Nearly three years after the city agreed to pay $98 million to settle claims of bias in its hiring of black and Hispanic firefighters, New York’s Bravest is being sued for discrimination again.
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Valeant Unit Settles Sex Discrimination Claims For $7.2M
Law360, Los Angeles (July 12, 2016, 4:56 PM EDT) — Valeant-owned Medicis Pharmaceutical Corp. will pay $7.2 million to settle a class action alleging gender discrimination and other claims brought by female sales representatives of the medical cosmetics company, according to a final settlement order signed by a D.C. federal judge Monday. Continue reading
Working Off The Clock? Think Again
With the American economy in the midst of its worst downturn in decades, corporations are trying to squeeze that last buck out of every corner they can. Job satisfaction is going down across the board. One largely unsung issue that may be elevating to epidemic proportions is “Off the Clock” work.
For many, going unpaid for the work you perform for your employer is illegal. Many corporations in the U.S. are, unfortunately, asking their workers to buck up and work without minimum wage or overtime pay. This violates both New York and Federal law. The plain fact of the matter is that the laws are designed to protect during the bad times as well as the good. Just because there is not as much money to go around does not mean that it is all right to ask workers to work off the clock without compensation.
Full Time Employees in New York
For the most part, New York State follows Federal guidelines when it comes to minimum wage and overtime. If a non-exempt employee is performing work of any sort for their employer, they are to be paid at least minimum wage for their work. If they are working over forty hours in a work week, then any time worked above that is eligible for overtime pay. Live in employees may claim overtime after forty-four hours as well. Naturally, standard exemptions apply to certain types of employees, including certain interships.
However, a controversial case is brewing in New York that might potentially change how the law sees interns nationwide. An intern is suing Harper’s Bazaar, claiming that minimum wage is due to all intern workers and that internships are exploitive. We will follow this case closely and continue to report on its significant role in the wage and hour litigation world.
Full Time Workers That Receive Tips
If your employer claims that you are not entitled to overtime pay because you receive tips in your line of work (such as a restaurant server, delivery driver, dancer, etc.), then your employer is out of compliance with New York and Federal law. All work performed by these types of workers are subject to minimum wage and overtime law.
If you are a non-exempt, hourly worker, an employer cannot refuse to pay you time working off the clock. You are entitled to be paid for all hours work at minimum wage or an overtime rate if over 40 hours in a work week. If you feel you are being forced to work “off the clock” meaning you are not being paid for your time, then you should contact an attorney familiar with these laws immediately. For a free consultation, contact the law offices of Valli Kane & Vagnini, LLP at (866) 441-2873. You need a talented lawyer that is not afraid to take on exploitive employers that disregard the law.
Wage Theft Prevention Act: Redundant Bureaucracy or Employer Protection?
No state in the Union has taken more steps to protect its workers and employees than the state of New York. However, critics say the state went too far with the Wage Theft Protection Act. This act caps off what some industry leaders—especially in construction—call an explosion of bureaucratic red tape that renders New York business unprofitable and untenable. The law’s proponents have commented that the new Wage Theft Protection Act may actually protect New York’s employers from horrific, small business-destroying lawsuits. Read on for the basics of the WTPA debate.
As of February 1, the act requires that workers be notified of their wages annually. The WTPA Pay Rate form must include how much the employee is paid and when, the name and address of the employer, and allowances. The new form must be provided in English, and the employee’s primary language, if applicable. New York’s Labor Department provides translations in Spanish, Chinese, Korean, Russian, Polish, and Haitian Creole. Failure to comply will result in fines up to $50 weekly.
Businesses have complained that the new paperwork burden will cost the state’s industry millions, and that the law will do little to curb shady work practices. The Wage Theft Protection Act is essentially, say critics, bureaucracy without function. However, the law may provide advantages to employers. For example, the WTPA may prevent lawsuits from employees that sue over pay disputes. As paperwork is a key component in all legal proceedings, this paperwork functions to protect employers in the event a dispute over pay turns into litigation.
Only time will tell if the WTPA changes the way New York does business for the better. America’s economic turmoil has been felt deeply in New York State. Entrepreneurs most often call for deregulation, citing that decreased laws and streamlined businesses will turn NY’s economy around. However, most would agree that employees need protection as well, and the WTPA’s goal is to provide that.
