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This has left countless LGBT employees without adequate legal recourse, but the tide appears to be turning. The Equal Employment Opportunity Commission has taken the initiative to interpret Title VII to include the LGBT community.

On March 1, 2016, the EEOC filed two landmark federal cases,[1] [2] arguing in the private sector that Title VII protections extend to sexual orientation by virtue of one’s sex, a federally protected class. The argument advanced by the EEOC, in essence, is two-fold.

First, borrowing from an EEOC opinion issued in July of 2015, the EEOC more specifically contends that “[s]exual orientation as a concept cannot be defined or understood without reference to sex…[a] man is referred to as gay if he is physically and/or emotionally attracted to other men.” [3] At its core, this argument, which has previously been rejected by many courts, is that the two characteristics are inextricably linked, such that to discriminate on the basis of sexual orientation is to discriminate on the basis of sex, no matter how you slice it.

But perhaps a second, more compelling argument is grounded in sex-based stereotypes. In Pallet Companies, an openly gay woman was terminated after complaining of anti-gay epithets meant to reinforce historical gender “norms,” such as, “I want to make you like men again,” and “You would look good in a dress.”

The EEOC has argued in its complaint that this “conduct…was motivated by sex (female)… in that [the Plaintiff], by virtue of her sexual orientation, did not conform to sex stereotypes and norms about females to which [the Defendant] subscribed.” [4] This powerful notion fundamentally proposes that, but for an adversely affected employee’s sex, in such situations, he or she would not have been discriminated against for being “insufficiently masculine or feminine.” [5]

The EEOC’s General Counsel, David Lopez, was clear with his agenda in saying, “[w]ith the filing of these two suits, the EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation.”

Now that the EEOC is firmly entrenched in the fight for broader Title VII protections, employers, particularly those in jurisdictions without such anti-discrimination laws, must exercise heightened discretion in their employment decisions.[6]

*Jonathan Goeringer is an associate attorney at Vandenberg & Feliu, LLP.

[1] EEOC v. Scott Medical Health Center, Case No. 2:16-CV-00225.

[2] EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc., Case No. 1:16-CV-00595.

[3] Baldwin v. Dep’t of Transp., Appeal No. 0120133080 (July 15, 2015)

[4] Pallet Companies d/b/a IFCO Systems NA, Inc., Case No. 1:16-CV-00595.

[5] Baldwin, v. Dep’t of Transp., Appeal No. 0120133080 (July 15, 2015).

And while this is not exactly scientific, it’s not just men who catch bracket fever. The pools I have entered are about an even 50-50 split, with women often winning or finishing in the money. NBC News reported last week that outplacement firm Challenger, Gray & Christmas estimates that 1 in 5 employees will participate in bracket pools this year, with a potential for $4 billion in lost productivity. [1]

So how does an employer manage the madness? One solution is to promulgate and/or enforce a social media policy, which prohibits excessive use of company computers and internet service for personal reasons. If a company has such a policy or decides now to implement one, a timely memo advising or reminding employees of the policy is wise at this time of year. Connecting this policy or the reminder to the hoopla now surrounding college basketball is also prudent. The memo would ideally emphasize the prohibition against excessive use, while indicating, directly or indirectly, that reasonable use to research and fill out a bracket or check scores is permissible.   

Should companies adopt a zero-tolerance policy for bracket pools? According to Challenger, Gray & Christmas, the answer is no. “Efforts to suppress the ‘madness’ would most likely result in long-term damage to employee morale, loyalty and engagement that would far outweigh any short-term benefit to productivity.” [2]

But tolerating it may come at a price. Companies that have social media policies limiting or restricting personal use of computers and smartphones will be required to be liberal in their enforcement not only during the college basketball tournament, but at other times as well. If, say, the company clamps down on similar involvement or interest in other sporting events (e.g., World Cup of soccer), social phenomena (selling Girl Scout cookies), or communication (limiting pro-union speech), it may be setting itself up for a claim of discrimination or potential unfair labor practice charges from the National Labor Relations Board (NLRB).

Does this mean a zero-tolerance policy against personal use of the company’s equipment and internet service in the workplace altogether is preferable? From a strictly legal standpoint, the answer is yes, assuming consistent enforcement and treatment at all times. But the cost appears to be a significant drop in employee morale and perhaps a longer-term drop in productivity. It seems that companies will have to weigh the “risk” of lower productivity and a potential discrimination claim for inconsistent enforcement against the “reward” of higher morale during the college tournament season. This may be a “toss-up” for most employers or, perhaps more appropriately, a “jump ball.” Let the games begin.

[1] Golden, Jessica. "March Madness Could Cost Employers $4B in Lost Productivity." NBCNEWS. NBC News, 14 Mar. 2016. Web. 14 Mar. 2016.

