v       Title VII

Ø        Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, gender, or national origin.
   § The New York City Human Rights Law includes sexual orientation as a protected category.
Ø        Covered Employers. An employer who has 15 employees on the payroll for 20weeks of the year.
   § The New York State Human Rights Law and the New York City Human Rights Law require only four employees
Ø         Sexual Harassment. Offensive and unwelcome conduct of a sexual nature. The two basic categories are:
   § Hostile Environment. Pervasive and offensive atmosphere, including offensive words, picture and/or conduct.
   § Tangible Benefit. Harassment by a supervisor where supervisor modifies or threatens to modify the terms and conditions of employment if the victim does not submit to the sexual harassment.
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v       Family Medical Leave Act

Ø        The Family Medical Leave Act (FMLA) is set forth at 29 USC §2601 et seq.
Ø        Remedies: Lost wages and benefits; liquidated double damages; equitable relief including attorneys’ fees and expert fees.
Ø        Employer. Must employ 50 or more employees for each working day during each of 20 or more calendar weeks in the current or preceding calendar year. 29 USC §2611.
   § Also includes leased employees 29 CFR §825.106.
   § The 50 employees can be employed within 75 surface miles of the requesting employee’s work site. 29 USC §2611.
   § There is no numerical requirement for public agencies or for elementary and secondary school employers.
Ø        Eligible employee. Must have worked for at least twelve months and for at least 1250 hours within the twelve month period.
Ø        Care for family members. Employees may take FMLA leave to care for parents, or children. Care is broadly defined to include not only a biological parent but also a person who stood in loco parentis when the employee was a son or
daughter. The term son or daughter includes biological, adopted, foster, stepchild or legal ward. The child must be under age 18 or can be over age 18 if incapable of caring for himself because of a disability. 29 CFR §825.113
Ø        Reasons for FMLA leave.
   § Birth of and care for a child.
   § Adoption of and care for a child.
   § Care for a spouse, child or parent where the relative has a serious health condition.
   § A serious health condition makes the employee unable to perform the employee’s functions, including any function or the employee’s essential job functions.
Ø        Notice. Foreseeable leave requires 30 days’ notice. This would include anticipated birth or adoption or planned medical leave.
Ø        Intermittent leave. Employee may take one day off per week or have a reduced work schedule working fewer hours per day if related to medical necessity.
Ø        Payment. Leave may be paid or unpaid at option of employer or employee.
FMLA leave is unpaid, unless employer or employee choose to credit available paid vacation, personal, family or sick leave at the same time the employee is taking FMLA leave.
Ø        Leave is for a "serious health condition." The FMLA defines "serious health condition" as an illness, injury, impairment, or physical or mental condition rendering the employee "unable to perform the functions of the position of such
employee. The condition must involve one of the following:
   § Inpatient care in a hospital, hospice or residential care facility.
   § Continuing treatment by a health care provider requiring an absence from work for more than three days or continuing treatment for a chronic long-term health condition that would result in an absence of more than three days if untreated.
   § Pregnancy or pre-natal care.
   § Incapacity or periodic treatment of a chronic serious health condition like asthma, diabetes or epilepsy.
   § Continuing treatment for a chronic or long-term health condition that is incurable or requires long-term treatment.
   § Absence for multiple treatments for restorative surgery or a condition that is so serious that would result in an incapacity of more than three consecutive calendar days if untreated.
   § Definition of continuing treatment. Continuing treatment is two or more visits to a health care provider which can include doctors, clinical psychologists and midwives.
   § Certification. Employer may request certification of the medical condition.
   § Reinstatement. An employee returning from FMLA leave must be restored to the employee’s former position or an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment.
l Health benefits. Employee’s health benefits must continue during the time that the employee is on leave; but if the employee fails to return for reasons other than a serious health condition, the employer may recover its share of premiums paid during the leave period.
   § Retaliation unlawful. An employer cannot discharge an employee or discriminate against an employee for opposing a practice made unlawful under the FMLA 29CFR §825.220 (a)(2).
   § Individual liability. Corporate officers acting in the interest of an employer are individually liable for violations of the FMLA.
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v       The Pregnancy Discrimination Act

Ø        The pregnancy discrimination act (PDA), 42 USC §2000e (k) was a 1978 amendment to Title VII extending Title VII protection specifically to pregnancy.
Ø        The ADA mandates that pregnant women be treated the same as other employees unable to work due to a temporary disability.
Ø        PDA defines discrimination as that relating to discrimination because of or on the basis of pregnancy, childbirth or related medical conditions and women affected by pregnancy, childbirth or related medical conditions, 42 USC §2000e(k).
Ø        Marital status discrimination. Employer may not discriminate against a pregnant woman based on her marital status.
Ø        New York State Human Rights Law. Pregnancy is considered as a temporary disability and pregnancy discrimination is covered like other temporary disabilities. Recent amendments to the Human Rights Law also require reasonable accommodations for disabilities. Under the Executive Law an employer cannot discriminate based on a person’s method of family planning and cannot ask questions regarding whether an employee intends to have children.
Ø        New York City Human Rights Law. Requires a reasonable accommodation, like the New York State Human Rights Law.
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v       Age Discrimination in Employment Act

