New York Employment Attorney Blog — Published by New York Employment Lawyers

July 16, 2019

New York City Enacts Law Banning Marijuana Testing During the Hiring Process

Criminal history can be an enormous impediment to obtaining employment. People often find themselves shut out from many opportunities, even when their particular history of arrest or conviction has no bearing at all on the job they are seeking. New York City employment discrimination attorneys can look to the Fair Chance Act (FCA) in claims for discrimination on the basis of criminal history. A related issue involves drug testing during hiring. Marijuana is legal for, at a minimum, medical use in more than half of the states in the country, including New York. Many employers, however, continue to use marijuana testing to eliminate job candidates. Local Law 2019-091, which will go into effect in New York City in May 2020, will prohibit pre-employment testing for marijuana in many situations.

The FCA bars employers from inquiring about criminal history until the final stages of the hiring process. N.Y.C. Admin. Code § 8-107(11-a)(a)(3). Employers may not discriminate against job applicants solely on the basis of criminal history, unless they follow procedures set forth by state law. Id. at §§ 8-107(10)(a), (11-a)(b); N.Y. Corr. L. § 750 et seq. Exceptions include jobs that require specific security clearances, and situations where an individual’s specific history would directly affect the job in question.

While marijuana remains highly controlled under federal law, most states have eased restrictions to various extents. California was the first state to allow medical marijuana use, and Colorado was the first to allow recreational use. New York enacted medical marijuana legislation in 2014. While the state has not decriminalized it to the extent of states like Colorado, it recently downgraded possession of small amounts from a criminal offense to a civil violation.
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July 9, 2019

Changes to New York State Human Rights Law Expands Protection from Discrimination

by Phillips & Associates

Anyone who works in the State of New York is protected against sexual harassment and discrimination in the workplace by multiple laws, including the New York State Human Rights Law (NYSHRL). While the NYSHRL already provided greater protection against discrimination than the federal laws, recently passed amendments and proposed amendments that are pending approval vastly enlarged employees’ defenses against discrimination and harassment and expanded the liability imposed on employers. If you live in New York and suffered discrimination or sexual harassment at work, it is essential to meet with a trusted New York employment litigation attorney to discuss your prospective claims. At Phillips & Associates, our knowledgeable New York employment litigation attorneys are dedicated to assisting individuals who suffered harm due to sexual harassment or discrimination in the workplace in the pursuit of damages in New York and throughout the Tri-State area.

2018 Changes to the NYHRL

The recent changes made to the NYSHRL provided greater protection for employees and certain non-employees and imposed greater liability on employers. The changes require employers to develop and distribute written anti-harassment policies and conduct annual mandatory programs to prevent sexual harassment. Additionally, protection from sexual harassment is expanded from employees only to consultants, contractors, vendors, and other individuals working for an employer under the terms of a contract. An employer can be held accountable for the sexual harassment of these individuals if the employer either knew or should have known of the harassment and failed to rectify the situation.

The changes also modified the terms employers are permitted to include in certain contracts. For example, employers are barred from including provisions in employment contracts that make it mandatory to arbitrate sexual harassment claims, if the provision states that the arbitrator’s findings will be final and binding. Further, an employer cannot insert a confidentiality clause in a settlement agreement for a sexual harassment claim, unless the employee specifically requests the inclusion of the clause in writing. Additionally, the employee must be granted twenty-one days to weigh the terms of a settlement agreement and must be allowed seven days after the execution of the agreement to retract the agreement. Continue reading

July 5, 2019

Former Domestic Worker Files Lawsuit in New York City Alleging Sexual Harassment by Employer

by Phillips & Associates

Multiple legal strategies are available to New York City employment discrimination attorneys who are planning to assert a claim for sexual harassment on a client’s behalf. Federal, state, and municipal law provide protection against a wide range of discriminatory workplace practices. State law includes provisions that specifically apply to domestic workers, and which outline various situations that may constitute unlawful sexual harassment. A lawsuit filed in a Manhattan federal court in April 2019 alleges sexual harassment and other claims against an individual who employed the plaintiff as an au pair for his son. The complaint cites provisions of state and federal law that apply to domestic workers.

