New York Employment Lawyer Blog

Walmart was recently hit with a lawsuit by the EEOC for violating the Americans with Disabilities Act ("ADA") by failing to accommodate an employee with a disability. The charges also included retaliation against the mega retailer for firing the employee because of his disability and for exercising his civil rights. The EEOC is seeking monetary damages on behalf of the employee discriminated against, training on the ADA and steps to stop Walmart from future discrimination.

The EEOC's investigation showed that the Walmart employee, David Gallo, began working at its Placerville, California location in June 2003. The company was aware that Gallo had a heart condition called atrial fibrillation which causes shortness of breath and difficulty walking. Gallo received good performance evaluations which resulted in him being promoted from overnight stocker to manager of the store's tire lube express bay.
Although Gallo had a handicap parking placard and the company knew of his disability, in March 2008, the new store manager stopped Gallo from parking in the handicap parking spaces or any other spots near the front of the store. In September 2008, Gallo filed a charge with the EEOC for Walmart's failure to accommodate his disability. He was then fired eight months later for an error that an employee working under him made. However, the employee and the person who had reviewed his work were not fired.

The ADA prohibits employers with 15 or more employees from discriminating against qualified individuals with disabilities with respect to hiring, firing, promotions, compensation, as well as any other terms or conditions of employment. An individual with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, has a record of the impairment, or is regarded as having the impairment.

An employer is legally required to make a reasonable accommodation if it does not impose an "undue hardship" on the employer's business. For example, it is a reasonable accommodation to allow a diabetic employee to take scheduled breaks to check his or her sugar level. A reasonable accommodation is an "undue hardship" if it requires significant expense or difficulty given the employer's size, financial resources, and business operations.

Clearly, Walmart should have accommodated Gallo by allowing him to park in the handicap parking spot or at the least, allowed him to park close to the front of the store. Considering that Walmart knew of Gallo's disability and could have easily accommodated him, Walmart's actions were completely unreasonable. To top it off, Walmart then retaliated against Gallo for filing an EEOC complaint and fired him. Given Walmart's size, financial resources, and past instances of disability discrimination, it is a shame that Walmart engaged in this behavior.

Now matter how big or small your company, make sure your managers and supervisors are trained on the ADA. Our attorneys have conducted hundreds of training sessions on the ADA and Title VII to help businesses save thousands of dollars by avoiding potential litigation. Call our ADA Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you safeguard your company against potential ADA claims.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

As much as this is a festive and joyous time of the year for your holiday office party, it can be a legal nightmare if you are not prepared. The holiday party can lead to sexual harassment complaints as well as social host liability suits. The following is a list of precautions you can take to minimize your risk of liability:

• The biggest way to avoid trouble at your party is to skip the alcohol. Alcohol clearly lowers inhibition and impairs judgment and makes employees act in a way that they normally would not act at work. Consider serving apple cider or non-alcoholic beer. If you must serve alcohol, hire a bartender to mix and serve the drinks. Instruct the bartender to "water down" the drinks as well as offer plenty of non-alcoholic drinks. Make sure the bartender will stop serving to anyone who appears intoxicated. Another option is give everyone drink tickets to limit consumption. Also stop serving alcohol at least an hour before the end of the party.

• Food is an important factor if you will be serving alcohol. Serve plenty of appetizer so that employees are not drinking on an empty stomach.

• Remind employees before and at the party not to drink and drive. Before the party, designate supervisors and managers to stay sober and arrange for car pools. Inform your employees well before the party that if they appear drunk, they will not be allowed to drive home. Also ask your managerial staff to watch out for who appears intoxicated and make sure that they do not drive home. Arrange a head of time to have taxis take anyone home who has had too much to drink.

• Inviting spouses is also a great way to keep the party sober. Inviting spouses tends to keep employees more sober and encourage appropriate behavior.