Ø        The Age Discrimination in Employment Act (ADEA) is contained in 29 USC §621 et seq. In 1990 the ADEA was amended by the Older Workers Benefits Protection Act (OWBPA) which deals with requirements for waivers of ADEA rights.
Ø        Remedies for ADEA include front, back pay, reinstatement, injunctive relief and liquidated double damages for willful violations. 29 USC §626 (b).
Ø        Covered employers. An employer who has 20 or more employees on the payroll for each working day and each of 20 or more calendar weeks in the current or preceding calendar year. 29 USC §630(b).
   § Only four employees are required under the New York State Human Rights Law and the New York City Human Rights Law.
Ø        Covered persons. Employees, job applicants, labor organization members, labor organization applicants and people referred from employment agencies who are age 40 or older.
Ø        Anyone eighteen or over is covered under the New York State Human Rights Law and the New York City Human Rights Law.
Ø        Certain high level employees not covered if employed as a bona fide executive or in a high policy-making job for a two year period before a forced retirement and the employee is entitled to pension benefits of at least $44,000 per year.
Ø        BFOQ Under 29 USC §623 (f)(1) age may be a factor in an employment decision if it is a bona fide occupational qualification.
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v       Americans with Disabilities Act

Ø        The Americans with Disabilities Act (ADA) is set forth at 42 USC §12201 et seq.
Ø        Covered employers. Employer must have 15 or more employees. 42 USC §12111 (5)(A).
Ø        Covered employees. Employees must have a disability under the ADA and be able to perform the essential functions of their job with or without a reasonable accommodation. The employer must be notified of the disability.
Ø        Estoppel. In Cleveland v. Policy Management Corporation, 1999 USLW 4375
(May 24, 1999) the Supreme Court held that an employee who had filed for Social Security disability was not precluded from an ADA claim because SSDI does not consider a reasonable accommodation in deciding whether an employee can work and because the employee’s condition may change between the time of filing for SSDI and the time of filing the ADA claim.
Ø        Definition of disability. A person has a disability if the person has a physical or mental impairment that substantially limits one or more of a person’s major life activities, or if the person has a record of such impairment, or is falsely perceived
by the employer of having such an impairment. 42 USC §12102 (2).
   § Disabilities not covered. Current drug use and temporary conditions such as pregnancy, appendicitis, concussion, broken leg.
   § The definition of disability under the New York State Human Rights Law and the New York City Human rights law is much broader, and can include such temporary disabilities as a broken leg.
Ø        Disability in hiring. An employer may not test for or inquire into disabilities when considering job applicant but may do so after a job offer has been made to determine whether there need to be accommodations.
Ø        Retaliation. An employer may not retaliate against an employee for complaints regarding disability discrimination.
Ø        Examples of reasonable accommodations. Some examples are making facilities accessible, restructuring a job by reallocating marginal job functions, providing modified work schedules, obtaining or modifying equipment, reassigning to a vacant position and permitting use of accrued pay leave or unpaid leave for medical treatment. l Dialogue between employer and employee.
   § The employee must request an accommodation and the recommended procedure is a dialogue between the employer and the employee to reach accommodations that are most appropriate for both the employee and the
employer.
Ø        The ADA has a statutory good-faith defense for the employer where the employer has made good-faith effort to make a reasonable accommodation.
Ø        Defenses to charge of failure to accommodate.
   § There was no accommodation that would enable an employee to perform the essential functions of the job or the required accommodation would impose an undue hardship on the employer. An undue hardship is an accommodation that is "excessively costly, expensive, substantial or disruptive or that would fundamentally alter the nature or operation of the business." 29 CFR §1630.2 (p).
Ø        Drugs and Alcohol. If an employee’s work performance is otherwise satisfactory, an employer may not treat an employee adversely for absenteeism or lateness due to alcoholism. The New York State Human Rights Law protects drug
addiction as a disability. The ADA excludes current drug users from protection.
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v       Retaliation

Ø                    Under Federal, State and City law, an employer is prohibited from retaliating against an employee for complaining about discriminatory acts. These statutes include the ADA, Title VII, the ADEA, the New York State Human Rights Law and the New York City Human Rights Law. If an employee files a discrimination complaint, formally or informally, is a witness or gives evidence in connection with a discrimination case (in the employee’s case or another case) or complains about a discriminatory act to a supervisor. an employer may not retaliate.
   § Some examples of retaliatory actions are transfer to a lower paying job, denial of overtime, retributive work assignments, reprimands, coercive questioning, retributive surveillance, failure to be promoted, denial of benefits, discharge and discipline, acceleration of disciplinary action, unfavorable recommendations,
failure to refer by an employment agency and permitting others to retaliate.
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v       Wage and Hour Benefit Claims

