John Beranbaum will be a speaking as part of a live CLE webinar, Third-Party Harassment and Discrimination: Employer Liability for Acts of Customers, Clients, and Vendors, to be held on Sept. 18, 2019, from 1:00-2:30 p.m. For more information or to register for the webinar, click here.
On September 5, Beranbaum Menken LLP welcomed the firm’s newest associate, Raya Saksouk.
Ms. Saksouk graduated in May of 2019 from New York University School of Law. Over the course of her time there, she had the privilege of working with attorneys at the New York City Commission on Human Rights, the Brennan Center for Justice, the U.S. Department of Labor, and the Legal Aid Society, advocating for clients on issues ranging from criminal justice reform to housing and employment discrimination. Prior to law school, she was worked as a paralegal assistant in the New York County District Attorney’s Office. She received her bachelor’s degree in International and Comparative Studies from the University of Michigan, where she was a James B. Angell Scholar as well as the Co-Chair and Co-Founder of the Middle East & Arab Network. Ms. Saksouk is proficient in French and Levantine Arabic.
For more information, see Raya’s bio here.
The New York Times wrote yesterday about the hard work and low pay home attendants endure while working 24 hour shifts. For years, Beranbaum Menken LLP Partner Jason Rozger has championed the cause of underpaid home attendants. Most recently, Mr. Rozger argued on behalf of a putative class of home attendants before New York’s highest court, which is referenced in the article.
The Times article described Marjorie, a caring and dedicated home attendant who performs an essential job but is woefully underpaid. The New York State Department of Labor, abetted by the Court of Appeals, allows home attendants to be paid far less than the minimum wage for working 24 hour shifts, if they get three uninterrupted hours for meals, and 8 hours of sleep, of which 5 is uninterrupted. The Times article includes this, but does not mention that getting less than the required sleep or meal time is a “hair trigger,” which if set off, requires a home attendant to be paid for all sleep and meal time. Thus, getting 2 hours and 59 minutes of meal breaks means the entire three hours must be paid; getting 4 hours and 59 minutes of uninterrupted sleep means all 8 sleep hours must be paid.
As depicted in the Times article, Marjorie worked a 19 hour day without a break, and was interrupted in the middle of the night to care for her patient. Under these circumstances, she would have a claim for the minimum wage for all 24 hours. Any home attendant in this situation should assert their rights to be paid the wages they deserve. Only when a critical mass of workers do so will the agencies - and the state that funds them - treat home attendants with the respect they deserve.
Beranbaum Menken LLP has filed a disability discrimination lawsuit in federal court on behalf of Grant Fox, a disabled veteran suffering from post-traumatic stress disorder (“PTSD”) stemming from his lengthy military service. Fox alleges that his rights were violated when his employer failed to provide him with a reasonable accommodate to his disability as required by federal, state and local law, when his boss would not allow him to receive treatment during work hours for his PTSD and also would not adopt certain supervisory techniques to avoid triggering his PTSD. Fox was eventually fired and alleges that his termination was discriminatory. The case is Fox v. Adaptive Management, Inc. et al, 19-cv-7204 (JPO) and is being handled by Scott Simpson.
In 2015, Beranbaum Menken LLP filed a class action lawsuit, Grottano et al. v. City of New York et al., 15-cv-9242, on behalf of visitors to Rikers Island and other NYC Department of Corrections Facilities who were illegally stripsearched by corrections officers. Since the case was filed in 2015, the Department of Investigation and two District Attorneys’ Offices have opened criminal probes based on the allegations of our clients and others into whether corrections officers violated the law by improperly stripsearching visitors. Now, the Manhattan DA’s office has indicted a number of corrections officers based on allegations of unlawful stripsearches and the officers’ attempt to coverup their unlawful acts. Scott Simpson, a partner at the firm who is litigating this case with Founding Partner Bruce Menken, told the Times, “Hopefully these indictments lead to a safer, more respectful visiting process where visitors do not have to endure a traumatic experience simply to see their loved one.”
Read the article in the Times.
Learn more about this class action lawsuit here.
Beranbaum Menken is excited to announce Alan Serrins’ association with the firm, effective May 1, 2019, as Of Counsel. Widely recognized as a pioneer in Employment, Civil Rights and Sexual Harassment law, Alan brings more than 39 years’ experience to Beranbaum Menken.
