the court with the consent of both parties. An ACD "is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice." This means that the criminal proceeding against the defendant will be adjourned (suspended) for a certain period of time -- usually six months (one year for certain drug and domestic offenses) -- at the end of which, the charges against the defendant will be dismissed. The defendant is required to "keep out of trouble" during this six month period, however, otherwise the criminal charges against him may be restored by the prosecutor. (Technically, the charges may be restored if the dismissal "would not be in furtherance of justice.")
What is the effect of an ACD?
Many defendants believe that accepting an ACD means they are admitting guilt. This is not correct. An ACD is not a guilty plea or an admission of guilt. The law is clear: "The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt." N.Y. Criminal Procedure Law 150.55(8). The law further provides: "No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution." Furthermore, the law requires that "the record of such action or proceeding shall be sealed." N.Y. Criminal Procedure Law 160.50. In other words, an ACD means that the arrest and prosecution never happened.
Can a person who accepts an ACD sue the police for false arrest and false imprisonment?
Yes. Although some courts have stated otherwise, the weight of authoritative opinion holds that an ACD does not affect a person's right to sue the police for false arrest, false imprisonment, or excessive force. See, e.g., Hollender v. Trump Village Coop., Inc., 58 N.Y.2d 420 (1983); Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995); Graham v. People, No. 07-CV-1690 (JG), 2009 WL 1531097 (E.D.N.Y. June 2, 2009). The only claims that an ACD defeats are claims that require the plaintiff to show that a criminal proceeding was terminated in his favor. (An ACD is not a finding of innocence; it simply wipes the slate clean.) This includes malicious prosecution. See, e.g., Daniel v. Safir, 175 F. Supp.2d 474 (E.D.N.Y. 2001). Therefore, a person who accepts an ACD can sue the police for arresting and imprisoning him, but may not sue the police for prosecuting him.
Should a defendant accept an ACD?
It depends, of course. A defendant offered an ACD should discuss the matter carefully with his attorney. From the perspective of a civil rights attorney, however, there is little downside to an ACD. First, it ends the criminal procecution quickly and efficiently, avoiding the risk of conviction and any adverse findings by the criminal court (for example, that the police had probable cause to arrest). Second, although an ACD bars a claim for malicious prosecution, as a practical matter this claim rarely adds much "value" (money damages) to a plaintiff's potential civil rights lawsuit in these cases. The plaintiff's damages primarily come from the arrest and imprisonment. These damages don't go away if the person accepts an ACD. Besides, it would be illogical to reject an ACD, which ends the criminal proceeding, in the hopes of later asserting a malicious prosecution claim against the police. Third, very importantly, a person who wants to "vindicate his rights" in court will have a much better opportunity to do so in a civil rights action than in a criminal proceeding. In a civil rights action, the plaintiff is better able to define the litigation, obtain discovery, and maneuver the case towards settlement or trial. Last but not least, money damages are only recoverable in a civil rights action. For all of these reasons, I generally advise my clients who have been charged with minor crimes to request and accept an ACD at the first opportunity.
For more information about ACDs, see here and here.
Thursday, December 30, 2010 Are English-Only Workplace Rules Legal? Probably, If Justified On Business Grounds And Narrowly Applied.
A 2003 report by the U.S. Census Bureau, based on Census 2000 data, found that 18% of the total population aged 5 and older (47 million people) spoke a language other than English at home. This was an increase from 1990 (14% or 31.8 million people) and 1980 (11% or 23.1 million people). Census 2010 data almost certainly will show a further increase in the number of foreign-language speaking persons in the United States. Not surprisingly, the most common non-English language spoken in the United States, by far, is Spanish, spoken by 28.1 million people (according to Census 2000 data). Other languages spoken by more than 1 million people include Chinese (2 million), French (1.6 million), German (1.3 million), Tagalog (1.2 million), Vietnamese (1 million), and Italian (1 million). The number and variety of foreign-language speaking persons is even greater in certain large metropolitan areas (for example, Los Angeles and New York City).