Ø        l The Fair Labor Standard Act (FLSA), 29 USC §201, sets federal standards for wage and hour claims, and the New York State Labor Law sets the standards under state law.
Ø        Overtime. Non-exempt employees who work more than 40 hours per week may be eligible to receive overtime at time and a half.
Ø        Exemptions from overtime. Employees in the executive, administrative and professional category do not receive overtime pay.
   § An executive employee makes hiring and firing decisions or directs the work of two or more workers.
   § An administrative employee is one who does work relating to management policies or general business operations.
   § professional employee is a worker with an advanced degree involved in a job which requires professional skills.
m Note that an employer may become liable for overtime pay where the salary of an exempt employee is docked for absences, lateness or for disciplinary purposes.
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v       ERISA (Employee Retirement Income Security Act)

Ø        Firing and Retaliation - ERISA (29 U.S.C.S. § 1001 et seq.)     provides  that an employee cannot be fired for the purpose of depriving  her of  vested benefits, such as pension and medical benefits, and that it is  unlawful for any person to discharge, fine, suspend, expel, discipline, or  discriminate against an employee for exercising any right to which she is  entitled under ERISA

v       Long -Term Disability Denial - Employee files with employer’s insurance company for disability benefits. Insurance company reviews documents from employee’s doctors. If benefits are denied after all procedures with insurance company are exhausted, employee can file a court suit. It is important to submit all medical documentation to the insurance company  before going to court.       
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v       Common Law Claims

Ø        New York is an at-will employment state and absent a discrimination, statutory or contract claim, an employer may fire an employee for any reason or no reason at all. Occasionally, claims are asserted for such torts as defamation, intentional
infliction of emotional distress.
Ø        Oral contracts. Generally, oral employment contracts are not enforceable. The statute of frauds, requiring agreements which cannot be performed in one year must be in writing, applies to employment contracts.
Ø        Employee manuals. Employers generally state in employment manuals that, notwithstanding any representations in the manual, the employee remains an employee at will., and courts have condoned this practice, even when an employee relies on representations in an employment manual regarding termination, the employee may have a contractual right under the manual.
Ø        Defamation In the employment context defamation is subject to a qualified privilege which can be circumvented by showing of malice.
Ø        Intentional infliction of emotional harm. This tort requires outrageous conduct, an attempt to cause severe emotional distress. Few cases meet the standard of outrageous conduct required. Worker’s Compensation may bar such claims, as
some courts have held that the Worker’s Compensation Law is the exclusive remedy for infliction of emotional distress.
Ø        Fraud and fraudulent inducement. The fraud must be as to an actual misrepresentation about a fact and not merely a promise about working conditions and the misrepresentation must be used to induce the employee to act detrimentally by leaving the employee’s current employment.
Ø        Negligent hiring and retention. May be barred when an employee brings a claim against his employer by the Workmen’s Compensation Law.
Ø        Tortious interference with contractual relations. Since the tort feasor must be shown to have acted solely to harm the plaintiff, the interference may not be actionable where the defendant had an objective economic interest.
Ø        Prima Facie Tort. This tort requires the intentional infliction of emotional harm resulting in special damages without excuse or justification and a motivation of "disinterested malevolence".
Ø        Duty of employee to employer. Employees may not solicit customers of their current employer for a business that they are going to open during the time that they are employed and, if they do so, may be liable for the profits that they later
make from such improperly solicited customers.
Ø        Restrictive covenants. Restrictive covenants are not favored as a matter of public policy and will be enforced only if the time and geographical area limitations are found to be reasonable.
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v       Remedies

Ø        Reinstatement, front pay, back pay, injunctive relief for willful violations are available under available under all of the statutes.
Ø        Punitive damages. Can be awarded under Title VII, the ADA and the New York City Human Rights Law.
Ø        Punitive damages are not available under the New York State Human Rights Law.
Ø        Although punitive and compensatory damages are not available under the ADEA and FLSA, double damages or "liquidated damages" are available, 29 USC §626(b) for willful violations.
Ø        Duty to mitigate damages. A discrimination plaintiff must make reasonable efforts to find other employment.}
Ø        Front pay. May be awarded in lieu of reinstatement if it is appropriate or constitutes a hardship to reinstate an employee to a discriminatory environment. Front pay is also awarded in situations such as age discrimination cases where it
is projected that an employee may not be able to find suitable employment.
Ø        Compensatory damages. Damages for pain and suffering can be awarded under federal New York State and New York City law.
   § Under the federal statutes there is a cap on the amount of compensatory and punitive damages that may awarded against a defendant based on the total number of employees. For 15 to 100 employees, damages may
not exceed $50,000. For the largest companies, 501 employees or more, damages may not exceed $300,000. These caps apply to compensatory and punitive damages and are contained at 42 USC §1981a(b)(3).
m After-acquired evidence.
Ø        After acquired evidence. Even if an employee establishes liability for a discriminatory firing, the employer may reduce the amount of damages awarded by the doctrine of after-acquired evidence. This "after-acquired evidence" is a fact the employer finds out later that would have justified its actions, although it was not aware of the fact at the time that it made its decision. In these circumstances, the employee will be entitled to back pay or compensatory damages up to the time that the after-acquired evidence is discovered.
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