NYC Litigation Blog

Monday, January 4, 2016

Lost in the Holiday Shuffle - New York City Mayor Bill de Blasio signs law creating Office of Labor Standards

Just after Thanksgiving, and perhaps lost in the holiday shuffle, Mayor Bill de Blasio signed legislation creating an Office of Labor Standards.  The new office will be responsible for investigating and enforcing violations of city labor laws.

It is not clear whether the new office will be under the jurisdiction of another agency or a stand-alone entity.  No director has been appointed yet.

One of the less publicized purposes of the new law is to educate employers on labor laws to avoid labor law violations by unwary employers.   Mirroring the New York State Department of Labor, the Office will also be empowered to conduct investigations, serve subpoenas, and impose civil penalties on businesses that violate NYC’s labor standards.  Employees do not have a right to sue employers for violations under the new law. 

A main reason the Office was created was to assume responsibility for of the Earned Sick Time Act, briefly administered by the Department of Consumer Affairs, which appeared to be a bit of an awkward fit.  The Earned Sick Time Act mandates sick leave for all but the smallest New York City businesses.  

You can read the legislation itself here:|Text|&Search=743

Thursday, December 31, 2015

Former New York Hilton Employee Prevails in Age Discrimination Case

A 64-year-old man who was "forced" to resign by the New York Hilton and subsequently replaced with two workers who were much younger has won a job discrimination lawsuit against the hotel chain. The man, Mohammad Khan, was forced out of his job in 2012 at the age of 61. He had worked in a variety of front-office roles at Hilton's flagship location in Manhattan since 1979.

According to the complaint which was filed in 2013, Mr. Khan had received glowing annual reviews for most of his tenure, but something changed in February 2012. In that review, a new and much younger supervisor found his performance "unsatisfactory." Mr. Khan was then placed on 6 months' probation before being terminated in October of that year.

During his probationary period, the plaintiff noticed that the environment had changed after the corporation was bought out, and new and younger managers were brought on. Not only was Mr. Khan terminated, the new owners refused to give him his pension - and this was a critical element in the lawsuit. After a trial that lasted 5 days, a jury agreed that Hilton had discriminated against Mr. Khan because of his age, and awarded him $250,000.

What is age discrimination?

According to the Equal Employment Opportunity Commission, age discrimination involves treating an employee or job applicant less favorably because of his or her age. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against people who are age 40 or older - these individuals are considered to be members of a "protected class." Moreover, some states have laws that protect workers who are younger than 40. Generally, state and federal laws forbid discrimination based on a person's age in connection with any aspect of employment, including hiring and firing, compensation and benefits, job assignments and promotions and any other term or condition of employment.

While the plaintiff in this case prevailed, age discrimination cases are hard to prove. Because of this, these cases often do not go to trial, and if/when they do, plaintiff's frequently do not win. The evidence is often circumstantial, and the intentions of employers involved in these cases are not readily apparent.

However, in Mr. Khan's case, his attorneys relied on the testimony of past and present employees of Hilton who had worked with the plaintiff. The fact that Mr. Khan was denied his pension benefits may have also weighed in his favor.

If you believe you have been the victim age discrimination, you should speak to a qualified employment attorney.

Monday, December 21, 2015

Taylor Swift Has Shaken Off a Copyright Infringement Lawsuit

Are similar lyrics enough to prove copyright infringement?


Copyright infringement is the unauthorized use of another’s artistic work.  This type of infringement often occurs with works of art, photographs, writing and songs.  Recently, a fellow musician filed a copyright infringement lawsuit against pop singer Taylor Swift.

Jesse Braham filed lawsuit against Swift in a United States District Court in California.  He claimed that Swift used lyrics from his song in her 2014 hit “Shake It Off”.  Specifically, he alleged that Swift stole the phrases “haters gonna hate” and “players gonna play” from his 2013 song “Haters Gone Hate”.  Braham claimed that it was impossible that Swift came up with the phrases without hearing his song.  After Sony representatives denied his requests for writing credit and a selfie with Swift, he filed suit without representation for $42 million.