As the Wage Theft Protection Act forces your employers into documenting information relating to your wages, you may become aware that your employer has not been paying you properly or depriving you of certain rights relating to your pay. If you are involved in a wage dispute in New York, then you may benefit by speaking to an employment lawyer. An expert employment attorney can help you understand the complexities of New York workplace law as it relates to you and will vigorously fight for your right to fair pay. Do not let yourself be victimized. Call the law offices of Valli Kane & Vagnini. LLP now at (866) 441-2873 and get one of NY’s most experienced and accomplished employment attorneys on your side.
Workers Adjustment and Retraining Notification Act (WARN)
The Workers Adjustment and Retraining Notification Act (“WARN”) became effective on February 4, 1989. WARN requires employers to give employees notice when an employment change is advanced. The Act calls for at least sixty (60) days notice to employees who will experience employment loss either because of a plant closing or because of a scheduled mass layoff.
An employee experiences employment loss in any one of the following three scenarios:
- An employment termination, other than a discharge for cause, voluntary departure, or retirement;
- A layoff exceeding six (6) months;
- A reduction in an employee’s hours of work of more than fifty (50) percent per month for a period of six (6) months.
WARN covers employers who have more than one hundred (100) employees. Employees who work less than six (6) of the past twelve (12) months, as well as employees who work less than twenty (20) hours a week are not counted into this total. Private for profit or non-profit, as well as public and quasi-public entities who operate in the commercial context are obligated under WARN to give their employees notice pending a plant closing or mass layoff. Federal, State or local government entities are governed under WARN. Hourly, salaried, managerial and supervisory employees are all entitled to the sixty (60) day notice. Business partners however, are not entitled to the Act’s protections.
Employers of a temporary project are not required to give their employees notice prior to plant closings or mass layoffs. Additionally, if the closing of the plant or mass layoff is the result of completion of a project, those workers are also not entitled to WARN’s protection. The employees must have been hired with the understanding that their employment was conditional on the completion of the project. An employer cannot label an ongoing project as temporary to avoid the requirements under the WARN act. Additionally, striking employees are not entitled to notice when their actions lead to a lockout, which acts as an equivalent to a closing or mass layoff. Non-striking employees who are adversely affected are entitled to notice.
If fifty (50) or more employees will experience employment loss (defined above) during any thirty (30) day period, then WARN requires employers to inform their employees. Part time employees and new employees are not included in this employee total. Advanced notice is also required when an employer has a mass layoff proposed. If during any thirty (30) day period, five-hundred (500) or more employees, or forty-nine (49) to five-hundred (500) employees, which make up thirty-three (33) percent of the workforce are going to be laid off, then the employer must give notice. The employee calculation for plant closings apply to mass layoffs as well (part time and new employees are not included in the total employee calculations).
If an employer plans to sell his business or is involved in the sale of the business, employees are still entitled to receive notice if a closing or mass layoff is proposed. It is the seller of the business’ responsibility to give sixty (60) days notice to his employees up to and including the date/time of the sale if there is a risk of employment loss. The buyer is responsible to provide employees with sixty (60) day notice of any proposed plant closing or mass layoff after the date/time of the sale. Notice that the business has been sold is not required unless a closing or mass layoff is in the works.
The employer must give notice to either the chief elected officer of exclusive represented employees, the labor union, or to unrepresented workers who may reasonably be expected to experience employment loss. Even employees who do not count towards employment totals, those workers who work less than twenty (20) hours a week or who have worked less than six (6) of the last twelve (12) months are still entitled to due notice. Notice must also be given to the State dislocated worker unit, as well as the chief elected officer of the local government where the employment site is located. There are, however, three exceptions to this requirement:
- If the employer is seeking new capital to stay open and advanced notice would ruin this opportunity, then notice is not required. This exception only applies to plant closings and not mass layoffs.
- If a plant closing or mass layoff was not reasonably foreseeable at the time notice is required, then the notice requirement is excused.
- If a plant closing or mass layoff is the result of a natural disaster, such as a flood, earthquake, drought or storm; notice is not required.
If an employer does not provide sixty (60) days notice, and relies on one of the exceptions listed above, the employer must prove that one of the exceptions did in fact take place.
While notice is required sixty (60) days in advance, there is no requirement delineating what that form must be. The notice must be in writing, but any reasonable method of delivery that will ensure receipt sixty (60) days prior to closing or mass layoff will suffice. The notice must specify the reasons for a plant closing or mass layoff. If either will occur more than fourteen (14) days after the date announced in the notice, then additional notice on behalf of the employer is required.
