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Victory at the New York Court of Appeals

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 Names Scott Simpson Partner

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.  

Beranbaum Menken Files Sexual Harassment Lawsuit on Behalf of Staff Attorney at Public Defender Organization

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

Beranbaum Menken Settles Disability Discrimination Suit for over a Half-Million Dollars

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.

John Beranbaum to speak at forum on "Psychological Issues in Employment Law"

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.

SUPREME COURT RECOGNIZES CONSTITUTIONAL RIGHT TO MARRIAGE EQUALITY

Yesterday the United States Supreme Court held that same-sex couples have a constitutional right to marry in all 50 states. Beranbaum Menken associate Grace Cretcher played a small role in this result; when she served as law clerk to District Court Judge Timothy S. Black of the Southern District of Ohio, she helped draft the court’s decision in the case of Obergefell v. Hodges, which held that under the Fourteenth Amendment's Equal Protection and Due Process Clauses, same-sex couples have the same right to civil marriages enjoyed by heterosexual couples. Obergefell was eventually appealed to the Supreme Court, and today Judge Black's decision was affirmed. Congratulations to Grace, to everyone who helped this victory come about, and above all to all those Americans whose long-sought rights have finally been vindicated.

Supreme Court Requires Accommodation for Religious Employees

In 2008, Samantha Elauf, a Muslim teenager who wears a headscarf, applied for a position with Abercrombie & Fitch, a clothing retailer. She was qualified for the position and the Abercrombie employee who interviewed her acknowledged as much, giving her an interview score that should have led the company to hire her. Instead, Abercrombie rejected her application, having determined that the headscarf she wore violated the store’s “Look Policy,” which prohibited all headwear, religious or otherwise. On Monday, the Supreme Court issued a decision condemning Abercrombie’s actions as discriminatory. The case is a victory for employees who should not have to choose between their religions and their jobs, barring extreme circumstances. The Court rejected Abercrombie’s argument that a job applicant can only prevail on a discrimination claim when she can show that the employer had “actual knowledge” of the need for an accommodation and instead determined that “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.” In so doing, the Court made clear that if the employer is motivated by the desire to avoid the potential need to accommodate, it is irrelevant that the need for the accommodation has not been confirmed by the applicant. The intentional discrimination provision of Title VII, which prohibits discrimination based on religion, prohibits “motives, regardless of the state of the actor’s knowledge.” Thus, Abercrombie could not decline to hire Ms. Elauf because of fears that she might ask for an exception to the no headwear policy.

The Court also made clear that Title VII demands more than “mere neutrality” when it comes to religious practices. Thus, although the “Look Policy” may have equally impacted those who wore headwear for both religious and nonreligious reasons, Abercrombie was required to accommodate Ms. Elauf’s religious observance and practice by making an exception to its neutral rule. “An employer,” the Court majority wrote, “is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an ‘aspect of religious … practice,’ it is no response that the subsequent failure to hire was due to an otherwise neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”

Ex-JPMorgan Chase Assistant Bank Manager Defeats Defeats Bank's Summary Judgment Motion

On February 18, 2015, the U.S. District Court for the Southern District of New York entered an Order denying JPMorgan's Chase's Motion for Summary Judgment, thereby allowing our client, Vyacheslav Digilov to proceed to trial against the bank on his claims of age discrimination and unlawful retaliation. Mr. Digilov, who is now 62 years, emigrated with his family to this country from the Soviet Union in 1992. Mr. Digilov took business and banking courses, and worked 13 years for other banks, before joining Chase as an Assistant Branch Manager. After five years in that position, Mr. Digilov made repeated attempts to become a Branch Manager Trainee, which would allow him to become a Branch Manager. Each of his attempts, however, were blocked even though he had the required experience and skills.

