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.”

Building Superintendents and New York Wage and Hour Law: A Forgotten Profession

New York's wage and hour law contains some of the broadest wage payment regulations in the nation, but unfortunately one particular class of workers is currently falling virtually completely through the cracks.  Under the New York Labor Law's supporting regulations, which provide the applicable minimum wage rates in effect in the state, residential building superintendents (or, as the regulations refer to them, "janitors,") are engaged in the only profession categorically excluded from the protection of New York's federal-law-trumping hourly minimum wage rates.  Given that this is an ubiquitous, low-paying profession, particularly in New York City, and one engaged to a significant degree by immigrants -- who often speak limited English -- and other at-risk worker populations, this is a troubling loophole indeed. Under the minimum wage orders contained in the Labor Law's supporting regulations, most employees are currently entitled to $8.75 per hour (N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.1) and one and one half times their regular rates in overtime pay for hours worked over 40 per week (N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2).  This is a significant, material improvement on the federal minimum wage, which currently sits at $7.25 per hour.

Unfortunately, residential building superintendents have no access to this additional state law premium, and must resort to less-expansive federal wage and hour law for any hour-based claims.  Rather than requiring building superintendents in residential buildings to be paid a minimum hourly rate, the applicable minimum wage order requires only that these employees be paid a minimum weekly rate derived from the number of units in the building in which they work.  Currently, a residential building superintendent must be paid $5.85 per building unit per week.  The overtime provision of the New York building service industry minimum wage order specifically excludes building superintendents from its coverage (N.Y. Comp. Codes R. & Regs. tit. 12, § 141-1.4).

In addition to normal workday hours, New York City residential building superintendents are frequently also required to field resident inquiries and address issues or incidents within their buildings during evening hours.  Some are even subjected to harsh, 24-hour on-call requirements by their employers.  The average apartment building in New York City has around 20 units, but despite this potential for round-the-clock work, a superintendent working in such a building is entitled to only $117 per week under New York law.  Even superintendents in large buildings are unprotected, as this unit rate is capped at just $372.15 per week (N.Y. Comp. Codes R. & Regs. tit. 12, § 141-2.8).

Fortunately, although they are robbed of New York's extra protections, New York building superintendents are not completely without minimum hourly or overtime wage recourse thanks to the Federal Labor Standards Act ("FLSA").  In a lawsuit recently filed in federal court, Bahena et al. v. Park Avenue South Management LLC et al., Beranbaum Menken LLP is representing four current and former underpaid New York City building superintendents in a putative collective action seeking recovery for all similarly situated employees.  Despite being subject to harsh on-call requirements that compel them to work very significant "overtime" hours, these employees receive only a few hundred dollars for all their work each week.  Although New York's seriously deficient wage order leaves them no recourse, the FLSA guarantees these workers at least $7.25 per regular and $10.88 per overtime hour, and Beranbaum Menken is working hard to see that these rights are vindicated.



Getting pregnant and raising children isn’t something American employment law does much to encourage. The right to pregnancy leave is a meager 12 weeks and only covers larger employers, and, alone among industrialized nations, is unpaid. The pay disparity between men and women is largely the product of women being penalized for taking time off for having children, and discrimination against parents is rampant. Our ruling class views having children as a personal luxury, rather than as ensuring the future of humanity. However, in a bit of good news, the Supreme Court today leveled the playing field a bit in favor of pregnant workers. In Young v. United Parcel Service, the Court had to decide if the Pregnancy Discrimination Act (PDA), 42 U.S.C. §2000(e)(k), requires an employer to provide pregnant employees with the same light-duty options that it supplies to other employees who require light duty for other reasons. Peggy Young, a UPS driver, needed light duty because of her pregnancy. UPS had a practice of giving temporary light duty to employees who needed an accommodation of a disability under the Americans With Disabilities Act (ADA) and in a few other instances (remember, a normal pregnancy is not protected under the ADA). But, UPS’ policy was not to give light duty to pregnant employees, despite the PDA’s requirement that employers treat “women affected by pregnancy...the same for all employment-related other persons not so affected but similar in their ability or inability to work.”