“Alan’s wealth of experience, trial skills and negotiation savvy in the employment law world make him a perfect addition. We all look forward to working with him.”
-Bruce Menken, Founding Partner
Alan has litigated scores of cases from inception to verdict and successfully negotiated hundreds more. His caseload has included claims under Title VII, the Age Discrimination in Employment Act, The Americans with Disability Act, the United States and New York State Constitution, state and local discrimination laws, civil service laws, State Education law, and Federal and State False Claims Act (Qui Tam) and common law claims such as breach of contract.
In addition to his litigation practice, Alan provides legal advice to clients regarding drafting and negotiating employment agreements, severance agreements, and executive compensation.
Beranbaum Menken LLP is pleased to announce that Brenna Rabinowitz joined the Firm on November 5, 2018.
Before joining Beranbaum Menken, Brenna Rabinowitz was a judicial law clerk for the Honorable A. Richard Caputo in the Middle District of Pennsylvania. Prior to her clerkship, she was an Associate at Freshfields Bruckhaus Deringer LLP, where she focused on white collar investigations and represented pro bono clients in the areas of employment, immigration, and criminal justice.
Ms. Rabinowitz graduated cum laude in May of 2016 from the University of Pennsylvania Law School, where she was Online Managing Editor of the Journal of Constitutional Law. During law school, she worked on behalf of clients with issues in the areas of employment, civil liberties, homelessness, and gender-based violence. She is licensed to practice law in New York.
Dr. Jeanetta Stega, represented by Beranbaum Menken LLP, won an important victory at the New York Court of Appeals on June 29, 2018. The Court of Appeals overturned a decision by the Appellate Division, First Department, and held that Dr. Stega could sue her former employer, New York Downtown Hospital, and its Acting Chief Medical Officer, Dr. Stephen Friedman, for statements made during the course of a U.S. Food and Drug Administration inspection that defamed her character and professional reputation. You can read the opinion here. The Appellate Division had ruled that because Dr. Friedman’s statements were made as part of a governmental proceeding, they were absolutely privileged and he and the Hospital could not be sued for defamation – no matter how false or malicious were the statements. The Court of Appeals, in reversing, noted that Dr. Stega had no opportunity during the FDA investigation to challenge the accusations made against her. If, as the First Department had ruled, Dr. Friedman’s statements were absolutely privileged, Dr. Stega would then be deprived of any legal recourse to restore her good name and defendants would have “a license to destroy a person’s character by means of false, defamatory statements.” This was unacceptable to the Court of Appeals. Accordingly, the Court ruled that defamatory statements made in the course of governmental proceedings, such as the FDA investigation, which do not allow the defamed party a chance to rebut the statements, are subject to a qualified, not absolute, privilege. A qualified privilege enables people individuals, like Dr. Stega to sue for defamation, but to prevail they must show that party the statements were made with malice or knowledge that they were untrue.
Thanks to the New York Court of Appeals decision, Dr. Stega may now pursue her lawsuit and restore her hard earned reputation. The decision also shows that the Court will not retreat from its long-held role of protecting a person’s good name from malicious attacks, such as the one to which Dr. Stega was subjected.
Beranbaum Menken LLP is pleased to announce that on January 1, the firm elevated Scott Simpson to Partner. Scott joined the firm in 2015 after seven years as a criminal defense attorney at the Bronx Defenders, where he tried numerous jury trials and spent his last two years there as a supervising attorney. Since joining the firm, Scott has successfully litigated and negotiated settlements in many discrimination, false claims, and wage and hour matters. He has also expanded his employment practice to include non-compete/restrictive covenant matters, representation of union members, and executive compensation. Give his extensive criminal defense background and familiarity with criminal justice issues, he also handles civil rights and police misconduct cases and continues to zealously represent clients in criminal defense matters across the five boroughs. Learn more about Scott here: http://www.nyemployeelaw.com/attorneys/scott-simpson.
Alexandra Bonacarti has been a Staff Attorney with the New York County Defender Service (“NYCDS”) for twenty years, distinguishing herself as a talented, dedicated, and highly effective advocate for indigent clients. For years, Ms. Bonacarti was sexually harassed by Christopher Boyle, another staff attorney who NYCDS eventually promoted to a supervisory position. When Ms. Bonacarti complained to NYCDS Management about the promotion, Executive Director Stanislao Germán said that the harassment she experienced was “ancient history,” and that she should “deal with it.”