Mr. Digilov came to realize that Chase was holding him back, not because of a lack of experience or capabilities, but because of his age. He complained about age discrimination to his Branch Manager, the District Manager, Marni Chua, and her boss, the Market Manager. After his complaints of age discrimination, Mr. Digilov was met by a barrage of retaliatory actions by his superiors at Chase, and in particular, by Ms. Chua. As the district court wrote, there was "enough evidence in the record for a jury to infer retaliatory intent":

"Within days of Digilov's complaint to Chua, she (i) reached out to Digilov's former branch manager to obtain a bullet-proof list of negative attributes and (ii) directed his current branch manager to reprimand him ... Chua also heavily participated in [Digilov's] next performance review, delivered four months later, which drastically lowered his reviews from their consistent level of the past five years and rendered him ineligible for promotion."

The hostility from Chase eventually became so great, that Mr. Digilov was forced to take disability leave.

There is a Court conference scheduled for March 4, 2015, and unless the parties can settle the matter, a trial will be held later this year.

Beranbaum Menken Welcomes Two Talented Associates

Beranbaum Menken is pleased to announce that two new associates have started work this fall.  Grace Cretcher is a 2012 graduate of Georgetown University Law Center and come to us after a two year clerkship with the Hon. Timothy S. Black of the U.S. District Court for the Southern District of Ohio.  Abigail Cook-Mack is a 2011 law graduate, also of Georgetown, and prior to joining Beranbaum Menken was an associate with Katz, Marshall & Banks in Washington D.C., where she represented plaintiffs in a full range of employment law matters.  Ms. Cook-Mack also worked with Partnership for Women and Families, a nonprofit working on behalf of women and families in the workplace and in accessing health care.   Welcome!  

EEOC Finds Federal Bureau of Prisons Retaliated Against Female Employee Who Successfully Sued the Agency for Sexual Harassment

This story goes back to 2003 when Etta Traynham, a Recreational Specialist at the Bureau of Prison’s (BOP) Metropolitan Correctional Center, first complained to her supervisor about her co-worker’s sexual harassment. In response, BOP did nothing, and the sexual harassment got worse. Things only changed after Traynham retained Beranbaum Menken LLP, which in January 2007, brought a Motion for a Temporary Restraining Order and Preliminary Injunction in U.S. District Court to restrain BOP from making her work with the harasser. The BOP then agreed that while the federal lawsuit was proceeding it would remove the harasser from Traynham’s workplace and not permit him to have any contact with her. See Traynham v. Gonzalez, 07 CIV. 436, 2007 WL 7233155 (S.D.N.Y. Jan. 19, 2007). On the weekend before the trial was to begin, the parties settled the case. The settlement included a provision that Traynham would receive a transfer to the U.S. Penitentiary in Atlanta near where her family lived and where she would be free of the co-worker who had sexually harassed her.

After the settlement of the lawsuit, the BOP subjected Traynham to a series of retaliatory actions: the agency publicized her move to the Atlanta penitentiary when it was supposed to be remain confidential; it sustained charges that during the course of the federal lawsuit she had brought into the penitentiary “contraband,” better known as a tape recorder, which she used for the perfectly appropriate purpose of gaining evidence for her lawsuit; and it issued a Letter of Reprimand against her for “Unprofessional Conduct” (using a profanity, although her harasser had used much worse language and never was punished); and “Lack of Candor” (having the audacity to deny the truth of complaints made against her by the harasser’s best friend).

Beranbaum Menken on behalf of Traynham filed charges of retaliation against the BOP with the U.S. Equal Employment Opportunity Commission (EEOC). On April 28, 2014, after a three-day hearing, the EEOC Administrative Judge Monique J. Roberts issued a Decision upholding all of Traynham’s claims against the BOP for unlawful retaliation, in violation of Title VII of the Civil Rights Act of 1964.

In her Decision, the Administrative Judge issued widespread relief. Because the retaliatory actions harmed Traynham’s chances of a promotion, the Administrative Judge ordered that the BOP offer Traynham a position one grade level above her current position, and pay her the difference between her current pay grade and the enhanced pay grade retroactive to May 2010. The Administrative Judge also ordered that BOP pay Traynham $50,000 in emotional distress damages and attorney’s fees.

