September 15th, 2011 by BMBB Law
On September 8, 2011, Beranbaum Menken filed a disability discrimination suit alleging that Graham Windham, a New York-based foster care placement agency, discriminated against one of its employees because she suffers from post-traumatic stress disorder. The employee had performed outstanding work for the agency for years, overseeing the successful placement of countless children in foster homes throughout the city and earning accolades from the city of New York and Graham Windham itself. However, the complaint alleges that once her disability was discovered, her employer no longer believed that she was capable of performing her job, resulting in severe harassment, culminating in her termination. Under federal and local laws, such stereotyped assumptions about people with disabilities cannot legally form the basis for adverse employment actions. The suit therefore seeks compensation for violations of the Americans With Disabilities Act, as well as state and local human rights laws.
September 9th, 2011 by BMBB Law
The New York Labor Law requires that employees working for a contractor on a public project be paid “prevailing wages,” which are based on the union rate for that work and are generally higher than the typical wage. Beranbaum Menken has filed several lawsuits against companies who break this law by paying their employees less than the prevailing wage rate. In one of these cases, Judge Steven Gold of the U.S. District Court for the Eastern District of New York has issued a decision certifying the case as a class action. Judge Gold decided that the case could proceed on behalf of all employees of SimplexGrinnell who worked on fire alarm and sprinkler systems on public projects in the State of New York. The judge also decided that the recent Supreme Court decision in Dukes v. Wal-Mart, which many saw as restricting employee class actions, was no impediment to a class action here. This case is titled Ramos v. SimplexGrinnell LP., 07CV981(SMG). No trial date has been set as of yet.
If you worked on public projects, be they for the state, a municipality, or a public school, and think you were not paid the “prevailing wage,” call or email our firm.
June 22nd, 2011 by BMBB Law
On Tuesday, June 14th, Beranbaum Menken filed a collective action suit against Mainfreight, Inc. alleging that the company violated the Age Discrimination in Employment Act by terminating and failing to promote employees over 40 years old. We are seeking to represent all such workers throughout the United States who have been the victims of age discrimination at the company. Our firm currently represents three former employees, though we have reason to believe that numerous others throughout the country have been the victims of similar discrimination.
If you think you may have been fired, laid off, or denied a promotion because of your age at Mainfreight, Inc., are over 40 years old, and work or worked in either the Sales or Operations departments, we would like to speak with you. Please contact Christine Clarke at (212) 509-1616.
April 26th, 2011 by BMBB Law
On April 21, 2011, after a two-week trial and 13 hours of deliberations, a jury rendered a verdict finding that a social worker, represented by Margaret McIntyre and John Beranbaum, was discriminated against because of her disability when she was denied a promotion. The case was heard in the U.S. District Court, Eastern District of New York.
The case is Siracuse v. Program for Development of Human Potential. In a nutshell, the plaintiff, a social worker with 16 years tenure and terrific qualifications, had cancer and received treatment for the better part of a year. She had to miss work intermittently that year for her treatment and the resulting fatigue. After her treatment was over and her cancer was in remission, a supervisory position opened up at the agency. Despite having a Masters of Social Work degree, she was passed over for the position in favor of a person without an advanced degree and who, we asserted, lacked comparable experience. For their part, the agency claimed that they were under financial pressure and had eliminated the position, distributing its responsibilities to other people.
The jury found that defendant discriminated against plaintiff because of her cancer, in violation of the New York City Human Rights Law. However, they found no violation of the anti-retaliation provision under the Family and Medical Leave Act. The jury granted the plaintiff all of her economic damages ($38,500) and $40,000 in pain and suffering damages, with the judge to decide the amount of attoreny’s fees due plaintiff.
March 23rd, 2011 by BMBB Law
The major Federal employment statues also protect employees from being retaliated against for asserting their rights under those laws. The Federal law that requires that employers pay minimum and overtime wages (the Fair Labor Standards Act) provides that an employer can’t retaliate if an employee “has filed any complaint or instituted or caused to be instituted any proceeding under or related to” the FLSA.
Yesterday the Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. held 6-2 that a protected “complaint” can be either written or oral. Justice Breyer wrote for the majority. What’s interesting about the case is the question it expressly didn’t decide: whether a protected “complaint” may be made to the employer, or if it has to be made to a court or governmental authority. There was actually little doubt that an oral complaint was protected - aside from the case below, there were no circuit court decisions holding otherwise. However, there is a circuit split about whether a complaint to the employer is protected. Saying yes are the First, Third, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits, along with the Fourth Circuit which strongly implied that it would protect such complaints. Ball v. Memphis BBQ, 228 F.3d 360 (4 Cir. 2000).
Standing alone in holding that a complaint to an employer is not protected is the Second Circuit, see Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993). Curiously, the Supreme Court noted this split in discussing why it granted cert, but, since Lambert didn’t turn on whether the complaint was written or oral, but rather who it was made to, the Supreme Court actually doesn’t resolve the circuit split for which it allegedly granted cert! So, for the time being, the law is unchanged in the Second Circuit - an employer does not violate the FLSA if it fires an employee who complains internally about not getting paid overtime or minimum wages. Fortunately, the New York Labor Law protects internal complaints, so an employee who is the victim of such retaliation still has a state court remedy in New York.
With Scalia and Thomas in dissent arguing that internal complaints are not protected whether written or oral, one wonders if Judge Breyer could not get five votes, since Justice Kagan abstained from the case, for the broader proposition that internal complaints are protected.