• Holiday parties tend to bring out the office romance and sexual harassment. The alcohol tends to encourage the shy, fearful employee to ask out a colleague or engage in unwanted sexual conduct. Before the party, inform all your employees about the company's anti-harassment policy and that it applies to the holiday party. Let them know that any complaints will be investigated and disciplinary action will be taken for harassment. Have your supervisors watch for any inappropriate conduct and be ready to cut it off. Don't hang mistletoe or allow anyone to dress up as Santa. This only encourages sexual behavior which can lead to unwanted advances.

• Confirm with your insurance carrier that you have enough coverage in the event of an alcohol related accident.

Keep in mind that the holiday party is still an office party and remind your employees to enjoy themselves but to remain professional. They shouldn't do anything that they normally wouldn't do while at work. Our attorneys have helped many businesses make sure that they have minimized any potential liability that may arise. If you're planning a holiday party, call our experienced attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your company from any holiday related liability.

Continue reading "Do's and Don'ts for Your Office Holiday Party - Sexual Harassment and other Employment Law Risks and Considerations" »

The U.S. Department of Justice ("DOJ") recently settled allegations with Medronic, Inc., the world's larges maker of heart rhythm devices, who agreed to pay $23.5 million for violating the False Claims Act. The DOJ had charged the device maker with paying kickbacks to physicians who implanted its pacemakers and defibrillators in patients.

The lawsuits were commenced by whistleblowers under the qui tam provision of the False Claims Act. The whistleblowers will receive over $3.96 million from the government's recovery. If you have evidence of fraud being committed against the government, our attorneys can help you determine the strength of your claim.

Two lawsuits were filed against Medronic in federal court, one in California and one in Minnesota. The suits charged that the company paid physicians $1,000 to $2,000 for each patient who it implanted with one of the company's devices, in clear violation of the False Claims Act. Medtronic paid these doctors per implant for participating in studies of these devices, which were already on the market. The device maker then submitted false claims to Medicare and Medicaid using the post market studies and two device registries as a means to pay the physicians who were involved in the kickback scheme.

Tony West, the assistant attorney general for the DOJ's Civil Division, stated that "Patients who rely on their health-care providers to implant vital medical devices expect that those decisions will be made with the patients' best interests in mind." He added that "Kickbacks, like those alleged here, distort sound medical judgments with financial incentives paid for by the taxpayers."

The qui tam provision of the False Claims Act is probably one of the most important laws to help fight fraud against the government as well as taxpayers. If you have evidence of fraud being committed against the government, you may bring an action on behalf of the government under the False Claims Act. Depending on whether the government takes over your lawsuit, you may be entitled to 15% to 30% of the government's recovery. Most importantly, you must be the first person to bring the evidence of fraud to the government's attention.

The fraud committed here was not just about the money but also about whether unbiased medical judgment was used in healthcare. It is unnerving to think that your doctor may have persuaded you to undergo major surgery to implant a device or recommended a certain brand of device because he was receiving a kickback, and not because it was the best medical decision for you. Medicaid and Medicare fraud is a huge problem in the healthcare industry which the government can't fight and detect on its own. The False Claims statute is very complicated with strict requirements including a detailed process for filing, but the payoff and the satisfaction of exposing fraud can be enormous. If you know of fraud being committed against the government, call our experienced Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you figure out if you have a claim under the False Claims Act.

Continue reading "Whistleblowers Use False Claims Act to Expose Medicaid and Medicare Fraud And Recover Huge Payoff" »

Citibank recently announced that it plans to cut 4,500 jobs over the next few quarters. At a financial services conference at Goldman Sachs & Co., Chief Executive Officer Vikram Pandit stated that the layoffs are part of the banks effort to reduce costs given the bank's decreased revenues and "unprecedented" market conditions. Citibank will be taking a $400 million pre-tax charge related to reductions, including severance pay in its 4th quarter statements.

CitiGroup is the third biggest U.S. bank by assets and employed about 267,000 people as of September 30th. The 4,500 work force reduction amounts to about 2% of CitiGroup's total employees. The layoffs are planned to take place over the next few quarters and will affect employees from its different businesses. Our attorneys have counseled many laid off employees in the financial and banking sector and helped them to obtain the best severance package possible.

