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NYC Litigation Blog

Wednesday, May 20, 2015

Issues Involving Employer Wellness Programs

What are the Limits on My Employer’s Wellness Program?

Over the past few years, the use of wellness programs by employers has increased steadily across many sectors. Employers promote these programs, and justify them, by claiming a commitment and focus on the health and happiness of their employees, but many argue that the real driving force behind these programs is money. These programs aim to reduce smoking, obesity rates and chronic illnesses by encouraging employees to have their health monitored, quit smoking and lose weight. The hope of employers is that this will pay off in lower health insurance costs, less absenteeism and increased productivity.

These programs have come under criticism because of privacy concerns (these programs obtain personal health information), the fact that disabled employees simply may be unable to reach some health goals and the fact that their expense may not justify the benefits the employer receives. Those who do not participate, or do not reach certain goals, may be penalized with higher health insurance costs.

The federal Equal Employment Opportunity Commission (EEOC) initially criticized these programs as being discriminatory, if they result in higher costs for disabled employees. They recently reversed course and announced that reducing health insurance premiums to encourage workers to get health screening tests or improve health scores doesn't violate the federal Americans with Disabilities Act (ADA) if the programs do not violate the Affordable Care Act (Obamacare) and federal privacy rules, according to USA Today.

Large employers lobbied hard for the change (last year EEOC sued Honeywell due to its wellness program incentives) and apparently won. An estimated 60% of Americans have health coverage through work and a 2013 Rand Corporation study estimated more than half of companies with at least fifty employees had wellness programs.

Wellness programs may be used as an excuse to raise health insurance premiums on less healthy employees because the evidence showing actual health benefits to employees overall and financial benefits to employers is scarce. Another Rand study suggested that it is mostly the healthiest employees who participate and the health benefits from these programs frequently decrease after a few years.

If you live in the New York City area and have questions about disability discrimination or wellness programs, employment discrimination lawyer Thomas M. Lancia can help.  Call him at (212) 964-3157 today so you can discuss your situation and the applicable laws.


Monday, May 11, 2015

In Workplace Harassment Lawsuit, Employee Sues Over Mockery of His Catholicism

Can an employee sue an employer for discrimination or harassment for denigrating his religion and ethnic background?

Workplace harassment takes many forms.  Workers are sometimes mistreated or discriminated against because of their sexual orientation or ethnic or racial background.  In the case of victim Joseph Modica, the reason involved religion.

His employer, Steven Rosen, allegedly ridiculed him relentlessly for his Catholic beliefs.  Rosen is a former employee of Jordan Belfort, the "Wolf of Wall Street" depicted in a Martin Scorcese film.

The 42-page lawsuit filed in a Manhattan court demands $5 million in damages for the endless abuse Rosen heaped upon Modica for his religious views, as well as his Italian-American heritage.

Rosen allegedly asked Modica if he really believed Jesus was born to a virgin, suggesting that if he did believe it, he was "a moron.”  Rosen also mocked the resurrection as scientifically impossible.  He asked Modica not to wear ashes on his forehead at work on Ash Wednesday.  Modica say Rosen frequently referred to him using ethnic and racial slurs.

The abuse increased after Modica went to the emergency room with a possible heart attack.  Rosen made insensitive comments to Modica about his lifestyle and upbringing.  Holidays were an especially difficult time, as Modica was dragged into conversations in which he was baited and forced to defend his religion.  Some of Rosen's slurs allegedly also impugned Modica's integrity, unfairly implying he was a crook.

According to the lawsuit, the abusive workplace conditions spanned a four-year period, from the beginning of 2010 to mid-2014.

If you have been the victim of behavior you feel is unacceptable - insults, harassment, denigration of your race, ethnicity, sexual orientation, or disability - you may be able to sue your employer for damages. Thomas M. Lancia is an experienced trial lawyer who has handled all types of labor and employment law claims and other litigation.  He is admitted to practice in both New York and New Jersey.  For an evaluation of your claim, contact the law firm of Thomas M. Lancia PLLC today at (212)964-3157.


Friday, May 8, 2015

Questioning Job Candidates About Disabilities

Can I Be Asked About My Disability at a Job Interview?

Potential employers need to limit the questions they ask in order to comply with state and federal anti-discrimination laws. Not all employers are well educated about these laws, and if you have an obvious physical limitation or disability, you may find yourself being asked questions related to your disability. 