Boyle took advantage of his new position of authority to continue harassing Ms. Bonacarti, going so far as to show up in court when she was scheduled to appear at arraignments for no other reason than to leer at and intimidate her. She complained about the incident at arraignments, but, rather than taking disciplinary action against Boyle, NYCDS retaliated against Ms. Bonacarti—suspending her for three weeks in response to an “anonymous” complaint from a coworker, likely Boyle.
On October 30, 2017, Beranbaum Menken filed a lawsuit in State court on Ms. Bonacarti’s behalf, alleging sexual harassment, sex-based harassment, sex discrimination and unlawful retaliation under the New York City Human Rights Law, Administrative Code of the City of New York, §§ 8-101 et seq., as well as common law claims of negligent training and retention of a supervisor, negligent supervision, and intentional infliction of emotional distress.
The New York Law Journal recently published an in-depth article on this case, which is being handled by John A. Beranbaum with assistance from Marielle Moore: “Public Defender Organization Accused of Retaliation Over Staff Attorney's Sexual Harassment Allegations _ New York Law Journal”
In recent years, transgender people and their legal rights have finally begun to take their rightful place in the public consciousness after being vilified, ignored, and erased for far too long. Unlike traditional gender- or race-based prejudice, many Americans still feel comfortable holding consciously transphobic perspectives. Just yesterday, for example, a lawyer representing a transgender man in his employment discrimination suit against the U.S. Department of Veterans Affairs called for a Texas federal judge to recuse himself on the basis of multiple comments made during a case management conference that allegedly demonstrated bias against trans folks. The prevalence of employment discrimination and harassment against trans people is shocking. Among respondents to the National Center for Transgender Equality and the National Gay and Lesbian Task Force's 2009 National Transgender Discrimination Survey, 13% were unemployed, nearly double the national average at the time of the survey (the statistic was even more acute for respondents who were Black (26%), Latino (18%) and Multiracial (17%)). 47% of survey respondents had experienced an adverse job action (i.e. did not get a job, were denied a promotion, or were fired) because they were trans. 26% had specifically lost their job due to their gender identity or expression. Finally, a full 97% of respondents had experienced discriminatory harassment on the job. The bias underlying these numbers is a function of ignorance, and only through widespread advocacy efforts on behalf of transgender rights can we effectively combat it.
Luckily, in the context of employment law, attorneys have some surprisingly powerful tools at our disposal. Following the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which identified sex stereotyping as a form of sex discrimination, many courts have recognized that when trans employees experience discrimination based on an employer’s perception that they do not comport with stereotyped notions of what it means to be a man or a woman, they may bring sex discrimination claims under Title VII of the Civil Rights Act of 1964 in response.
For example, in Smith v. City of Salem, the court found that the plaintiff could bring a Title VII sex stereotyping claim when, after announcing she would be transitioning, she faced harassment from co-workers because they felt her “appearance and mannerisms were not ‘masculine enough.’” 378 F.3d 566, 568 (6th Cir. 2004). Following this rationale, federal courts around the country have recognized that trans people can bring viable sex discrimination claims under Title VII or other federal statutes barring sex discrimination. See, e.g., Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV-0375E(SC), 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003). In addition to the sex stereotyping theory recognized in Smith, some courts have also recognized that discrimination based on a person’s transgender status is per se sex discrimination, as the discrimination stems from the trans person’s change of sex. See, e.g., Fabian v. Hosp. of Cent. Connecticut, No. 3:12-CV-1154 (SRU), 2016 WL 1089178, at *12 (D. Conn. Mar. 18, 2016).
New York State and City law also provide important tools in vindicating the rights of trans employees.
The New York State Division of Human Rights enacted regulations effective in January of 2016 interpreting the New York State Human Rights Law ("NYSHRL") to prohibit discrimination on the basis of gender identity and transgender status. See 9 N.Y.C.R.R. § 466.13(c). These new regulations also establish that harassment based on gender identity or transgender status is sexual harassment under the NYSHRL, 9 N.Y.C.R.R. § 466.13(c)(3), that the definition of “disability” under the NYSHRL includes gender dysphoria, a psychological condition characterized by distress because an individual’s gender at birth is contrary to the one with which they identify, that an employer may not deny a reasonable workplace accommodation to an employee with gender dysphoria, 9 N.Y.C.R.R. § 466.13(d)(4), and that harassment on the basis of gender dysphoria is harassment on the basis of disability, 9 N.Y.C.R.R. § 466.13(d)(5).