[2]  ibid.

Christopher D’Angelo

212.763.6822

[email protected]

Federal and state laws require employers to accommodate a sincerely held religious belief. This obligation has been applied to numerous circumstances, such as:

Accommodating an early departure, or not working at all, for those observing the Sabbath;

Permitting employees to have time and even a location to pray during the work day; or

An exception to the company's dress and grooming code for a religious practice (e.g., Pentecostal Christian women who do not wear pants or short skirts; Muslim women who wear a hijab, or a Jewish man who wears a yarmulke).

See the EEOC’s “What You Should Know About Religious Accommodation.”

Consider the story of Beverly Butcher, a 35-year veteran of the coal mines and a former employee of Consol Energy in West Virginia. Butcher was forced to resign after the company refused to exempt him from using a biometric hand scanner to clock in and out of work. Butcher claimed that the scanner violated his beliefs as an Evangelical Christian that technology could be used by the Antichrist to mark followers, the so-called "Mark of the Devil."  

Last January, a jury found in favor of Butcher and awarded him $150,000 in compensatory damages.  In the summer of 2015, the trial court held a bench trial on additional damages and awarded Butcher $586,000 in lost wages and benefits. (To view that decision, click here.)

And just this week, that same judge rejected Consol's motions for a new trial and for judgment notwithstanding the verdict, thus confirming Butcher's judgment of nearly $600,000.  

There are those who will scoff at this result, claiming it is just another example of a legal and judicial system run amok. But when you consider the law, the result is not so far-fetched. The mere fact that many may dismiss the notion that a biometric scanner is evidence of the Antichrist is irrelevant. Butcher's faith compelled him to hold this belief, and not only was he entitled to do so, he was also entitled to a reasonable accommodation.  

But then, how does a case like this get to the point where the plaintiff walks away with a hefty six-figure sum, not to mention attorney's fees and costs? Well, Consol was clearly adamant, even stubborn, apparently insisting that Butcher forego his religious beliefs and use the scanner.

A more tempered approach would have evaluated the sincerity of the belief, engaged Butcher, and come up with a solution to the problem. This surely would have been preferable, in light of the damages awarded, not to mention attorney's fees.  

And that's the lesson here. Employers are well advised to:

Take all claims of a sincerely held religious belief seriously;

Evaluate them with the assistance of counsel; and

Consider what alternatives exist to accommodate those religious beliefs that are, in fact, sincere.

If there is a close question as to the sincerity or legitimacy of the religious belief, it is probably wise to err on the side of attempting to accommodate, for as Consol discovered, the alternative can be a living hell.

Christopher D’Angelo

212.763.6822

[email protected]

The question is, how can a company best protect itself before, during, and after an office romance to minimize the potential impact legally and on office morale?

The answer is to have the right policies in place. There are a number of situations that must be guarded against, and the right policies will go a long way to protect against romance gone awry.

The Amorous Suitor

The first situation to consider is the amorous suitor pursuing a less than interested co-worker. At some point as the pursuit persists, it could become unwelcome and/or offensive, and the prospect may feel harassed or even threatened.

A strong Workplace Harassment Policy, which strictly prohibits unwelcome and offensive conduct, will provide some protection. But it is equally, if not more, important for this policy to have an effective complaint procedure with multiple points of contact for the prospect to complain to. They can go to either their supervisor, human resources, or any other supervisor or manager to ask that the unwelcome pursuit be stopped.

The company will have to take effective remedial action as well, which will range from a simple order to “stop!” to the imposition of more serious discipline, depending on how inappropriate the pursuit was.

The Consensual Relationship Between Co-Workers

The next situation is the consensual sexual relationship between colleagues or co-workers. A workplace policy which requires employees to divulge the existence of a consensual relationship is essential, so that the company can address the situation if needed. If the co-workers work together, the existence of the relationship may require that situation to change in some manner. If the relationship ends, the possibility of post-relationship harassment exists, which again emphasizes the need for and enforcement of a strong Workplace Harassment Policy.

The Consensual Relationship Between Management and Subordinate

Another situation to consider is a consensual relationship between a manager or supervisor and a subordinate. Company policy should require that any such relationship be disclosed, and if the manager supervises the subordinate, it also must require that the employees be separated. However, in some cases, particularly in small companies, separating the employees may not be feasible or possible.

In either case, companies may also wish to consider having each employee sign an agreement acknowledging the existence of the relationship; that it is, in fact, consensual; and that if there ever comes a time where it is no longer consensual, that employee will report this fact to human resources or another manager or supervisor. Such agreements have been around for decades, and have been used with some success.

So, while “love is a many-splendored thing,” there are pitfalls for the unwary employer. Be sure to implement and enforce the necessary workplace policies to ensure that Cupid’s arrow doesn’t leave a mark.

