New York Employment Lawyer Blog

In today's age of increasing communications technology and Internet surfing, misuse of workplace equipment can lead to a major loss of productivity for many businesses. Statistics show that the Playboy home page is one of the most visited web sites between 9 a.m. and 5 p.m. Such adult sites, sexually explicit e-mails, and social networking can result in financial losses through workplace sexual harassment and employment discrimination claims. A 2007 survey found that two thirds of employers monitor their employees' web site visits to prevent inappropriate surfing. Today's technology offers employers various methods to monitor not just telephone calls, text messages, pagers, Internet usage, but also keystrokes and time spent at a keyboard. However, with various tools at their disposal, employers face a dilemma in how closely to monitor their employees to ensure that their employees are performing their jobs and not overstep the boundaries of workplace privacy.

The United States Supreme Court recently held in the case City of Ontario v. Quon, that a public employer has a right to read text messages sent and received by its employees on employer-owned pagers. In Quon, the City of Ontario distributed pagers to its police officers with texting capabilities. The City instituted a policy that employees should not have any expectations of privacy or confidentiality, which Quon acknowledged with a written statement. When Quon and other police officers exceeded their monthly quota of texts, the City audited the text messages to determine if they needed to change their plan or if the higher charges were caused by personal use. The City found that Quon had misused the pager by sending and receiving hundreds of personal texts, many of which were sexually explicit. Quon sued the City alleging a violation of his right to privacy under the Fourth Amendment of the United States Constitution.

In a very narrow ruling, the Supreme Court held that even if a public employee has an expectation of privacy, an employer's intrusion "for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances." Rather than addressing the issue of privacy at the workplace, the Court based its decision on the City's reasonableness of the search and its legitimate purpose.

Continue reading "Can I read my employee's e-mails, texts and communications in the workplace?" »

Approximately 80 current and former high ranking female executive employees of Bloomberg L.P., a multi-billion dollar news and financial services company, are fighting a class-action pregnancy discrimination lawsuit against the Company. The female employees allege that Bloomberg violated Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act, by engaging in a pattern or practice of demoting and reducing their pay after they became pregnant and returned from maternity leave. Further, the female employees allege that pregnant women and new mothers were excluded from management meetings, denied promotional opportunities, and subjected to stereotyping about their abilities to do their jobs because of preconceived family responsibilities. According to the lawsuit, one female employee received the worst performance review of her career after her first son was born and was then subjected to a hostile work environment with comments such as -- "What is this, your third baby?" Although the female executives filed internal complaints of pregnancy discrimination to Bloomberg's human resources department, Bloomberg refused to take any corrective action.

The female employees allege that Bloomberg created a "systemic, top-down culture of discrimination" by unfairly valuing physical traits of female executives in a discriminatory manner. The Company's founder, New York City's Mayor, Michael Bloomberg, testified at his deposition and denied the allegations. If the female executives are successful, the female executive could obtain monetary relief, an order requiring the company to implement new policies and practices to prevent discrimination, training on anti-discrimination laws, posting of notices, and injunctive relief.

The Bloomberg case is just one of many pregnancy discrimination cases across the United States. The number of pregnancy discrimination cases is on the rise and at near record levels. There is a greater awareness of rights afforded to victims of pregnancy discrimination. Pregnancy discrimination is a form of gender discrimination. Call now to learn how our Pregnancy Discrimination Lawyers can protect you in the workplace.

Just as it is illegal to discriminate based on race, religion, gender, age, disability, sexual orientation or national origin, it is also illegal to discriminate against or stereotype pregnant women. The United States Supreme Court has noted that women "may not be forced to choose between having a child and having a job." Title VII prohibits employers from making adverse employment decisions based on stereotypical views of pregnancy and its effect on job performance. For employers, this also means avoiding inappropriate comments about pregnant women. For example, not every woman is going to work part-time after coming back from a maternity leave nor is it proper to make comments that a woman can't do the job as well as she did before she got pregnant.

