The “Snowflake Test”: Is It Legal?

While it is not uncommon for employers to give assessment tests to potential job candidates, one U.S. company has caught the eye of the media for its unusual vetting tool. Kyle Reyes, Chief Executive Officer of The Silent Partner Marketing, a public relations firm located in Hilliard Mills, Connecticut, created the controversial “snowflake test” as a means of weeding out candidates who don’t fit the company’s culture – specifically, “overly sensitive, liberal candidates that are too easily offended.” However, despite the significant publicity and, in some cases, praise, others have fiercely criticized the assessment and called into question the ethics and legality of it.

According to Mr. Reyes, a “snowflake” is an individual who “is going to whine and complain” and will not bring anything to the table except “an entitled attitude and an inability to back their perspective.” The 30-question snowflake test includes questions such as:

  • What should the minimum wage be?
  • How often should employees get raises?
  • How do you feel about guns?
  • What are your feelings about employees or clients carrying guns?
  • How do you feel about the police?
  • What are your feelings about “safe spaces” in a challenging work environment?
  • What does faith mean to you?
  • You see someone stepping on an American flag. What do you do?

According to Mr. Reyes, the “snowflake test” reveals the types of job candidates the company is seeking: conservative, pro-American, pro-Second Amendment applicants. The company has been able to use the “snowflake test” to eliminate 60 percent of interviewees. Anyone who is not pro-American or pro-Second Amendment is automatically disqualified from the position, according to Mr. Reyes. The CEO’s efforts have been praised by conservative media outlets such as Fox Business and he claims that other businesses have reached out to him with questions on how to implement similar vetting tests in their own hiring process.

However, the “snowflake test” has faced significant criticism and some have questioned the test on an ethical and legal level. Under the laws enforced by the U.S. Equal Employment Opportunity Commission, pre-employment tests are permitted as long as they are not designed, intended or used to discriminate against an applicant based on their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age, disability and genetic information.

A legal issue may arise if the “snowflake test” causes disparate impact, disproportionately excluding people based on a protected category, where the test is not “job-related or consistent with business necessity.” Is the “snowflake test” job-related or consistent with business necessity? According to Mr. Reyes, it is. His reasoning as to why there are multiple questions about firearms on the test is that the company frequently works with police and first responders and does a lot of work filming with guns, according to Ragan.com.

If the “snowflake test” is job-related or consistent with business necessity, can someone who is challenging the selection process show that there is a less discriminatory alternative available? Criteria Corp, a web-based HR technology and pre-employment testing company, states that the “snowflake test” lacks the scientific data to back up its validity to predict performance on the job. What about those who argue that the “snowflake test” is unlawfully biased based on political affiliation? Although states may also offer additional protections against employment-related discrimination, including political affiliation, only the District of Columbia, Mississippi, Puerto Rico, Virgin Islands, and Wisconsin protect political affiliation.

When it comes to pre-employment assessments, they can be used as an effective means of finding the best candidate for the job if they abide by the letter of the law. Unfortunately, this is not always the case and, every year, many job applicants are subjected to discrimination during the pre-hiring process. For the last three decades, Steven Mitchell Sack, “The Employee’s Lawyer,” has represented individuals in unfair employee discrimination cases, including matters that relate to the pre-hiring process. If you have been a victim of employment discrimination, contact our New York employment discrimination law office at 917-317-8000 for more information or to schedule a consultation.

Another Court Settlement in Unpaid Intern Case

Recently, American fashion designers and former child actresses Mary-Kate and Ashley Olsen have moved to settle a lawsuit brought by a former intern. In September 2015, Shahista Lalani filed suit against the the sisters, known collectively as the Olsen twins, in New York Supreme Court, alleging that she worked 50-hour weeks without pay or college credit. Ms. Lalani filed a “proposed class action to join other unpaid interns” who had worked for the Olsen twins. She requested the court grant damages, minimum wage, and overtime. In 2012, Ms. Lalani worked for the clothing line “The Row,” a high-end fashion line owned by the Olsen twins.

Ms. Lalani claimed that the interns performed the same tasks as full-time employees, which included cleaning, photocopying, sewing, and carrying “50 pound boxes in 100 degree weather.” Ms. Lalani claimed that she was hospitalized for dehydration as a result of performing her job duties. According to New York Labor Law, misclassifying entry level employees as minimum wage-exempt interns is a violation. Ms. Lalani alleged the company had done just that.  According to Ms. Lalani, the company failed to administer work to the interns that provided academic benefit and enhanced their skill set. Both New York State and federal employment law requires that interns be provided with work that has academic benefit.