Christopher D’Angelo

212.763.6822

[email protected]

In recent years, FLSA litigation has skyrocketed, flooding court dockets throughout the country. While most FLSA cases settle, the settlement amounts are usually very high. These cases can be brought initially on behalf of an entire group or class of employees without their consent, which dramatically raises the stakes for the employer.

Individual cases can also be very costly for employers, and this may become even more true as a result of a recent decision from the federal court of appeals in New York. In general, a settlement represents a compromise of claims, each side assessing:

The risk of having a jury decide the case;

The probability of success; and

The fact that taking a case through the entire litigation process will generally take many years and cost a lot of money to defend or prosecute.

As a result, the plaintiff usually takes less than claimed, while the employer will pay more than the claim may be worth.

Cheeks v. Pancake House

The tide may be turning in favor of plaintiffs, though, due to the decision in Cheeks v. Pancake House in July 2015. In Cheeks, the court ruled that it is mandatory to get court approval of any FLSA settlement, to make sure the settlement is “fair and reasonable.” Courts will examine a variety of factors to determine whether the settlement is “fair and reasonable,” including a computation of the underpaid wages and the method used to calculate the ultimate settlement payment. (Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015).

The impact of Cheeks was brought home when reading about a recent FLSA settlement involving Cantor Fitzgerald. An IT employee had brought a claim for unpaid overtime, which he calculated to be about $100,000. Cantor tried to settle with the employee for $50,000 prior to the suit, but the employee refused. Ultimately, Cantor settled the suit for $140,000—$100,000 for the employee and an extra $40,000 for his lawyer.

Without the rule in Cheeks, it is unlikely that this case would have settled so high. The employer may have even settled for the $50,000 originally offered, plus an extra $15,000 or so for the attorney. The fact that Cheeks requires court approval seems to have pushed this settlement to about double of what it might have otherwise been.

The Lesson Learned

Regardless of how large or small, all employers should audit the exempt/non-exempt status of their employees on a regular basis. Failure to do so means that even just one unfortunate misclassification could cost hundreds of thousands of dollars.  

You don’t want to be gobbled up by the tomato that ate Cleveland, or the Pancake that ate the FLSA. 

Christopher D’Angelo

212.763.6822

[email protected]

Jordan does have flaws in his game, no question, but one flaw is so significant that you are left wondering how valuable he really is. Jordan can't shoot free throws. NBA players are expected to make 75-80% of their free-throw shots from the charity stripe, but Jordan's career free-throw percentage is 41.4%, and he recently set an NBA record by missing 22 free throws in one game.

This flaw makes Jordan far less valuable at the end of a close game, when the other team purposefully fouls him in order to get the ball back and narrow its deficit. Some teams even foul him early in games, thinking he'll score less from the free-throw line than his team would otherwise score under normal circumstances.

How should employers deal with otherwise superb performers who have one significant flaw? What's the best strategy to help this employee improve in deficient areas while maintaining superior performance in most other areas? 

Kimberly Davis, a nationally renowned leadership trainer and the founder of On Stage Leadership, agreed to weigh in on this topic. She says:

While the basketball court and the boardroom may seem worlds apart, they’re actually quite similar. How often have you seen the brilliant engineer freeze in the middle of a presentation? Or a visionary leader, who finds it impossible to delegate? Unfortunately, what makes someone shine, does not make them void of flaws. They are, after all, inescapably human.  

So when the stakes are high and we need our people to bring their A-game, how do we mitigate their blind spots and “development opportunities” and leverage their strengths to ensure powerful results?

One of the most critical steps to take is to ensure you are dealing with the root cause of the issue. In Jordan’s case, he is clearly a talented player, and seems to have little difficulty making shots in the middle of game-play. It is only when he is at the free throw line that he has difficulty. What is different for him emotionally and mentally when he stands at the free throw line than during the normal course of play? My suspicion is that, with all eyes on him, he becomes self-conscious and his anxiety-level is off the charts. The stakes feel higher when he is in the spotlight alone, than when he is part of a team.

Anxiety is one of those things that we rarely discuss in the workplace, but it can be a serious obstacle to strong performance. We often judge it, or like to pretend that people, especially talented ones, can simply push through to the other side, but often, anxiety ignored will build. Unattended it can, like in Jordan’s case, grow bigger and bigger and block you up like a dam, killing your results.

By identifying the root cause, without judgment, you can strategize. Once you name the problem you can do something about it. The problem isn’t that Jordan can’t shoot – he makes shots throughout the game extraordinarily well. It’s the way he’s thinking, when standing at the free throw line, that’s keeping him from making the shots. Change his thinking, and you change the way he shoots. And scores.

Sound advice from an expert in the field of leadership training. Thanks Kimberly! 