If you have been affected by a plant closing or mass layoff and your employer has not followed the requirements under the Worker Adjustment and Retraining Notification Act, contact Valli, Kane & Vagnini to learn more about your rights and legal options.
Dukes, et al. v. Wal-Mart Stores, Inc.
The Supreme Court recently rejected the certification of a class of plaintiffs, consisting of all of Wal-Mart’s current and former female employees, in a Title VII gender discrimination suit against the retail giant. The plaintiffs in this case allege that Wal-Mart, the largest employer in America with over one million employees, discriminates generally against women in pay, job promotions, and in administering disciplinary actions.
Commonality Requirement
In this decision, the Supreme Court set forth and clarifies the appropriate standard for seeking class certification under Federal Rule of Civil Procedure 23, and specifically, the “commonality” requirement. In order to certify a class, the plaintiffs must prove that there are questions of law or fact common to the class. In the Court’s words, there must be a “common contention” that “must be of such a nature that it is capable of classwide resolution- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
The plaintiffs can satisfy this burden through one of two main ways, the Court held. First, the plaintiffs can assert that the employer used a “biased testing procedure” to evaluate its employees or applicants; or second, that the “employer operated under… a general policy of discrimination.” In proving a general policy of discrimination, plaintiffs may use anecdotal evidence from enough members of the potential class or expert evidence. The Court cited a case that it decided in 1982 as the basis for these two methods.
In this case, however, the plaintiffs fell short. They argued that rather than there being a policy of blatant discrimination, there was a policy of providing wide latitude to store, district, and regional managers, and this policy led to rampant gender discrimination. The Court concluded that this policy of manager autonomy is insufficient to prove commonality, since there is so much potential variation in the behaviors of each manager. The Court did note, however, that such a policy of autonomy is better-suited to showing disparate impact in proving an individual discrimination claim under Title VII, just not for class certification.
Additionally, the plaintiffs in this case only offered accounts of discrimination from forty potential members of the class, where the total number of potential individuals in the class was 500,000. That would have amounted to each account of discrimination representing 12,500 other potential members of the class, where the Court noted that in previous cases, a one-to-eight ratio was found to be permissible. Moreover, the expert in this case failed to make any compelling causal link to the “culture” at Wal-Mart that allegedly led to discriminatory conduct, and could not, with any specificity, demonstrate the impact of that discriminatory “culture” on management decisions.
With regard to commonality, this decision will likely not have a great impact on victims of gender discrimination in the workplace, or even to class actions alleging the same. The Supreme Court looked at the facts of this case and applied it against a standard that it first articulated in 1982 and determined, unfortunately, that they were not sufficient to sustain a class action in this particular case.
Backpay
The Court also tackles the issue of whether or not cases in which the plaintiffs seek backpay qualify for class certification under Rule 23(b)(2). The Court, unfortunately, has held that they do not, writing that this rule cannot be used to certify claims for monetary relief where the monetary relief is not incidental to the injunctive or declaratory relief. Individualized relief, including backpay, the Court goes on to write, does not satisfy Rule 23(b)(2).
The Court cites possible issues that could arise with plaintiffs attempting to minimize the importance of monetary damages in order to become eligible for class certification under Rule 23(b)(2), and reasons that some plaintiffs may unwittingly forfeit their right to compensatory damages when the class is certified in this manner. Importantly, the Court looks to the language of Title VII and finds that if Wal-Mart proves that if it took an adverse employment action against an employee for reasons other than discrimination, the court cannot order it to pay backpay. The Court then looks to the Rules Enabling Act, which states that courts should not interpret Rule 23 in any way that would “abridge, enlarge or modify any substantive right,” and concludes that certifying the class under Rule 23(b)(2) would take away Wal-Mart’s right to litigate its statutory defenses to each individual claim. Essentially, defendants such as Wal-Mart get to raise their affirmative defenses for each employee individually, without any courts’ reliance on “Trial by Formula.”
Ultimately, this Supreme Court ruling leaves plaintiffs with the option to certify their class under Rule 23(b)(3), which only imposes a handful more burdens, many of which are easily overcome, and allows plaintiffs to opt-out of the class to pursue their claims individually. On many levels, this finding further hinders the rights of workers and their ability to to effectuate necessary change in the unlawful corporate culture impacting many minorities and women in the workplace on a daily basis.