The court ultimately found that Braham had not made a prima facie case for copyright infringement and dismissed the claims.  Apparently, similar lyrics alone are not enough to prove a copyright infringement claim.  In her opinion Judge Gail Standish paraphrased the lyrics of a number of Swift’s songs... “the court is not saying Braham can never, ever, ever get his case back in court” and “we have got problems and the court is not sure Braham can solve them.”  She even went as far as to say that the “defendants have shaken off this lawsuit.”

Copyright infringement is a complex area of law.  If you have an issue in this area you need a qualified attorney to assist you. 


Monday, November 30, 2015

The Use of Non-compete Agreements Surge in Retail, Hospitality & Tech Industries

Can I require my employees in my retail outlet to sign a non-compete agreement?

Non-compete agreements are surging in popularity – and for good reason. With the employee-longevity factor decreasing alongside the exciting growth in the private sector, entrepreneurs in virtually every industry are implementing safeguards against the disparaging dissemination of trade secrets and the like. While these agreements are useful and highly necessary in certain industries, the increase of non-compete clauses in areas like hospitality (e.g., restaurants) or retail has some courts raising a skeptical eyebrow – and refusing to enforce the terms in certain instances.

In New York, a non-compete agreement must be reasonable in scope, duration and geographic coverage area. First, a non-compete agreement cannot be so vast that it effectively eliminates the employee’s opportunity to ever make a future living. In the technology space, for instance, an agreement prohibiting the employee from ever working in the IT field again would very likely be unenforceable for having an unreasonable scope.

Secondly, a non-compete agreement must be reasonable in duration and breadth. There are no hard-and-fast rules with regard to the precise number of days or weeks the employee must agree not to compete, but two years has generally been considered the maximum amount of time an employer can impose limitations. Likewise, the employer must impose a reasonable region within which the provisions are enforceable – and cannot prohibit the employee from competing in a geographical area that does not pose a commercial threat to the employer.

Aside from these factors, a non-compete agreement must have a reasonable business purpose. In recent years, courts have seen an influx of agreements within industries like hospitality, dining, and retail – and have declined to enforce these restrictions as unduly prohibitive of one’s right to earn a living. Unless a retail store is engaged in selling highly-proprietary or unique goods that involve some sort of trade secret, restricting employees from seeking subsequent retail employment at a competitor will likely be deemed unlawful.

If you are considering signing a no-compete agreement or already have signed such an agreement, an employment attorney can help you evaluate your rights.

Saturday, November 21, 2015

Governor Cuomo Enacts New Laws to Quell Sex Discrimination in New York State

What do employers need to know about recently enacted sex discrimination laws?

Gender-based employment discrimination is still a major problem in New York, even though it is illegal at both the state and federal level. In late October of 2015, Governor Cuomo approved several new laws to enhance discrimination laws.

Under the new Achieve Pay Equality Law, the punishments for breaking the current state law were greatly increased. Employees must be allowed to disclose and discuss their wages with one another, although this exchange must take place at a reasonable time and place. The law also forbids one employee from discussing another employees pay information without consent, even if this employee is privy to this information due to the nature of his job.

According to the Protect Women from Pregnancy Discrimination Law, employers must consider reasonable accommodations for every pregnant woman individually. Standard accommodations provided to every worker are no longer enough to satisfy the law.

The new Protect Victims of Sexual Harassment Law allows those that work for a company with less than 4 employees to file a sexual harassment lawsuit against his or her employer. Under the Remove Barriers to Remedying Discrimination Law, plaintiffs that win employment sex discrimination lawsuits are permitted to collect attorney’s fees from their adversaries.

The End Family Status Discrimination Law makes it illegal for employers to base employment decisions on an employee’s familial status, such as parent or child.

In addition to these new laws, Governor Cuomo is also supporting legislation that would address employment discrimination based on gender identity. This law would classify discrimination based on gender identity as sex discrimination and also designate gender dysphonia as a disability entitled to legal protection from discrimination.

It is illegal for employers to discriminate against employees or potential employees based on protected characteristics such as race, religion or age. If you believe you have been discriminated against, an experienced discrimination attorney can help to protect your rights and secure monetary damages.

Wednesday, October 21, 2015

Sacramento Jury Awards $4.75 Million in Age/Gender Discrimination Suit

What constitutes bias in employee termination?

Barbara Anderton has won a case against Bass Underwriters in which she claimed that her dismissal from the company in 2013 was a result of age and gender bias.  A Sacramento jury awarded her $4.75 million in damages, $2.75 million in punitive damages and $2 million in compensation.