Christopher D’Angelo

212.763.6822

[email protected]

For those brave enough to publicly join the transgender community, a whole new struggle can begin, one that has existed long before Jenner transitioned. Whether it means facing the rejection of family and friends, becoming subject to physical violence or experiencing various forms of discrimination, transgender individuals continue to fight for global acceptance and equality.

Recently, the fight for equality received a major endorsement from New York State Governor Andrew Cuomo, who has announced new regulations aimed at updating its human rights laws. After repeated but failed efforts to enact legislation, Governor Cuomo recently took executive action by introducing what the Governor’s Office called the most sweeping regulations in the nation.

The regulations, which will cover employees throughout New York State, will prohibit both private and public employers from discriminating against a person on the basis of transgender status. The regulations also propose to protect transgender people from the harassment and discrimination by creditors and housing providers, as well. According to Cuomo, the law “covers it all.”[1]

The New York State Human Rights Law currently protects individuals from discrimination on the basis of:

Race;

Creed;

Color;

National origin;

Sexual orientation;

Military status;

Age;

Sex;

Marital status;

Disability; or

Familial status.

“In 2015, it is clear that the fair legal interpretation and definition of a person’s sex includes gender identity and gender expression” Cuomo said when he announced the regulation last month.[2] “The [New York Human Rights Law] left out the T, so to speak…That was not right, it was not fair, and it was not legal” he said, later adding, “Transgender individuals deserve the same civil right that protects them from discrimination.”[3]

Prior to its full integration into the New York State Human Rights Law, these regulations will first undergo a 45-day commentary period, after which point, barring any necessary revisions to the regulation, it will be signed into law.

According to the New York State Division of Human Rights, once signed into law, “If the Division determines there is probable cause to believe harassment or discrimination has occurred, the Commissioner of Human Rights…may award job, housing or other benefits, back and front pay, [uncapped] compensatory damages for mental anguish, [and] civil fines and penalties,…up to $50,000 or up to $100,000 if the discrimination is found be ‘willful, wanton or malicious…’”.[4]

Governor Cuomo closed by saying, “follow New York, the way is up.” After the regulation is finalized, the transgender community will likely agree heartily with Governor Cuomo’s assessment.

*Jonathan Goeringer is a 2015 graduate of St.John’s University School of Law. His assistance is greatly appreciated.

[1]  Mckinley, Jesse. "Cuomo Planning Discrimination Protections for Transgender New Yorkers." The New York Times. The New York Times, 22 Oct. 2015. Web. 17 Nov. 2015.

[2] Id.

[3] Id.

[4] Id.

Christopher D’Angelo

212.763.6822

[email protected]

In 2009, two of his former students opened a yoga studio offering a variety of classes. One of them, "Hot Yoga," involved a sequence of poses at a temperature similar to Bikram. Choudhury sued the studio claiming the virtually identical class violated his copyright in the poses and sequence of Bikram Yoga. The district court found against Choudhury.

The Ninth Circuit agreed. Choudhury could not claim a copyright because the sequence was simply an “idea, process, or system designed to improve health.” Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, No. 13-55763, 2015 WL 5845415 (9th Cir. Oct. 8, 2015). Copyright law can only be used to protect the expression of an idea, not the idea itself.  In order to be eligible for copyright protection the sequence must be “an original work[] of authorship … [and]… [i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S. Code §102.

Expressions of Choudhury’s idea - such as DVDs, instructional books, etc. - could still be copyrighted. In his books, Choudhury claims that the Bikram sequence helps “‘cure, heal or at least alleviate’ physical injuries.” The court compared Choudhury to a doctor who published a book on an innovative sequence for a complicated surgery. Citing to Baker v. Selden, 101 U.S. 99 (1879), a seminal copyright case involving a book that explained a method of bookkeeping, the court reiterated that “‘the description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself.’” That type of protection could only be afforded, if possible, by a patent.[1]

It is important for a business to understand what areas of intellectual property law can provide protection to the important elements of its work and products. In this case, trademark law protected the name “Bikram Yoga” and copyright law protected the instructional books and DVDs, but neither could protect the underlying idea. Even the Ninth Circuit felt that would be too much of a stretch.

Namaste.

Joshua Blechner

212.763.6822

[email protected]

www.vanfeliu.com

“Having a past conviction obviously should not prevent someone from being able to put food on the table or pay rent,” Councilman and Sponsor of the legislation Jumaane Williams told the Daily News.[2] “We want to make sure that people feel hopeful. They’ve paid their dues to society. We need to provide a pathway for them.”[3]

According to the Fair Chance Act’s sponsorship website if, after receiving information regarding the applicant’s record, the employer no longer wants to employ the applicant, the employer must explain why and provide a copy of the record. The position is then held open for at least 3 days so the employer and applicant can engage in an interactive discussion, considering the employer’s requirements and the applicant’s evidence of good conduct. This time also allows the applicant to question any inaccuracies on the record.