A clear and simple decision in this case would have been that if an employer gives disability accommodations to some employees, it must give them to pregnant employees. However, the majority recoiled from the idea that pregnant employees be always treated just as well as those other, fortunate employees who may enjoy accommodations - that would be granting “most-favored-nation” status to pregnant employees, and just wouldn’t do. According to the Court, there is no way that Congress intended to put pregnant employees at the top of the heap as far as access to job accommodations goes. Perhaps the Court is right.

However, the Court took a position that, practically speaking, will still entitle pregnant employees to at least most of the accommodations offered to their fellow employees. The Court held that a pregnant employee claiming discrimination in access to light duty or other job accommodations can get to a jury if she can show that “the employer’s policies impose a significant burden on pregnant workers” and that the employer’s “legitimate, nondiscriminatory” reasons for doing so are not strong enough to justify the burden. What constitutes a “significant burden” or strong enough (allegedly) nondiscriminatory reason will surely keep the district and circuit courts busy for years to come. But the Supreme Court today made it a lot harder for employers to get summary judgment on a pregnancy discrimination claim, and that’s good news for everybody.

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 LLP Representing Women in Two Equal Pay Act Cases

In two separate lawsuits filed in federal court, Beranbaum Menken LLP is representing women who were systematically underpaid and discriminated against because of their gender. In one case, Laurie Spina, M.D. v. Downtown Bronx Medical Assoc., P.C., Dr.  Spina, an anesthesiologist  working at Lincoln Hospital, sued her employer for paying her and other female anesthesiologists less than male anesthesiologists although they performed the same or similar work. Dr. Spina, as well as other female anesthesiologists, also experienced a sexually hostile workplace at the hospital. As an example, the department chair and at least one other male doctor routinely called them "bitches," and a number of the male anesthesiologists made a point of not referring to their female counterparts as "doctor," only as "Ma'am." The females were passed over for prestigious committees and as "team leaders" in favor of more junior, less experienced male doctors. When Dr. Spina complained about the discrimination, the department brought disciplinary charges against her for bogus reasons, and the chair pressured her to quit. The U.S. Equal Employment Opportunity Commission (EEOC) found that Dr. Spina was discriminated against because of her gender and subjected to a hostile environment. After we filed the lawsuit, the defendant, represented by the City of New York, brought a motion to dismiss the complaint. The U.S. District Court, however, denied the motion in its entirety and Dr. Spina is vigorously pursuing the litigation.

In the other case, Lorraine Porter-Bell v. Port Authority of NY & NJ, Ms. Porter-Bell worked for the Port Authority for 31 years. She retired in 2010 holding the position of Senior Project Manager in the Port Authority's Tunnels, Bridges and Terminals Department. Ms. Porter-Bell quit soon after learning the extent of the pay inequity to which the Port Authority was subjecting her: In 2010, the Port Authority employed 47 Senior Project Managers doing the same kind of work as Ms. Porter-Bell. Of the 47 Senior Project Managers, 39 were male. And of the 39 male Senior Project Managers, 38, or all but one, were paid more than Ms. Porter-Bell -- some of them as much as 30% more. The Port Authority, like the defendant in Dr. Spina's case, sought to have the case dismissed. But the firm was successful in opposing the motion to dismiss, and the litigation continues.


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!  

Home Attendant Minimum Wage Class Action Certified

Beranbaum Menken is representing numerous home attendants who were not paid the minimum wage for each hour of their 24 hour shifts.  Our clients work an important and difficult job, caring for the aged and infirm in their homes, and they deserve to at least be paid for the hours they work. Yesterday, Justice Demarest in Kings County Supreme Court in Brooklyn recognized this, and granted our motion to certify the case as a class action in Andryeyeva v. New York Health Care, Index No. 14309/2011.  The court rejected the employer's argument that it need not pay our clients for each hour of their 24 hour shifts, because they allegedly had the opportunity to eat and sleep at night.  Aside from being factually untrue - patients are not given 24 hour home attendant care, unless they need help 24 hours a day - this argument ignores the fact that under New York law, if an employee is required to be at a certain location, ready to work when needed, that employee must be paid for all of those hours.  Click here to read the decision.

Do Employers Have to Give Pregnant Women Accommodations? EEOC Issues New Guidance and SCOTUS Takes Up New Case

Pregnant women working in New York City have a right to receive a workplace accommodation, such as more frequent bathroom breaks, rest breaks for workers who stand, help with manual labor, or a period of recovery from childbirth. But pregnant women in the rest of the state – and most of the country – aren’t so lucky. Hopefully, that’s changing. The U.S. Equal Employment Opportunity Commission (“EEOC”) just issued a Guidance that’s a step in the right direction. While the guidance isn’t new law, it is significant and has persuasive power in court.