Continue reading "New York Class-Action Pregnancy Discrimination Lawsuit Against Media Giant Bloomberg L.P." »

It is startling to see how prevalent age discrimination is in today's workplace. Not only has the EEOC reported an increase in the number of age discrimination complaints filed, there are constant reports of age discrimination in the New York Metro Area including allegations that the news director at WPIX, local television channel 11, illegally fired older employees including anchors Karen Scott, Kaity Tong and Sal Marchiano. Other recent cases include Long Island Firefighters filing a class-action age discrimination lawsuit against the Villages of Bayville, Mill Neck and Centre Island for differential treatment regarding benefits. That case was settled and each firefighter in the lawsuit may receive approximately $200,000.00. Previously, Eaton's Neck in Long Island's Suffolk County settled a similar case for over $200,000.00. Just earlier this week, seven former Rensselaer Polytechnic Institute employees filed an age discrimination lawsuit against RPI and allege that the layoffs targeted older workers.

Anyone can be a victim of age discrimination - it knows no boundaries as to race, gender, religion, industry or geographic area. Age discrimination can occur at any point in the employment relationship from application, hiring, discipline and termination. Some common examples of age discrimination include -

1. Your prospective employer asks your age on an employment application (it is surprising how many employers still make this mistake and ask this illegal question on the application or during the recruiting phase.) You should refuse to answer this illegal interview question.

2. Your employer lays off the oldest workers solely because the oldest workers are making the highest salaries.

3. Your boss denies an older worker the right to take a training seminar or additional educational courses but allows younger employees or otherwise invests in their future career prospects. This occurs often in the corporate workplace.

Continue reading "Age Discrimination on the Rise in New York, New Jersey & Connecticut" »

Current and former employees of Bank of America recently filed class-action lawsuits alleging wage and hour violations under various state labor laws (including labor laws in California, Texas, Washington and Kansas) and the Federal Fair Labor Standards Act. The lawsuit was filed on behalf of employees who worked at Bank of America retail branches and call centers over the past 3 years. The Complaint alleges that Bank of America made its employees work in excess 40 hours a week and did not pay them both for overtime and all straight time worked. It also alleges that Bank of America required its employees to work during unpaid breaks, did not provide breaks for meals and rest, and did not timely pay terminated employees their wages and accrued vacation time.

Bank of America employs over 280,000 people worldwide and operates close to 6,000 retail branches in the U.S. It is one of the nation's largest employers and is the largest U.S. bank. If the allegations are proven to be true, it is simply wrong and illegal for Bank of America or any Company seek to advantage of its workers by not paying legally-required overtime and other wages. This case could cover more than 180,000 workers and lead to a recovery of hundreds of millions of dollars.

Whether you work for a large company or a small business, the Federal Fair Labor Standards Act and the State Labor Laws in New York, New Jersey and Connecticut provide protections to employees. As set forth in our previous Blog entry, both the FLSA and the New York Labor Law provide that all covered non-exempt employees must be compensated 1 ½ times the regular rate of pay for all time worked in excess of 40 hours per week. Moreover, overtime pay cannot be waived and any unauthorized overtime must also be paid. Your employer cannot ask you to sign a document stating you are not entitled to overtime. Our prior Blog entry discussed your rights to lunch or dinner meal breaks, if applicable, and rest breaks.

Given the recent economic climate and competitive labor market, employers may try to take advantage of employees and employees may be reluctant to ask for their rightful wages. The allegation that such an enormous employer with offices and employees worldwide might engage in unfair labor practice suggests that surely such offenses are still prevalent. If you feel you are a victim of unfair wage and hour violations, our experienced New York, New Jersey and Connecticut Wage and Hour Attorneys can help you recover your rightful wages and benefits. E-mail or call us at (800) 893-9645 to discuss your possible case.