Generally, the federal Americans with Disabilities Act and the New York Human Rights Law prohibit employers from asking whether a job applicant has a disability or about the severity of a disability. In fact, any question that is likely to elicit information about a disability should be avoided. This is true for written applications as well as in-person interviews.

Employers are usually within their rights to ask if you can perform the essential functions of the job with or without a reasonable accommodation. If your disability is obvious and that might hinder you in performing the job, you may be asked how you can perform specific job duties.

After a conditional offer of employment, an employer may require you to pass a medical examination, as long as all job candidates need to go through the same process. This may involve questions that would not be allowed during a job interview, but this medical information is supposed to be kept confidential (with exceptions) and separate from your personnel file.

Some medically-related information can be shared; for example,
• Managers who need to be informed of necessary restrictions or accommodations for you,
• Medical departments or safety personnel in case emergency treatment is needed where you work, and
• Government investigators looking into discrimination complaints.

If a physical exam results in a withdrawal of a conditional job offer, the employer must show that: 
• The reasons are job-related consistent with business necessity, or 
• Your disability poses a direct threat to the health or safety of yourself or others, and 
• There is no reasonable accommodation that would enable you to perform the essential job functions without posing a direct threat to the health or safety of you or others.

For more than 20 years, attorney Thomas M. Lancia has been advising both employers and employees regarding employment discrimination. Contact him today by calling (212)964-3157.


Thursday, May 7, 2015

Is it Legal for the Boy Scouts to Discriminate?

In New York, it is illegal to make employment, housing, public accommodations, education, credit and decisions impacting civil rights based on a person’s sexual orientation. In 2000, however, the U.S. Supreme Court ruled in favor of the Boy Scouts in a decision involving a New Jersey public accommodation case which stated the organization need not comply with a state law barring anti-gay discrimination, so it is debatable if New York’s anti-discrimination employment law would apply to the group.

There are no federal laws, and most states also lack laws, prohibiting employment discrimination based on sexual orientation. In the New Jersey case, the organization removed a volunteer scout master when it was discovered he was gay and legal action ensued.

The nationwide organization has lifted its ban on gay youth but it continues to officially ban the use of homosexual volunteers and employment of gay workers. In early April, the New York City chapter announced it hired an openly gay Eagle Scout, eighteen year old Pascal Tessier of Maryland, to work as a summer camp leader, according to the Associated Press (AP), in defiance of the national organization’s policies.

A spokesman for the national group stated they were looking into the matter and their policies hadn’t changed. New York City Council Board Member Richard Mason told the AP that they notified the national office about the hiring but received "no comment or feedback" about it.

The AP reports that some local Boy Scout groups have accepted openly gay employees but the New York City’s Council's hiring is an unusual public departure from the national policy, possibly the first time a council publicly announced that one of its adult employees is gay. The issue of homosexuality is sharply dividing the organization, with many local groups strongly in support of the ban on homosexual leaders and employees while others sharply disagree with it.

The Greater New York Councils serve approximately 46,000 young people in scout troops and other programs. About 9,000 boys (and girls) are expected in its summer camps this year.

After the controversial hiring of Tessier, New York's Attorney General's Civil Rights Bureau Chief Kristen Clarke wrote to the national Boy Scouts of America organization, reminding it that state and city laws prohibit hiring discrimination based on sexual orientation, according to another Associated Press story. Clarke cited state and city laws covering employment and stated, "Entities that operate in or are registered to do business in the state of New York must comply with these anti-discrimination requirements."

If you live in the New York City area and feel you’ve been discriminated against because of your sexual orientation, Thomas M. Lancia can help. He handles all types of employment discrimination cases.  Call him at (212) 964-3157 today so you can talk about the situation, the applicable laws and your legal options for moving forward.


Monday, May 4, 2015

The “At Will” Employment Doctrine and Wrongful Termination

When Can New York State Employers Fire an At Will Employee?

Employees in New York State need to understand that, under at-will employment laws, they may be fired by their employers for almost any reason and without warning.  Although some exceptions to at-will employment exist (for reasons relating to, for instance, sexual harassment and discrimination) workers in New York State actually have less protection than workers in most other states.

New York is one of seven states that does not have public policy exceptions to the at-will employment doctrine. Public policy exceptions forbid firings for reasons such as:

  • Reporting of workplace safety hazards;
  • Opposition to an employer’s criminal activities;
  • Reporting of business practices that could harm the public in violation of specific laws, regulations and acts; and
  • Other acts relating to business practices that are inconsistent with public policies.