On the city side, the Transgender Rights Act, enacted in 2002, amended the New York City Human Rights Law ("NYCHRL") to prohibit discrimination on the basis of gender identity, gender expression, and transgender status. See N.Y.C. Local Law No. 3 (2002). In the New York City Human Rights Commission's 2015 enforcement guidance on trans discrimination, the Commission clarified that gender identity-based discrimination under the NYCHRL extends beyond traditional notions of discrimination, harassment, and retaliation to include instructions for employers on the use of employee pronouns and names, dress codes, and how to deal appropriately with requests for accommodation.
The strength and effectiveness of these protections only grows the more trans employees and their attorneys pursue the vindication of trans rights in court. As such, Beranbaum Menken is committed to being part of this effort by providing compassionate, effective, trans-literate representation to trans employees facing workplace discrimination, retaliation, and harassment.
An employer’s duty to protect its employees from racial or sexual harassment on the job isn’t limited to harassment committed by supervisors or co-workers. In some circumstances, an employer can be liable for harassment committed by customers, vendors, or other people an employee might encounter in the workplace, if the employer exercises sufficient control over them. The case of Creacy v. BCBG Max Mara Group is one example. Beranbaum Menken LLP represents the plaintiff, Danielle Creacy, who worked as a Floor Supervisor for defendant BCBG Max Azria (“BCBG”), a retailer of women’s clothes. The BCBG store where Creacy worked was located in a Lord & Taylor (“L&T”) department store in Scarsdale NY. (The plaintiff settled with L&T before the summary judgment motion).
Creacy, an African-American, was physically and verbally assaulted by a customer, who among other things, referred to her as “you people” and “your kind.” Creacy reported the harassment to her employer, BCBG, but BCBG failed to protect her from the customer. In all, the customer came to the store three times. The last time, following BCBG’s orders, Creacy removed herself to a stock room at the back of the store while the customer was allowed to shop. Creacy felt her exclusion from the store’s shopping area to be a form of racial segregation. After Creacy’s attempts to have the customer banned from the store be allowed to transfer to another store proved futile, Creacy quit, claiming she was constructively discharged.
The court’s decision rejected BCBG’s argument that the harassment was not “severe or pervasive,” and, therefore, not actionable. In particular, the court found significant that the customer’s behavior was physically threatening. The court also held that given the context of the harassment, a reasonable jury could find that the customer, in referring to Creacy as “you people” and “your kind,” was motivated by racial bias.
The court also found that a genuine factual dispute existed as to whether BCBG failed to adequately protect Creacy from the harassing customer. BCBG, the court found, effectively relied on L&T, the building owner, to protect Creacy. The court held that even if L&T was responsible for the safety of all store employees, including BCBG employees, BCBG, upon notice that L&T’s corrective actions were inadequate, had a duty to protect its employee by raising the issue with L&T’s corporate officials – something it did not do. Thus, the court found that BCBG’s measures to protect Creacy were inadequate, and liability for the customer’s racial harassment could be imputed to the employer, BCBG.
As to plaintiff’s claim that BCBG constructively discharged her by allowing intolerable working conditions to exist, the Court rejected plaintiff’s argument that a recent U.S. Supreme Court decision held that conditions in establishing constructive discharge, an employee needn’t prove that the employer intentionally created the intolerable conditions. The district court held that while a showing of intent, or deliberate action, is required, specific intent (i.e. the employer acted with the intention of forcing the employee out) is not. Intent, as interpreted by the district court, is a fairly easy thing to prove: the plaintiff need only show that the employer acted deliberately. The court found that Creacy showed “intent” – even if the deliberate action was BCBG’s deliberately not taking appropriate action.
Finally, the court allowed Creacy’s punitive damages claim to proceed to trial, finding that BCBG failed to provide adequate protective measures for Creacy in the face of a perceived risk that it was violating the discrimination laws. The court noted that BCBG was a sophisticated employer with 651 stores worldwide -- effectively saying that it should have known better.