While sexual harassment is deemed a type of sex discrimination in any workplace, the New York State Human Rights Law (NYSHRL) addresses it in more specific terms for domestic workers. The term “domestic worker” includes people employed in someone’s residence to perform housekeeping services; to care for a child or “a sick, convalescing or elderly person”; or for “other domestic service purpose[s].” N.Y. Exec. L. § 296-b(1), N.Y. Lab. L. § 2(16). The NYSHRL prohibits “unwelcome sexual advances,” “requests for sexual favors,” and other conduct in two scenarios:
1. When acquiescence “to such conduct is made…a term or condition of…employment,” or the employer bases employment-related decisions on how the individual responds to the conduct; or
2. When the conduct creates a hostile work environment that “unreasonably interfer[es] with…work performance.” N.Y. Exec. L. § 296-b(2)(a).
These are the same scenarios that constitute sexual harassment under federal and city law. The New York Legislature has taken the extra step of codifying these definitions, as they pertain to domestic workers, in the NYSHRL.

According to her complaint, the plaintiff was nineteen years old when the defendant hired her to work in his home as an au pair for his twelve-year-old son, and to perform other jobs around the house. She notes that the defendant was fifty-seven years old at that time. She also notes the difference in size between them, with the defendant allegedly outweighing her by about eighty pounds and standing more than seven inches taller.
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June 30, 2019

New York Legislators Lower the High Evidentiary Standard in Sexual Harassment Lawsuits

by Phillips & Associates

New York has enacted several laws last year that were intended to help individuals who have experienced workplace sexual harassment. While those laws, which require training and other measures, may represent progress in terms of preventing future sexual harassment from occurring, critics have argued that they do little to help people who already have potential claims. In order to obtain relief in court, claimants typically must establish that the alleged harassment met a “severe or pervasive” standard established by the U.S. Supreme Court more than three decades ago. New York City discrimination attorneys are familiar with how difficult this standard can be to meet. This might no longer be the case, however, for claims under state law in New York. The state legislature passed a bill on June 19, 2019 that amends the New York State Human Rights Law (NYSHRL) to address sexual harassment specifically. Since the governor has also called for changes to sexual harassment law as part of his 2019 agenda, he has indicated that he will sign the bill.

The NYSHRL, Title VII of the Civil Rights Act of 1964, and other employment discrimination statutes recognize sexual harassment as a form of unlawful sex or gender discrimination. The U.S. Supreme Court made this finding for the first time in a 1986 decision, Meritor Savings Bank v. Vinson. The court ruled that, in order to sustain a claim for sexual harassment, a plaintiff must demonstrate that the conduct was so “severe or pervasive” that it “alter[ed] the conditions of…employment and create[d] an abusive working environment.” The New York Court of Appeals has adopted a comparable standard for harassment claims, citing Meritor and a related case from 1993, Harris v. Forklift Systems.

Critics of current New York law regarding sexual harassment—prior to the passage of the bill mentioned earlier—note that the “severe or pervasive” standard has led to court rulings dismissing many claims that seem to go far beyond any acceptable standard of conduct in the workplace. The Meritor case, according to the Supreme Court, involved “not only pervasive harassment but also criminal conduct of the most serious nature.” The ruling did not necessarily provide a useful guide for situations that were, relatively speaking, less appalling.
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June 28, 2019

Lawyer Monthly Publishes Article by Phillips & Associates Attorney on Legal Protections for Employees Taking Sick Leave

by Phillips & Associates

Can an employer fire an employee for getting sick? This was the question addressed by Jesse Weinstein, a Litigation Associate at Phillips & Associates, in an article published by Lawyer Monthly online and in its June 2019 print issue. The answer, as with almost any legal question, is that it depends. As an “at-will employment” state, New York law allows employers to fire their employees for any reason, or no reason at all, as long as the decision does not violate laws against discrimination, retaliation, and related practices. Firing an employee because of an illness might violate the law if the employee’s illness is a legally-protected disability, or if the employee is entitled by law to medical leave with employment protection. New York City employment attorneys can choose from multiple statutes, from the local up to the national level, when advocating for their clients’ rights.