In spite of the fact that the plaintiff had been a very successful broker at the firm for almost 15 years, earning a six-figure salary, she was terminated and replaced by a younger male colleague. In Anderton's lawsuit, she claimed that the company discriminated against her because of her age (61) and her gender.

What Constitutes Discrimination in the Workplace?

Bass attorneys have denied her claim, stating that Anderton walked off the job as the result of a "family dispute," noting that her brother is an executive vice-president of the organization. Nonetheless, a Sacramento jury decided the case in her favor, ruling that she was discriminated against and harassed because she was a woman and because she was nearing retirement age, and that Bass had violated California's Fair Employment and Housing Act.

The prevalence of discrimination in the workplace is well-substantiated. The fact that such behavior is illegal, as well as immoral, does not appear to keep it from occurring. Anderton's reportage of a "boys' club culture" is a common complaint at many places of business, as is the ugly reality of age discrimination.  According to Anderton, she was repeatedly asked her age and questioned about when she was planning to retire. In addition, she was retaliated against for questioning policies that promoted men over women in the company, and excluded women from events like golfing excursions.

Despite the jury's decision, Bass denies any wrongdoing, stating that they need not review or change any of their employment policies. They plan to appeal the verdict.

Thursday, October 8, 2015

Morgan Stanley’s Employee Arbitration and Class Action Waiver Policies Questioned

Should employees be forced to give up their right to litigate their discrimination claim in court and as part of a class?

A discrimination claim has been filed against Morgan Stanley. While these types of claims are numerous, an allegation within the complaint is noteworthy. The plaintiff claims that Morgan Stanley is using forced arbitration and a waiver of the right to form a class action to protect itself from suits brought by employees.

Morgan Stanley’s policy is that employees who have workplace claims against the company will not be permitted to bring those claims in court, and also will not be allowed to collaborate as part of a class. The argument against this policy is that it eliminates two important options for a prospective plaintiff who is considering a claim against Morgan Stanley. A Morgan Stanley representative defended the company by stating that the new policy does not disadvantage employees.

This policy is actually an agreement between the employee and the company, Morgan Stanley. Lawyers know these agreements as “negative consent” agreements. Here, Morgan Stanley gave employees 30 days during which they could reply that they did not consent to the policy. If the 30 days passed without a response, then Morgan Stanley would presume that the employee consented.

Certain claims are not included in the policy, such as unemployment benefits, workers' compensation benefits, and claims under the National Labor Relations Act.

It is important to recognize that your attorney will always consider every available option when it comes to resolving a claim. There are advantages and disadvantages to negotiating, mediating, litigating, or arbitrating a claim on your behalf. Arbitration can be beneficial for both parties in that it allows for a fast and private settlement. Litigation, however, is an important option for plaintiffs who desire a public forum and the ability to appeal the court’s decision.

If you are an employee who receives notice of this type of policy from your employer, or you are an employer who is considering implementing this type of policy, contact Thomas M. Lancia PLLC to speak to an experienced attorney before you act. Serving the greater New York City metropolitan area, we can be reached at: 212-964-3157.

Friday, September 18, 2015

Muslim Flight Attendant Alleges Discrimination by Express Jet

What is "reasonable religious accommodation" and when has an employer violated it?

A female Muslim flight attendant, employed by ExpressJet, Charee Stanley, has been suspended and threatened with termination for refusing to serve alcohol on the job. While serving food and beverages, including alcoholic ones, to passengers is part of the job description of a flight attendant, abstaining from both imbibing and serving alcohol is a tenet of the Muslim faith.

When two years ago, Ms. Stanley, already having been employed by ExpressJet for a year, converted to Islam, she approached her supervisor, requesting that accommodations be made to enable her to maintain her position while adhering to her religious beliefs. The supervisor told her to make arrangements for another attendant to take over the serving of alcoholic beverages, which she did. By all accounts, this arrangement worked well.  Alcoholic beverages were served to those who requested them and Stanley remained comfortable in her work environment.

The peaceful atmosphere changed, however, when, months later, another flight attendant filed a complaint against Stanley, charging that she was not fulfilling her duties by refusing to serve alcohol.  The employee, who has been accused by Stanley and her lawyer of Islamaphobia, also complained that Stanley had a book with "foreign writings" and wore a headdress.