According to recent court filings, the Olsen twins agreed to settle the case and pay $140,000 to a class of 185 interns. Each intern will receive approximately $530 each and the remaining payout will go to their lawyers if the settlement is approved by the New York Supreme Court. The settlement includes interns who worked at the company since 2009.

Recently, it has become common for interns to file lawsuits against companies for unpaid work. In 2014, two former Condé Nast interns filed suit against the company for unpaid wages.  The company settled the class-action lawsuit by agreeing to pay $5.8 million. In 2012, a Harper’s Bazaar intern filed a class-action lawsuit against the magazine. Within the past couple years, interns have filed cases against major brand-name fashion companies including Burberry, Marc Jacobs, and Oscar de la Renta, among others.

Today, many view internships as steppingstones into the workforce and with the lack of job openings on the market, internships have become more prevalent. In recent years, both federal and state regulators have taken substantial efforts to crack down on employers who fail to compensate their interns properly. If an employer hires someone as an unpaid intern and fails to meet the federal legal criteria for the position he or she may be in violation of federal and state employment laws. If you are an unpaid intern and believe you are owed wages, contact an experienced New York employment attorney who will work to ensure that your legal rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

Discrimination Lawsuit Filed Against Fiat Chrysler Automobiles

On January 11, 2017, a proposed class action discrimination lawsuit was filed against Fiat Chrysler Automobiles (FCA) in Detroit, Michigan by the company’s former diversity manager Marlin G. Williams. In her discrimination suit, Ms. Williams alleges that FCA’s employee evaluation process impedes the success of African-American employees at a disproportionate rate. This lawsuit has the potential to affect many African-American managers who are subject to an evaluation process. Class-action status is the designation that can be approved by a federal judge if a plaintiff can prove numerous employees were also harmed in the same manner.

Ms. Williams was promoted to diversity manager in 2015 after working as a talent management consultant for FCA. Ms. Williams’ job function included tracking salary data and trends, as well as spotting disparities. As a diversity manager, Ms. Williams helped improve the representation of minorities, as well as tolerance and inclusion.

According to Ms. Williams’ complaint, in her role as diversity manager she observed that salaried, nonunion African-American employees who were subject to the company’s two-step evaluation process were rated with disproportionately lower scores compared to the non-African-American employees. Through analyzation of the data, Ms. Williams discovered that Caucasian managers were receiving higher compensation and bonuses and more opportunities for promotions.

The employee evaluation process at FCA is a two-step process. An employee is first evaluated by their direct supervisor and then is evaluated by a group of high-level managers. The majority of these managers were Caucasian, according to the complaint.

Ms. Williams reported that FCA’s employee evaluation process had resulted in a disparate impact on salaried, nonunion African-American managers for at least the years 2014 and 2015. The lower scores resulted in less compensation, benefits, promotions, and opportunities for advancement compared to the Caucasian managers.

According to the lawsuit, even if the African-American managers receive excellent reviews from their immediate supervisors, the group of high-level Caucasian managers has the final say over the outcome of the evaluations. Ms. Williams states that despite the company having hundreds of directors, there are only two African-American female directors and approximately only five to seven African-American male directors.

Allegedly, after Ms. Williams reported that the employee evaluation process has negatively impacted African-American employees, she was retaliated against by her FCA colleagues and upper management. She was allegedly accused of not performing her work responsibilities as directed and was placed under investigation for reporting discriminatory acts towards African-Americans. Ms. Williams claims that she was shunned and ostracized by the other employees.

According to the complaint, after feeling surmounting pressure and fear that she was going to lose her job, Ms. Williams gave her two weeks notice on January 2, however her employment was terminated the next day.

Ms. Williams is seeking class-action certification for this matter on behalf of all salaried, nonunion African-American employees who are in a senior management position or below that were subject to a employee evaluation process, and received medium to low job ratings as a result for the years 2014 and 2015. According to Ms. Williams’ attorney, 15 people are ready to join the class-action lawsuit and it is estimated that 800 – 1,000 African American managers may also be eligible to join the suit.

FCA released a statement denying Ms. Williams’ allegations, claiming they lack merit and that the company does not tolerate any form of discrimination or harassment in the workplace. This case is currently pending.

If you believe you have faced racial discrimination or harassment by your employer or have been wrongfully terminated, 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.