Retaliation – Employees Should Not Fear Reporting Discrimination –
Employees who have been discriminated or harassed against in the workplace should not be hesitant to report these claims. Retaliation laws are in place to protect the employee from being harassed or targeted after they exercise their right to report discrimination. When an employee reports discriminatory acts to the Equal Employment Opportunity Commission, their respective state equivalent, the Department of Labor, or even internally to their employer, retaliation laws are in place to stop the employer from taking adverse action against the wronged employee.
Retaliation laws protect against all forms of retaliation. Retaliatory actions include, but are not limited to:
– Disparate Hiring Practices
– Unwarranted Firing
– Pay Reductions
– Change in Job Assignments
– Promotion Discrepancies
– Layoffs
– Unwarranted Training Procedures
– Denial of Fringe Benefits
– Alteration of any other Term or Condition of Employment.
The Equal Employment Opportunity Commission is a federal agency in place to protect the rights of employees. It is “an unlawful employment practice for an employer to discriminate against any of his employees…because the employee has opposed any practice made unlawful employment practice by Title VII.” 42 U.S.C. § 2000e-3(a). EEOC Retaliation laws bar the employer from exercising any retaliatory acts, even retroactively, against an employee after they file an EEOC Charge of Discrimination. Employees should not fear reporting discrimination because the EEOC is an agency to rectify these wrongs.
Most states have a functional state equivalent to the EEOC and this is another avenue for discriminated employees to use to remedy the harassment they have endured. In New York specifically, New York Labor Law Article 20-C § 740 is in place to forbid an employer from taking retaliatory actions against an employee who reports discrimination in the work place. New York employees have protection at both the Federal and State level when exercising their right to be free of discriminatory actions taken by their employer. For employees working in New York City, they even have a third layer of protection under the New York City Human Rights Law.
Employees do not have to report acts of discrimination to one of these agencies in order to be afforded protection under these anti-retaliation laws. An employee is safeguarded against retaliation in any form when they complain about discrimination or harassment directly to their employer by complaining to Human Resources, management or some equivalent. It is vital, however, when complaining directly to your employer, that the aggrieved employee document their complaint of discrimination or harassment in some manner, whether through a formal document, email, or in the presence of a trusted witness.
For an employee to prove they have been retaliated against, they only need to show that the retaliation has produced “an injury or harm.” Burlington Northern & Sante Fe Ry. V. White, 548 U.S. 53, 67 (2006). The injury or harm requirement must however stem from or convey a feeling or perception of discrimination. Employees should not be weary of reporting acts of retaliation, but should exercise their right to be free of these acts. Retaliation can also occur if someone has been negatively affected by your report of discrimination. The EEOC’s Retaliation laws protect the rights of third–parties, even though they have not made claims of discrimination themselves. Thompson v. North American Stainless, LP (2011). For a more detailed discussion on how third-parties are protected by the law, check back to see further blog discussion on our website.
Stuckey v. Yellow-Roadway Corporation
This action was instituted by various hourly employees to address nationwide discrimination by the Yellow-Roadway Corporation and their Unions. Instances of discrimination include the creation of a hostile work environment and open bigotry by employees who felt empowered by their union and supervisors who joined in on treating Black employees as less than White employees. The complaint also alleges that the Union discriminated against its Black members by failing to advocate for their rights in a manner equal to those of their White counterparts.
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Henderson v. The Transportation Group
This action was instituted to address a failure to pay overtime to Analysts employed by the Transportation Group. Analysts were required to work in excess of 40 hours per work week without overtime pay. Analysts performed non-exempt duties during this time and were required to stay in the office until late in the evening without compensation.
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Turner Industries to face lawsuit for discrimination
BATON ROUGE, La (NBC33) – Civil rights leaders announced today that Baton Rouge-based Turner Industries is being sued for discrimination by several of its employees.
Turner Industries released a statement denying any discriminatory actions, but one employee tells a much different story.
“All the years of frustration and pain that I went through,” Yvonne Turner, former employee at Turner Industries, said a press conference held in Baton Rouge. “I’m tired and it’s time for me to speak up.”
For more on this story, watch NBC33 News at 10 p.m.
Original Article: https://www.nbc33tv.com/news/crimetracker/turner-industries-to-face-lawsuit-for-discrimination
By Brix Fowler – Reporter NBC
Tuesday, February 1, 2011