A wrongful termination case that recently concluded in the District of Columbia demonstrates the difficulties workers may face when challenging a wrongful termination.

In 2013, Alvin Hoff sued his former employer Wiley Rein LLP following his dismissal. Mr. Hoff claimed that:

  • He had been pressured by his superior to falsely give a direct report a satisfactory review;
  • When an unsatisfactory review was issued, the direct report claimed he had been given the poor review because the he had refused to lend Mr. Hoff money; and

That he was fired as a result of the direct report’s accusation.

Following his termination, Mr. Hoff filed a wrongful termination suit, arguing that the request by his superior to falsify the employee review violated laws prohibiting fraudulent business activities and the local Human Rights Act. That violation, he continued, would have put him within the exception to the “at will” doctrine because it involved legal fraud provisions, and because his discharge resulted directly from refusing to commit these violations.

The trial court disagreed, as did the appeals court that handled the case last month, stating that Hoff did not prove fraud would have occurred had he followed his employer’s directions.

Employee terminations can feel unfair and even heinous; yet prove to be fully legal under at-will employment laws. If you have questions regarding employment termination in New York, get answers and, if warranted, knowledgeable and aggressive legal help. Contact Thomas M. Lancia in Manhattan by calling (212)964-3157 for a consultation today.


Friday, April 24, 2015

Jury Verdict In "Blurred Lines" Controversy Finds Copyright Infringement

What do courts consider when determining whether a song infringes on another's copyright?

In a highly-publicized copyright infringement lawsuit, family members of legendary singer Marvin Gaye contended that pop icons Robin Thicke and Pharrell Williams unlawfully encroached on the unique sounds of Mr. Gaye’s hit 1977 song "Got to Give it Up" with their Summer 2013 mega-hit "Blurred Lines."

Eight jurors have now agreed and rendered a verdict of $7.4 million in favor of the Gaye family. According to accounting statements entered into evidence during the trial, "Blurred Lines" earned approximately $16 million. Rapper T.I., who was also named in the suit, was not found liable in the matter since his lyrical contribution to the song was considered in no way related or similar to Gaye's song.

When it comes to copyright laws, those holding the rights also hold the opportunity to defend against any subsequent content or creation that comes close to the protected version. The issue lies, however, in determining how similar a creation must be in order to infringe the copyright – as freedom of speech also comes into play to protect against overly broad or vague copyrights.

When discerning between a similar sound and a true infringement, courts are required to decide if the challenged piece contains “substantial similarity” to the original. Of course, this inquiry involves some level of subjective analysis; what sounds identical to one may sound completely distinguishable to another. Plagiarized music need not be identical to its source, but court opinions have hinged on some of the following issues: 
* Whether chords and notes used are identical
* Using the same title
* Whether lyrics are identical or near-identical
* Whether the copied version contains only a very minor change (e.g., altering the baseline).

For some juries, making a decision on this issue can be extremely difficult. In one famous copyright infringement case between Eagles front man John Fogarty and 1970s icons Creedence Clearwater Revival, the jury actually requested John Fogarty appear in the courtroom to perform the alleged copyrighted song – and determined it sounded similar, not identical.

The attorneys at Thomas M. Lancia PLLC have experience with copyright infringement litigation and will zealously represent your interests. Contact us today at (212)964-3157.


Tuesday, April 7, 2015

Successful Defense of Growing Startup that Provides Meals to Schoolchildren

Here is the appellate decision in recent case we successfully defended on behalf of a startup and its principal. The growing company, Red Rabbit, provides healthy meals for schoolchildren. The Appellate Division unanimously affirmed the lower court decision, dismissing all remaining claims for fraud and breach of fiduciary duty because the non-disclosed information was not material to, or relied upon in, the transaction.

Brummer v Red Rabbit, LLC
2015 NY Slip Op 02912
Decided on April 7, 2015
Appellate Division, First Department
 

Friedman, J.P., Acosta, Moskowitz, Richter, Kapnick, JJ.

14731 652565/12

[*1] John Brummer, Plaintiff-Appellant-Respondent,

v

Red Rabbit, LLC, et al., Defendants-Respondents-Appellants.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about July 28, 2014, which granted defendants' motion for summary judgment dismissing the complaint and plaintiff's cross motion for summary judgment dismissing the counterclaim, unanimously affirmed, without costs.