Why is this issue so complicated? Why aren’t pregnant women protected under current federal law? Because there’s some confusion in the courts as to whether pregnancy is always a “disability” under the ADA, and if not, whether the Pregnancy Discrimination Act requires employers to make actual accommodations to pregnant women, rather than just refrain from firing them.

In Young v. UPS, the Fourth Circuit Court of Appeals considered UPS’s policy of allowing people with disabilities to receive “light duty” accommodations. But UPS did not give the same accommodations to pregnant women who were temporarily unable to lift heavy items. The court decided that this policy was entirely legal. It didn’t discriminate against women who were pregnant – in fact, it treated all non-disabled people the same, pregnant or not pregnant, and that this is all the Pregnancy Discrimination Act requires.

The case has been appealed to the Supreme Court, which will decide it in the next term. The question is: is it discriminatory to treat pregnancy differently from other conditions that have the same requirements (like, heavy lifting restrictions).

The EEOC issued its Guidance two weeks after the Supreme Court agreed to hear the case. The timing is interesting – is the EEOC trying to influence the Court? Who can blame them? The EEOC is, after all, the federal agency charged with enforcing and interpreting the Pregnancy Discrimination Act, and if there was ever a time to make clear what the agency thinks, that time is now.

In its Guidance, the EEOC left no doubt that it reads the PDA to mean that an employer must accommodate a pregnant employee in the same way it accommodates non-pregnant employees with the same work limitations. That means, according to the EEOC, Young should be reversed because the PDA requires UPS to give Peggy Young the same kind of  light duty works that it gives non-pregnant employees injured on the job or considered disabled.

The EEOC Guidance also clarified that many pregnancy-related conditions are considered “disabilities” under the ADA, especially after Congress amended the ADA in 2008 to expand the definition of “disability.” The EEOC Guidance lists any number of pregnancy-related conditions that might require some form of accommodation or modified work arrangement, including sciatica, cardiovascular issues, post-cesarean complications, swollen legs that limit walking ability, post-partum depression, and even morning sickness.

The EEOC Guidance is a great sign for pregnant women. The spate of recent anti-worker rulings coming from the Court means we shouldn’t expect much help from them. Despite the literal words of the statute saying pregnant women must be treated like everyone else, the Court is likely to rubber stamp company policies that treat pregnant women differently from other workers with similar work restrictions. But the EEOC gives us a path forward anyway – we can still push for accommodations for pregnant women under the ADA.

And that’s important. Because without accommodations – without some recognition that being pregnant affects women’s bodies in profound ways that may affect their ability to work in the exact same manner as non-pregnant people – women will continue to be pushed out of the workforce, or to simply never even try to make it in careers that won’t accommodate slight modifications for an aching back or morning sickness.

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.

Interns Now Protected Under The New York City Human Rights Law

As we've discussed here before, most interns are really illegally unpaid employees.  But until now, a bona-fide intern, one who is not in reality an employee, was not protected by the New York City Human Rights Law (HRL).  That meant interns might be considered fair game for sexual harassment, might be denied a reasonable accommodation of a disability, or could be denied any of the protections afforded employees by the HRL. Today, the New York City Council adopted an admirably simple amendment to the HRL that brings interns under its protection, taking effect in sixty days.  "Intern" is defined in a way that tracks much of the U.S. Department of Labor's definition.   As a part of the workplace, interns should be subject to the same protections, and have the same dignity, as the employees they work alongside.  The City Council and Mayor de Blasio deserve congratulations for so quickly and squarely addressing this issue.