While this new law offers greater opportunity to those with conviction records, it does not ban background checks, and it does not alter New York State law (New York Correction Law, Section 751, et seq.), which permits employers to deny employment to workers with conviction histories that are directly related to the job or pose an unreasonable risk. The Fair Chance Act also excludes from coverage employers that are required by law to conduct background checks and exclude people with specific convictions.

New York City employers will need to review their job application and search processes in order to comply with this new law. Those who currently ask applicants about their criminal history prior to making a conditional offer will need to alter this practice, unless excluded from the law.

[1] http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

[2]  http://www.nydailynews.com/news/politics/employers-banned-seeking-criminal-history-checks-article-1.2253845

[3] Id.

Christopher D’Angelo

212.763.6822

[email protected]

According to the Court, the right to marry is a fundamental right under the U.S. Constitution, and marriage is a "keystone” to the country's social order. While limiting marriage to opposite-sex couples may have seemed "right" in the past, it is now clearly "demeaning" to lock same-sex couples out of this institution, as well as inconsistent with the fundamental right to marry.

In addition, the right of same-sex couples to marry also emanates from the Equal Protection clause of the Fourteenth Amendment. Because marriage is a fundamental right, the state laws at issue are unconstitutional because they barred same-sex couples from exercising a fundamental right enjoyed by opposite-sex couples.

Obergfell’s Impact on Employment Law

There is no doubt that the Obergfell decision has ignited the debate between liberals and conservatives over sexual orientation issues. While the debate still revolves around the issue of marriage equality (e.g. a state clerk in Kentucky, Kim Davis, has been imprisoned for refusing to issue marriage licenses to same sex couples), Obergfell has energized those who support religious freedom laws - that is, laws that would permit businesses to not do business with gays or lesbians if conducting business would violate a validly held religious belief.

If religious freedom laws are passed, these laws may also impact workplace relationships. And while its implications with respect to gays and lesbians are apparent, the potential reach of religious freedom laws extends much further:

Will gays and lesbians be targeted in the workplace?

Can single mothers be denied continued employment?

What happens if an employer learns that a female employee has had an abortion, or that a male employee has divorced and remarried?

This is not mere speculation. Within two weeks of Obergfell, federal legislation was introduced that would make it unlawful to discriminate against persons (defined to include not-for-profits) who act in accordance with a religious belief that favors traditional, opposite-sex marriage. Enactment of this law could imperil employees who find themselves in situations like the theoreticals posed above.

Liebelson, Dana. "Bill That Lets Bosses Fire Single Women For Getting Pregnant Gains Steam." Huffingtonpost.com 16 July 2015: Web.

Where do we go from here?

At this juncture it is far too early to predict an outcome. Less than a decade ago it was thought that gay marriage would never be legalized, and that changed quickly. So it is possible that the religious freedom movement will not gain sufficient traction.

Indeed, the Equal Employment Opportunity Commission (EEOC) is currently pushing a different agenda, looking to broaden Title VII to provide greater protection to the lesbian, gay, bisexual, and transgender (LGBT) community. This is a topic that will be explored in a later post.

Christopher D’Angelo

212.763.6822

[email protected]

As most of you know by now, back in June, the Supreme Court issued its decision in King v. Burwell. The issue in this case involved the establishment of marketplaces known as “exchanges,” which were intended to be used by uninsured individuals to shop for their own health plan. Subsidies would be provided to individuals who shopped on the exchanges and purchased health insurance, based on their income. While a small number of states established their own exchanges, most states did not, which meant that the federal government would step in to run the exchange for that state. The statute’s language, however, created an issue, as it seemed to state that subsidies are available only to people buying insurance on “an exchange established by the state.”

In a 6-3 decision on June 25, the Supreme Court ruled that despite the “inartful drafting,” the subsidies were legal. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice John G. Roberts Jr. wrote for the majority.

What does this decision mean?

For one, based on post-decision commentary, ACA will continue to come under attack, with legal efforts to challenge its status, and legislative efforts to repeal it, sure to continue.

More practically, observers have noted that a different ruling rejecting the subsidies could have created market chaos. A ruling rejecting subsidies in most of the nation would have left in place other parts of the law, including its guarantee of coverage regardless of pre-existing conditions, its requirement that most Americans obtain insurance or pay a penalty, and its expansion of Medicaid, all of which could have caused insurance rates to skyrocket. See “Supreme Court Allows Nationwide Healthcare Subsidies,” in the New York Times.

Jiggery-Pokery

Another result of the decision is the introduction of a new phrase to the English language, “interpretive jiggery-pokery,” which Justice Scalia coined in his dissent to describe the majority’s construction of the statute. The phrase sounds both ominous and fun, though its precise meaning is not entirely clear. 