The complaint alleges that defendant Rhys Powell was a patient of plaintiff John Brummer, a podiatrist. In 2005, Powell formed defendant Red Rabbit, LLC to provide healthy lunches to New York City preschools. Powell used his own funds and those of other investors, including a total of $25,000 from Brummer at the inception of the business, giving Brummer a 7% interest.

In the summer of 2010, Powell approached Brummer and offered him $40,000 for 6% of the company (leaving Brummer with 1%), but without disclosing that he had been in negotiations for a large investment in Red Rabbit by two investors. Powell allegedly based his valuation of Brummer's interest on a percentage of Red Rabbit's average income for the past year and the next year as projected, and, in September 2010, Brummer accepted the $40,000.

The evidence of plaintiff's long-held desire to sell back his interest in defendant Red Rabbit, LLC demonstrates that the alleged false representations regarding the company's value and alleged concealment of impending investments from additional investors were neither relied upon nor material to plaintiff's decision to sell. Accordingly, dismissal of both the fraud and breach of fiduciary duty claims was warranted (see generally Lama Holding Co. v Smith Barney Inc., 88 NY2d 413, 421 [1996]).

Absent an allegation of actual loss by plaintiff, his unjust enrichment claim is also deficient (see Edelman v Starwood Capital Group, LLC, 70 AD3d 246, 250-251 [1st Dept 2009], lv denied 14 NY3d 706 [2010]).

The counterclaim failed to allege the breach of any duty found in defendant Red Rabbit's operating agreement.

Accordingly, it was properly dismissed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 7, 2015

CLERK


Wednesday, February 18, 2015

Pawn Shops Settle EEOC Harassment Lawsuit

What are my rights at work when my boss harasses me?

Seapod Pawnbrokers will pay $300,000 as part of a settlement with the United States Equal Employment Opportunity Commission (EEOC). Operating stores in Brooklyn and Queens, the company was charged with harassing and retaliating against its Hispanic female employees.

Seapod's former owner and manager was accused of harassing workers based on their sex, race and ethnicity and firing them if they complained. These violations of federal law were the subject of an EEOC lawsuit. The pawn shop owner allegedly referred to his mostly Hispanic female employees as his "Seapod bitches" and his "whipping slaves." He also allegedly sexually harassed the women and fired some of them when they resisted or complained.

The EEOC filed suit after trying unsuccessfully to settle the case. A four-year consent decree resolved the case on various terms, including the EEOC monitoring Seapod's employment practices throughout the four years.

Monetary damages in the amount of $300,000 will be paid to the victims. The owner is forbidden from having any association with the company and cannot enter its stores or contact its employees. Going forward, Seapod must revise its policies for complaints and investigation and inform its employees about the changes. Seapod is also required to provide all employees annual anti-harassment and anti-retaliation training.

The EEOC has a Strategic Enforcement Plan identifying six national priorities that include preventing harassment in the workplace and protecting vulnerable workers. The agency is responsible for enforcing federal laws against employment discrimination.

If you have experienced employment discrimination or wrongful termination, Thomas M. Lancia PLLC can help. He has been zealously advocating for clients in New York, New York, for more than 20 years. Call him today at (212)964-3157 for a consultation.


Tuesday, February 17, 2015

F.R.C.P. 68 - Offers of Judgment and Attorneys' Fees

While acting as Plaintiff’s counsel, our firm has recently received a flurry of offers of judgment from competent defense counsel in federal cases.  Why?  I thought I would answer this question and provide a handy chart for employment, copyright and a few other types of cases we handle as plaintiff’s counsel.

A party defending a claim may make an Offer of Judgment under Rule 68 of the Federal Rules of Civil Procedure (the “Offer”), specifying the terms and amount of the Offer.  Rule 68’s language means Defendant is typically the party making the offer and the Plaintiff is usually the party that accepts or rejects it. When the Defendant makes the Offer, the trial court has no discretion to decide whether or not to enter it if it is accepted by Plaintiff.  But if the Offer is rejected, and Plaintiff ultimately prevails but receives a damages award lower than the Offer, Plaintiff’s counsel may not receive statutory attorneys’ fees.  That may ultimately make the Offer more attractive, precisely the effect desired by defense counsel when making the Offer.

            The relevant portion of Rule 68 reads “If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”  Fed. R. Civ. P. 68(d).   Clever defense counsel try to craft the Offer to be just high enough to entice an acceptance but still low enough to be a good result for their client.  Counsel must be sure to indicate that costs are included in the total amount of the Offer, or else defendant may be responsible for the plaintiff’s costs after the date of the Offer, even if the plaintiff’s recovery is less than the amount in the Offer, .

