Law360 recently reported that The Department of Justice is proposing a new rule that would implement changes to the Immigration and Nationality Act, including how certain terms would be defined in regards to the so-called “unfair, immigration-related employment practices” based on the employee’s immigration status or nation of origin.
The rule places unfair, immigration-related employment practices into three categories: “(1) discrimination with respect to hiring, recruiting or referring for a fee, or discharging an individual; (2) intimidation or retaliation; and (3) unfair documentary practices.”
Under the proposed rule, the definition of “hiring” and “recruiting or referring for a fee would be expanded to include the employer’s conduct during the interview, recruitment and referral fee collection process — not just during the hiring process — and how it can be construed as an unfair immigration-related practice. The term “unfair documentary changes” would replace “documentation abuses” and the scope of the term would benefit the immigrant employee, in that they would not have to prove injury if they were asked by the employer to produce more documentation than was necessary in order to be hired.
In addition, the rule would allow the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices to change its name to the Immigrant and Employee Rights Section. The OSC is responsible for investigation of these workplace discrimination matters.
If you believe you have faced discrimination or harassment by your employer or have been wrongfully terminated because of your immigration status or country of origin, contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.
As of December 1, The Occupational Safety and Health Administration (OSHA) will begin enforcing the injury and illness record-keeping rule. Under the record-keeping rule, companies with more than 250 employees in covered industries will be required to submit annual injury and illness forms electronically.
The 300, 300A, and 301 forms will be filed electronically, and the reports will be made public on the internet. Labor organizations and tort lawyers will be among those interested in viewing the reports.
According to OSHA, “employers must establish a procedure that is reasonable for employees to report work-related illness and injury timely and accurately.” A reasonable procedure is one that does not deter or discourage an employee from reporting the workplace injury.
According to Material Handling & Logistics, OSHA has appeared to ban post-accident drug testing. The reasoning is that post-accident drug testing may be used to intimidate employees into not filing a report.
According to OSHA, it will not issue a citation if the drug testing is mandated by state or federal law, or is required by state workers’ compensation laws. Also, employees who report work-related illness or injuries are not prohibited from being drug tested as long as the employer has an “objectively reasonable basis for testing.” This rule does not apply to aspects other than injury reporting.
According to OSHA, “post-incident drug testing should be limited to situations in which drug use by the employee was likely a contributing factor in the incident and taking a drug test would confirm impairment.”
Some of the factors that OSHA will consider in determining if a post-incident drug test was acceptable is whether the employer has a reasonable basis to conclude that the drug use contributed to the employee’s illness or injury, whether the other employees involved in the incident were tested, and whether the employer tested only the person reporting the injury.
To find out more information on how to establish a post-injury drug testing program that will comply with OSHA’s standards or if you believe you have been wrongfully drug tested by your employer contact, an experienced New York employment law attorney. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.
According to the National Cancer Center Institute (NCCI), this year, there will be an estimated 1,685,210 new cases of cancer diagnosed in the United States. The NCCI reported the number of new cancer cases for women and men per year is 454.8 per 100,000 people. Also, some of the most common cancers in 2016 are expected to be prostate cancer, kidney cancer, breast cancer, lung cancer, bronchus cancer, rectum cancer, colon cancer, skin melanoma, endometrial cancer, thyroid cancer, and leukemia.
The American’s with Disabilities Act (ADA) as amended in 2008 by the American’s with Disabilities Amendments Act (ADAAA), prohibits discrimination against individuals with a qualified disability. The ADA applies to employers with 15 or more employees. Federal employees are not covered under the ADA. However, they are afforded the same protections, which is enforced by the Office of Federal Operations of the Equal Employment Opportunities Commission (EEOC).
An individual who has cancer or had cancer that is in remission is covered by the ADA as amended in 2008. The ADA requires that an employer provides reasonable accommodations for the employee with a disability to enjoy equal employment opportunities unless it would cause significant expense or difficulty. Most employees with cancer do not require accommodations that are costly or create undue hardship for the employer. Most employees being treated for cancer need accommodations due to the nature of cancer itself as well as side effects from the treatment and medications.