Conclusion

Despite numerous challenges from well-funded opponents, it seems that ACA or Obamacare is here to stay. Whether the phrase “interpretive jiggery-pokery” has the same staying power, and whether it will be further defined, remains to be seen.

Christopher D’Angelo

212.763.6822

[email protected]

The 1st case below illustrates the importance of making sure you know the law before acting.

The 2nd presents facts which should scare even the most indiscreet person into being careful of verbal communications, even when it seems the conversation is private.

The 3rd example below is merely in the allegation stage, but highlights the importance of maintaining the integrity of the interview, and the do’s and don’t’s of post-interview comments.

1. Clean-up in aisle 5! A company in Georgia was recently found to have violated the Genetic Information Non-discrimination Act (GINA). Why? It conducted DNA tests to determine who among its workforce had engaged in a campaign of defecating in a common area in its warehouse. Two employees, who were tested but cleared of wrongdoing, sued the company, and the district court held that GINA, which prohibits discrimination on the basis of genetic characteristics and makes it unlawful for an employer to request, require or purchase genetic information with respect to an employee, was violated. A jury then awarded the employees $2.2 million. You can read the case and its unsavory facts at Lowe v. Atlas Logistics Group Retail Services, LLC, (N.D.Ga. May 5, 2015).

2. She said what? An anesthesiologist in Virginia was successfully sued for defamatory statements she made about a patient during a colonoscopy. The patient had his phone on record to tape the instructions given by the doctor. He forgot to turn it off and ended up recording the conversation that occurred during the procedure. The anesthesiologist referred to the patient as a “retard,” said she wanted to punch him in the face, and referred to the possibility he had syphilis or tuberculosis, all while the man was sedated. A jury ordered the anesthesiologist and her practice to pay the man $500,000. Here’s a link to the Washington Post story.

3. Whoa Daddy! GoDaddy is being sued for discrimination by a man rejected for a position as a software engineer. While smoking guns are hard to come by in discrimination suits, this gentleman claims to have been handed one on a silver platter. His rejection letter purportedly included an email chain which acknowledged his skills but questioned whether the company wanted to hire “an obese (sic) Christian.” GoDaddy claims that its email was hacked, or the email was fabricated. Here’s a link to the story in USA Today.  

If you know of any similar stories, please feel free to share them in the comments section below. In the meantime, we’ll be sure to stay on the lookout for similar developments of interest.

Christopher D’Angelo

212.763.6822

[email protected]

1. Workplace Harassment and Discrimination Training: This should be done on a regular schedule every 1 to 2 years. Many goals are served:

It forces you as the employer to review your harassment policies and procedures;

It means updating those policies to reflect changing times and laws (the LGBT community has made a lot of headway at the federal, state and local levels the last few years);

It requires distributing the new or existing policy again to remind your employees about its existence, and complaint procedures; and,

It is a good idea to take the time to tweak the complaint procedure to address issues that may have arisen in the past.

2. Wage-and-Hour Audits:

Are you hiring unpaid interns?

Are you comfortable with your classification of jobs as exempt or nonexempt?

Are you wondering why the person in the fourth cubicle to the left is still considered a contractor, even though he's been working 5 days and 40 hours for the past 2 years?

Are employees griping about unpaid work/overtime or time-shaving?

The prevalence of wage-and-hour suits these days makes it a must to be vigilant about all of these issues, and more. It's a good idea to use some of that (paid) summer help to take the time to ensure compliance.

3. Do your supervisors know the rules? A few months ago, we wrote about how dangerous it can be to have a supervisor who is unaware of the employee relations rules and regulations he or she is to apply. Taking time to train supervisors on a periodic basis is a great idea. The short-term cost and distraction can reap long-term benefits in terms of more effective communication and discipline.

4. Social Media Policies: Social Media policies continue to be a major issue, particularly for non-union employers. A few months ago, we wrote about how the National Labor Relations Board was going after non-union employers who discipline employees for what the Board considers "protected, concerted" activity, or who have otherwise overbroad policies in violation of the NLRA. Review those policies today to make sure that your policy is in compliance with the law.

5. Recent developments: As this post goes to press, the Supreme Court has issued several critical rulings impacting ACCA and gay marriage. Each decision is expected to have a significant workplace impact. Our next few posts will address these and other developments as we pass the halfway mark of 2015.

Christopher D’Angelo

212.763.6822

[email protected]

On May 6th, Mayor Bill De Blasio signed Bill Int. No. 261-A into law, which prohibits the use of a job applicant’s consumer credit history by employers in their employment decisions. In addition to credit scores, “the [employee’s] number of credit accounts, late or missed payments, charged-off debts, items in collections, credit limit, prior credit report inquiries, or bankruptcies, judgments or liens” will be among the items employers may not use in hiring, firing, or making any such type of employment decision.

