NYC Litigation Blog

Tuesday, May 31, 2016

What to know about the new overtime laws

Overtime pay can be a great income boost, particularly since eligible recipients are entitled to one and one-half times their regular rate for staying late. However, until recently, a significantly large portion of the private sector was left excluded from these benefits under the overly-broad concept of “exempt employees.” The list of exempt employees, as provided by the Department of Labor, included everything from executives to agriculturalists, as well as seasonal employees, salesmen and computer technicians. Moreover, the rules included an “income threshold” of just $23,660 -- meaning anyone earning more than that could be legally excluded from overtime pay.

Fortunately, this threshold was recently expanded -- in a big way.

Read more . . .

Sunday, May 15, 2016

Recent NY Employment Law Amendment Will Allow 12-Week Paid Family Leave Law

What is the 12-week paid family leave law and how will it affect NY employees?

Until recently, major family changes were made much more difficult because of employment obligations. The birth of a new baby, the illness of a close family member, or the call to active duty of a family member in the military often threw the whole family constellation out of whack. The new legislation, signed by New York Gov. Andrew Cuomo on April 4th, however, will help to give peace of mind to a great many families in the state. As of the implementation of this legislation, referred to as the "Paid Leave Law," an employee in New York will be  permitted up to 12 weeks of paid leave under any of the following circumstances:

  1. To care for a new child in the family.
    Read more . . .

Friday, April 29, 2016

What New Yorkers Need to Know About the New Paid Family Leave Act

Most New Yorkers are aware of the recent updates to the state human rights laws which provide paid family leave for eligible workers. Fortunately, New York has taken a nationwide leadership role in securing fair and adequate compensation for workers in need of paid maternity leave or medical leave -- a measure which has historically been ignored within the legislative landscape. The following details the law -- which is scheduled to roll out fully by 2018.

In addition, employers within the city of New York are also strongly advised to become familiar with the specific guidelines on medical leave, as wrongfully withholding paid time off could result in costly and unnecessary litigation.

First, much of the paid leave is funded through a deduction from the employee’s pay, and employees are not eligible for paid medical leave until they have worked at least six months for the organization.

Read more . . .

Friday, April 15, 2016

NYC Human Rights Law Strengthened by Amendments to Employment and Public Accommodations

What recent and significant changes have been made to NYC's human rights laws?

Mayor Bill de Blasio has recently signed into law amendments intended to remediate and strengthen the New York City Human Rights Law (NYCHRL), particularly in regard to franchisers, franchisees and lessors. In keeping with the Mayor's stated purpose of improving legislation to protect employees and tenants from having their civil rights violated, he has signed into law amendments designed to:

  • Remove language regarding sexual orientation
  • Give the New York City Human Rights Commission the authority to award attorney fees
  • Add franchiser, franchisee and lessor to the list of those forbidden to discriminate on the basis of gender, race, disability, or any other protected class
  • Make it illegal to deny housing to anyone because he or she is a victim of domestic violence, sex offenses or stalking
  • Make it illegal to use discriminatory advertisements and public statements

It is important for all employers, businesses, and lessors to review their procedures to ensure that they are in compliance with the newly amended NYCHRL. The new legislation requires that "exceptions and exemptions from the NYCHRL be narrowly construed in an effort “to maximize deterrence of discriminatory conduct.”

Another aspect of the amendments to NYCHRL's protections addresses the manner in which discrimination on the basis of sexual orientation should be construed. The new wording states that language of the law should not be construed to:

  • Restrict an employer’s right to require that employees meet certain actual job qualifications
  • Permit employers to inquire about the sexual orientation of their current or potential employees or to adopt affirmative action quotas based on sexual orientation
  • Limit or override any pre-existing exemptions under NYCHRL
  • Legalize any act that violates New York Penal Law
  • Endorse any particular behavior or way of life

In addition, the amendments make it unlawful to "offer benefits, services or privileges" to anyone who is (or is presumed to be) a member of a protected class in such a way that such a person is deprived of the full and equal enjoyment” of those benefits on “equal terms and conditions” as all others who are not members of a protected class.

