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New York Employment Law Blog

Opinion letters issued in FLSA and FMLA matters

New York employers and others throughout the country are generally not responsible for paying workers for time commuting to and from work. This is generally true even if they are commuting between job sites or doing so using a company car. According to an opinion letter from the Department of Labor Wage Hour Division, employees can be entitled to pay for extended periods of travel away from home.

Employers could be liable for paying workers if travel time occurs during the workday. If an employee doesn't work normal hours, a company can create an average start and end time to a worker's day. It is also possible for employers and workers to determine ahead of time how much a worker gets paid for travel.

Disability represents major source of workplace discrimination

People with disabilities in New York frequently face difficulties landing a job. The rate of unemployment among people with disabilities reaches as high as 70 percent. Among those with jobs, their pay on average falls below their co-workers. Full-time workers with disabilities earn about $1,000 less every month than their able-bodied colleagues.

According to the Equal Employment Opportunity Commission, the agency processed 84,254 charges of discrimination in 2017, and 31.9 percent of them involved complaints from people living with disabilities. Although 26,838 charges claiming disability discrimination reached the EEOC in 2017, it represented a decline from 2016 when disability complaints peaked at 28,073 charges.

Constructive discharge could be seen as retaliation

As part of the False Claims Act, whistleblowers are protected from a series of retaliatory actions on the part of an employer. Companies in New York and throughout the country are not allowed to demote, suspend or otherwise discriminate against whistleblowers in their employment terms and conditions. However, there had been some question as to whether a constructive discharge was considered retaliation under the False Claims Act.

A decision from the 6th Circuit determined that it was. The case involved an employee of LHC Group, Inc. who would reimburse colleagues for expenses recorded on sheets of paper. However, the employee noticed that these forms were altered, and she felt that processing these claims would be fraud on her part as well. After the company took no action regarding the issue, the employee resigned citing fear of losing her nursing license and other potential negative consequences.

Media investigations reveal stories of age discrimination at IBM

The Age Discrimination in Employment Act is meant to protect workers in New York from workplace discrimination because of their age. Companies can employ tactics, however, that appear to result in age discrimination. Investigations of IBM by ProPublica and Mother Jones have revealed that approximately 60 percent of job cuts by the company involved people over age 40. This reflected the job losses of about 20,000 people during a five-year period.

Stories collected from thousands of former employees reveal the methods used by the company to remove older workers. Internal company documents indicated a new focus on hiring young people. IBM changed its policy for collecting severance benefits to require private arbitration instead of lawsuits as the only option for employees to address age discrimination complaints. Private arbitration is known to favor employers.

Disability discrimination mustn't be tolerated

It is difficult to go to work when you are sick and aren't feeling well. Now, think about people who have chronic medical conditions and those who are fighting a very serious illness. These individuals will often decide that they need to continue working as long as possible.

While many employers try to make it as easy as possible for people with these conditions to do their jobs, there are some who make life as difficult as possible for them. This is a troubling situation because it can lead to harassment and discrimination for an employee who is already going through so much.

Why suing an employer can be difficult

Title VII of the 1964 Civil Rights Act forbids most employers in New York from treating workers differently based on their gender, race or national origin. However, some companies still find ways to violate Title VII, and it's often difficult to file a lawsuit for discrimination. For instance, the time it takes to resolve such a case could mean delayed justice for a worker.

Employers may also ask workers to sign away their rights to take legal action in exchange for receiving a severance package. That may force a worker to choose between having money while unemployed or filing a suit and getting nothing. Since most employment is at-will, an employer may fire an employee for any reason not deemed to be discriminatory. If an employer doesn't admit that a termination was discriminatory, it could be tougher to prove a case in court.

Ex-Google employee files lawsuit after termination

New York residents who followed the firing of James Damore at Google over a memo he wrote and his claims that the company discriminated against conservative white men might be interested to know that another employee has now filed a lawsuit against the company for retaliation, harassment, discrimination and wrongful termination. The plaintiff says he was fired for internal posts and memes he made about sexism and racism in response to the Damore memo.

The posts of the man filing the lawsuit, who is transgender and disabled, were quoted in the discrimination lawsuit that Damore filed earlier against Google. In mid-September, in a meeting with human resources, the man was told that someone had complained about a post he made in which he said he refused to work with people who have the same views as Damore. The suit also says the man's manager said he did too much social activism. The man was terminated in November.

Is your severance offer fair?

At some point in your career, you may receive a severance offer from an employer. This is not always an easy scenario to navigate, and it is important for you to understand the issues so that you can make an informed decision about the offer and potentially negotiate the terms.

Ideally, a severance package allows you to move on from your current position and have the resources to job search for some time before you feel economic pressures that might force you to take a job you do not want or that is well below your expected pay grade. However, this not the only thing at stake. Be sure to read the offer carefully before you sign on the dotted line or refuse the offer altogether.

Court backs transgender worker's discrimination charges

LGBTQ employees in New York may want to know more about the latest developments in federal circuit courts regarding cases involving workplace discrimination. Recent rulings and appeals have indicated that employers cannot discriminate based on sexual orientation and gender identity. In one ruling, the 6th U.S. Circuit Court of Appeals found in favor of a transgender employee who was terminated after she revealed to her employer that she was transitioning.

There are no explicit provisions against sexual orientation or gender identity discrimination in Title VII of the 1964 Civil Rights Act. However, the law prevents sex discrimination, and several federal appeals courts have found that this was at the root of unlawful firings of some LGBTQ employees. In addition, the recent 6th Circuit ruling took a new step in rejecting a defense proffered by the employer in the case. The Detroit-area funeral home argued that forbidding discrimination against transgender workers infringed on the business owner's freedom of religion.

Sexual harassment still an issue for many women

According to a Pew Research survey, 48 percent of women say they work for companies that have more women than men. Approximately 18 percent say that there are more men than women in their workplace, and that imbalance may lead to gender discrimination. Women who say that there are more men where they work report having trouble getting ahead at work or being treated fairly.

Most workers say their gender has had little influence on their success at work, but 19 percent of women compared to just 7 percent of men say that it has played a role in their success at work. Of those who work in a majority male environment, 49 percent say that sexual harassment is a problem. Only 32 percent of those who work in a female majority environment say that such a problem exists.

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