We are very pleased to announce that David A.Stein has joined our firm as senior counsel. David has over thirty years of civil litigation experience, including administrative and arbitration proceedings, trial and appellate work. His areas of expertise include: employment/compensation matters, with emphasis on restrictive covenants; commercial and partnership disputes; and Federal securities regulation and sales practice complaint matters. Prior to joining Moskowitz & Book, LLP, David was a partner in a boutique litigation practice focused on the financial services industry, General Counsel to a major New York City owner/developer/real estate manager, and a litigation associate at Stroock & Stroock & Lavan. David can be reached at firstname.lastname@example.org.
DUMB DECISIONS WILL COST
EMPLOYERS SERIOUS MONEY
Case No. 1, Or "Stick To Policy No Matter How Many Other Ways There Are To Handle The Problem."
The EEOC accused J.B. Hunt Transport Inc. of Lowell, AR, of discrimination for denying four Indian Sikh applicants religious accommodations in its drug testing policy.
One of the five articles of faith for Sikhs is maintaining uncut hair, and the applicants refused to submit a hair sample. Instead of approving the applicants' request for an alternative test (urine, blood, etc.), the company simply denied them employment. The applicants filed charges with the EEOC, and the agency sued.
J.B. Hunt decided to settle the litigation by paying $260,000 in relief.
The company also agreed to revise its written policies and procedures regarding discrimination and religious accommodations, and established an alternative to the drug testing by hair sample for those who need an accommodation. Plus, the company will extend a conditional offer of employment to all complainants in this case.
Case No. 2, Or "Of Course We Can Make Career Decisions For Pregnant Women - We Know Best."
RTG Furniture Corp. is a company that operates a chain of Rooms to Go furniture stores and distribution centers nationwide. The EEOC claimed that the company hired Chantoni McBryde and assigned her to work as a shop apprentice at the company's temporary training facility in Dunn, N.C. The job required the use of various chemicals to repair furniture. After a couple days on the job, McBryde informed the company's shop trainer that she was pregnant. Later that same day, the EEOC said, McBryde was called into a meeting with the company's regional shop manager and others, and was asked to confirm that she was pregnant. The regional shop manager then showed McBryde a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with McBryde.
McBryde was then told that because she was pregnant, she could no longer work at the company. She then complained to the EEOC.
EEOC claimed the firing violated the Pregnancy Discrimination Act and filed a lawsuit. Rooms To Go agreed to pay $55K to settle the suit.
CITY EMPLOYMENT LAWS:
A MINEFIELD FOR EMPLOYERS
As we have previously informed you, Mayor Bill De Blasio and the New York City Council continue to adopt local laws significantly broadening the landscape of employment law in NYC well beyond the federal and even New York State law. Every business in the five boroughs, small and large, needs to be aware of these new laws. The following is a summary of the important components of new City legislation.
Asking About Salary History is Prohibited
Many employers will be blindsided by the new City law prohibiting them from inquiring into or considering a prospective employee's salary history. The stated purpose of the law is to "break the cycle of pay inequity" suppressing wages historically earned by women and minorities. The law applies to all new hires, even highly compensated senior executives. Inquiring into salary history will be considered a "discriminatory practice" for which a private cause of action is available under the NYC Human Rights law. The law takes effect November 1, 2017.
Written Contracts for "Freelancers"
As we previously reported, NYC's new "Freelance Isn't Free Act" creates significant new obligations for all New York City businesses. This law requires that every engagement of a sole proprietor independent contractor (a "freelancer") must be in writing if the contemplated payment for services is more than $800. Further, the law provides new statutory remedies whereby a failure to pay freelancers in a timely manner may result in double or triple damages, and an award of attorneys' fees. This law took effect May 15, 2017.
Restrictions on Retail and Fast Food Shifts
NYC also recently passed a number of laws governing work shifts for retail and fast-food employees. Retail employers must notify employees of their working hours at least 72 hours in advance of the shift. Fast-food employers must set shifts at least 14 days in advance and pay a rising "premium" of $15-$75 if they change the hours as the shift nears. Further, fast food employees must be allowed an 11-hour break between shifts, so that employees do not work back-to-back closing and opening shifts. Further, when new shifts become available, fast food employers must offer the shifts to existing employees before hiring new employees, and must state the criteria that will be used to allocate the new shifts. Finally, both retail and fast-food employers must post all employees' work schedules in a location visible to all employees. These new laws take effect on November 30, 2017 and covered employers should start preparing to comply with them.
No Pre-Offer Criminal Background Checks
Employers are still adjusting to NYC's "Fair Chance Act," which bars them from inquiring whether job applicants have a criminal history. The Act was adopted to expand upon existing City and State law prohibiting discrimination based on "conviction status." Now, employers are permitted to conduct a criminal background check only after a job offer has been made. An employer may withdraw or alter a job offer only if the subject of a criminal offense relates to the employee's job responsibilities. The Fair Chance Act took effect in October 2015.
For more information about these matters, please contact Chaim B. Book at (212) 221-7999 or