Read more . . .

Wednesday, March 30, 2016

Non-Compete Agreements on the Campaign Trail

Non-compete agreements can creep up in virtually any industry, from technology to food service. In some cases, these agreements are a fair and adequate tool that balances a former employer’s rights to protect confidential proprietary information with a former employee’s right to seek new employment and enter into contractual agreements with subsequent employers.

With campaign season in full swing, it stands to reason that candidates may wish to impose similar restrictions on their staff members, particularly against those considering a defection to another candidate.
Read more . . .

Friday, March 11, 2016

EEOC Proposes New Guidance on Employment Retaliation

How does the EEOC define employment retaliation?

Federal and state laws prohibit employers from retaliating against employees who complain about violations of the law, harassment or discrimination by taking adverse actions such as harassing, demoting, or firing these individuals. Now, the Equal Employment Opportunity Commission (EEOC) has proposed new enforcement guidance that expands the definition of retaliation. The commission recently released a document, "Enforcement Guidance on Retaliation and Related Issues" which includes new standards defining retaliation under civil rights and anti-discrimination laws.

What is retaliation?

Currently, it is illegal for an employer to fire, harass or demote employees who complain about violations of the law, harassment or discrimination.  Other adverse actions include discipline, negative evaluations, issuing warnings, salary reductions, and changing shifts or job assignments. Some employees may also be passed over for a promotion. Retaliation may also involve hostile attitudes or behavior by employers, including managers, supervisors or co-workers toward an employee who has complained.

The EEOC relies upon three elements to prove a retaliation case:

  • The employee participated in a protected activity — typically a complaint of discrimination or harassment
  • The employer or manager took an adverse action against the employee
  • There is a causal connection between the protected activity and the adverse action

The EEOC's proposed guidance expands the meaning of each element. First, the protected activity can occur explicitly or implicitly by the employee making a complaint directly or providing information during an investigation. Further, adverse actions can include anything that could be "reasonably likely' to interfere with protected activity, including activities that are not work-related or take place outside of the workplace or actions against third parties such as family members. Finally, the guide lines broaden the scope of causal connection by creating "a convincing mosaic of circumstantial evidence."

How can an employer minimize the risk of retaliation violations?

Employers need to be familiar with applicable state and federal discrimination laws, particularly those related to wrongful termination due to retaliation. In order to be proactive and create a workplace environment that minimizes the risk of retaliation violations employers should:

  • Establish and implement an anti-retaliation policy that defines retaliation and provides specific examples of legally actionable retaliation for managers and supervisors
  • Provide regular training to executives, managers, supervisors and employees on the anti-retaliation policy
  • Create a procedure for employees to report concerns and instances of retaliation
  • Provide a disciplinary measures for retaliation, up to and including termination

While the EEOC's guidance is only a proposal, it comes as retaliation claims are becoming more common. If you are facing a retaliation lawsuit or have questions about how to establish an anti-retaliation policy, you should engage the services of a qualified attorney.

Tuesday, February 23, 2016

Employment Discrimination Protection for Caregivers

What new rights have been established to protect caregivers from employment discrimination?

For many years, caregivers of children, aging parents or disabled loved ones have experienced discrimination both at the workplace and in terms of obtaining employment. Under a new measure signed by New York City Mayor Bill de Blasio on January 5, 2016, caregivers will finally have protections in place to prevent employment discrimination. This law will become effective on May 4, 2016.

Sensitive to the important need caregivers fill in their own homes and in the community at large, Mayor de Blasio referred to them during a ceremony at the Council Chambers in City Hall, as "unsung heroes" who "literally keep families together in times of distress." He further stated, much to the satisfaction of those who have been meeting the challenges of employment discrimination while simultaneously fighting economic, emotional, and health challenges on the home front: "It's critical that we give them the employment protection they deserve."