The Decision is a clear statement that an employer has primary responsibility to protect its employees from third-party racial harassment, whether that third-party is a discriminatory customer at a retail store, an independent contractor performing work on the employer’s premises, or an Uber driver directed to pick up a customer known to have engaged in sexist/racist behavior. With employment relationships becoming increasingly fluid, and with more and more workers no longer in a traditional employee-employer relationship, claims of third-party harassment will likely increase in number and importance.
In New York City, an employer who discriminates on the basis of sexual orientation violates the New York City Human Rights Law and is liable for damages. Whether workers in other parts of the country enjoy this same protection is an issue that has divided the federal courts, and the question may be headed to the Supreme Court in the next year or two. In the Second Circuit, which comprises the federal courts in New York, Connecticut, and Vermont, claims for sexual orientation discrimination are often brought under the guise of “gender stereotyping” discrimination - that is, discrimination for not acting stereotypically male or female. So, a gay man who is harassed for allegedly acting like “a submissive sissy” has a claim. Unfortunately, this is often fitting a square peg in a round hole. Discrimination claims that have nothing to do with stereotypical behavior, such as an employer asking a prospective employee about their sexual orientation, and refusing to hire on that basis, are not covered under the “gender stereotyping” dodge.
This week, the Seventh Circuit, based in Chicago, took the bold step of holding flat-out that Federal law in fact forbids sexual orientation discrimination. Earlier this year, the Eleventh Circuit, based in Atlanta, held the opposite. For its part, the Second Circuit this week suggested, without actually ruling, that it was time to recognize sexual orientation claims under the federal civil rights laws. This issue is at a boil, and given the split in the circuit courts appears headed to the Supreme Court soon.
Beranbaum Menken LLP is at the forefront of the fight to get home health aides who work 24 hour shifts all the wages they are entitled to by law. Many home care agencies pay their aides a flat rate for a 24 hour shift which is less than the minimum wage. Even if a union’s collective bargaining agreement (CBA) endorses this practice, it is still against the law. Despite this, some agencies try to avoid responsibility for underpaying their workers by asking the court to dismiss the case because of the CBA. Beranbaum Menken recently prevailed on this issue in Brooklyn Supreme Court, where Justice Nancy Bannon denied a motion by Project O.H.R. to dismiss a case seeking pay for 24 hour shifts. Project OHR had unsuccessfully argued in another case that the CBA required a home attendant’s lawsuit be dismissed; Justice Bannon held that since OHR made the argument once and lost, it couldn’t try it again in a different case. The case will proceed on the home attendant’s claims that if you work 24 hours, you should be paid for 24 hours.
After two years of litigation in federal court, Beranbaum Menken partner Bruce Menken and associate Grace Cretcher recently settled Dr. Doe’s case against the NYC Health and Hospitals Corporation for $559,000. Dr. Doe, who had worked first as a dentist at Riker’s Island treating jail inmates and then at a HHC affiliated clinic treating the community population in Northern Manhattan, had asymptomatic hepatitis C (HCV) for over 15 years and continued to do his job successfully and without incident. HHC knew that Dr. Doe had HCV for all of this time and sensibly permitted him to continue to treat patients as long as he took the necessary precautions, identified by his supervisor.
Unfortunately, HHC changed its protocol for employees with HCV in August 2012 and soon thereafter terminated Dr. Doe’s employment because his viral load was too high. However, as all medical practitioners know, most people with HCV frequently have high viral loads but this does not mean they are more contagious and likely to spread their virus.
Nonetheless, HHC regarded or perceived Dr. Doe as disabled, based on terrible stereotypes (i.e., “he has a virus, he must be sick and should not be able to work”) and first suspended and then terminated his employment after nearly 29 years on the job.
Mr. Menken and Ms. Cretcher aggressively litigated Dr. Doe’s case, conducted many depositions and won part of the case on summary judgment. Approximately two weeks before a trial was scheduled to start in Manhattan Federal Court, the case settled before a United States Magistrate Judge for $559,000.
By representing and defending Dr. Doe, Beranbaum Menken set an important precedent for both healthcare practitioners and patients who suffer from viruses like HCV or HIV. If HHC would have been able to terminate a dentist like Dr. Doe with impunity because he had HCV, HHC or any other healthcare provider could refuse to treat patients who have HCV, HIV or other communicable viruses.
Feel free to contact any of the Beranbaum Menken attorneys if you believe you have been discriminated against on the job because of a disability, either documented or regarded as.
