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New York Employment Law Blog

Age discrimination law celebrates 50th anniversary

In 1967, the Age Discrimination in Employment Act was passed by Congress. The act makes it illegal for companies in New York and around the country to discriminate against people based on their age. Other stated goals of the legislation were to ensure that workers were judged by their ability and to help workers and employers find solutions to issues related to age in the workplace.

The ADEA is one of the oldest and broadest anti-discrimination laws in the country. Those who are 40 and older are a protected class when it comes to this law. While the law has been in place for 50 years now, the number of claims related to age discrimination have remained steady over time. According to the Equal Employment Opportunity Commission, there were 24,582 charges of age discrimination in 2008, and there have been 20,000 or more in each of the last 10 years.

Tip sharing is a thorn in some workers' sides

Some employees in the restaurant industry count on tips to survive. There are some new developments in how tips in the restaurant industry are handled that all employees should know.

Earlier this year, the National Restaurant Association (NRA) petitioned the United States Supreme Court to hear a case regarding tip pooling. This is a fairly common practice in the restaurant industry, but it is sometimes misused and often comes across as a thorn in the side of the workers.

Constructive dismissal in workplace discrimination cases

Workers in New York and around the country who have been discriminated against due to their race, religion, gender, age or national origin may pursue remedies under Title VII of the 1964 Civil Rights Act. These claims are often made after workers have been fired unfairly, but Title VII cases may also be filed when working conditions are so unbearable that a reasonable person would feel compelled to quit. This was how the Supreme Court defined constructive dismissal in a 2004 lawsuit involving the Pennsylvania State Police, but proving such claims can be challenging for workers.

Title VII plaintiffs are expected to do all that they can to mitigate their damages, and this generally means that they should stay on the job for as long as possible. Discrimination that would be sufficient to support a Title VII claim may not be enough to establish constructive dismissal, and workers who resign because of unfair treatment will usually be asked to provide evidence of additional aggravating factors.

When gender harassment isn't gender harassment

New York residents may know that sex discrimination in the workplace is banned by Title VII of the Civil Rights Act of 1964. However, it isn't always clear what the definition of sex is under that statute. According to one court ruling from the Northern District of New York, a male police officer who sent text messages to his ex-girlfriend was not harassing her based on sex.

This is because the judge found that the harassing behavior was a result of disappointment regarding the end of the relationship. While the judge found the messages to be unwelcome, they could not construed as having been motivated specifically because of her sex. While the ruling may be confusing to employers, they can protect themselves by having comprehensive policies banning sexual harassment or harassment of any kind. It may also be a good idea to stay informed on how courts are interpreting sex as it relates to employment law.

Recent rulings recognize sexual orientation as protected class

New York residents may be confused as to whether being part of the LGBTQ community offers them protection under federal laws related to employment. While the question has not yet been settled, court rulings may be offering some clarity on the matter. In April 2017, the United States Court of Appeals for the 7th Circuit found that sexual orientation was covered by Title VII of the Civil Rights Act of 1964.

That decision went against the court's previous rulings as well as similar rulings by other appellate courts. It also means that in states covered by that court, sexual orientation is a protected attribute just like race, color or gender. In May 2017, a judge from a New York federal district court decided to use the 7th Circuit ruling as a basis to allow a State University of New York employee to pursue a discrimination claim against the school.

How whistleblowers can remain protected in the workplace

While many New Yorkers may know that whistleblowers are supposed to be protected in the workplace, they might not specifically know what their employee rights are in this situation. There are a number of different laws that protect whistleblowers, and some are specific to certain industries or dependent on context. For this reason, employees might want to begin by consulting an attorney even if they plan to try to resolve the issue in the workplace.

In fact, trying to resolve an issue in the workplace may be the first step. Most companies and government agencies have a process in place for whistleblowers who need to make a report. The employee should document everything in writing and should avoid talking to others about the issue. This includes not posting on social media. An employee's actions must be "protected activity" in order to get whistleblower protection meaning the information should not be widely shared.

After-acquired evidence defenses

New York residents who believe that they have been victims of workplace discrimination and want to file a complaint should be aware that the employer may counter with a variety of defenses. This may include the after-acquired evidence defense, which is any information the employer will find about the employee after he or she has been fired and is the behavior that the employer would have used as cause to terminate the employee even if there had been no discrimination.

The Supreme Court addressed this defense in a 1995 decision and determined that an employee could still prove the discrimination, even with the existence of after-acquired evidence, but the evidence could negatively affect the damages awarded to the employee. For example, it could affect how much back pay a discrimination victim could receive by limiting the amount from when the employee was fired to when the employer discovered the employee's misconduct.

5 things to know about Family and Medical Leave Act

Things happen in life, even when you have a good job. Medical emergencies are one of the most difficult things that you have to deal with. Other life situations, such as the birth of a child or an adoption might also impact your ability to do your job.

The Family and Medical Leave Act is one option that many employees can use when they need time off work for these reasons. Understanding what the FMLA does and how it impacts your situation can help you to plan for the time you need off.

Penalty for misclassifying employees

Employers in New York and the rest of the country can be heavily fined if they misclassify an hourly employee as exempt. According to the Fair Labor Standards Act, if an employer is unable to demonstrate that the misclassification was an honest error that was made in good faith, a fine that is equal to two times the amount of two years of back overtime will have to be paid as a penalty.

In order to show that an honest effort was made to properly classify an employee, an employer would have to prove that there was a comprehensive investigation into what is required by the FLSA for each exemption that was claimed. If an employer used the existing job descriptions for a position and ignored the actual tasks of the job, the employer would be fined.

Reducing discrimination and harassment claims

There has been a recent increase in the number of claims filed pertaining to gender discrimination and harassment. New York employers should be aware of the actions they can take to avoid these claims.

Employers may have the assumption that employees are already aware of the type of behaviors that can be classified as discriminatory or harassing. As a result, the company-wide policies related to the issue sometimes provide only general references. However, this tactic does not provide the education employees need. Policies regarding discrimination and harassment should offer real-life, specific examples of the unwanted behaviors that will not be tolerated by the employer. This can include forwarding communications that contain offensive or derogatory images, website links or jokes and constantly asking a co-worker on a date.

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