Prevailing Wage Case Headed to New York Court of Appeals

Beranbaum Menken’s fight on behalf of SimplexGrinnell employees is headed to New York State’s highest court.  We had filed a class action lawsuit in the federal court in Brooklyn, New York on behalf of Simplex’s employees to recover prevailing wages for fire alarm and sprinkler work on public projects throughout the State of New York.  In 2011, the judge certified the case as a class action, but dismissed the employee’s claims to be paid prevailing wages for testing and inspection work, finding that an opinion letter from the New York State Department of Labor made testing and inspection work ineligible for prevailing wages prior to January 1, 2010.  The class action settled for the non-testing and inspection work, and we appealed the court’s dismissal of the testing and inspection claims. Earlier this year, the Second Circuit Court of Appeals issued its decision.  The Second Circuit found that the case brought up unsettled questions of state law, and so it certified two questions to the New York Court of Appeals - one, what deference should be given to the Department of Labor’s opinion letter, and two, can a company’s subjective understanding of its obligation to pay prevailing wages override the company’s actual legal obligation to pay prevailing wages.

We have always argued that the Department of Labor cannot limit the rights workers have to enforce their prevailing wage obligations through an opinion letter, or through their decision not to enforce the law.  Each worker has an independent right to enforce their right to get paid.  Similarly, the language of a contract cannot excuse a company’s obligation to pay prevailing wages.  We are confident that, after many years of fighting, SimplexGrinnell’s employees are getting closer to receiving the prevailing wages they are entitled to.

The case is likely to be argued before the Court of Appeals near the end of 2014.

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).

Pregnant Women in NYC Get Accommodations Starting Today!

We've written before about the Pregnant Workers Fairness Act, which requires employers with 4+ employees to provide pregnant workers with reasonable accommodations for their pregnancy, child-birth, or pregnancy/child-birth related medical conditions (like, say, gestational diabetes). Such accommodations might include more frequent breaks, not having to lift heavy things for a few months, or taking some time to recover from child birth. The Act goes into effect today. It may be surprising to realize that federal law doesn't require employers to provide pregnant women with any accommodations for pregnancy or child birthUnless a pregnant worker has some other disability, under federal law employers are free to require them to stand all day without bathroom breaks and to come back to work the day after the baby is born.

This is due to a gaping hole between the Pregnancy Discrimination Act and the Americans with Disabilities Act. The Pregnancy Discrimination Act defined discrimination against women to include discrimination against pregnant women. That is, discrimination against someone for being pregnant is the same as discriminating against women.

This makes a certain amount of sense -- only women become pregnant, many of the reasons that people discriminate against women has to do with the possibility of them becoming pregnant, and many of the reasons people discriminate against pregnant workers has to do with people's stereotypes about women (i.e., that they'll become mothers and then give up on work).

The problem is that pregnant women need certain accommodations that other women don't -- like frequent rest breaks, or restrictions on how much they can carry. The only federal law that might require an employer to offer these kinds of accommodations is the Americans with Disabilities Act. But in order to get accommodations under the ADA, you have to be disabled. The law doesn't define pregnancy or childbirth as disabilities, meaning accommodations someone needs related only to pregnancy or childbirth aren't covered by the ADA.

New York City, joining in with many other localities, like the state of California, is filling in the gaps and providing its pregnant residents with better protections. Under the New York City law, employers with 4+ employees must provide reasonable accommodations for pregnancy, child birth, or related medical conditions. "Reasonable accommodation" is a bit of a term of art, but it essentially means that the employer has to provide accommodations to help the employee do their job so long as the accommodation does not constitute an "undue hardship" on the employer. If you are pregnant and your employer is refusing to accommodate your pregnancy, child birth or related medical condition, contact a lawyer.

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.



Raising the Bar for NY Employees: Minimum Wage Hike

New York’s minimum wage increased from $7.25 to $8 per hour on December 31, 2013. This is the first of three increases approved by the state legislature and Governor Andrew Cuomo when they approved the state budget in March. That may not seem like a lot, but that can easily add up to over $1,500/year, even without overtime. And, of course, an increase in the minimum wage means an increase in the overtime pay rate for those who qualify. The new legislation also has future minimum wage hikes built into it – going from $8 to $8.75 at the end of 2014, and then up again to $9 by December 31, 2015. New York joins the ranks of thirteen other states raising the minimum wage this year, some to as high as $9.32 (in Washington state). This all comes on the heels of President Obama’s call for a national raise in the minimum wage to $10.10 per hour by 2015.

Unfortunately, many people making minimum wage still live in poverty, and are forced to on public assistance.

We should also keep in mind that an $8 or $9 minimum wage is certainly higher than the current federal minimum, it falls  off historical numbers. In 1960, for example, the minimum wage was 47% of the median wage of U.S. full-time workers. Today, the minimum wage is 37% of the minimum wage. While any increase in the minimum wage is welcome and necessary, the reality is that real wages for the lowest paid Americans have been steadily declining over the past four decades.