 

Whistleblower Lawsuit Filed Against Mead Johnson Nutrition

Employers can face serious legal consequences when they retaliate against whistleblowers. A whistleblower is an employee who voices a complaint about a company’s misconduct, such as filing complaints about safety and health code violations, shareholder fraud, mismanagement of fiances or other illegal activity. Additionally, employees who make initial complaints, those that follow up on those concerns or give information to investigators are also considered whistleblowers. Whistleblowers are protected against retaliation by their employers and companies under both federal and state laws.

Recently, Mead Johnson Nutrition, the Glenview-based manufacturer of pediatric food brands such as Enfamil, has come under a whistleblower lawsuit filed by the company’s former compliance director after she allegedly voiced her concerns about defective product packaging that could have led to spoilage.

Linda O’Risky, a former 25-year employee of Mead Johnson, claimed that she was fired after raising concerns about defects in the packaging of the Enfamil ready-to-use baby formula. Ms. O’Risky filed a lawsuit in U.S. District Court in Chicago against Mead Johnson Nutrition for retaliation which violates the Food Safety Modernization Act, Sarbanes-Oxley Act and the Dodd-Frank Wall Street and Consumer Protection Act.

The lawsuit alleges that seals on the ready-to-use baby formula product are prone to leaking, which makes it easier for microorganisms and contaminants to enter the package. In March 2015, Ms. O’Risky discovered the defective seals after being copied on an e-mail regarding the rejection of almost a million units of 8-ounce ready-to-use formula. Allegedly, Ms. O’Risky knew that there was an increased rate of complaints about the ready-to-use baby formula from her role of  analyzing consumer complaints.

Ms. O’Risky alleges that, after she spent seven months trying to persuade upper management to comply with the Food and Drug Administration regulations, she contacted the company’s “integrity concern hotline” where she filed an internal complaint. According to Ms. O’Risky, upper level management “hoped the defective product would make its way through the marketplace without any major incidents of harm to consumers and without having to fulfill its legal obligation to report the problem.”

Mead Johnson denied the allegations in the complaint. The company maintains that it holds an open and respectful environment for its workers and did not retaliate against Ms. O’Risky. The case is still pending.

Unfortunately, in some instances whistleblower employees are reprimanded for doing what’s right. Whistleblower employees who are discriminated against, demoted or terminated for speaking out may have grounds to file a wrongful termination lawsuit. Steven Mitchell Sack, the Employee’s Lawyer, will investigate your claim, advise you on your legal options, and fight vigorously for your rights. For more information or to schedule a consultation, call (917) 371-8000 or fill out our contact form.

Proposed Bill To Go After Out-Of-State Companies For Owed Wages

Governor Cuomo will propose new legislation to tackle the issue of wage theft in New York. The legislation will ensure that employers cannot hide from paying hard working employees for the time they spend “on the clock.”  Currently under the law, New York State is able to hold top officials from in-state Limited Liability Companies (LLCs), as well as those from corporations within and outside New York personally liable for unpaid wages to their employees.

According to the Daily News, the proposed legislation will hold the top 10 officials of out of state LLCs, personally responsible for unpaid employee wages or judgments.  The New York State Department of Labor (DOL) commissioner will be given the power to enforce this legislation.

According to Governor Cuomo, the goal behind the legislation is to be able to recover earnings for employees whose employers cheated them out of paid wages when the company went bankrupt.  Many LLCs will create out of state spinoff companies to hide their money or do so in different ways while the bankruptcy process is taking place.  Governor Cuomo stated, “New York will ensure a fair day’s pay for a fair day’s work.”

In 2015, a task force was created in New York to assist workers in recovering unpaid wages.  The task force consisted of the DOL and 10 other state agencies.  New York State was able to recover $31.5 million in unpaid wages. The money that was recovered went to 28,000 workers.

The majority of unpaid wage cases involve those who are paid at a rate under the state mandated minimum wage or those in positions where they are not receiving overtime for the additional hours spent working on a job. According to the Daily News, there is widespread exploitation of workers in the nail salon industry, an employment sector which Governor Cuomo’s task force has worked to improve protections for through past initiatives.

Many cases involving wages owed to workers are those where employees were not properly reimbursed for certain expenses, such as travel. Other cases include pay that was deducted by an employer to cover the cost of business loses for expenses, such as customer thefts, traffic tickets, or automobile accidents.

Additionally, immigrants are frequently victims of wage thefts. Many immigrants tend to work irregular hours and are afraid to come forward because they are concerned that an employer may retaliate against them in some way.