This piece of legislation, aimed at eliminating a form of economic discrimination, will amend the New York City Human Rights Law (NYCHRL) and go into effect on September 3rd, 2015.

Like many of the more recent amendments to the NYCHRL, this law is more favorable to employees than some of its national counterparts. Where all of the other 12 comparable laws in various U.S. jurisdictions merely prohibit the use of credit history, this law is considering it “employment discrimination” to simply request credit history from job applicants or current employees. This unique distinction is a preventative measure that seemingly looks to remedy a situation before an adverse employment action can be taken. As for the actual remedial measures a discriminated employee may possess, the new law will have all the remedies outlined in the NYCHRL; aggrieved employees can obtain reinstatement, back pay, promotions, compensatory damages, punitive damages, attorney’s fees and costs.

But what about those scenarios where job responsibilities might require some level of fiscal responsibility? The new law addresses these scenarios, and others, in a series of exceptions that leave the following employees unprotected by this law: [1]

Employees working for employers who are required by state or federal law or regulations to use an individual's consumer credit history for employment purposes;

Employees required to be bonded under City, state or federal law;

Employees in a non-clerical position having regular access to trade secrets, intelligence information or national security information;

Employees in a position: (i) having signatory authority over third-party funds or assets valued at $10,000 or more; or (ii) that involves a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer.

If you are a New York City employer with four or more employees, and who regularly uses credit history in making employment decisions, you may want to reconfigure your decision making process before the effective date of this amendment, or consult an attorney on whether your employees fit within any of the law’s exceptions before requesting credit information.

Thanks to Jonathan Goeringer, a St. John’s Law graduate, for his assistance in preparing this article.

[1] For a complete list of all exceptions provided by the law, visit http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1709692&GUID=61CC4810-E9ED-4F16-A765-FD1D190CEE6C

Christopher D’Angelo

212.763.6822

[email protected]

1. A Release of Claims: A standard request from employees and their representatives is to ask that the Release set forth in the severance offer be “mutual.” That is, just as the employer is asking the employee to waive legal claims, many employees expect the same in return.

This can be a slippery slope for employers. The higher up an employee is in the company hierarchy, the more reluctant an employer is to grant a release of claims. The rationale is that the now former employee may have engaged in some conduct, as yet unknown, which may put the company at risk.

If this is a concern, and the release issue is at an impasse, one way to break the impasse is to request a representation from the employee that he/she did not engage in any financial or other material misconduct. There should also be an acknowledgement that if the representation turns out to be false, the consideration given for the employee’s release of claims must be returned.

2. Confidentiality: If the circumstances of the termination place the former employee in a bad light, the employee may also seek some form of confidentiality from the employer, stating the company will not publicize the circumstances leading to the departure. This is a very common request, and one that is often agreed to by the company.

Nevertheless, there do need to be carve-outs for certain situations, such as those required by law or regulation, or information compelled to be produced by law.

3. Reference Letters: Many employees who have been let go as part of a reorganization or reduction in force will request a Reference Letter. Generally, companies should refrain from providing reference letters in all termination situations, whether the circumstances are benign or not. Depending on the situation, reference letters could lead to claims against the company for defamation or discrimination, and possibly claims from a subsequent employer under a negligence theory.

4. Non-disparagement: A corollary to the discussion regarding reference letters, former employees often seek mutuality with respect to the non-disparagement provision.

This is another slippery slope for employers. If written broadly, a non-disparagement provision could impose liability on an organization for any negative comments made by any employee, regardless of rank within the organization.

Companies often reject this proposal as a matter of principle; some companies will compromise, by agreeing either to direct certain employees to refrain from negative comments, or accept liability for comments made by certain employees.  

5. Restrictive Covenants: Many individuals will look to remove themselves from the burden imposed by a non-competition or non-solicitation clause during severance negotiations.

Given the law in this area, and the reluctance courts show regarding enforcement, the severance event can be an opportune time to re-examine the enforceability of a restrictive covenant, and either re-negotiate the provision so that it is clearly enforceable (e.g. a restriction against soliciting customers the company introduced to the former employee is typically enforceable as protecting a legitimate business interest), or eliminate it altogether.

In these last two posts, we attempted to identify those issues the employer pursues in a severance package, and those desired by the employee. Two brief posts, however, cannot possibly address all issues relating to the viability and enforceability of a severance package. It is wise to consult counsel before drafting a severance agreement, and before signing one.

Christopher D’Angelo

212.763.6822

[email protected]

In its most basic form, a severance package offers additional compensation to a terminated employee. Many, many years ago, it was common for employers to offer small severance packages without any strings attached. Today, however, the situation is much different, and very few severance packages are offered on an unconditional basis.