Most of the cuts are expected to come from Citigroup's back office and investment banking operations. London based investment bankers were already laid off this past weeks and several hundred jobs in Europe, the Middle East, and the Africa region are also expected to be cut. Since Pandit took rein of Citigroup in 2007, he has cut down hundreds of billions of dollars in assets, strengthened its risk controls, and paid back the $45 million bailout money it received in 2008 to prevent its collapse. Pandit's cost cutting plan to lighten Citigroup's load has resulted in massive layoffs.

Citigroup is not the only bank engaging in massive layoffs. According to Bloomberg data, the banking and financial industry has cut over 200,000 jobs throughout the world just in 2011. For example, Bank of America announced its plan just a few months ago to lay off 30,000 employees over the next couple of years. This past summer, HSBC also said that it planned to cut 30,000 worldwide by 2013 as well as sell half of its retail bank branches in the U.S.

If you are in the banking or financial industry, know your rights in the event you are laid off. Although losing your job and security can be devastating, it is imperative that you stay calm and don't sign any severance agreement without consulting our experienced Severance Attorneys. For example, if you are laid off from Citigroup, you know that it has already set aside money related to severance pay. Our attorneys can help you figure out your strengths and any potential claims you may have to obtain the best possible severance package. Also keep in mind with massive layoffs that State and federal law require your employer to give advanced notice of being laid off. For example, under New York's Worker Adjustment and Retraining Notification Act ("WARN Act"), if a business has 50 or more full time employees and plans to lay off 33% of its workforce or 250 or more workers, it must give 90 days notice. These are just a few things to consider when you are laid off.

In this time of massive layoffs and restructuring in the financial industry, it is crucial to know your rights and options to protect yourself during any period of unemployment you might have to endure. If you have been recently laid off, call our Severance Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you figure out if you're former employer is giving you the best possible severance package you deserve. Our attorneys have negotiated better packages clients let go from many Fortune 500 companies.

Continue reading "Laid Off Employees: Don't Sign that Severance Agreement Without Consulting Your Attorney" »

The EEOC recently filed a lawsuit against the nation's largest turkey producer, Butterball, LLC, alleging that it violated the Americans with Disabilities Act ("ADA") by subjecting an employee to a hostile work environment because she was HIV-positive and then terminated her employment because of her disability. The EEOC is seeking monetary damages as well as injunctive relief on behalf of the fired employee, Tracy Montgomery. Our attorneys have helped many employees resolve their ADA claims with their employers. If you have been discriminated against or suffered from a hostile work environment because of a disability under the ADA, our attorneys can help you figure out your best options.

The EEOC's charged that Montgomery was subjected to harassment during her employment at Butterball in October and November of 2009. Three of her co-workers told her everyday that they did not want to touch her or work with her because of her being HIV-positive. The three employees also used derogatory names to describe her HIV status when talking about her. Although Montgomery complained about the harassment to her supervisor almost every day, the harassment continued. The EEOC charges also allege that Butterball's plant manager knew about the harassment against Montgomery. Although he had a meeting with Montgomery and one of her co-workers to discuss an altercation provoked by the co-worker, he fired Montgomery the next day.

The ADA prohibits private employers as well as state and local governments with 15 or more employers from discriminating against qualified individuals with disabilities with respect to hiring, firing, promotions, compensation, job training, and terms and conditions of employment. An individual with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having an impairment. The ADA also provides that if an individual has HIV or AIDS, he or she is considered to be disabled under the Act and is therefore protected under the ADA.

Lynette A. Barnes, the regional attorney for the The EEOC's Charlotte District, stated that "Harassment that targets a person with an ADA-covered disability, is just as much a violation of federal law as harassment based on a person's race, color, gender, age, religion, or national origin." She added that "HIV/AIDS has always been a sensitive health issue, and an employer has no excuse for failing to intervene when an employee complains of vicious harassment based on her HIV status."