New Jersey law requires insurance companies to extend coverage for medically-indicated infertility treatment to women who qualify as infertile under what is referred to as the New Jersey Infertility Mandate. Despite the existence of myriad diagnostic tools and techniques by which a fertility specialist may diagnose infertility independent of heterosexual intercourse, a woman may only qualify as "infertile" under the Mandate after engaging in unprotected sex with a male partner for 1 or 2 years, depending on her age, and failing to conceive. As a result, New Jersey women with female partners are often forced to pay tens of thousands of dollars out of pocket to treat their infertility in the hope of one day becoming mothers. As reported by the New York Times, last week Beranbaum Menken filed Krupa et al. v. Badolato in the United States District Court for the District of New Jersey, aimed at forcing New Jersey to expand the protection of the Mandate to all women struggling with clinical infertility in the State. As stated in the Complaint:
This civil rights case is about family and the right of all New Jersey women who dream of becoming mothers to access the reproductive healthcare they need to realize that dream on an equal basis, regardless of their sexual orientation. “Rising from the most basic human needs,” parenthood “is essential to our most profound hopes and aspirations,” just like marriage. Obergefell v. Hodges, 135 S. Ct. 2584, 2594 (2015). In fact, as quoted by Justice Anthony Kennedy in Obergefell, Cicero wrote: “The first bond of society is marriage; next, children; and then the family.” Id. (citing De Officiis 57 (W. Miller transl. 1913)). Now, as presaged by Kennedy as he extended Cicero’s first bond of society to all American same-sex couples in Obergefell, that decision also compels states like New Jersey to treat heterosexual and same-sex couples equally with respect to Cicero’s remaining bonds of society, as well. In order to protect all women who wish to have children and start families on equal footing, as required by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, because, like marriage, procreation is a fundamental right protected by the Due Process Clause of the same Amendment, and because 42 U.S.C. § 1983 prohibits the deprivation of Plaintiffs’ federal constitutional and statutory rights, New Jersey must extend the protections of its infertility insurance mandate to women in same-sex relationships.
This case will surely explore the ramifications of the Supreme Court’s landmark decision in Obergefell.
Tiffany Kantrowitz, a Procter & Gamble ("P&G") employee, sold Dolce and Gabbana beauty products at a makeup counter at Saks 5th Avenue in Manhattan. When she became pregnant in October 2014, she began to have brief spells of nausea and dizziness. P&G repeatedly thwarted her requests to simply sit down for a few minutes while working while she waited for her symptoms to pass. In the months after P&G became aware that she was pregnant, it became clear that P&G refused to accommodate her because it did not want a pregnant women selling its beauty products. P&G eventually terminated her for storing "tester" items in a company-provided clear plastic bag--a practice that was commonplace and accepted among Ms. Kantrowitz's peers. On April 18, Beranbaum Menken filed a lawsuit on Ms. Kantrowitz's behalf in federal court, alleging discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 1981A, the American with Disabilities Act, 42 U.S.C. § 12101 et seq., as amended by the ADA Amendments Act of 2008, and the New York City Human Rights Law.
This case has been reported on by a number of media outlets. A recent in-depth article discusses Ms. Kantrowitz's case in the context of the challenges working pregnant women face nationwide.
The question of which individuals or entities qualify as the employer or employers of a particular group of workers under the Fair Labor Standards Act (“FLSA”) and associated state wage and hour laws is becoming an increasingly common issue in minimum wage and overtime litigation. As the U.S. Department of Labor observed in its recently-released guidance on the subject, “[t]he growing variety and number of business models and labor arrangements [in the contemporary economy] have made joint employment more common.” In Grenawalt v. AT&T Mobility, LLC, Beranbaum Menken represents a group of security guards employed by a security contractor that provided retail store security to AT&T. We are excited to announce that the firm recently succeeded in arguing before the United States Court of Appeals for the Second Circuit that a reasonable jury could find that AT&T jointly employed the guards when they worked in the telecommunications giant’s Manhattan retail stores, and thus that AT&T is legally responsible for the guards' unpaid overtime wages.
