December 01, 2011

NY DISCRIMINATION TRENDS IN 2011: NEW YORK EMPLOYEES WIN MORE AGE DISCRIMINATION CASES THAN IN PREVIOUS YEARS.

            In New York, age discrimination is prohibited by both the New York City Human Rights Law and New York State Executive Law.  Despite such clear prohibitions, age discrimination cases are particularly challenging.  For many years, a higher percentage of age discrimination cases have been dismissed by New York courts on summary judgment relative to other types of employment discrimination (such as gender, religion, race, etc.).  However, in 2011, age discrimination plaintiffs have achieved significant victories in New York.  Reported decisions suggest that New York state and federal courts are more reluctant to dismiss such cases than in the past, and have entered awards of substantial damages in favor of employees who were terminated because of their age. 

            For example, in MTA Trading Inc. v. Kirkland, 922 N.Y.S.2d 488 (2nd Dept. 2011), the Appellate Division upheld the New York State Division of Human Rights' award of damages to an employee who had repeatedly been told by his employer that he was "too slow and too old."  The Appellate Division ruled that the "Commissioner's determination that [the employer] unlawfully discharged [the employee] from his employment based upon his age is supported by substantial evidence."   The employee received a damages award for back pay and mental anguish.            

            Most recently, in a decision issued on November 9, 2011, the Appellate Division upheld another damages award for an employee who was terminated because of his age in the case of NYS Div. of Human Rights v. Ben Rottenstein Associates, (2011 WL 5432032) the Court upheld an award of both back pay and mental anguish to an employee who was terminated on the basis of age.           

            The recent victories of age discrimination plaintiffs in New York reflects the fact that New York's anti-discrimination laws are among the most powerful in the country.  New York employees have far greater protections against discrimination than employees in other states.  This is particularly true in New York City, where employees benefit from the New York City Human Rights Law, which "explicitly requires an independent liberal construction analysis in all circumstances, even where state and federal civil rights laws have comparable language; this analysis must be targeted to understanding and fulfilling what statute characterizes as its "uniquely broad and remedial" purposes, which go beyond those of counterpart state or federal civil rights laws. Cretella v. Liriano 633 F. Supp.2d 54 (2009). 

            Generally, to prevail in court case alleging age discrimination, an employee must demonstrate that (1) that she was member of protected class, (2) that she was qualified for position in question, (3) that she suffered adverse employment action, and (4) that circumstances surrounding adverse employment action gave rise to inference of discrimination. Missick v. City of New York, 707 F.Supp.2d 336 (2010).  Because of the complexity of foregoing analysis, it is essential that the employee obtain the services of an experienced New York discrimination lawyer at the earliest possible state.  Attorney Marc Rapaport represents New York employees in discrimination, retaliation and unlawful discharge cases.  For more information about age discrimination and employment law in New York, call Rapaport Law Firm to speak with  a New York employment lawyer today: (212) 382-1600.

Marc A. Rapaport

http://www.rapaportlaw.com

All Rights Reserved

November 07, 2011

FEDERAL COURT IN MANHATTAN RULES THAT AN EMPLOYER MAY NOT QUESTION OVERTIME PLAINTIFFS ABOUT THEIR IMMIGRATION STATUS

           Employers and the big law firms that they retain frequently (and inappropriately) try to defend against employees’ lawsuits by engaging in unethical campaigns to humiliate or intimidate the plaintiffs.  This despicable tactic can take many forms, including, among other things:

           

• Abusing the discovery process by demanding that plaintiffs provide irrelevant, personal information;
• Uncovering “dirt” about a former employee under the guise of “after-acquired evidence” doctrine; and
• Pressuring other employees to provide statements and/or testimony that is detrimental or embarrassing to the Plaintiff  
  

          During the 16 years that I have spent representing New York employees in employment matters, I have observed large law firms, and their corporate clients, engage in an astonishing and disgusting variety of underhanded conduct.  An essential part of my role, as an attorney for employees, is to fight hard to prevent and stop any effort to humiliate or intimidate my clients.  

