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.

PRESS COVERAGE OF BERANBAUM MENKEN’S WHISTLEBLOWER LAWSUIT AGAINST VIACOM

On January 5, 2016, Beranbaum Menken LLP filed a lawsuit in federal court against Viacom International Media Networks for its retaliatory firing of Nataki Williams, Vice President for Financial Planning and Analysis, after she spoke out against Viacom’s scheme to avoid paying US corporate taxes by transferring the licensing right of Teenage Mutant Ninja Turtles to a nominal entity in the Netherlands.  Ms. Williams, who won two Viacom “Presidential Awards” and two promotions in her seven years at Viacom, was terminated while on maternity leave after the birth of her first child.  Prior to going on leave, she had repeatedly voiced her objections to what she believed was an illegal tax scheme—a belief further solidified when her superiors joked about “not looking good in orange” and instructed Ms. Williams not to discuss the plan over email.  She is suing under the The Securities Whistleblower Incentives and Protection section of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and the anti-retaliation provisions of Sarbanes-Oxley.  The case is Williams v. Viacom International Media Networks, Inc., U.S. District Court, Southern District of New York, No. 16-00029. Links to Press Coverage:

http://www.reuters.com/article/us-viacom-whistleblower-ninjaturtles-idUSKBN0UJ1U320160105

http://www.bloomberg.com/news/articles/2016-01-06/viacom-accused-of-hiding-mutant-ninja-revenue-in-dutch-tax-haven

http://www.dailymail.co.uk/news/article-3386928/Teenage-Mutant-Ninja-tax-dodge-Viacom-whistleblower-claims-sacked-opposing-plan-avoid-paying-taxes-international-license-rights-Turtles-movie.html

http://www.nydailynews.com/news/national/viacom-schemed-dodge-taxes-ninja-turtles-suit-article-1.2486512

Read the Complaint here

BERANBAUM MENKEN FILES POLICE BRUTALITY LAWSUIT

Beranbaum Menken has filed a federal civil rights lawsuit in the Southern District of New York charging unreasonable force, false arrest, and malicious prosecution against the City of New York and individual police officers on behalf of Vito Amalfitano, who was senselessly and violently beaten by a group of NYPD officers on the Lower East side earlier this year. On January 10, 2015, Mr. Amalfitano, a 24 year-old father with no criminal record, was standing outside a building in his neighborhood when a group of men emerged from an unmarked van and ran at him.  Fearing for his safety, Mr. Amalfitano ran into the building.  The men chased him, caught up with him, and viciously beat him.  It was only after the men placed him in handcuffs that Mr. Amalfitano realized they were actually police officers.

Mr. Amalfitano was hospitalized with multiple facial fractures and a dislocated shoulder, among other injuries.  Despite having committed no crime, Mr. Amalfitano was arrested and charged with misdemeanor marijuana possession and resisting arrest.  All charges against him were dismissed within six weeks.

Beranbaum Menken’s investigation revealed that the supervising officer involved in the attack, then-Sergeant Eric Dym, has been sued in federal court at least four times since 2011 for excessive force and false arrest, including an attack on a 14 year-old boy.  Since Mr. Amalfitano’s arrest in January 2015, Mr. Dym has been promoted to lieutenant.

The case is Vito Amalfitano v. The City of New York et al, 15-CV-9100.

Click Here to Read the Complaint

$4.9 Million Prevailing Wage Class Action Settlement Approved

Beranbaum Menken, along with Fay Law Group PLLC of Washington DC and Goldstein, Borgen Dardarian & Ho in Oakland, CA, represent a class of employees working for SimplexGrinnell, one of the largest fire alarm, sprinkler, and building safety companies in the U.S. The lawsuit claimed that Simplex failed to pay its workers the prevailing wages mandated by California law for their fire alarm and sprinkler workers who performed work, particularly testing and inspection work, on public projects in California. In March of 2014, the plaintiffs won a significant victory when Judge Tigar from the U.S. District Court, Northen District of California held that Simplex violated California law by refusing to pay prevailing wages for public testing and inspection work. Yesterday, Judge Tigar approved a class action settlement that will pay the class and their attorneys $4.9 million for their unpaid prevailing wages. Simplex is also obligated to pay prevailing wages for all testing and inspection work in the future.

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.”

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.

 

SUPREME COURT LEAVES (MOST) PREGNANCY ACCOMMODATION CASES TO THE JURY

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 purposes..as 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.