Continue reading "Overtime Violations: Bank of America Employees File Class-Action Lawsuit for Unpaid Wages, Failure to Provide Meal and Rest Breaks and Failure to Pay Vacation Pay " »

On June 14, 2010, the Westchester County Board of Legislators passed legislation that would prohibit discrimination on the basis of "source of income" under Westchester County's Fair Housing Law. Westchester County joins other jurisdictions including New York City, New Jersey, and Nassau County that also prohibit discrimination based on an individual's "Source of Income." Source of Income would include any legal, verifiable income derived from social security, or any form of federal, state or local public assistance or housing assistance, including the federal housing subsidy known as "Section 8" but it specifically excludes alimony, court ordered payments, gifts and inheritances. For years, section 8 voucher holders, including senior citizens and members of the disabled community, were unable to find suitable housing. This is a victory for advocates fighting against housing discrimination. Similar to discrimination in the employment context, housing discrimination is simply wrong. Our discrimination attorneys have protected victims of employment and housing matters and assisted individuals in obtaining reasonable accommodations.

That being said, the new law, provided it is signed by Westchester County Executive Robert P. Astorino, does not apply to every landlord. The law specifically exempts cooperative apartments, condominiums and small buildings with four or fewer apartments. A landlord can still use his or her reasonable business judgment to reject a tenant who receives Section 8 or other government assistance provided that the landlord's denial is based on other factors (example: credit history and criminal background) and not just the fact that the prospective tenant receives governmental assistance. The law will expire in five years unless further action is taken by the legislators.

Continue reading "Westchester County, New York Discrimination Law Update" »

A: It depends on the state where you work. Call now to speak with one of our New York Employment Law Attorneys to learn whether you can obtain a copy of your personnel file and/or have a legal claim against your employer. Generally, there is no federal law requiring your company to give you access to your personnel file. By law, employees in New York and New Jersey are not entitled to review or obtain a copy of their personnel file. However, employees in Connecticut and 16 other states (Alaska, California, Delaware, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, Oregon, Pennsylvania, Rhode Island, Washington and Wisconsin) are entitled to obtain a copy of their personnel files. Specifically in Connecticut, pursuant to Connecticut General Statute Sections 31-128a to 31-128h, employees are entitled to inspect their personnel file up to twice a year after making a request. Your employer must provide a copy of your complete personnel file within a reasonable time.

If you work in a state that does not allow access to your personnel file, you may still make a request to review your personnel file. Although not required by law, some companies have policies that all employees to obtain a copy of their personnel file. For example, if you work in New York at a business that has corporate offices in a state which entitles employees to receive a copy of their personnel file such as Connecticut, the company might have a general policy granting access to all of its employees. A personnel file is a historical log of your employment and typically contains employee information such as your signed employment application, compensation information, performance reviews, non-competition and confidentiality agreements, internal memoranda, disciplinary action notices, performance improvement plans, information related to your hiring or firing, your workplace complaints, and your vacation records. It is worth noting that Connecticut defines a "personnel file" broadly to include any document relied upon by your employer in making an employment decision, whether it is maintained in the physical personnel file or not.

Continue reading "Am I entitled to access my employee personnel file or get a copy?" »

Below is a continuation of our previous Blog providing some general guidelines for doctors and medical professionals to consider when evaluating a physician employment agreement:

4) Restrictive Covenants. A non-compete clause will bar you from practicing medicine in a specified area for a certain period of time. In the event you leave or are terminated, the non-compete clause can impact your livelihood. For example, if the non-compete clause bars you from working in a 20 mile radius for 2 years, are you willing to move or drive 20 miles each way to get to work? During your early interviews with the practice, find out where the patients are coming from, other potential places of employment and their locations, and have an attorney help you analyze how radius impacts you. Remember practices that do not exist now but open within the specified restricted geographic area later may also be covered by your non-compete agreement. Limiting the non-compete clause should be of paramount concern. Although courts in New York and New Jersey generally do not favor non-compete clauses, courts will enforce them if the terms are reasonable. Moreover, if the terms are too broad, courts in New York and New Jersey may "blue pencil" or modify the non-compete clause to make the terms reasonable.

5) The contract should be specific about your work schedule, work load and number of calls. Make sure that the calls and the work load are equitably allocated. Find out how many calls per week or month everybody else in the practice is doing and how many physicians are you covering when on call. One of the most common reasons physicians change jobs is uneven distribution of work load and calls. Also clarify whether you will have your own office, secretary, assistant and other resources to help you.