What happens when foreign-language speaking persons go to work for businesses whose employees and customers are predominantly English-speaking? Very frequently, these businesses adopt some form of "English-only" workplace rules that either limit or prohibit the speaking of non-English languages at work. Are such rules legal? Do they violate laws against employment discrimination based on race, ethnicity, or national origin?
The U.S. Equal Employment Opportunity Commission, which is responsible for administering and enforcing most federal employment discrimination laws, e.g., Title VII of the Civil Rights Act of 1964, has adopted a strict guideline for English-only rules. See 29 C.F.R. s. 1606.7. According to the EEOC:
(a) When applied at all times. A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the
language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment. Therefore, the Commission will presume that such a rule violates title VII and will closely scrutinize it.
(b) When applied only at certain times. An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.
Thus, the EEOC takes the position that blanket English-only rules are inherently discriminatory, but limited English-only rules can be justified by business necessity. Although the EEOC guidelines do not have the force of law, they are shown considerable deference by courts applying Title VII and other statutes under the EEOC's jurisdiction. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975); EEOC v. Beauty Enterprises, Inc., No. 01-CV-378 (AHN), 2005 WL 276822 (D. Conn. Oct. 25, 2005).
An excellent analysis by a federal district court in New York of the legality of English-only workplace rules is found in Pacheco v. New York Presbyterian Hospital, 593 F. Supp.2d 599 (S.D.N.Y. 2009).
In Pacheco, the plaintiff worked as a "patient representative" in a major New York City hospital. He was an American citizen, born and raised in Puerto Rico, and fully bilingual in English and Spanish. After several patients complained to management about hospital employees speaking Spanish around them -- the patients believed that the employees were gossiping about them and making jokes about them in a language the patients couldn't understand -- the plaintiff's manager told the plaintiff that he was to speak only English when performing his duties, unless he was assisting a Spanish-speaking patient. Shortly thereafter, the plaintiff complained to the hospital's human resources department, which took no action. The disputed ended up in court, where the plaintiff claimed national origin discrimination, under theories of disparate treatment, disparate impact, hostile work environment, and retaliation. The court rejected each of the plaintif's arguments and granted summary judgment to the hospital.
The court's analysis under each theory focused on the hospital's proffered justification for the English-only rule. Specifically, the hospital argued that the English-only rule -- which was a limited rule that did not prohibit the plaintiff from speaking Spanish during breaks and when not in the vicinity of patients -- was necessary for two reasons: first, to promote effective customer (patient) relations; second, to enable the plaintiff's manager (who did not speak Spanish) to supervise and evaluate the plaintiff properly. The court found that these reasons were non-pretextual, legitimate, and lawful: "Given this undisputed record, the case law supports Defendant's claim of business necessity." The court noted that this conclusion was consistent with the EEOC Compliance Manual, which provides that English-only rules may be justified "for communication with customers, coworkers or supervisors who only speak English" and "to enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers." See also EEOC v. Sephora USA, LLC, 419 F. Supp.2d 408 (S.D.N.Y. 2005) (upholding English-only rule that only applied when employees were on the sales floor interacting with customers, not when no customers were present or when employees were on break).
In sum, English-only rules that apply to an employee's actual job performance, but provide exceptions for non-work time and non-work communications, probably are legal unless they are applied in an arbitrary or discriminatory manner (e.g., being enforced against speakers of certain foreign languages but not others; see here). But blanket prohibitions on employees speaking non-English languages in the workplace probably are not legal. Such rules are deemed inherently discriminatory by the EEOC guidelines and appear to contradict the reasoning set forth in the Pacheco and Sephora USA decisions. Of course, each workplace situation will be analyzed on a case-by-case basis.
Wednesday, December 08, 2010 Facebook And Other Social Networking Websites Are Subject To Discovery In Litigation.
Social networking websites, like Facebook, allow users to share information about their personal lives, including thoughts, descriptions, and photographs of what they are doing and thinking, often in "real time." Facebook is the most widely used of these websites. According to Facebook's statistics page, it has more than 500 million active users; more than half of users log onto the website each day; and users spend more than 700 billion minutes on the website each month. That's a lot of activity -- which is subject to discovery if a Facebook user is involved in litigation.