The EEOC decision was a complete vindication of Traynham’s right to sue her employer for sexual harassment without fear of reprisal.

NYCT Bus Driver Reinstated with Full Back Pay

The New York City Transit Authority had fired a bus driver, Paul Panagios, for allegedly engaging in a fight with another bus driver. In fact, the other bus driver, without provocation, had assaulted Mr. Panagios during his break. Retained by the Transit Workers Union, Local 1056, Beranbaum Menken LLP represented Mr. Panagios before an impartial arbitrator, and the arbitrator decided that the NYCTA's termination of Mr. Panagios violated the collective bargaining agreement and ordered that he be reinstated with full pack pay.

Third Circuit Reverses Lower Court's Dismissal of Client's Sexual Harassment Claim

Marissa Estabrook is one step closer to having vindicated her right to a workplace free of sexual and retaliation. The United States Court of Appeals for the Third Circuit last month reversed a decision by the U.S. District Court for New Jersey dismissing Ms. Estabrook's sexual harassment and retaliation Complaint against her former employer, Safety and Ecology Corp. Within a few months of starting her job as a chemist for SEC, Ms. Estabrook was sexually harassed by a co-worker. It turned out that at least three other female employees previously had complained about this same this same co-worker sexually harassing them, but SEC failed to discipline him. One manager laughed off the co-worker's sexual harassment of female employees, saying it was just part of his culture.

When Ms. Estabrook complained to her supervisor about the co-worker's harassment, the supervisor spoke to him and the sexual harassment stopped. But that didn't mean that the harassment stopped. The co-worker turned Ms. Estabrook's coworkers against her. First the coworkers bad-mouthed Ms. Estabrook to her supervisor; then they shunned her; and finally they framed her for tampering with a lab experiment, leading to Ms. Estabrook's suspension. Although Ms. Estabrook complained about her co-workers' retaliation, management did nothing to stop it. When, after three weeks, it became clear that Ms. Estabrook had never tampered with any experiments, management brought her back to work, but in a less responsible position, and, incredibly, working along side the employee who had sexually harassed her and turned her co-workers against her.

The District Court, on these facts, threw out Ms. Estabrook's case, saying that the allegations in her Complaint were not detailed enough to show that SEC violated the law.

Berabau Menken LLP appealed the lower court's decision, and last month, the U.S. Court of Appeals for the Third Circuit ruled in Ms. Estabrook's favor and reversed that decision. The case is now going back to the district court where Ms. Estabrook will pursue her claims.

The Third Circuit's decision can be found at 2014 WL 702355 (3d Cir. Feb. 25, 2014).

There Are No "Volunteers" for the NFL, Just Unpaid Employees

Federal and New York State labor laws make one thing very clear - if you work, you have to get paid the minimum wage.  This is so basic that it's easy to lose sight of.  Of course, people may still do charitable volunteer work.  But that work has to be for public service, religious, or humanitarian purposes, and can't be done on behalf of a for-profit corporation.  You can't "volunteer" to work for a corporation - you're actually an unpaid employee, which is illegal.  More from the U.S. Department of Labor here. The New York Times has an article today about people "volunteering" to work for the NFL in putting on the Super Bowl, as well as for events put on by Major League Baseball.  It's disgraceful that some of the richest entities in the country would violate the law so egregiously.  Even of those volunteering are doing it for the love of a sport, they are taking the place of someone who may need that job.  Unpaid work hurts us all.

