April 26th, 2012 by BMBB Law
The EEOC issued a guidance today on an employer’s use of criminal background and arrest records in vetting possible employees, as well as a handy question and answer page.
Using criminal background checks does not violate federal law, per se. However, an employer’s use of them can be racially discriminatory. The EEOC gives an example of how an employer may perceive a Black applicant with a drug possession record differently from a similar White applicant.
Similarly, using criminal background checks and arrest records may violate a federal prohibition on policies which disproportionately affect a certain categories of people.
The EEOC also clarifies that the mere fact that someone was arrested doesn’t necessarily mean they’ve done anything wrong, and cautions employers against blindly relying on arrest records when making employment decisions.
February 16th, 2012 by BMBB Law
For the second year in a row, Beranbaum Menken LLP, has been included in U.S. News & World Report’s “Best Law Firms” (2011-2012).
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.