Paid Family Leave Bill Introduced in Congress

Under the Family and Medical Leave Act (FMLA), employees are entitled to up to 12 weeks of unpaid leave per year if needed to prepare for the birth of a child, or if needed for the serious health condition of themselves or a close family member, so long as their employer has at least 50 employees within 75 miles of the employee’s workplace, and so long as the employee worked at least 1,250 hours in the year prior to needing leave. Every other industrialized country, and just about all of the non-industrialized ones, has a more generous family leave benefit.  A law introduced this week in Congress would help a little bit.  The Family and Medical Insurance Leave Act (FAMILY) would provide up to 12 weeks of paid leave, for the same kinds of leave provided by the FMLA.  It would apply to all workers, not just those eligible for FMLA benefits.  The benefits would depend on the worker’s salary and would range from $580 to $4,000 per month.  The benefits would be supported by a payroll tax and would be administered by the Social Security Administration.

The law would finally bring the U.S. in line with the rest of the world in providing paid family and medical leave, but the proposed law has substantial limitations.  Employers would not be required to allow employees taking leave to come back to work, so anyone not eligible for FMLA leave - for example, someone who worked for an employer with less than 50 employees - would be still risking their job in order to take the leave.  In addition, anyone whose employer does provide paid family leave - they do exist - would have their leave benefit reduced by the amount of the employer-provided benefits.  Finally, funding the benefit from another payroll tax, rather then from general revenues, places an all of the tax burden on workers, who every year get less and less of the national income anyway.

Still, the FAMILY act would be an improvement on the current state of affairs, which means it has no announced Republican support.  Getting the FMLA passed took ten years, and was vetoed twice by President George Bush I before beign enacted.  The same effort will be required to pass this law.

Don't Dawdle If You've Been Denied Employee Benefits - Your Time to File a Lawsuit May Be Shorter Than You Think

Have you been denied benefits form your employer, such as for long-term disability benefits? Depending on the terms of the benefits plan, the time to appeal that denial may be very short - and the clock may even start running before an employee is allowed to bring a lawsuit. A pending Supreme Court case may bring some sanity to this area, but for the time being, an employee who feels their benefits were wrongfully denied must be very careful to avoid losing all rights to go to court. Under the federal Employee Retirement Income Security Act (ERISA), an employee who feels they were wrongfully denied benefits must first exhaust all administrative remedies first - generally, by appealing the denial to an administrator of the benefits plan. Only after that appeal has been exhausted can the claimant bring a case in court challenging the denial of benefits. In New York, the deadline to bring a claim for an ERISA wrongful denial of benefits claim is six years after the denial.

That is not the end of the story, however. Many benefit plans reduce the deadline to bring a lawsuit to less than the six years provided by law. Furthermore, those benefit plans often provide that the clock starts ticking when the claim is filed - not when the administrative appeal is finally denied. If the administrative appeal takes a long time, then the lawsuit might be due a short time after that appeal gets decided. Here in the Second Circuit, this is a-OK. Burke v. Pricewaterhouscoopers LLP, 572 F.3d 76 (2 Cir. 2009).

The Supreme Court will soon weigh in. In Heimeshoff v. Hartford Life, the employee’s long term disability policy required that any court action be brought within three years of the claim being made, and required that the administrative appeal be finished before any court action could be filed. Worse for the employee, these deadlines were not in the summary plan description, but were buried in the plan itself. She filed her lawsuit within three years of the administrative appeal being denied, but more than three years after she filed her claim. The district court, citing Burke, dismissed her case as untimely, and the Second Circuit agreed. The Supreme Court took the case, presumably because other circuits require the clock to start ticking only after the administrative appeal is denied.

Even if the Supreme Court reverses the decision, and requires a benefits plan’s statute of limitations to only start once the administrative appeal is decided, employees should still not dawdle in asserting their rights. Employers have great latitude in shortening the deadline to file a lawsuit, and with those deadlines often buried in a densely-worded benefits plan, employees could find themselves out of time very quickly - deadlines of as short as 45 days have been upheld. Anyone wrongfully denied employee benefits should consult with an experienced lawyer as soon as possible.

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.


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.


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.