New Yorkers have been protected for some time from discrimination based on race, religion, age or sexual orientation. Now, as a result of the passage of this new law proposed by Council woman Debi Rose, New Yorkers are also given "caregiver status" class protection under an amendment to the New York City Human Rights Law.

This new protection means that would-be or current employers can't discriminate against caregivers either during the hiring process or in terms of conditions of employment. Conditions of employment include work hours, pay raises and promotions.

Caregivers are defined as those who provide direct and ongoing care for children under the age of 18 or family members relying on them for daily assistance. The law protects employees who care for "covered relatives," including biological, foster, step- and adopted children, or children for whom they are legal guardians, siblings (including half- and step-siblings), parents, grandchildren or grandparents, or children of the caregiver's spouse or domestic partner. Since the definition of a "covered relative" is left open to the Commission's interpretation, it may be expanded to include other family members at the Commission's discretion.

By giving caregivers equal protection under the law, caregivers no longer have to fear losing their jobs because of the necessity of fulfilling essential family obligations. Caregivers now have the same rights to sue their employers for discrimination as do all other protected classes of employees.

If you are experiencing discrimination for any reason in the hiring process or in the workplace, you should contact a competent and compassionate employment law attorney to assist you. 

Monday, February 15, 2016

Protecting Your Copyrights on Social Media

What are the copyright rules for social media?

As more businesses engage in the digital world, the risk of copyright infringement on the internet has become a significant concern for decision makers. In particular, businesses that rely on social media marketing tools to promote their products and services need to be aware of the fact that copyright laws are applicable on the web. 

In addition, companies that establish websites and conduct digital marketing need to be familiar with the existing protocols in place to protect domain names. The Domain Name System is managed by the Internet Corporation for Assigned Names and Numbers (ICANN), a government sponsored entity that coordinates the designation of registered internet domain names under the Uniform Domain Name Dispute Resolution Policy (UDRP).

 As for the use of social media tools like Facebook and Twitter, existing copyright rules must be followed as well. For example, a business owns the creative works that its employees create while they are working for their company. The creative of work of independent contractors and freelances can only be owned with a work-for-hire agreement in place. If your business posts comments on Facebook or Twitter, it is important to ensure that you own these works.

To some extent, businesses are protected from the potential of infringement lawsuits in certain circumstances. The Digital Millennium Copyright Act (DMCA) provides "safe harbor" to online service providers. It limits their infringement liability by requiring them to take down content that could violate a copyright if the owner sends a take-down request.

How to Protect Your Work from Infringement

In addition to avoiding infringement claims, business owners also need to protect their original content. In order to obtain maximum legal protection, it is essential to register your work with the Copyright Office.  By registering your work, you will have a number of rights, including the exclusive right to reproduce and distribute copies of your work. In short, proper registration establishes prima facie evidence of the validity of the copyright. This grants you legal recourse to bring an infringement lawsuit and obtain statutory damages and attorney's fees.

If your business is engaged in social media marketing, it is essential to understand the applicable copyright laws. A qualified attorney can advise you on how to protect your work from infringement, as well as how to avoid an infringement lawsuit.

Thursday, January 28, 2016

Cross It Off the Bucket List - Caterpillar To Pay $73.6 Million for Stealing Trade Secrets

What are the details of the trade secret lawsuit involving Caterpillar?

In December 2015, the construction equipment maker Caterpillar was ordered by a federal jury to pay $73.6 million for stealing the design of one of its vendors, Miller U.K., Ltd. The vendor had designed a coupling device that links heavy buckets to hydraulic excavation machines and the manufacturing method was deemed to be a trade secret. Caterpillar apparently entered into an agreement to buy the coupling device, but used the design and manufactured the coupling devices instead.

What is a Trade Secret?

A trade secret is confidential information that gives a business a competitive advantage in the marketplace, arising from its manufacturing processes, business practices, formulas, designs or patterns.