 

 

Filing an EEOC Charge - The Basics

When the U.S. government passed the Civil Rights Act of 1964, it created an agency to investigate complaints of discrimination – the Equal Employment Opportunity Commission (“EEOC”). Before anyone can file a discrimination lawsuit in federal court based on any of these categories, they first must file a “Charge of Discrimination” with the EEOC. Filing the charge is supposed to give the EEOC (and the federal government) more information about discrimination allegations throughout the country, and give the EEOC a chance to investigate. If you worked in New York, you have 300 calendar days from the date of the last discriminatory act to file a charge with the EEOC. In other states the filing deadline may be 180 days depending upon whether there is a state or local agency also enforcing anti-discrimination laws. Find your local EEOC office here, which should be able to give you more guidance on whether you have 300 or 180 days to file your charge. Keep in mind: if you don’t file your EEOC charge in time, you lose the ability to sue. If you’re crunched for time or confused about how long you have, or what your “last date” of discrimination is, contact a lawyer.

There two ways to file an EEOC charge: in person at a local EEOC field office or by mail. If your state or city has a local agency, like the New York City Commission on Human Rights, you can also file a charge there, and they will file it with the EEOC on your behalf. Note that you cannot file an EEOC charge over the phone or on the internet, though the EEOC does allow you to fill out an online questionnaire. However, the questionnaire is not the same thing as an official EEOC “charge,” so you still need to file a charge! But the questionnaire can be useful in helping you to figure out whether the EEOC has jurisdiction over your claim and whether your employer’s actions appear to violate federal anti-discrimination laws.

What information should you include in the charge of discrimination? At a minimum, your charge should state:\

  • Your name, address and telephone number;
  • The employer’s name, address and telephone number;
  • The number of people employed by the employer (the employer must have either 15 employees, or for age discrimination claims, 20 employees, in order for you to be protected by the federal equal employment laws);
  • What harmful action did the employer take against you (e.g. you were fired, demoted, not hired, harassed);
  • Why you think that the employer took this action against you because of your race, color, religion, sex, pregnancy, national origin, age (40 or older) or disability (e.g. the employer promoted a much younger employee even though I was more qualified; or, the employer denied me a reasonable accommodation for my disability; or, I was fired soon after I told the employer that I was pregnant);
  • When the discriminatory events took place;
  • Your notarized signature.

 

Do you need a lawyer to file an EEOC charge? You don’t have to have one, but it sure helps.

Here are some of the things that a lawyer will do in helping you prepare an EEOC charge:

A lawyer may include information in the charge that you did not recognize as being helpful to your case. As an example, if you claim that you were denied a promotion because of your race, the fact that the employer did not have written guidelines describing the qualifications for the position is important. Why? Because without those guidelines, a manager is free to rely upon his or her own stereotypes and biases in making the decision who to promote. This is something that you might miss without a lawyer helping you.

A lawyer may see additional legal claims that you might have overlooked. For instance, you may have complained about a sexually hostile work environment but left out the fact that you were paid less than men doing your same job. It is critical that you include all the claims that you may have against the employer in the EEOC charge because, if you eventually file a lawsuit, you won’t be able to make any legal claims not found in your EEOC charge.

A lawyer may also draft the charge in such a way that it blunts certain defenses the employer might bring. For instance, in defense of a sexually hostile work environment claim, the employer may claim that after learning of your complaint, it took effective action to stop the harassment by firing the harasser. But there may be more to the story than that. What if the employer sat on your complaint for three months before doing anything about the harassment? Or, what if the employer should have prevented the harassment in the first because this same male worker had sexually harassed other female workers? This is the kind of information that a lawyer is good at ferreting out and including in the charge.

The goal of a well-written EEOC charge is to convince the EEOC that your employer discriminated against you, so that the EEOC may help to settle the case or give you a “probable cause” determination. But equally important is the goal of showing your employer (and their lawyer) that you have a good case. If you present your case clearly, and the employer can see that they broke the law, the employer will be more likely to settle your case, which saves time and money for everyone. Even if your case is rock solid, unless you can persuasively convince the other lawyer of that fact early, you may be drawn into lengthy litigation which could have been more easily cut short at the outset.

However, if you cannot find a lawyer, or cannot find a lawyer in time, don’t be deterred. There is absolutely not requirement that people have lawyers to fill out their EEOC charges. And remember, keep an eye on the calendar!

