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.
January 31st, 2011 by BMBB Law
Beranbaum Menken LLP has filed a lawsuit on behalf of a former Project OHR home attendant for minimum wage and overtime violations. Among other things, we allege that Project OHR’s policy of paying a flat rate (usually $18) for working overnight, rather than the minimum wage of $7.25 per hour, violates the law. Attorneys at this firm are interested in speaking with anyone who worked for Project OHR and was not paid their proper wages. Please call attorneys Jason Rozger or Jennifer Smith at (212) 509-1616. There is no charge for speaking with us about this matter.
The lawsuit is captioned Severin v. Project OHR and was filed in the U.S. District Court, Southern District of New York.
December 8th, 2010 by BMBB Law
On November 29, 2010, the Domestic Workers’ Bill of Rights took effect in New York State, making this the first state to provide explicit workplace protections to domestic workers. The new law provides greater rights and protections to thousands of nannies, housekeepers, elder companions, cleaners, baby-sitters and cooks in private households, and imposes substantial new responsibilities on those who employ them. Among other provisions, this law gives domestic workers:
* The right to overtime pay at time-and-a-half after 40 hours of work in a week, or 44 hours for workers who live in their employer’s home;
* A full day of rest every seven days, or overtime pay if they agree to work on that day;
* Three paid days of rest each year after one year of work for the same employer; and
* Protection under New York State Human Rights Law, and the creation of a special cause of action for domestic workers who suffer sexual or racial harassment.
Beranbaum Menken LLP looks forward to working with domestic workers to enforce the protections this new law provides.
September 21st, 2010 by BMBB Law
Last month, the New York Law Journal published an article written by John Beranbaum, entitled “Assessing the Impact of ‘Gross’ on Employment Discrimination Cases” (Aug. 9, 2010). At the time Gross v. FBL Financial Servs. was decided, it was widely seen as a blow to the rights of older workers bringing age discrimination cases. While Gross undoubtedly was a piece of “unnecessary lawmaking,” as the Justice Stevens wrote in dissent, and an obvious effort by a very conservative Supreme Court to curtail employment discrimination litigation, in his article, Mr. Beranbaum takes the position that the impact of the decision will be limited. Yet, in any event, a bill is before both houses of Congress to reverse what is seen as the Supreme Court’s misguided interpretation of the Age Discrimination in Employment Act. The National Employment Lawyers Assn. is spearheading the lobbying efforts on behalf of the bill.