Continue reading "New York and New Jersey Physician Employment Contracts: Top 10 Things for Doctors to Know Before Signing, Part II" »

Understanding the intricacies of a physician employment agreement can be a daunting task when you're fresh out of residency or fellowship and looking for your first real job or even when you are changing practices. Unlike many other professions, doctors and other medical professionals who join an established practice typically end up staying there for an extended employment term up to and including retirement. Thus, properly evaluating and negotiating your employment contract can affect how you will be paid and what your compensation will be based upon in subsequent years of your career. In addition, non-compensation issues such as defining and limiting the number of calls should be considered.

If you don't effectively negotiate your employment agreement and later realize that the job wasn't what you expected or you are terminated, your employment contract can play a major role in your next career steps. For example, the parameters of your non-compete clause will determine whether you are able to practice in the same geographic area. Before you sign or commit to a medical practice or hospital, you should consult with an experienced lawyer. Our employment lawyers have represented physicians practicing in various specialties including surgery, anesthesia, radiology, and obstetrics-gynecology with privileges at major New York and New Jersey Hospitals including Westchester Medical Center, Hackensack University Medical Center, Nyack Hospital, Mount Sinai Medical Center, New York University (NYU), New York Presbyterian Healthcare System, New York City Health and Hospitals Corporation, and VA Healthcare Systems. Below are some general considerations for doctors and medical professionals to consider:

1) Negotiate. Don't commit to a verbal offer without having your employment law attorney review the contract and negotiate better terms. Since you may be working with these people, you may feel uncomfortable asking for changes and negotiating better terms. Practices often try to discourage employees from seeking legal advice or counsel and say that the employment contract is non-negotiable but that is generally not the case and some terms usually can be negotiated.

Continue reading "New York and New Jersey Physician Employment Contracts: Top 10 Things for Doctors to Know Before Signing, Part I" »

Can I be held liable as an employer if one of my employees who is a supervisor sexually harasses another employee?

Yes. You can be held vicariously liable for sexual harassment committed by your supervisors. This liability also extends to you if your supervisor or manager commits harassment based on race, color, sex, religion, national activity, age, protected activity, and disability. The two basic reasons behind this are that employers are responsible for the acts of their employees and employers should be encouraged to prevent workplace harassment. If the harassment leads to a tangible employment action, i.e., the employee gets fired, demoted, or is denied a raise or promotion, you will be held liable.

However, if no tangible employment action is taken, you can avoid liability if you exercised reasonable care to prevent and correct your supervisor's harassing behavior, and your employee unreasonably failed to complain or follow office procedures. For example, if your employee was subjected to sexual harassment which resulted in a hostile work environment, but your employee unreasonably failed to complain to you or someone designated in your policy and you exercised reasonable care to prevent and quickly correct the harassment, then you will not be liable. The key to your avoiding liability is for you to take reasonable care to prevent harassment. If you don't take reasonable care, you will be liable even if your employee unreasonable failed to complain and you took corrective action after you found out about the harassment.

The recent sexual harassment case against pharmaceutical giant Novartis has shown that that if your company doesn't create and implement policies and procedures to prevent and deal with workplace harassment, a judge will force it upon you. Clearly, to show that you took reasonable care to prevent sexual harassment at your workplace, you must have an anti-harassment policy and complaint procedure set up in your office. This policy cannot be sitting quietly on a shelf. You must distribute it to all your employees and management and encourage them to read it and report any harassment. It is also important to hand this out to any new employees as well as redistribute this policy periodically. Your policy should explain what sexual harassment is and that it will not be tolerated. The policy should also set forth a detailed procedure on how employees can make complaints and to whom. You should ensure that if an employee complains, it will be kept confidential to the extent possible. Your policy should encourage employees to report sexual harassment without fear of retaliation. For example, every employee should have someone other than his or her own supervisor to complain about the harassment.