So what are the basic elements an employer should look for in a severance package? In no particular order, they are:

1. A Release of Claims: In such a litigious society, it would almost be foolish to offer a severance payment, large or small, without getting some promise in return. The critical promise to extract from the former employee is a “release” or waiver of all legal claims the individual has or may have against the company. Without a release, the company is simply giving away money. 

But beware. There are a number of issues that can come back to haunt the unwary. To obtain an enforceable release of an age discrimination claim under federal law, a release has to comply with the terms of the Older Worker Benefits Protection Act (“OWBPA”), including:

It has to be written in plain English;

The individual has to be informed in a separate writing of the right to consult counsel;

The individual has to be given at least 21 days to consider the release in an individual termination, or 45 days in the event of a group termination.

A group termination also requires the company to provide demographic data regarding the job title and date of birth of all those in the decisional unit who were selected for the package and those not selected for the package.

2. Confidentiality: Many employers want to bind the former employee to confidentiality of some kind. In group situations, or those involving an involuntary termination without serious threat of litigation, the confidentiality provision will simply cover the terms of the package.

Some employers also include confidentiality regarding the circumstances of the termination in all cases, while other companies opt to include such a provision only in contentious situations.

3. Non-disparagement: Whether the termination is contentious or not, many companies insist upon a non-disparagement clause in their favor, obligating the employee to refrain from making any negative or disparaging remarks about the company or its personnel.

4. Restrictive Covenants: A severance agreement is a good opportunity for the company to remind former employees of their common law obligation to refrain from revealing trade secrets or confidential information. If a written agreement exists, the severance offer presents a good opportunity to remind former employees of their contractual obligation to refrain from competing with or soliciting business away from the company.

If no written agreement exists, but there exists a concern that the individual can possibly harm the company through competition or solicitation, the severance offer is the perfect opportunity to attempt to obtain some protection.

A severance package should not be viewed as a panacea that cures all ills.

First, some legal claims are not subject to a “release” or waiver, and these include claims for unemployment or workers compensation, and claims for vested benefits.

In addition, wage and hour claims may also be subject to additional requirements before a release of claims is deemed valid and enforceable.

Finally, some companies prefer to simply sever the relationship, without additional compensation, and the complications that may arise.

Whether severance packages are right for your firm always, sometimes or never, can only be answered by management.  

Christopher D’Angelo

212.763.6822

[email protected]

1. Summary judgment and sexual harassment: In March 2014, the firm was successful in having a sexual harassment claim against one of its clients dismissed on a motion for summary judgment. About one month ago, the Second Circuit Court of Appeals affirmed the granting of summary judgment in favor of the client, dismissing the claim in its entirety.

The case involved a sexual harassment complaint concerning an incident at a holiday party. Once brought to the attention of management, the company promptly investigated, determined that the harassment occurred, and terminated the harasser. It was on this basis, among others, that the claim against the company was dismissed.

This case emphasizes:

The importance of taking harassment complaints seriously;

Investigating such complaints thoroughly; and

Taking prompt and effective remedial action if the complaint has merit.

2. Issue of insubordination: In October 2014, a client of the firm terminated dozens of unionized employees who refused to work due to a change in policy. The union made it clear that it had not authorized a strike.

Upon application for unemployment insurance benefits, the New York State Department of Labor, Unemployment Insurance Division, issued an initial determination, ruling that a “labor dispute” existed, and as a result, the former employees were entitled to receive unemployment insurance benefits based on the Court of Appeals 1966 decision in Matter of Heitzenrater, 19 N.Y.2d 1.

In Heitzenrater, the Court ruled that a strike in violation of a “no-strike” clause in a collective bargaining agreement did not constitute “misconduct” that would disqualify applicants from receiving unemployment insurance benefits.

On behalf of the client we appealed the determination, arguing that Heitzenrater is distinguishable on many grounds, including the fact that this conduct was engaged in by only a small percentage of the bargaining unit, that the employees had made it clear they were acting on their own, and that the employees had also made it clear they were attempting to deal directly with the employer.

In early April, the Administrative Law Judge issued a decision overruling the initial determination, ruling that the employees had engaged in gross insubordination, which constitutes misconduct under the law.  The matter is now on appeal to the Unemployment Insurance Appeal Board. 

3. Major music merger: The firm handled all of the legal work on Concord Music Group’s merger with Bicycle Music. The dollar value of the merger was over $300 million, plus raising over $100 million in new financing, making it one of the largest deals in the music industry in the last year.

This transaction involved the merger and integration of multiple overlapping funds, as well as complex issues related to copyright, securities, employment, tax and other areas of law.

The resulting company is one of the largest independent music companies in the world.

We‘re hoping that you too are experiencing great success in 2015!

Christopher D’Angelo

212.763.6822

[email protected]