Because it reflects the previously-mentioned evolving character of employment arrangements that have historically informed the concept of joint employment, the relevant case law is extensive and complicated. In its recent order in Grenawalt, in which it overturned the lower court’s decision dismissing AT&T from the case, the Second Circuit identified three separate tests for determining whether an entity is a joint employer:
The first test, derived from Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir. 1984), looks to whether a putative employer exercises “formal control” over a worker. … Because Carter defines employment more narrowly than FLSA requires, satisfying this test is sufficient, but not necessary, to show joint employment. … The second test, set out in Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1988), focuses on whether “the workers depend upon someone else’s business … or are in business for themselves,” … and thus is “typically more relevant for distinguishing between independent contractors and employees,” Velez v. Sanchez, 693 F.3d 308, 326 (2d Cir. 2012), than for determining by whom workers who are assumed to be employees are employed. Accordingly, this case hinges on a third test, first developed in Zheng v. Liberty Apparel Co., 355 F.3d [61, 72 (2d Cir. 2013).]
The Zheng test turns on the question of whether the potential joint employer – in this case, AT&T – exercised “functional control” over the workers in question – in this case, the security guards working in AT&T stores. Zheng calls for the consideration of six factors in determining whether AT&T jointly employed the guards:
(1) whether [AT&T’s] premises and equipment were used for [the guards’] work;
(2) whether the [security firm] … had a business that could or did shift as a unit from one putative joint employer to another;
(3) the extent to which [the guards] performed a discrete line-job that was integral to [A&T’s] process of production;
(4) whether responsibility under the contracts could pass from one subcontractor to another without material changes;
(5) the degree to which [AT&T] or [its] agents supervised [the guards’] work; and
(6) whether [the guards] worked exclusively or predominantly for [AT&T].
Although, as the Second Circuit noted, joint employment can exist under this flexible test even where as many as three Zheng factors weigh against such a finding as a matter of law, the court ultimately found that here, not even a single Zheng factor weighs against finding that AT&T jointly employed the guards. Accordingly, the matter has been remanded back to the U.S. District Court for the Southern District of New York, where Beranbaum Menken will proceed with the guards’ overtime claims against both the security contractor and AT&T, as joint employers.
This is an exciting decision for the firm and a good one for plaintiffs’ side employment lawyers generally, because a robust and expansive conception of the individuals and entities that qualify as a plaintiff’s employer for purposes of the FLSA and other wage and hour laws is critical to ensuring that plaintiffs are able to collect the unpaid wages they are entitled to from the individuals and entities responsible. Further, an appropriately broad understanding of joint employment incentivizes companies like AT&T to ensure that their contractors pay workers appropriate minimum and overtime wages. Decisions like this one help stop huge, multi-million dollar corporations like AT&T from using contracting arrangements to benefit from underpaid workers while escaping liability for their underpayment.
The New York City Human Rights Law (NYCHRL) is already one of the strongest laws in the nation protecting worker rights. Yesterday the City Council passed amendments making it even more so. Prior amendments in 2005, known as the "Restoration Act." made it clear that the NYCHRL was to be interpreted liberally, and not limited by some courts' narrower interpretations of similar laws, such as Title VII, even though they may have similar language to the NYCHRL. One of yesterday's amendments adds language stating that "Exceptions to and exemptions from the provisions of this title shall be construed narrowly in order to maximize deterrence of discriminatory conduct." This would presumably apply to things like the "safe harbor" defense of Sec. 8-107(13)(d), which gives employers a defense to discriminatory conduct committed by an employee, if the employer took certain steps to prevent and promptly investigate complaints of such conduct.
Another amendment repealed the exceptions to the sexual orientation discrimination part of the law. Those exceptions, which applied to only the sexual orientation protections of the NYCHRL, had little practical effect, but were readily understood to be demeaning, particularly the section stating that protecting against sexual orientation discrimination did not "endorse any particular behavior or way of life."
Finally, the law was amended to provide for attorney's fees for individuals who choose to bring their cases in the New York City Commission on Human Rights. Previously, attorney's fees were only available in court actions.
The proposed amendments that effect employment law are attached. The Mayor is expected to sign the legislation soon. Amendments 2016 sexual orientation exceptions repeal
Beranbaum Menken LLP's John Beranbaum will be speaking at a forum on "Psychological Issues in Employment Law 2015" on March 2, 2016. His talk will focus on Ethical Issues and Professional Responsibilities when representing employees with mental disabilities. The forum is being held by the Practicing Law Institute, at 1177 Avenue of the Americas, New York, NY. If you are interested in registering for the program, the link is http://www.pli.edu/re.aspx?pk=150314&t=DKV6_PSYC6.