The employee or a health care professional, friend, family member, friend, agent or another representative may request the reasonable accommodation from the employer on behalf of the employee. Examples of reasonable accommodations include, but are not limited to, breaks to take medication or rest, authorization to work from home, leave for doctors appointments, and to restructure the position. Also, an employee may require more than one reasonable accommodation at a time.
The New York Human Rights Law (NYHRL) provides, “It shall be an unlawful discriminatory practice for an employer…to refuse to provide reasonable accommodations to the known disabilities of an employee.” (Executive Law 296(3). The NYHRL applies to employers with 4 or more employees. In 2015, a Roslyn woman was fired from her job shortly after she needed time off for the third round of chemotherapy. Her employer, a prominent Neurological Surgery CEO in Rockville Centre, ridiculed her for having cancer and blamed her for rising health care premiums. After months of being mocked the woman filed a lawsuit in Brooklyn Federal Court. The status of this case is currently pending.
If you or someone close to you has been faced with discrimination due to cancer or another known disability and are not receiving proper accommodations from an employer, contact an experienced New York employment lawyer, who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at firstname.lastname@example.org for a consultation.
The New York State Department of Labor has ruled that two drivers who used to work for Uber were considered employees and, therefore, eligible to receive unemployment insurance benefits, as reported by Crain’s New York Business. This decision is considered to be the first of its kind regarding for-hire drivers in New York State.
The two drivers — Jakir Hossain and Levon Aleksanian — filed unemployment claims with the DOL, but received no response. In July, the Taxi Workers Alliance filed a lawsuit against the DOL, requesting that the agency review Mr. Hossain and Mr. Aleksanian’s claims. On October 12, 2016, the agency ruled in favor of the two drivers.
Ride-sharing companies such as Uber and Lyft claim that their drivers are considered independent contractors, not employees, since they can set their own hours. This means that the companies do not have to pay their drivers the minimum wage, nor do they need to offer them benefits like unemployment insurance.
The Taxi Workers Alliance hailed the decision and said this will mean Uber and Lyft will have to reclassify its drivers as employees. In the meantime, the labor group has called on the DOL to audit the two companies to see if their current and former drivers were or are considered to be employees. Many former drivers, according to the Alliance, have also filed for unemployment benefits, but their claims have been denied without being reviewed.
Uber announced it will appeal the decision. The company claimed that, by reclassifying its drivers as employees, costs will rise, and drivers would have to work set shifts for a set number of hours and not be able to use other ride-sharing apps to earn extra money.
If you have been misclassified as an independent contractor, you may have been cheated out of wages and other employee benefits. Contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.
Since their integration into the workplace, women have become an important part of today’s labor force. In recent years, working women have made strides to become a critical part of the labor force while simultaneously raising and supporting their families. According to Pew Research Center, mothers serve as the sole or primary provider in 40 percent of households with children. Despite this progress, women have faced a variety of obstacles in the workplace, including one of the most prominent issues: pregnancy discrimination.
A recent survey of 500 managers revealed that 40 percent of them would rather hire a man aged 20 to 30 than a woman of the same age for fear that they would have to grant her maternity leave if she were to become pregnant. A similar number of managers surveyed stated that they would be wary of hiring a woman who has already had a child or hiring a mother for a senior role. As many as 44 percent of the managers stated that the financial cost of maternity leave for employees poses a significant burden on the business.
Pregnancy discrimination extends beyond the pre-hiring stages, as many women who become pregnant while working face negative or discriminatory behavior from their employers. A report from the Women and Equalities Select Committee estimates that 53,000 women each year are being discouraged from attending antenatal appointments by their employers, despite the fact that permanent employees are granted the right to time off for crucial check-ups.
Under the Pregnancy Discrimination Act (PDA), it is illegal to treat someone unfairly, whether an applicant or employee, due to pregnancy, childbirth, or a related medical condition. The law forbids pregnancy discrimination in all aspects of employment, including hiring, training, pay, job assignments, layoffs, firing, or benefits, among other terms or conditions of employment. Women employees may also be protected under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor.