The New York City Human Rights Law prohibits discrimination on the basis of disability and defines the term broadly to include “any physical, medical, mental or psychological impairment.” N.Y.C. Admin. Code § 8-102, 8-107(1)(a). Further, the law requires employers to make reasonable accommodations for workers with disabilities, as well as workers who or pregnant or have recently given birth, to allow them to perform their job duties. Id. at §§ 8-107(15), (22). Employers are not obligated to accommodate employees if doing so would pose an undue hardship.

Statewide, the New York State Human Rights Law gives the term “disability” a narrower definition, applying it in part to “physical, mental or medical impairment[s]” that “prevent[] the exercise of a normal bodily function.” N.Y. Exec. L. § 292(21). The statute prohibits discrimination on the basis of disability and requires employers to provide reasonable accommodations except in cases of undue hardship. Id. at §§ 296(1)(a), (3).
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June 27, 2019

Phillips & Associates Lawyers Recognized for $2.3 Million Jury Verdict in Discrimination Case

by Phillips & Associates

Phillips & Associates has established itself as one of New York City’s top employment discrimination law firms, with an exclusive focus on employee representation. Our attorneys have obtained more than $110 million in verdicts and settlements. Many of them have received recognition from their peers as leaders in the field of employment law. The legal publication TopVerdict recently recognized three of our attorneys for a jury verdict of $2.31 million in an employment discrimination lawsuit. Marjorie Mesidor, Brittany A. Stevens, and Nicole A. Welch represented a former employee of the Port Authority of New York and New Jersey (PANYNJ) in a case that alleged hostile work environment based on race and national origin. TopVerdict included the case in its “Top 100 Verdicts in New York” list for 2018.

Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees and job applicants on the basis of race and national origin, among other factors. See 42 U.S.C. § 2000e-2(a). Multiple court rulings have established that an employer commits an unlawful employment practice when they create a hostile work environment based on a protected category. While a hostile work environment is probably most familiar in the context of sexual harassment, it can also occur when an unwelcome and pervasive pattern of harassment is directed at a person’s race, color, religion, or national origin.

The Civil Rights Act of 1991 offers further protection against discrimination on the basis of race. It guarantees the right of all persons in the U.S., regardless of race, “to the full and equal benefit of all laws and proceedings for the security of persons and property.” Id. at § 1981. Unlike Title VII, this statute allows plaintiffs to recover punitive damages if they can establish that a defendant acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Id. at § 1981a(b)(1).
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June 27, 2019

New York’s Paid Family Leave Allows Either or Both Parents to Take Time to Care for Newborns

by Phillips & Associates

In many parts of the U.S., the availability of paid family leave to care for a newborn is entirely dependent on one’s employer. Ensuring that employers with family leave policies apply them fairly is often a matter of enforcing laws against discrimination on the basis of factors like pregnancy or gender. New York City discrimination attorneys do not have to go that far much of the time thanks to the state’s paid family leave law, which took effect in 2018. Even if an employee is not eligible for leave under the new state law, New York City’s prohibition on caregiver discrimination may offer protection against adverse employment actions. Both state and city law make no distinction based on gender—mothers and fathers alike can claim family leave and caregiver status. A recent settlement in a lawsuit against a New York City-based financial firm suggest that the country may soon be ready to follow in the city’s footsteps.

The New York City Human Rights Law (NYCHRL) defines a “caregiver” as someone who is responsible for supporting a minor child or certain other individuals. This obviously includes parents of children under the age of eighteen. The law prohibits employers from discriminating against employees and job applicants on the basis of caregiver status. It does not necessarily require that employers provide accommodations for employees with caregiver responsibilities, but it still provides workers with important protections.