President Obama has also directed federal agencies to implement the National HIV/AIDS Strategy, which includes addressing and preventing employment discrimination against people with HIV or AIDS.

The EEOC's complaint here clearly shows that the government will not hesitate to go after any employer who discriminates or subjects an employee to a hostile work environment because of his or her HIV or AIDS status. If an employee with a disability or a perceived disability complains about discrimination or harassment from a co-worker, investigate the complaint in a quick and efficient manner. Our attorneys have helped many businesses investigate and evaluate claims of discrimination under the ADA as well Title VII. Call our ADA Attorneys at Villanueva & Sanchala at (800) 893-9645 if any of your employees have charged your company with violating the ADA.

Continue reading "HIV/AIDS Discrimination and Workplace Harassment under the ADA" »

Bank of America ("BofA") recently announced that it started to layoff employees as part of its restructuring plan to eliminate 30,000 jobs "over the next few years." With the massive layoff, BofA hopes to save $5 billion per year. However, this means that you as well as many of your colleagues will need to find new employment. Not knowing how long that may take, it is crucial to leave your former employer with the best possible severance package to cushion yourself till you find your next job.

Bank of America is a multinational banking and financial services company and the second largest U.S. bank holding company by assets. It is headquartered in Charlotte, North Carolina and serves clients in over 150 countries. Along with Citigroup, JP Morgan Chase, and Wells Fargo, BofA is considered to be on the Big Four Banks in the country. With the European debt crisis and sluggish U.S. economy, many banks and financial companies are terminating thousands of employees to cut costs.

We have counseled many former banking and financial sector employees who have been laid off. As each situation is different, contact us to learn about your specific termination rights at your workplace. The following are some general tips to keep in mind when being laid off:

• Stay calm and don't say anything you might regret. Remember that you will probably need your old manager or supervisor for a reference when you start looking for another job. They might even be able to refer you to someone they know at another company looking for someone with your skills. In other words, don't burn your bridges when you get laid off.

• Your employer is not required to give you a severance package but the growing tendency today is to provide a separation package. Companies use this as a way to preemptively avoid any risk of employees suing for wrongful termination, discrimination, or sexual harassment. Make sure you are not signing away any claims you might have against the company based on age, gender, race, sexual orientation, or retaliation. For example, out of the 500 highest earning people who were laid off, were they also all the older employees? Every situation is different and will depend on the facts. Consult with an attorney to make sure you are not signing away rights and that you are getting the best possible severance package. Our Attorneys have helped many laid off employees use their potential claims as leverage to negotiate a better severance package.

• With rising health care costs, extended health insurance is a very important issue that could cost you thousands. If your former employer has more than 20 employees and offers your health insurance, except in very limited circumstances, it must offer you the opportunity to continue health insurance coverage at your expense for 18 months. This may still be cheaper than you finding an individual policy so make sure you ask for it.

• If you are offered a severance package, be wary of any non-compete or non-disclosure clauses. You don't want to limit your ability to get another job. Our attorneys can help you determine the enforceability and fairness of any such clauses.

These are just a few considerations to keep in mind if you are laid off. Our attorneys have helped hundreds of terminated employees know their rights and obtain the best possible separation packages. If you have recently been laid off, call our Severance Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you make sure you are aware of all your legal options.

Continue reading "Severance Pay Issues for 30,000 employees laid off by Bank of America" »

Westchester County Speeding Ticket Lawyer To Deliver Lecture

We are pleased to announce that Joseph Villanueva, one of New York' preeminent traffic ticket attorneys, will be sharing his years of knowledge in two lectures in Nassau Bahamas on February 20th at 3:00 pm and February 21st at 3:00 pm at the Lagoon Court Center. Turn out for the lecture is expected to be at maximum capacity so anyone planning on attending must register in advance by February 17. If you are accepted into the program, you will receive a confirmation email. If you want to attend, please send us an email in the "contact us" box on this page. Walk-ins will not be accepted.