In recent cases our firm has handled, many practitioners have argued that a Rule 68 Offer of Judgment unequivocally cuts off attorneys’ fees in all cases.  That’s often true, but not always true.  As a general rule, attorneys’ fees are cut off as of the date of an Offer ONLY IF the statute governing the underlying claim defines attorneys'  fees as part of costs.  If the statute does not include attorneys’ fees as a part of costs, the party making the Offer may still be liable for paying the Plaintiff’s attorneys’ fees even if the amount recovered is less than the amount offered. 

As always, start with the statute.

Statute

Are fees defined as part of costs?

Copyright Act

Yes

Lanham Act

Unclear; Attorney fees may only be awarded in “exceptional cases”

§ 1983

Yes

Americans with Disabilities Act

Yes

Fair Labor Standards Act

No

Title VII

Yes

§ 1988

Yes

ERISA

No

FMLA

No


Wednesday, January 21, 2015

“Goodfellas” Actor Sues “The Simpsons” for Using His Image and Likeness Without Consent

Can a TV show base a character on an actor’s role in a movie without violating the law?

One might argue that all mafia types in TV and film are interchangeable and based on a stereotype. Frank Sivero would likely disagree. The actor filed a $250 million lawsuit against Fox Television Studios, Inc., and 21st Century Fox America, Inc., claiming that his character Frank Carbone from the 1990 movie "Goodfellas" served as the basis for the cartoon character Louie in the television show "The Simpsons."

According to Sivero, he created and developed the Carbone character without a script and based on his own personality. During that time, he was living next door to writers from "The Simpsons," and Sivero alleges that the show appropriated his confidential idea in creating Louie. Sivero seeks damages for the use of his name and likeness, claiming that he is entitled to a portion of the profits from all things "Simpsons" related, including the television show, movie and video games.

Sivero allegedly spoke with producer James Brooks in 1995 or 1996 about being part of the future success of "The Simpsons" and possibly even doing a movie together. In his lawsuit, Sivero asserts that there was never any intention of making a film; rather, individuals associated with "The Simpsons" were studying him further in connection with the Louie character.

It is unclear why Sivero waited so many years to file this lawsuit, although Louie is a recurring character in "The Simpsons" and appeared most recently in an April 2014 episode. Sivero asserts that he has been typecast due to the show's use of his likeness and idea, further damaging him financially.

Thomas M. Lancia has more than 20 years of experience representing clients in the New York City area in matters involving copyright litigation. Call him at (212)964-3157 for a consultation today.


Wednesday, January 7, 2015

Sandwich Shop Causing Stir With Non-Compete Agreement

How do courts determine the validity of a non-compete agreement?

Most businesses need employees to operate efficiently.  But, most employees do not stay with the same employer for their entire careers. Therefore, some employers worry that these former insiders will use the information they obtained to create unfair competition when they begin working for someone else.

In order to avoid this for a specified period of time, some employers utilize non-compete agreements also known as restrictive covenants, in order to limit a former employees work opportunities after separating from the business.  While these agreements are legal in most states, in order to be considered valid they must not be overly restrictive.  One company is currently being scrutinized for its use of these agreements.

Jimmy John’s is a sandwich franchise with locations all over the United States.  The company employs all types of workers and apparently requests that even low-level workers sign a non-compete agreement.  The terms of the agreement include that if the worker leaves that they cannot be employed by a competitor for two years.  A competitor is defined as any entity that makes 10% or more from the sale of sandwiches and operates within a two mile radius of any Jimmy John’s.  These terms essentially prevent workers from finding employment with any other business that sells sandwiches and some think that these terms are too limiting.

The New York Attorney General has become involved and has initiated an investigation into Jimmy John’s business practices in relation to this matter.  It seems that the Attorney General thinks that these agreements might violate the law.  Usually, non-compete agreements are used to stop higher level employees who might have access to sensitive, valuable or confidential information, from using it to unfairly compete.  As low level workers at Jimmy John’s do not have access to this type of information, it seems that the use of these agreements might be stifling the free market unnecessarily.  Therefore, the terms of the non-compete agreements used by the sandwich shop might be overly restrictive making the agreements invalid.

Thomas M. Lancia works with employers and employees relating to non-compete agreements, trade secrets and employment discrimination in the New York City area.  Contact him by calling (212)964-3157 today for a consultation.

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