The paid family leave law applies to both full-time and part-time workers once they have worked for a minimum period of time. They must start over with regard to minimum days or weeks worked when they start working for a new employer. Starting in 2019, the law allows eligible employees to take up to ten weeks of leave to bond with a new baby. An individual must take advantage of this program within twelve months of the child’s birth. It expressly applies to any new parent, regardless of gender. Both of a child’s parents may take paid family leave if they meet the eligibility criteria. Benefits are payable through employers’ disability insurance.
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June 25, 2019

Championing the Little Guy: Our Top Ten Legal Movie Picks

by Phillips & Associates

There are hundreds of legal movies out there. Classics like 12 Angry Men and To Kill a Mockingbird, comedies like My Cousin Vinny, and murder mysteries, like Witness for the Prosecution or Anatomy of a Murder. But some of our favorites are films that champion social justice, the ability of the little guy to take on the giant, and to end wrongful misconduct of corporations, or even the government itself.

All of these films tackle important, real issues in the world: issues like gender, race, or sexual discrimination, environmental issues, medical malpractice, and flawed legal systems. Another theme that runs through many of these films is how the issue at stake transforms whoever it touches.

The lawyers in these films come into a case thinking one way, and they leave a different, better person.

June 24, 2019

National Law Journal Names Phillips & Associates as 2019 “Elite Trial Lawyers” Finalist in Three Practice Areas

by Phillips & Associates

In late May 2019, the National Law Journal (NLJ) published its list of finalists for its 2019 “Elite Trial Lawyers” awards. These awards recognize law firms in more than twenty areas of practice, including employment, business, finance, civil rights, bankruptcy, and tort law. Phillips & Associates has been nominated in all three employment-related categories: Discrimination, Employment Rights, and Racial Discrimination. New York City has one of the broadest antidiscrimination statutes in the country, and we have positioned ourselves as one of the top employment discrimination firms in the tri-state area.

Phillips & Associates has received recognition as a firm for its work in employment law. Numerous attorneys with the firm have received individual accolades for their accomplishments. We are one of the only employment law firms in greater New York City with an exclusive focus on employee representation. Our clients often have claims against their employers for discrimination and other unlawful practices under statutes like the New York State Human Rights Law and the New York City Human Rights Law.

Our firm has actively pursued justice for clients with discrimination claims under recent amendments to New York City law, which prohibit discrimination on the basis of factors like criminal history, unemployment, and caregiver status. We also represent clients with claims for unlawful practices under the Family and Medical Leave Act, and for minimum wage and overtime violations under the Fair Labor Standards Act.
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June 21, 2019

Phillips & Associates Named Best Employment Discrimination Law Firm by Business Magazine

by Phillips & Associates

Phillips & Associates is honored to announce that US Business News has recognized our employment discrimination practice in its “2019 Legal Elite Awards” issue. We are one of a small number of New York City employment discrimination law firms that exclusively represents employees. Our firm has received multiple honors and accolades in recent years. Many of our lawyers have achieved “Super Lawyer” status. Six of our attorneys are members of the prestigious Million Dollar Advocates Forum, which is only open to lawyers who have obtained verdicts or settlements of a million dollars or more. Thanks to the hard work and dedication of our attorneys and staff, we are one of the top law firms in the great New York City area for sexual harassment and other employment discrimination claims, with over $110 million in settlements and verdicts.

A significant part of our legal practice is dedicated to advocating for workers who have experienced sexual harassment. Under laws like the New York City Human Rights Law (NYCHRL) and Title VII of the Civil Rights Act of 1964, sexual harassment in the workplace is a form of unlawful discrimination on the basis of sex. This includes situations in which a supervisor or manager makes submission to sexual activity of some sort a condition of employment, and situations in which pervasive and unwelcome sexual behavior creates a hostile work environment.

Our firm has also taken an active role advocating for employees’ rights under new amendments to the NYCHRL that make it one of the most comprehensive antidiscrimination laws in the country. This includes provisions that protect job applicants from discrimination on the basis of criminal history, and which allow individuals to demonstrate their qualifications for a job before an employer may ask about past convictions. New York City also prohibits discrimination against employees because of caregiving responsibilities for children or other family or household members, because of prior periods of unemployment, because of gender identity or gender expression, and many other factors.
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