If you are in a dispute over unpaid wages, contact an experienced New York employment attorney who will work to ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

Porn In The Workplace Is Grounds For Sexual Harassment

Every year thousands of employees download and view pornography in the workplace.  Pornography companies claim that as much as 60 million free porn sites are accessed from office buildings each day. According to a survey conducted by the Berman Group in 2014, as many as 63 percent of adult men and 36 percent of adult women have looked at pornography at least one time while at work in the past 3 months. In a 2003 study conducted by Business and Legal Reports, as many as two-thirds of human resources professionals have discovered pornography on employee computers.

Legal issues can arise from employees watching pornography in the workplace especially if other employees have voiced objections concerning the matter. Another employee may be prompted to file a sexual harassment lawsuit due to a hostile work environment if their initial concerns are not addressed.

A person who feels violated at work because of a fellow colleague’s porn habits may have cause to file a sexual harassment claim due to a hostile working environment. Pornography includes, but is not limited to, photos, magazines, social media, calendars and videos.

A person filing a sexual harassment lawsuit based on a hostile work environment must show that they suffered some negative consequence as a result of the harassment, such as the inability to perform effectively in the workplace. Some examples of sexual harassment cases in the workplace include a colleague viewing a pornographic video in plain sight, a superior forcing another to watch porn, a colleague posting pornographic photos in their office and a co-worker or superior E-mailing pornographic photos.

An individual should contact a New York employment law attorney for help on how to proceed with a sexual harassment claim in the workplace in the most effective way. Both men and women are victims of sexual harassment in the workplace on a daily basis, due to the lewd and offensive conduct of others.

Be sure to let the attorney know what the pornographic images involved, if you told the offender to stop, if you reported the offensive behavior to HR or a superior, how long the conduct took place, the last time it took place, and the effect it had on your personal or professional life.

If you have concerns regarding employment law issues, contact the 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.

New York State Eases Burden on Hiring Ex-Convicts

On December 21st the Cuomo Administration implemented a new regulation prohibiting insurance companies from refusing coverage for crime-related losses caused by employees. Effective January 1, 2017, the regulation allows businesses to obtain commercial crime coverage after sustaining losses in a situation involving an employee’s dishonesty.

Prior to the regulation, insurance companies would often deny commercial crime insurance to businesses that hired employees with criminal convictions. The denial was based on the belief that ex-convicts were a higher risk to commit dishonest acts resulting in the businesses losses, and therefore the insurance company should not provide coverage. The new regulation is the first of its kind across the country, and will make it easier for companies to hire ex-convicts.

Under New York State Correction Law § 752, discrimination in employment against people convicted of one or more criminal offenses is expressly prohibited. The law does allow for some exceptions in cases of professional licensure, or if the worker’s criminal activities bring in to question the employee’s ability to safely perform the duties or responsibilities of the job.

In hiring a person with a criminal history employers may reference a guidance document issued by the United States Equal Opportunity Commission laying out the proper use of arrest and conviction records when making hiring decisions. The guide explains a three-factor test, which has come to be known as the Green factor tests that employers must consider upon hiring an ex-convict. The Green factors advise employers to consider: (1) the nature or gravity of the offense or conduct, (2) the time elapsed since the conviction and/or completion of the sentence, and (3) the nature of the job sought or held. After considering the above three factors, if an employer decides to hire an employee, they cannot be refused commercial crime coverage in New York State.

Governor Cuomo believes that if businesses follow the factors in their hiring process, they can employ some of the approximately 2.3 million New Yorkers that have criminal records. Cuomo went on to explain that he hopes the regulation can “break down some of the artificial barriers that prevent previously incarcerated New Yorkers from obtaining work and turning their lives around.” The new regulation will finally protect business owners who choose to abide by the Correction law by removing the unwanted consequence of being uninsured for criminal acts by their employees.

If you believe you have faced discrimination or harassment by your employer or have been wrongfully terminated because of your criminal history, contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 email him at sms@StevenSack.com.

Chobani Offers Company Stock to Its Employees

Chobani, the yogurt manufacturer, recently told its 2,000 full-time employees at its plant in New Berlin, New York that they will each receive a share of company ownership up to 10% of the company’s value. Hamdi Ulukaya, the company’s owner, said he would be giving them shares when Chobani goes public or is sold.