This issue was addressed recently by Justice Jeffrey Arlen Spinner of the New York Supreme Court for Suffolk County in the case of Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010). Romano was a personal injury action in which the plaintiff claimed she had sustained serious and permanent injuries that restricted her daily activities, largely confined her to bed, and affected her enjoyment of life. Her public profile on Facebook, however, showed her "smiling happily" "outside the confines of her home." It further revealed that the plaintiff had travelled to other states and "has an active lifestyle." In light of this apparent contradiction, the defendant sought access to the plaintiff's complete Facebook account, including deleted pages, but the plaintiff steadfastly refused.
In a thorough decision, Justice Spinner ruled that the information sought by the defendant was "material and necessary" to the litigation (specifically, it was relevant to the nature and extent of the plaintiff's alleged injuries) and that the defendant's need for the information outweighed the privacy concerns raised by the plaintiff. Indeed, given that the very purpose of Facebook is to share personal information with others, the judge found that the plaintiff "has no legitimate reasonable expectation of privacy" in her Facebook account and cannot "attempt to hide relevant information behind self-regulated privacy settings." The judge ordered the plaintfif to provide the defendant with access to her Facebook account.
Other courts have reached similar conclusions about the discoverability of social networking websites. For example:
EEOC v. Simply Storage Mgt. LLC, 2010 WL 3446105 (S.D. Ind. May 11, 2010) (ordering disclosure and explaining that "a person's expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery").
Bass v. Miss Porter's School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009) (ordering disclosure and explaining that "relevance of the content of Plaintiff's Facebook usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to Plaintiff's own determination of what may be 'reasonably calculated to lead to the discovery of admissible evidence'").
Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. April 21, 2009) (ordering disclosure and explaining that the information sought by the defendant's subpoenas for the plaintiff's Facebook, My Space, and Meetup accounts "is reasonably calculated to lead to the discovery of admissible evidence as is relevant to the issues in this case").
The upshot is that what a person puts on the internet for other people to see probably will have to be disclosed to the other side in the event that the person is involved in a lawsuit.
Sunday, December 05, 2010 Are Unpaid Internships Legal? Probably Not.
College students and young workers often perform unpaid internships with companies in industries they are interested in pursuing for their careers. Indeed, internships are common in most "white collar" fields, including publishing, fashion, television, film, high technology, advertising, and law. Unpaid internships can be a "win-win" situation: the intern benefits by obtaining work experience, networking opportunities, and exposure to different job settings, while the company benefits by identifying promising entry-level employees and obtaining some "cheap labor." Alas, the "cheap labor" aspect of internships -- which makes many, if not most, internships economically feasible -- probably is illegal.
In general, unpaid internships for private, for-profit employers violate federal and state wage and hour laws, including minimum wage and overtime laws, unemployment insurance and worker's compensation laws, and payroll and income tax laws. As stated by an official with the U.S. Department of Labor, Wage and Hour Division: “If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law." Why not? Because in most cases an unpaid intern is considered an "employee" to which the full panoply of workplace rules applies. (Internships with government agencies and non-profit charitable organizations are excluded from these rules.)
As the Wage and Hour Division recently explained, an unpaid internship must meet the following six criteria to pass legal muster:
1. The internship must be "similar to training which would be given in an educational environment";
2. The internship must be "for the benefit of the intern";
3. The intern "does not displace regular employees" and "works under close supervision";
4. The company "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 intern understands that he/she is not entitled to wages for the time spent in the internship.
These are very strict criteria that effectively bar most unpaid internships, which are intended to benefit both the intern and the company; otherwise, why would the company offer the internship in the first place? Yet the Wage and Hour Division has stated unequivocally that a company may derive "no immediate advantage" from the internship. The upshot is that if an intern performs any useful work, however simple or menial or clerical in nature, the intern must be treated as an employee, subject to all applicable labor and employment laws. Failure to comply with these laws can result in liability for back wages, back taxes, and other civil and criminal penalties.
Saturday, December 04, 2010 Ten Common Employment Law Mistakes Made By Businesses.