The essential elements of trade secret claims include:

  • Information that is generally unknown to the public
  • Information that gives the business an economic advantage over competitors
  • Information the business reasonably attempted to keep confidential
  • Information acquired by a competitor through misconduct

In this case, because Caterpillar had entered into an agreement with Miller, Caterpillar gained access to confidential information about the manufacturing process of the vendors coupling device. The $73.6 million verdict has been reported to be the largest award under the Illinois Trade Secret Act.

One controversial aspect of this case is the growing industry of so-called litigation financing which involved a consulting firm that bankrolled Miller's lawsuit, in return for a percentage of the jury award. Proponents of litigation financing argue that it grants small litigants legal recourse against wealthy defendants.  On the other hand, critics believe that giving investors a stake in the outcome of a case can unduly influence the litigant's decision-making. In any event, Caterpillar intends to appeal the decision.

What can I do if my trade secrets are stolen?

There are a number of ways to protect a trade secret, but even if precautions are taken to keep it confidential, a trade secret can still be stolen. As was the situation in this case, a trade secret can be obtained through breach of confidentiality.  If you believe a trade secret belonging to your business has been stolen, a qualified attorney can file a lawsuit to both obtain monetary damages and obtain an injunction to stop the thief from using the trade secret.

Thursday, January 21, 2016

Court Rules Monkey Can’t Hold Copyright

Have you seen the “monkey selfie”? The charming photo has been making the rounds on the internet as a court has been considering who holds the copyright to the photo. Does the photographer who set up his equipment near the monkeys own the photo, or does the monkey who snapped the shot? We have been following this case for a couple of reasons: 1. Who doesn’t love monkeys?! 2. It might have important implications for copyright law. 

The facts.

In 2011, British photographer David Slater traveled to the Tangkoko Reserve on the Indonesian island of Sulawesi to do some nature photography. According to Slater:

I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up [of a group of crested macaque monkeys] if they were to approach again for a play. I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens. I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens. Was this what they where afraid of earlier? Perhaps also the sight of the shutter planes moving within the lens also amused or scared them? They played with the camera until of course some images were inevitably taken! I had one hand on the tripod when this was going on, but I was being prodded and poked by would be groomers and a few playful juveniles who nibbled at my arms. Eventually the dominant male at times became overexcited and eventually gave me a whack with his hand as he bounced off my back. I knew then that I had to leave before I possibly got him too upset. The whole experience lasted about 30 minutes.

Slater published a book, “Wildlife Personalities,” that included the pictures, and the images were widely shared online, including without permission by Wikipedia. Slater asked that the photos be taken off Wikipedia, but the site editors refused, claiming that the images were in the public domain since they were not taken by a human.

While Slater’s argument with Wikipedia was unfolding, the animal rights group People for the Ethical Treatment of Animals (PETA) filed a lawsuit in federal court in California arguing that the photos rightly belonged to the monkey, which they identified as Naruto. PETA asked the court to grant Naruto copyright, and to allow PETA to administer funds generated by the copyright on the monkey’s behalf.

Slater asked the judge in the case, U.S. District Judge William Orrick, to dismiss the lawsuit on the grounds that a monkey lacks legal standing.

Judge Orrick recently released a tentative opinion in the case, and he is siding with Slater.

“I’m not the person to weigh into this. This is an issue for Congress and the president,” Orrick said from the bench, according to Ars Technica. “If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that.”

Why this case matters.

This case is important because it highlights the new frontier of copyright law into which the digital age has delivered us. Slater set up his equipment, and worked to compose the shot, but he didn’t actually press the button to take the picture. This is similar to lots of work today where business owners set things up to be created or captured, but they don’t press go, something or someone else does. We are truly in a new frontier, and we must ensure that the law is able to match reality going forward.

Contact Thomas M. Lancia PLLC for your copyright needs.

If you have questions about a copyright issue you or your business has encountered, contact Thomas M. Lancia PLLC to schedule a free, initial consultation

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

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