Mr. Ulukaya said the goal is to pass along the wealth his workers have helped build since he formed the company in 2005. Chobani is considered to be worth several billion dollars. “Now they’ll be working to build the company even more and building their future at the same time,” he told The New York Times.

Each worker received a packet which containing information about how many Chobani shares they will receive. The number of shares received depends on the years of service; those who have been with the company since its inception will receive more shares. Two years ago, the company was valuated between $3 billion and $5 billion; this means that, at the lower end of the valuation, the employee payout would be $150,000. The longest-tenured employees, meanwhile, can see payouts at more than $1 million.

The shares are coming directly from Mr. Uluyaka and can be sold if the company goes public or is sold. If an employee leaves the company or decides to retire, they have the option to keep the shares or sell them back to the company.

It is important that, before entering into an agreement with a potential employer, you negotiate the best benefits and compensation you can receive. 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.

Possible Settlement in Unpaid Overtime Case

In November 2014, employees of Alice’s Tea Cup LLC, a Manhattan café chain alleged that during their employment, they were not paid overtime for days when they worked more than 10 hours. Alice’s Tea Cup has three locations in New York City.

The Fair Labor Standards ACT (FLSA) is federal legislation that allows individuals to be entitled to minimum wage.  In addition, a person is entitled to overtime pay that is not less than time and a half of their regular rate of pay for any work over 40 hours per week.

In May 2015, the owners of the Café, Zhariff Melgoza and Haley Fox filed discovery requests demanding that the workers produce documents to verify their current immigration status and other supporting documentation.

In July, Judge James Francis granted the plaintiffs protective order from the Café’s request for discovery.  He said that their immigration status or financial records were irrelevant to their and New York labor law claims (NYLL).  Also, the risk of injury to the plaintiffs outweighed the need for disclosure “because the danger of intimidation and undermining the purposes of the FLSA.”

This case was initially scheduled to go to trial on December 5th in New York federal court.  However, after months of negotiation and mediation over the unpaid overtime, attorneys for Alice’s Tea Cup and the employees suing, asked Judge Francis to approve a $200,000 settlement.  Both sides believe the deal is reasonable and fair.

According to Law360, the settlement provides that within eight days of the courts approval, the café will pay $75,000 to eight plaintiffs for various amounts.  Four of those plaintiffs will receive thirty-five monthly installments of the remaining $125,000 over the next three years.  Three of the plaintiffs instructed counsel to dismiss their claims with prejudice, which resolves claims that Alice’s Tea Cup did not pay proper overtime wages.

The FLSA requires that an employer pay overtime wages. If you believe that you have not been properly compensated as an employee, contact an experienced New York Employment Attorney. Contact Steven Mitchell Sack at (917) 371-8000.

Medical Exam Company Agrees to Stop Forcing its Employees from Entering into Restrictive Covenants

New York State Attorney General Eric Schneiderman recently announced that Examination Management Services, Inc. (EMSI), a medical information and examination services firm, has agreed not to require its non-management employees in the state to enter into restrictive covenants, also known as non-compete agreements. This was reported in Newsday.

EMSI, which is based in Irving, Texas and has two offices on Long Island, had required its workers to sign a non-compete clause prior to joining the company, even if they did not have access to proprietary information. Under the terms, if an employee decided to leave the company, that employee would have to wait nine months before they could work for a rival company that was less than 50 miles away from EMSI’s location. This applied to “non-senior” workers who traveled to private residences to draw blood, conduct physicals and collect bodily samples for lab testing.

On July 12, Margaret Beebe, who worked as a traveling phlebotomist with EMSI, filed a complaint with the attorney general’s office when she learned a possible job offer with a clinical laboratory that would have paid her more money and require no travel was rescinded because she was still under the terms of the restrictive covenant she had with EMSI. Under the settlement, New York employees at EMSI would no longer have to sign non-compete agreements; this does not apply to directors, officers or other high-level executives.

This is not the first time such a settlement has been reached. Financial Times recently reported that, in June, Mr. Schneiderman announced a settlement with Jimmy John’s in which the sandwich chain would no longer require its workers to sign non-compete clauses.

The FT article cites federal data showing that almost 20% of U.S. workers are bound by these agreements, some of them still having to abide by them after leaving their jobs. Fourteen percent of those earning less than $40,000 are held to restrictive covenants. Despite its growing unpopularity among employees, 47 of 50 states still permit restrictive covenants.

If you are asked to sign an employment contract that contains a restrictive covenant, please contact an experienced employment law attorney first. Call Steven Mitchell Sack at (917) 371-8000.