New Proposal from DOJ Seeks to Reduce Employment Discrimination against Immigrants

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.

OSHA Post-Injury and Illness Drug Testing and Record-Keeping Rule

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.

 

Cancer in the Workplace

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 sms@stevensack.com for a consultation.

DOL Allows Two Former Uber Drivers to Collect Unemployment Benefits

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.

Pregnancy Discrimination in the Workplace

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.

Discount Store Employee Says Boss’ Violent Temper Caused Her to Suffer from PTSD

A discount store employee from Virginia is seeking $1 million in damages, claiming that she began to suffer from post-traumatic stress disorder (PTSD) after her male boss flew into a rage and began to verbally and physically assault her, according to Courthouse News Service.

On March 4, 2016, Patricia Morgan, an employee at Roses discount store in Chesapeake City, Virginia, was called by her general manager, John Brophy, to fix a computer problem caused by the office manager. Ms. Morgan told Mr. Brophy that she did not know how to fix it so she had to call over a co-worker. Mr. Brophy allegedly began to verbally abuse her, adding that, after he speaks to the corporate office about this, “there will be hell to pay.”

After the computer problem was fixed, according to Ms. Morgan, Mr. Brophy continued his profanity-laced tirade towards her. Fearing for her safety, she positioned herself between a stairwell and a hand truck loaded with boxes. Mr. Brophy continued to curse and yell at Ms. Morgan and started to push the boxes and hand truck onto her, pinning her legs and abdomen against the staircase.

Despite her pleas to stop, Mr. Brophy allegedly continued to push the boxes against her. Ms. Morgan says she told him, “What are you doing? You’re hurting me!” In response, he punched into the boxes. During the incident, she says a co-worker saw this occur but did not attempt to stop what Mr. Brophy was doing. According to Ms. Morgan, the assault ended only after Mr. Brophy’s arms got stuck in the boxes.

On May 26, 2016, Ms. Morgan filed a complaint, stating that, after the incident, she went into the store’s restroom to compose herself, then became physically ill. She waited until he left the store to go home. The complaint also states that Mr. Brophy came up to Ms. Morgan the next day to apologize, only to fly into a rage again. This time, the incident was caught on the store’s surveillance cameras.

As a result of the incident, according to the complaint, Ms. Morgan has experienced severe panic attacks and headaches, loss of appetite and stopped visiting friends and colleagues. She has also been diagnosed with acute PTSD.

An incident such as this constitutes workplace bullying. The first sign of workplace bullying is that one employee is being verbally and/or physically abused by their supervisor while that person’s co-workers are not subjected to the same treatment.

Those who are bullied should know it is not their fault and did nothing to bring it upon themselves. If they are constantly victimized at work and all their options to resolve this problem have been exhausted, they should immediately consult a lawyer. 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.

Fired African-American Car Salesman’s Lawsuit Can Proceed

An African-American who claims he was subjected to racial discrimination and a hostile work environment — only to be fired — has been allowed by a U.S. District Court to pursue a lawsuit against his former manager and the dealership where he worked.

John Pendleton, who worked as a salesman at Bob Frensley Chrysler-Jeep-Dodge-Ram Inc. in Nashville, Tennessee from February 26, 2014 to April 26, 2014, claimed his manager, Thomas Mowell, made “racially inappropriate comments every day,” according to an article from Automotive News. Mr. Pendleton said “it was sickening just having to work there” and to “be around” Mr. Mowell. Mr. Pendleton’s lawsuit also alleges that he complained to Mr. Mowell and another manager about the treatment he received, but neither manager resolved the issue, nor did they report the complaint to the dealership’s owner.

Mr. Pendleton claims he was fired when we got into an argument with two white salesmen who he accused of taking a possible sale from him. During the argument, one of the salesmen allegedly punched Mr. Pendleton. Those two salesmen were neither fired nor suspended, but the one who assaulted Mr. Pendleton received only an “employee warning.” It was later learned that one of the white salesmen was also involved in an incident involving another African-American employee, who, like Mr. Pendleton, was terminated after the incident, but the white salesman faced no such disciplinary action.

Mr. Mowell, who was fired in December 2014, and the dealership claim the allegations are false and that Mr. Pendleton was “administratively discharged” for failing to return to work after the incident.

The Court ruled that there was enough evidence of racial discrimination, a hostile work environment and retaliation for the lawsuit to proceed and allowed Mr. Pendleton to seek punitive damages. The trial is scheduled to begin on September 12.

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.

 

Fox News Host Files Sexual Harassment Suit Against Television Executive

Fox News Channel host Gretchen Carlson recently filed a sexual harassment and wrongful termination lawsuit against the network’s chairman and CEO, Roger Ailes, after she refused his alleged sexual advances towards her. On July 6, Ms. Carlson filed a complaint against Mr. Ailes with the Superior Court of New Jersey in Bergen County, stating that, after she refused Mr. Ailes’ sexual advances towards her and complained about his behavior, he unlawfully retaliated against her. Ms. Carlson was terminated from her position as the host of the network’s afternoon program The Real Story with Gretchen Carlson on June 23. Prior to this role, Ms. Carlson was the co-host of Fox and Friends until 2013.

According to Ms. Carlson, Mr. Ailes had consistently made sexual and/or sexist remarks towards her, and made “sexual advances by various means,” including an instance that occurred last September in which he allegedly stated that he and Ms. Carlson “should have had a sexual relationship a long time ago” and implied that her problems would be “easier to solve” if she did. After she refused his sexual advances, Ms. Carlson stated that Mr. Ailes retaliated against her by denying her career opportunities, cutting her wages, ostracizing and shunning her publicly and privately, and “decreed that her contract not be renewed.”

Under federal law, harassment is defined as the unwanted conduct based on gender (including pregnancy), ethnicity, race, age, disability or genetic information. According to the Equal Employment Opportunity Commission (EEOC), one-third of the 90,000 charges the EEOC receives each year includes an allegation of workplace harassment. An employer may be held liable for harassment by a workplace supervisor that results in an employee’s termination, inability to hire or promote and/or the loss of wages and, therefore, may result in a hostile work environment.

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.

U.S. Supreme Court Allows Seattle’s Minimum Wage Law to Stand

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.

New York Times Top Executives Face Lawsuit For Racial, Age and Sexual Discrimination towards Employees

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.