Big Changes Coming to NY Unemployment Insurance Law

New York Unemployment Insurance (UI) law is undergoing some significant changes which will take effect on January 1, 2014. These affect, among other things, whether an employee can receive UI if they’ve received a severance or a certain kind of pension, and whether an employee can requalify for unemployment insurance if they’ve been denied in the past. Severance:

In the past, whether someone received UI was generally unaffected by the receipt of severance pay, meaning that if your employer gave you a lump sum upon your separation, you could still receive benefits. This made sense, since severance pay is usually not meant to tide the employee over until they can find a new job, but is rather either (a) a recognition of years of service (kind of like a bonus that you only get when you’re fired) or (b) as consideration for signing a release (i.e., they pay you in exchange for which you promise not to sue them). In neither case is the severance really meant to do what UI does – allow people to get by while they look for a new job.

Starting January 1, 2014, this will no longer be the case. Now, if an employee receives severance pay within 30 days of their termination, that severance pay is offset against UI. So let’s say you would be entitled to $300/week of unemployment, but you receive $3,000 in severance within 30 days of your termination. Under the new changes, you wouldn’t be able to collect UI for 10 weeks. The calculation is done weekly, meaning that the severance pay is divided by the amount of benefits you would receive from UI each week, and the result is the number of weeks you’re no longer eligible to receive UI.

One possible result is that terminated employees will simply refuse to sign releases in exchange for severance – after all, in this economy it’s entirely likely that someone will have to spend months, if not longer, looking for work before finding a new job. If the severance payment is less than the UI someone expects to receive, there’s really no benefit to signing away your rights. On the other hand, employees can request that their employer not pay out a severance payment until 30 days after their termination, which presumably would sidestep the UI issue.

Pensions:

Another significant change involves employer-contributed pensions. If you are receiving a pension from your last job (i.e., the job in connection to which you’re applying for UI), and the employer contributed to that pension, your UI will be reduced by the amount of pension you’re receiving. If you and your former employer both contributed to the pension, then the Labor Commissioner will decide how much of your UI will be reduced by the pension payments.

Given how few jobs these days provide pensions to workers, and how little people can expect to get from Social Security, this is quite a blow to older workers. However, keep in mind that this reduction only applies to the first period of unemployment – if you are let go from job A, and job A gives you a pension to which your employer contributed, your UI is reduced by the pension amount. If you get a new job, and are then let go from that job also, then you will be able to receive UI and the pension from job A without a UI reduction.

Disqualification:

If you were terminated for misconduct or quit your job voluntarily and without good cause, you can’t receive UI for that period. That’s always been true. What’s different now is that, in order to receive UI in the future, you have to (a) find a new job and (b) earn ten times the amount of weekly UI benefits you would otherwise receive (previously, you only had to earn 5x your weekly UI).

This penalizes low wage workers more than others. Someone earning minimum wage for 40 hours per week is likely to receive about $145/week in UI. Someone who is disqualified would thus have to earn $1,450  at a new job before they can requalify – that’s about five weeks of full time work at minimum wage before the employee is eligible to receive future UI. Someone earning $200,000/year (and receiving the maximum benefit of $405/week), however, would only have to work for a single week before requalifying.

The entire point of the penalty, of course, is to discourage people from quitting for no reason (or engaging in misconduct that gets them fired). While this makes a certain amount of sense, workers and the Department of Labor may disagree about what constitutes “good cause” for quitting. While you might think that being unable to get along with your supervisor, or even being verbally abused by your supervisor, would constitute “good cause” for quitting, the UI board may or may not agree.

However, keep in mind that many disqualification determinations are overturned on appeal – so if you’ve been disqualified initially, all hope is not lost. Make sure you read carefully all the materials sent to you by the Labor Dept. so you can preserve your rights.