Background:

Mr. Villanueva is the lead trial attorney at Villanueva & Sanchala, PLLC. He has been trying cases as soon as he graduated law school. He spent his first three years working for New York City prosecuting criminal matters and civil cases. After leaving his employment with the City, he joined a Fortune 500 Company as a Senior Trial Attorney. He has handled cases ranging from major felonies to divorce and traffic matters.

Mr. Villanueva is a highly regarded attorney with his main office in Scarsdale New York. He has been recognized by avvo.com as 10.0/10.0. He has been named one of the Top Lawyers in New York and one of the Best and Brightest in the entire Northeast. He can be found on Facebook at his Yonkers City Court Traffic Defense.

The Lecture: My Common Sense Approach To Traffic Cases

1. Traffic Courts: Traffic Violations Bureau (TVB) vs. Local Courts in Villages and Towns
2. Burdens of Proof: When Does Proof Beyond A Reasonable Doubt Apply
3. Supporting Depositions: Am I Entitled To One?
4. Court: What Should I Expect
5. Plea Bargaining
6. Spotlight on VTL 1180
7. Miscellaneous Laws: Move Over Act & Texting While Driving
8. The Trial

Opening Statements
Fundamentals of Cross Examination
Direct Examination
Basic Understanding of Radar
Summation

Because this lecture will specifically examine cases in New York State, it is not recommended that non-residents attend. However, if you are a non-resident, you will be welcome to attend.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

A: Our New York Employment Lawyers have represented many small business owners, individuals and homeowners (in cases involving nannys and household workers) and argued their best defenses before the Board in appeal and inquiries. We have saved our clients over one million dollars in penalties and fines. In doing so, our attorneys have assisted clients avoid bankruptcy, saved their life savings and protected their other assets. We can help you. Call our office to learn what we can do in your case. The worst step you can make is to ignore the notice as the penalties can increase significantly. Generally, employers are required to carry insurance for instances when an employee gets injured in the workplace. If an employer is not exempt and is found to have violated the statute, below are some of the potential consequences it could face:

1. Criminal: Under Section 52(1)(a) of the WC law, employers with five or more employees who violate the law are subject to a class E felony with monetary fine of no less than $5,000.00 and no more than $50,000.00. Companies with five or less workers are subject to a misdemeanor punishable by a monetary fine of no more than $5,000.00. Further, repeat offenders within the past five years, are subject to class D felony. These cases may be referred to the Attorney General's office and local district attorney for prosecution. This is a serious matter.

2. Civil and Criminal - Misrepresentation: A company is required to keep accurate records of the number of employees, classification, wages and accidents for its business for the prior 4 years (WCL §131). If an employer does not keep proper records or tampers with their integrity by concealing data or understating data it may be subject to significant monetary fines. In addition, under Sec. 52(1)(d), there are potential criminal consequences for misrepresenting payroll and employment records. Some examples of violations include misclassifying works as "independent contractors" and not employees, and misstating the business' industry to avoid paying higher premiums (i.e., calling construction workers as administrative staff). This is an area of scrutiny.

3. Civil Money Damages: Under Sec. 52(5), non-compliant employers face penalties of $2,000 dollars for each ten day period of non-compliance, which shall be paid into the uninsured employers' fund. This penalty can be over $100,000.00 especially if the period of non-compliance is extended over years. Ignoring a notice from the Board is worst thing that you can do. The penalties can increase and converted later to a judgment when the Board can take enforcement steps to collect. For corporations, the president, secretary and treasurer can also be liable for the penalties.

If an employer does not contact the Board, the penalty may be converted into a judgment at a later point. Thereafter, the Board could seize your bank accounts and place a lien on your real property. For example, one client could not sell his house in Nassau County because a lien was placed on it. We acted quickly and were successful in removing the lien and saved our client's real estate deal. It would have been a disaster if he lost his buyer and could not sell his home. If you received a notice, it is very important to take this matter seriously. Contact one of our skilled lawyers at (800) 893-9645 and learn how to protect yourself and your assets.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.