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New York Employment Law Blog

Court rules LGBT workers protected under federal law

On Feb. 26, a New York federal appeals court ruled that federal law forbids employers from discriminating against workers based on their sexual orientation. It is the second federal court to hand down such a ruling.

The case before the U.S. Court of Appeals for the 2nd Circuit involved a skydiving instructor who claimed he was wrongfully terminated in 2010 for being gay. According to court documents, the man's job at a Central Islip skydiving school required him to strap himself to students and skydive with them. On one occasion, he told a female client not to be concerned about their close physical proximity because he was gay. Her boyfriend complained to the skydiving school, and he was fired. The plaintiff died in a 2014 skydiving accident.

Lawsuit alleges gender discrimination at Vice

New York City is home to a number of high-profile media companies, a number of which have come under scrutiny in recent months for their treatment of female employees. Vice Media, the alternative, youth-oriented media outlet known for its television programs and online content that focus on pop culture, drugs, sex and scandal, has now been sued by one female former employee, alleging that the corporation engages in systematic wage discrimination against women.

The plaintiff worked at Vice Media between 2014 and 2016. In her lawsuit, she alleges that the company's practices violate the Federal Equal Pay Act as well as state law in New York and California protecting women's rights to equal pay on the job. The woman's lawsuit includes an allegation that a male staffer who was hired at a level below her was brought on at an annual rate of pay approximately $25,000 higher. Later, this man was promoted to a level above her despite her longer record of achievement.

Protecting whistleblowers against retaliation

Federal agencies in New York and across the country have received updates to previous instructions they received on whistleblower protections. They've also been provided with new instructions and information on how these new guidelines should be implemented with the goal of protecting whistleblowers.

One change involves modifying or enacting educational provisions instructing employees about their rights to be whistleblowers as well as instructing employers and other individuals in positions of power about prohibited personnel practices. These changes in regulations come as a result of laws that were enacted by President Donald Trump at the end of the 2017 calendar year.

Retalition remains most common EEOC claim

According to recent data, New Yorkers filed fewer claims with the federal Equal Employment Opportunity Commission (EEOC) in 2017 than in recent years. New York was in line with the nation as overall claims were down slightly from 2016. Overall, the EEOC recovered $398 million for claimants in the fiscal year 2017, which is $84 million less than in 2016. The EEOC is in charge of administering and enforcing federal civil rights laws against workplace discrimination.

Unsurprisingly, retaliation remains the most commonly cited complaint in EEOC filings. Retaliation is a general claim that can apply whenever an employer retaliates against an employee for asserting specific rights and usually is accompanied by additional claims alleging discrimination or harassment based upon race, gender, religion, disability, age, or national origin. Forty-eight percent of all 2017 claims included at least one allegation of retaliation. The second most common claim was for race-based discrimination, which is also consistent with past years. In descending order, the other most frequently cited claims were for discrimination and/or harassment related to disability, gender, age, national origin and color. Allegations related to the Equal Pay Act made up just over 1 percent of all 2017 filings.

A triangle of trouble: Social media, employees and employers

Social media is a fact of life for almost everyone these days. Since employees are on social media, there are some questions that might come up about what, if any, control employers can have over what employees are posting on social media.

If your employer does try to control your social media accounts, there are some points that you need to consider. Even though it might be unpleasant, there are instances when your employer is entitled to inform you that you can't post something on social media. On the reverse side, there are times when the employer doesn't have a say in what an employee posts.

How age plays a role in career decisions

New York workers may want to stay in the workforce for as long as possible. In fact, that may actually be beneficial to society according to a study from the Federal Reserve Bank of San Francisco. As the population ages, there will be an impact to the Social Security system. This may be addressed by asking workers to wait until a later age to start taking their benefits.

However, even if workers want to keep working for as long as possible, age discrimination may prevent them from doing so. At best, it may prevent them from doing anything other than part-time or short-term work prior to retiring. In an experiment that involved sending fake resumes to 13,000 job ads, younger "applicants" received more callbacks than the older fictitious ones. Those who were between the ages of 64 and 66 were the most likely to not hear back from an employer.

TBS faces racial discrimination lawsuit

New York cable television viewers may be interested in learning that a lawsuit has been filed against TBS by an African-American former employee claiming the channel practices racial discrimination. According to the woman's lawsuit, she worked at the company for 13 years and observed a pattern of racial discrimination. She says that African-American employees had to work harder for promotions than white employees and that they were paid less than their white counterparts.

The woman also says that she experienced racial discrimination personally. She was a quality control manager and says that a white man with fewer qualifications was promoted ahead of her. She also says that the positions of senior vice president and above have never been held by a nonwhite employee.

When should on-call employees be paid for their time?

Various industries use on-call employees to fill gaps in staffing needs. Being an on-call employee might seem like a pretty sweet deal. You can sit around and wait to see if you are going to get called in to work. After all, if your employer wants you to wait around, you'll get paid, right?

The answer to this question is that only some on-call employees will get paid for their time. There are several points that can help to determine whether the period you are on-call will be paid or unpaid. In some instances, you might have to fight for your rightful on-call pay. Here are some points you need to know about this work status:

Volunteering by public employees must follow FLSA rules

New York public employees covered by the Fair Labor Standards Act's wage and hour rules should be careful that any volunteer work they undertake for their employer doesn't run afoul of those guidelines. Many volunteer situations are not allowed under FLSA's rules for severance, commissions and bonuses. The activities not included could result in the employee volunteer's organization being cited for a failure to pay for work performed. This is intended for the protection of both workers and employers.

Wage and hour regulations are specific and strongly enforced by the FLSA. Employees are permitted to volunteer for the organization that employs them, but experts recommend that extra care be taken to ensure that the volunteer activity qualifies as being done for civic, charitable or humanitarian reasons. In fact, it is required that such volunteers meet the rules for public employees and for employees of private companies.

Women in STEM careers face greater discrimination

Careers in science, technology, engineering and math frequently offer high-paying career opportunities to people in New York. Women and minorities, however, experience high levels of harassment and discrimination in these occupations according to a survey prepared by the Pew Research Center. Half of women in STEM jobs reported gender discrimination. Drawing upon data provided by some large technology companies, the Pew report found low levels of employment among blacks and Hispanics in STEM positions compared to other employment sectors.

After researchers reviewed the survey responses from 4,914 adults, they concluded that women reported more discrimination when they worked for majority-male organizations, used computers or held a postgraduate degree. According to the report, gender discrimination and sexual harassment created barriers to career success for women. A lower percentage of men recognized sexual harassment as a problem in STEM workplaces than their female colleagues.

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