 

          Last week, the U.S. District Court for the Southern District of Manhattan stopped an employer in its tracks.  In so doing, the Court issue a decision that is a resounding victory for employees.  In U.S. Dept of Labor v. Cindy’s Total Care –  a case involving overtime wages – the Court issued a decision precluding the Employer from questioning witnesses or introducing evidence about the employees’ immigration status.  In its decision, the Court noted that the issue of an employee’s immigration status is completely irrelevant to claims for overtime, because “any person, regardless of his or her immigration status, who is employed by an employer, may pursue an action under the [FLSA] for work actually performed.”

 

            The New York Court’s decision is a welcome victory for employees who pursue wage and other types of employment law claims. 

 

By: Marc A. Rapaport

www.RapaportLaw.com

New York Employment Lawyers Since 1995

November 5, 2011

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November 01, 2011

NEW YORK COURT RULES THAT EMPLOYER DISCRIMINATED AGAINST DISABLED EMPLOYEE BY FAILING TO PERMIT A LEAVE OF ABSENCE

An employer’s failure to provide a reasonable accommodation for an employee with a known disability is a form of discrimination under New York City’s local anti-discrimination law, the NYCHRL (Admin Code § 8-107 (15)(a)), as well as the New York State Human Rights Law § 296(3)(a).  The phrase “reasonable accommodation” includes accommodations, such as job restructuring and modification of work schedules, that do not “cause undue hardship in the conduct of the [employer’s] business.”  (Admin Code § 8-102[18]).

Many employers (and even some employment law attorneys) wrongfully assume that an employer is permitted to terminate the employment of an employee who is unable to return to work after taking a FMLA leave of absence.  However, that assumption is inaccurate. In a recent decision, New York’s Supreme Court (Justice Stallman), New York County, reaffirmed that the phrase “reasonable accommodation” includes, under some circumstances,  “temporary leaves of absence, even extended leaves.” Milosca v. B.R.Guest Holdings LLC, 928 N.Y.S.2d 905 (Sup., NY decided August 15, 2011).   As the Court states in its decision, the court cannot automatically terminate an employer (even an employee who as exhausted all of his or her FMLA leave) without first considering whether the employee could reasonable perform his or her duties after a reasonable accommodation in the form of a reasonable time (further leave of absence) for recovery.   It is the burden of an employer to establish that a particular accommodation (for example, a leave of absence) would impose an undue hardship upon the employer.


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September 02, 2011

RACE DISCRIMINATION

Rapaport Law Firm represents employees who have been discriminated against on the basis of race and color, in violation of local and federal laws, including Title VII of the Civil Rights Act of 1964; the New York City Human Rights Law (NYCHRL). We have represented:

1. Employees who were rejected for advancement/promotion because of their race;
2. Job applicants who were not hired because of their race;
3. Employees who were subjected to less favorable treatment, including lower pay, because of their race;
4. Employees who were subjected to grotesquely inappropriate and offensive remarks and slurs in the workplace.

We understand that successfully pursuing a legal claim for race discrimination necessitates an aggressive, well-planned battle against employers that are oftentimes willing to engage in underhanded tactics in their efforts to deny liability. We are proud of our firm’s 18-year track record of success in NY race discrimination cases. We have successfully battled against some of the world’s most powerful corporations – obtaining millions of dollars in settlements and judgments on behalf of our clients. We handle race discrimination matters in New York, New Jersey, Massachusetts, and throughout the United States.

In our groundbreaking case, Mena v. Key Food, attorney Marc Rapaport achieved national recognition for aggressively pursuing claims that racial bias was pervasive at one of New York City’s largest grocery store cooperatives. The case received extensive publicity in the local and national media because our firm released audio tape recordings of executives using ethnic slurs regarding African Americans. The audio recordings of racially offensive slurs were instrumental in obtaining a favorable settlement for our clients. As a result of attorney Marc Rapaport’s victory in the Key Food case, the use of audio tape evidence by employees in civil rights cases has become accepted and commonplace. If you are seeking a NY race discrimination lawyer, call Rapaport Law Firm today.