Upon receiving this complaint, the airline sent a letter to Stanley stating that it was rescinding its religious accommodation and placing her on unpaid administrative leave. The airline further advised her that her employment might be terminated after 12 months.

In response to this action, Stanley has recently filed a discrimination complaint with the Equal Employment Opportunity Commission for the revocation of her prior "reasonable religious accommodation."  Stanley's lawyer,  Lena Masri, an attorney with the Michigan chapter of the Council on American-Islamic Relations, has declared that " one should have to choose between their career and religion and it's incumbent upon employers to provide a safe environment where employees feel they can practice their religion freely. We are requesting that her employment be reinstated and the accommodation of her religious beliefs be reinstated as well."

According to Stanley and her attorney, the religious accommodation made for Stanley had been made at the explicit direction of the airline itself, had worked smoothly and without incident, and that, therefore, her employment, along with the previous minimal religious accommodations, should be reinstated.

A spokesman for ExpressJet has declined to discuss Stanley's complaint on the grounds that the airline cannot discuss "personnel matters," stating only that ExpressJet has a "long history of diversity in the workplace."

If you are faced with discrimination or other problematic employment issues, please contact one of our highly skilled attorneys at Thomas M. Lancia. Dedicated to serving clients throughout the New York City area on civil litigation and small business matters, we can be reached at 212.964.3157.

Tuesday, September 8, 2015

Federal Judge Grants Class-Action Status to Uber Drivers Relative to Employment Classification

Should Uber drivers be considered employees or contract workers?

A recent decision by a federal judge has granted class-action status to a lawsuit that challenges the employment classification of Uber drivers. This ruling paves the way for a jury to examine the case and decide whether some Uber drivers should be considered employees, rather than 1099 contract workers as they now are.

This case, filed in 2013, has enormous implications relative not only to the multi-billion dollar Uber company itself, but to other companies using Uber as a business model.  At issue in this case are employer responsibilities relative to workers and their vehicles.  As it stands now, in some states Uber is not required to:

  • Pay payroll taxes
  • Apply minimum or overtime laws
  • Provide employee health insurance
  • Provide maintenance of vehicles

Although legal experts agree that this case is not likely to be decided any time in the near future, this recent Federal District Court  ruling means that the case can go forward. If and when the class action suit goes against Uber, the bottom line of the company will be tremendously impacted.  If it is ruled that most Uber workers (160,000 at present) are "employees," deserving of all the rights adhering to that designation, Uber will be required to provide its workers with typical employee benefits and its phenomenal profit margin will decrease sharply. As a result, the company will no longer be in a position to pass on the extremely high profits to its investors it now does.

It is not only Uber's profits or the benefits of its employees that are at stake in this legal wrangling. Passenger safety is also an issue that has to be taken into consideration. There are two aspects to passenger safety.  One involves background checks on drivers;  the other concerns adequate mechanical maintenance of vehicles.  Uber, in addition to its other legal challenges, is now facing lawsuits that question the safety of the rides it offers.

Very recently, the district attorneys of San Francisco and Los Angeles asserted  that background checks used by Uber are inadequate, failing to uncover the criminal records of 25 drivers in those two cities. In an even more disturbing case, an Uber driver in India was brought up on charges late last year of having raped a passenger and then accused  of having raped another years before. Although the driver was acquitted of these charges, Uber's process for screening drivers continues to raise international concern.

Questions concerning employment law continue to be important issues in the media and in our own lives.  If you have questions or difficulties involving employment or business litigation, please contact one of the skilled attorneys at Thomas M. Lancia for expert legal guidance and representation.  Serving clients throughout New York City, we can be reached at 212.964.3257.

Thursday, August 20, 2015

When "Purposeful Darwinism" Goes Too Far in the Workplace

Will Recent New York Times Article Prompt a Class-Action Lawsuit Against Amazon?

A powerful piece in a recent issue of The New York Times included much anecdotal evidence about employees  of Amazon, the appropriately named multi-billion dollar corporation, being mistreated and losing their jobs for illegitimate reasons. While it is not against the law for a company and its bosses to be tough and demanding, and is even believed by some to necessary to financial success, some of the accusations against Amazon may point toward unacceptable employment behavior.