When an employee files a complaint or verbally reports sexual harassment, it should be promptly and thoroughly investigated. Moreover, once you know about the harassment, you have a responsibility to take immediate action to quickly stop it and make sure it does not happen again. A written record should be kept of everything complained of and the entire investigation. Any employee who is found to have been harassing another employee should be disciplined.

Continue reading "New York Sexual Harassment FAQ: Employer Liability and Prevention" »

My boss keeps talking about his sexual activities, calls me "babe" and "honey" everyday, and keeps commenting on my body but he has never touched my body. Could this be considered sexual harassment and what can I do?

Yes. The situation you describe could be considered a hostile work environment which is a form of sexual harassment. If you think you are being sexually harassed, the first thing you can do is tell your boss that the conduct is unwelcome and must stop. This will prevent any misunderstandings and prevent your boss from later claiming that he didn't know he was "sexually harassing" you or that the conduct was somehow welcome. If that doesn't work or you are concerned about retaliation and afraid to complain to your supervisor, you should follow your company's policies or procedures for reporting or complaining about sexual harassment. Most companies have a complaint mechanism and are prohibited from retaliating against you if you report a complaint of sexual harassment in good faith. Our Sexual Harassment Lawyers have helped protect the rights of many victims of sexual harassment and can help you.

Title VII of the Civil Rights Act of 1964 provides two legal grounds for sexual harassment. The above question refers to a sexual harassment claim which is based upon a hostile work environment. This is the more common form of sexual harassment. A hostile work environment results when your supervisor, co-worker, customer, vendor, or anyone with whom you come in contact with on the job engages in unwelcome and inappropriate sexually based behavior making the workplace intimidating, hostile or offensive. Courts look at the some of the following factors in determining a workplace is hostile:

• Verbal or physical conduct;

• Frequency of the unwelcome discriminatory conduct;

• Discussions concerning a sexual nature;

• Comments about your physical attributes;

• Use of demeaning or inappropriate terms; and

• Use of profane and offensive language.

Continue reading "New York Sexual Harassment FAQ: Hostile Work Environment" »

Possibly - it depends on the reasonableness of the terms. There has been a rise in lawsuits over non-compete agreements given the immense amount of money and time invested into employee training and their value. In this economic climate many employees are transitioning employers and are examining non-compete clauses contained in their employment agreements, confidentiality agreements or severance agreements. A non-compete clause is basically an agreement prohibiting you from leaving your employer and then working for a competitor or opening up your own business to compete with your former employer. Non-compete clauses are most prevalent in the medical, pharmaceutical, technology insurance, financial and entertainment services industries. Even celebrities such as Conan O'Brien, who is prohibited from competing with NBC until the fall, must comply with no-compete agreements. Before you sign a non-compete agreement, our experienced New York employment law attorneys can help you negotiate better terms and protect your rights which could affect your future employment. Our New York employment lawyers can help you get out of your non-compete as well.

New York courts generally do not favor non-compete clauses and do not like the idea of preventing an individual from working but they will enforce your non-compete agreement if its terms are reasonable. For example, in deciding whether a non-compete clause is reasonable or not, the court will examine what geographic area the covenant covers. This is fact specific analysis as a five mile radius in New York City may be overbroad and unreasonable but the same five mile radius in Central New Jersey may be reasonable. Courts consider the length of your non-competition provision. Again, the analysis is unique but terms of over two or three years may be considered unreasonable. If the employee was also a shareholder and owner in the business and signed a non-compete a longer term may be considered reasonable. In addition, the court will consider various factors, including the type of business, the location of the business and the customers, the nature of your responsibilities, the kind of customer contacts you developed, and the availability of comparable positions and the extent to which you can earn a living. Just because your employer drafted the agreement too broad does not necessarily provide you with immunity. New York courts may "blue pencil" or modify the covenant to make it reasonable if the terms are too broad and the agreement indicates that there was intent for the court to do so.

Continue reading "Non-Competition Agreements FAQ: Is my Non-Compete Contract Clause Enforceable?" »