If you or a loved one has faced pregnancy discrimination in the workplace, contact an experienced New York employment lawyer. For the past three decades, “The Employee’s Lawyer” Steven Sack has successfully represented clients in employment discrimination cases, including a pregnancy discrimination case that resulted in obtaining a $6.2 million jury verdict on behalf of his clients. To schedule a consultation, call (917) 317-8000.
The U.S. Supreme Court recently struck down a challenge by business groups in the Seattle area to the city’s law that will raise the minimum wage to $15 an hour. This also affirms a lower court ruling, which also supported the law.
The law went into effect on April 2015, requiring businesses with more than 500 employees nationwide to raise their minimum wage to $15 an hour by 2018. Smaller businesses with 500 workers or less have three more years than their larger-business counterparts to do so. Seattle was the first city to implement the $15 minimum wage, thanks to the backing of Working Washington, a coalition of labor and nonprofit groups.
The International Franchise Association filed a lawsuit in 2014 to “level the playing field” for the 600 franchise businesses that employ 19,000 people in the city, but, on March 2015, a federal judge in Seattle ruled in favor of the city. The case went to the 9th Circuit Court of Appeals, which affirmed the judge’s decision. The business group brought the case to the U.S. Supreme Court. On May 2, 2016, the highest court sided with the city.
The decision means that cities and states with similar minimum wage laws must treat the franchises as offshoots of its parent companies instead of independent small businesses. The International Franchise Association argued that the city should have not excluded local franchises of companies such as Burger King and McDonald’s from the small business aspect of the law.
Since the law passed, other cities such as San Francisco and states such as New York and California have passed similar legislation. In New York State, the current minimum wage is $9 an hour. Under the new law, it will increase statewide to $10.75 by the end of this year. It will increase by $1 a year for the next three years, reaching $13.75 by 2019. By 2020, it will be $14.50 and will reach $15 by 2021. For New York City, it will be different: the minimum wage will be $12 by the end of 2016 and will increase to $13.50 next year and $15 the year after that.
The Federal Fair Labor Standards Act requires that your employer pay you at least the minimum wage in addition to overtime. If you believe that you have not been compensated fairly as an employee, contact an experienced New York Employment Attorney attorney who will fight for your right to a fair wage. Contact Steven Mitchell Sack at (917) 371-8000.
The top executives at The New York Times have come under a multimillion-dollar class action lawsuit for creating “a culture of discrimination” at the company based on age, gender and race. The lawsuit was filed on behalf of two African-American female employees in their 60s who worked in the paper’s advertising department. The two women alleged that they were paid less than younger, white employees and were overlooked for promotions within the Times.
On April 28 the complaint was filed in the U.S. District Court in Manhattan against the newspaper, President, Chief Executive Officer Mark Thompson and Executive Vice President, Chief Revenue Officer Meredith Levien. According to the suit, The Times’ older advertising directors of mixed races and color were pushed out through buyouts or terminated and their positions were quickly filled with younger, Caucasian hires.
The plaintiffs — 62-year-old Ernestine Grant and 61-year-old Marjorie Walker — claimed that, since Thompson came on as chief executive, the company has “gotten considerably younger and whiter.” They have also alleged that the paper pays its “younger white individuals” more than its minority counterparts. They argued that its “younger white” employees were permitted to leave the office early on Fridays during the summer, while they were not.
The suit also brought to light Mr. Thompson’s past discriminatory practices during his employment as director-general at The British Broadcasting Corporation (BBC). Mr. Thompson had been caught in a series of highly damaging situations involving the age and gender of newscaster Moira Stuart, former Strictly Come Dancing judge Arlene Phillip and Countryfile presenter Miriam O’Reilly. Ms. O’Reilly brought an age discrimination employment tribunal against Mr. Thompson, and won in 2011.
Mr. Thompson is not the only one who has come under the media scope for sexist and ageist remarks towards employees. Ms. Levien has allegedly made it clear in speeches to her staff that her ideal workforce was to include “fresh faces” populated by “people who look like the people we are selling to.” It has been claimed that Ms. Levien has made racially charged innuendos to the advertising staff that comprised primarily of older, African-American females.
If you have concerns regarding employment law issues, contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.