NYC Passes Law Protecting Pregnant Employees From Discrimination

New York City has recently enacted an anti-discrimination law that will go a long way in prohibiting discrimination against pregnant workers. The Pregnant Workers Fairness Act amends the NYC Human Rights Law to require NYC employers with four or more employees to provide reasonable accommodations necessary because of pregnancy, childbirth or a related medical condition. The kind of accommodations that the new law requires NYC employers to give pregnant workers include frequent bathroom breaks, breaks to facilitate increased water intake, periodic rest for those workers who stand for long periods of time, assistance with manual labor and a period of recovery from childbirth. If an employer does not provide a pregnant worker a needed accommodation, the worker may sue the employer for damages. In that situation, to escape liability, the employer will have to prove that the requested accommodation would pose an undue hardship (e.g. it would cost too much money or disrupt workplace operations), or that the pregnant worker, even with the requested accommodation, could not perform the essential function of the job. The kind of workplace modifications that pregnant workers need are usually fairly minor and inexpensive, so it is doubtful that employers will succeed in proving that the accommodation would pose an undue hardship. The NYC law is very important because currently federal and NY State anti-discrimination laws do not require employers to make reasonable accommodations for pregnant women. As a result, pregnant workers, deprived of job modifications that would allow them to continue to work through their pregnancy, have lost their jobs. Others have endangered their health by working while pregnant without some accommodation to their schedule or job duties. This is especially true for low-income employees, like cashiers, who have to stand on their feet for long periods or employees who have to lift objects as part of their job. The Pregnant Workers Fairness Act assures that pregnant workers do not have to choose between their health and jobs. In addition to New York City’s Pregnant Workers Fairness Act, seven states have laws that require employers to provide reasonable accommodations to pregnant women. The federal anti-discrimination law, Title VII, as amended by the Pregnancy Discrimination Act, prohibits discrimination because of pregnancy or a related medical condition, but it does not require employers to provide reasonable accommodations to pregnant workers, like the NYC law does. The U.S. Congress has left dead in the water a federal Pregnant Workers Fairness Act which would obligate employers to accommodate pregnant employees. The last time the bill was introduced neither the House nor the Senate even held a hearing to consider its merits. When Congress fails to do its duty to protect workers from discrimination, municipal and state governments, like in NYC, have to step in.

Beranbaum Menken Supports the Employment Nondiscrimination Act

The United States Senate will consider a measure to extend federal nondiscrimination laws to cover gay, lesbian and bisexual people. Although a minority of states (including New York) have state and city laws preventing discrimination based on sexual orientation or gender identity, no comparable federal protections currently exist. While the measure is a step in the right direction, it has a significant flaw – it exempts religiously affiliated institutions, which would allow numerous institutions like hospitals and universities to continue to discriminate. Existing federal law prohibits discrimination based on race, gender, religion and age; extending those protections to gay, lesbian and bisexual people should be common sense.

Unpaid intern not protected from sexual harassment - but was she really an employee?

In Wang v. Phoenix Satellite Television US, Judge Castel in the Southern District of New York held that an unpaid intern has no protection from sexual harassment under the New York City Human Rights Law (NYCHRL). The plaintiff in that case was a masters’ degree student at Syracuse University who was hired as an intern for Phoenix, a company producing Chinese language news. She alleged that her supervisor sexually harassed her and denied her a permanent job when she refused his sexual advances. Judge Castel held that Ms. Wang could assert her claim relating to Phoenix’s failure to hire her, but dismissed her claim for sexual harassment, holding that because Ms. Wang was not being paid, she was not an employee, and therefore not protected by the NYCHRL.The Human Rights Law does not define “employee,” and is silent on whether it includes unpaid interns. However, the court’s decision does not address whether the plaintiff should have been paid, and if so, whether that would make her an “employee” under the NYCHRL. Ms. Wang didn’t argue that she was, and did not bring a minimum wage or overtime claim. But the facts of the case may have supported such a claim. According to Ms. Wang’s complaint, her duties included assisting the reporters with shooting news footage, drafting scripts, and editing video footage. She also scripted and reported her own stories on-camera. From this description, it seems that Phoenix was violating the Fair Labor Standards Act and the New York Labor Law by not paying Ms. Wang for her work. For an internship program to be legal, the Department of Labor sets forth a six factor test, each of which must be met: 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.