The contemporary American workplace is subject to numerous federal, state, and local laws that impose strict obligations on businesses (e.g., wage and hour laws, nondiscrimination laws, etc.). Many companies, especially smaller companies, do not fully understand the scope of these obligations and, as a result, frequently (albeit inadvertently) violate the law. These violations can lead to costly lawsuits, as well as civil and criminal penalties. In my experience as a defense attorney and as a plaintiff's lawyer, the most common employment law mistakes made by businesses are the following (in no particular order):
1. Misclassifying employees as independent contractors. In general, only workers who operate their own separate businesses are "independent contractors." Few workers meet this test; in fact, most workers are considered "employees" under the law, which means they are entitled to the full range of workplace protections.
2. Misclassifying non-exempt employees as exempt. In general, all employees are entitled to minimum wage and overtime pay, unless they are "exempt" under federal and state law. The exemption rules (e.g., for executive, administrative, and professional employees) only apply in limited circumstances, however; as a result, many employees who are claimed by businesses to be "exempt" in fact are entitled to minimum wage and/or overtime pay.
3. Not complying with state wage payment laws. New York imposes several specific rules regarding how businesses must pay their employees. These rules include providing new employees with written notice of their rate of pay and regular pay date; prohibiting deductions from wages unless for the employee's benefit and authorized in writing; requiring written contracts for commissioned salespersons; and providing terminated employees with written notice of their last day of work, their last day of benefits, and their right to apply for unemployment benefits.
4. Not having an employee handbook. An employee handbook is an important tool for effective employer-employee relations. It notifies employees of the company's values, policies, and procedures; promotes compliance with labor and employment laws; and helps create an orderly, efficient, and transparent workplace.
5. Not documenting employee job performance. A well-managed company clearly communicates its employees' duties and responsibilities (e.g., through written position descriptions), trains and supervises employees to ensure they are meeting these requirements, and provides regular, objective, consistent feedback (e.g., through written evaluations and, where necessary, disciplinary actions). A lack of accurate, complete, contemporaneous documentation can lead to liability in the event of a lawsuit by an employee.
6. Not training supervisors regarding EEO laws. Federal, state, and local equal employment opportunity (EEO) laws prohibit businesses from taking adverse actions against employees (e.g., demotion, termination) for reasons not related to an employee's job performance, including based on an employee's race, color, sex, age, disability, religion, national origin, sexual orientation, and marital status (to name the most common "protected characteristics"), as well as in retaliation for an employee's good faith complaints of discrimination. It is imperative that supervisors be trained on how to manage employees without violating (or appearing to violate) these laws.
7. Not providing reasonable accommodations for disabled employees. Most EEO laws prohibit businesses from taking adverse actions against employees based on certain protected characteristics, but disability discrimination laws also impose an affirmative obligation on businesses to "reasonably accommodate" disabled employees so as to enable them to perform the essential functions of their jobs. Such accommodations may include restructuring job duties, modifying work schedules, or providing assistive devices. Businesses are required to provide a disabled employee with needed accommodations unless doing so would cause an "undue hardship" to the company (e.g., too expensive, too disruptive).
8. Not obtaining releases from terminated employees. When terminating an employee, businesses should try to obtain a release that waives the employee's potential legal claims against the company. The best way to obtain a release is in exchange for an offer of severance (where appropriate). In general, businesses are not required to pay severance to employees (unless required by an employment contract or a collective bargaining agreement). If they decide to do so (e.g., in connection with layoffs), they should require employees to sign a release in exchange for the payment.
9. Not protecting confidential business information. Every company depends on certain vital, often confidential, information about its business operations, including trade secrets, sales and marketing practices, and customer and client lists. Access to this information should be limited to employees with a "need to know" and should be protected by appropriate nondisclosure, noncompete, and/or nonsolicitation agreements (depending on the nature of the information and the employee's position).
10. Not consulting a qualified employment law attorney. Perhaps the single most important point to take away from this discussion is that businesses need to consult a qualified employment lawyer to ensure they are in compliance with the increasingly numerous and complex laws that carpet the workplace like a minefield. Large companies usually have attorneys and human resources professionals on staff to assist them in this area. Small- and medium-size companies often do not. Their biggest mistake is trying to navigate this minefield on their own.
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