The Organization Level Review, a system developed by Amazon to have managers rank subordinates, appears to have some vulnerability in terms of inequitable treatment. Such ranking may be applied unequally to employees with health issues or those who are caregivers (most frequently, women), giving the independent and able-bodied a significant competitive edge. Referred to as "purposeful Darwinism" by a former Amazon director of human relations, this rating system may result in unfair treatment in the workplace or even in unfair dismissal.

An attorney familiar with this argument related the case of a woman with a child who, after serving as an Army captain in Iraq, arranged to have an early work schedule (7 a.m. to 4:30 p.m.) at Amazon to accommodate her childcare responsibilities. Colleagues, unaware of her deliberately altered work schedule, perceived her as slacking off and gave negative feedback to their mutual manager. Because Amazon's policy is to dismiss employees ranked at the bottom of its presumed productivity scale, this woman, and others like her, may have been at the receiving end of some type of discrimination.

Furthermore, it has been pointed out that working shorter hours does not necessarily result in lower production. As a matter of fact, sometimes the reverse is true. Dedicated employees who work during a more condensed period may become extremely well-focused and more efficient than coworkers who spend longer hours on the job.

One area that needs to be investigated in terms of Amazon employment practices is whether a disproportionate number of women are forced to leave the company as a result of ranking reviews. It may still be an uphill climb for workers to prove "commonality" in such practices, however, since a similar class-action suit against Wal-Mart was dismissed by the Supreme Court in 2011 because it could not be proven that centralized company policy was responsible for discriminatory decisions made at a great many separate stores by a great many individual managers.

Although some employment inequities, particularly as class-action suits, are difficult to prove, it is possible that Amazon may face an increasing number of individual lawsuits in the near future now that this issue has been brought to light. The New York Times article quoted an employment attorney as pointing out that more highly paid employees are more likely to be able to engage private attorneys to fight for them and the individual stakes will be much higher.

If you are faced with unequal treatment in the workplace or have any questions or concerns relative to employment law, framed either from the perspective of the employer or the employee, please contact our skilled attorneys at Thomas M. Lancia, PLLC. Proudly serving clients in the New York City metropolitan area with efficient, personal  service, we can be reached at 212.964.3157.

Monday, August 17, 2015

Surprising Aspects of Copyright Laws

How is it possible that the song "Happy Birthday to You" is Still Under Copyright?

The complexities of copyright law can be confusing and even, at times, absurd. At it turns out, the song "Happy Birthday to You," a universal tune used to commemorate birthdays from early childhood through old age, is still considered private property. A recent federal lawsuit has been filed on behalf of  group of independent artists stating that they have proof that the copyright to the song is no longer applicable. The suit alleges that a songbook that is almost a century old proves that the song's copyright, first issued in 1935, is no longer valid.

Some of the difficulties about "Happy Birthday" derive from its odd publishing history; it was first published in 1893 under the title "Good Morning to All" written my Mildred and Patty Hill, two sisters in Kentucky. By the early 1900s, variations of the song appeared with birthday themes, until eventually the song became as well known as any folk tune.

It is expected that the judge involved may rule on the case in less than a month. If the judge rules that the copyright on the song is no longer valid, Warner Music Group, holder of the rights to the song, will lose millions of dollars in licensing fees.

The case illustrates the difficulties inherent in copyright laws which may extend ownership well beyond the lifetime of the composer and, as in this case, well into a time period in which it appears to be in the public domain. As a general rule, copyright protection for works created after January 1, 1978 extends for the lifetime of the author plus 70 years. For works published before 1978, there are a number bewildering exceptions. Variables for copyrights depend on several factors, including:

  • Whether and when publication has actually taken place
  • Date of first publication
  • Whether copyright has been renewed (if the work was published prior to 1978)

Strange as it seems, until the judge rules on the copyright questions surrounding "Happy Birthday," just about all of us have infringed on copyright laws and could, theoretically, be held accountable.

Because of the complicated nature of copyright laws, if you intend to copyright original material of any kind, you would be wise to consult with a well-informed attorney experienced in copyright law. Please don't hesitate to contact Thomas M. Lancia, providing clients in New York and New Jersey with excellent service. We can be reached at 212.964.3157.

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