http://www.dol.gov/whd/regs/compliance/whdfs71.pdf . If Ms. Wang was actually performing the duties of a reporter, the internship would not pass factors 3 and 4. Presumably, if Ms. Wang didn’t script and report on her stories, a regular employee would have. Interns are not supposed to be an unpaid replacement for another employee, and an internship is not to be an unpaid, months-long trial employment. The persistence of these arrangements both unjustly enriches employers, and forecloses entire fields of employment from people who cannot afford to work for free. Ms. Wang should be entitled to be free from sexual harassment – she should also be paid for her work.

New York City Council Increases Job Protections for Pregnant Workers

Under Federal and New York City law, it is already illegal to discriminate against an employee because she is pregnant; since only women get pregnant, pregnancy discrimination is just a variety of sex discrimination. But pregnant women face challenges beyond overt discrimination - the physical challenges of pregnancy can make it harder to work, and with leave under the Family and Medical Leave Act limited to 12 weeks, many women work as long as they can before giving birth. Proposed amendments to the New York City Human Rights Law will make it a bit easier for pregnant women to keep working. The New York City Council passed legislation requiring employers to provide a "reasonable accommodation" to pregnant women, so long as that accommodation does not result in "undue hardship" to the employer. "Reasonable accommodation" is a familiar phrase - both New York City and Federal law require those accommodations be given to employees with a disability, but pregnancy is generally not considered a disability under those laws. If the proposed amendment is signed by the mayor, workplace accommodations for pregnant employees would be required. More frequent breaks, adjustments to work schedules to accommodate morning sickness, and relief from lifting heavy weights could all be found reasonable, depending on the job. Mayor Bloomberg should sign this amendment to law forthwith.

U.S. Department of Labor should enact new domestic worker regulations, already.

Berenbaum Menken is leading the fight to get home health aides, who have a tough and often thankless job, the wages they are entitled to by law. We have brought several lawsuits on behalf of home health aides who were not paid the minimum wage for working 24 hour shifts, with two of them filed as class actions - one against Americare and the other filed against New York Health Care, which did business as New York Home Attendant Agency. These cases were brought under the New York Labor Law, because the Federal overtime law, the Fair Labor Standards Act (FLSA), does not cover home health aides, as it is interpreted by the courts right now. This has the important effect of limiting the overtime these workers get, because New York law follows the FLSA as far as exemptions go. To understand why this is, it helps to understand that when the FLSA was originally passed in 1938, all domestic workers were exempt. In 1974, the FLSA was amended to include some domestic workers, but still excluded from overtime domestic workers who resided with their employer, and excluded from both minimum and overtime wages domestic workers who were providing “companionship services” to the elderly or ill. Back in 1974, such “companionship services” were almost always provided on a casual basis and paid for by the person who needed those services, or their family.

Obviously the landscape now is very different: home health aides are trained and certified, and work full-time (or more) for private agencies that receive their funding form Medicaid or other government sources. They also do much more than act as companions - in many cases, their patients depend on them to cook, clean, change their diapers, and take care of every part of their home life. Part of the motivation for these home health aide programs is to reduce Medicaid’s nursing home costs - it costs a lot less to care for someone in their home, if possible, than placing them in a nursing home. But the FLSA still treats these home health aides as if they were a neighbor paid to watch a family member for a few hours.

Now, the U.S. Department of Labor is considering new regulations that would expand the FLSA to cover more home health aides. The proposed regulations would require minimum wage and overtime payments to anyone providing companionship services who is paid by an outside agency - in other words, today’s home health aide would be, finally, entitled to minimum wages and overtime under the FLSA. This should be a no-brainer, since these workers are the some of the most vulnerable and underpaid in the economy. Yet, although the notice and comment period ended in March of 2012, the Department of Labor has not finally enacted those regulations yet. It’s well past time to do that.