Author: lawofficesofmitchellschleyllc

CANTOR FITZGERALD AGREES TO PAY IT WORKER $140K IN OVERTIME SUIT

Last year, Steven Puente filed suit against his employer, Cantor Fitzgerald, alleging that the Company failed to pay him overtime pay for hours worked in excess of 40 hours per workweek under the Fair Labor Standards Act and misclassified him and others as exempt employees.  Puente worked as a Junior Voice Support Analyst, an information technology position.

Prior to the filing of the complaint, Puente submitted records to the Company documenting his unpaid overtime from 2008-2014, which totaled over $100,000.  Puente alleged to have made repeated requests to be paid overtime compensation.  According to the complaint, the Company advised Puente that it was prepared to pay about half of the overtime pay due to him for the period 2012-2014 and was asked to sign an Acknowledgement of Payment document, which stated that the payment “includes all compensation you believe is outstanding and due to date with respect to the time period the Company classified you as exempt from federal and state overtime laws.”  Puente did not sign the agreement since it did not include all the unpaid overtime owed to him during the period of misclassification.  Earlier this month, the parties agreed to settle the case for $140,000.

Under the FLSA, an employer cannot require an employee to waive his or her rights to monies due under the law based on a settlement that does not pay the full amount of the money due.  If an employee signs such a release, like the agreement proposed by Cantor Fitzgerald above, that release is not enforceable and the employee is entitled to seek the balance of the monies due.

NEW YORK CITY BANS EMPLOYMENT DISCRIMINATION ON THE BASIS OF “CAREGIVER” STATUS

On January 5, 2016, Mayor Bill de Blasio signed into law legislation that will amend the New York City Human Rights Law (“NYCHRL”) to protect caregivers from discrimination in the workplace. The NYCHRL already prohibits employment discrimination based on, for example, age, sex, creed, race, color, national original, gender, disability and sexual orientation, among others. This new law adds caregiver to the list. A caregiver, under the law, is defined as “a person who provides direct and ongoing care for a minor child or care recipient” which includes an individual with a disability who is a relative of the caregiver, or a person who resides in the caregiver’s household and relies upon the caregiver for medical care or to meet the needs of daily living.

This new law prohibits employment discrimination on an individual’s actual or perceived status as a caregiver. As such, an applicant’s or employee’s caregiving responsibilities must be excluded from the decision-making process regarding whether to hire, promote, terminate or otherwise affect that individual’s terms and conditions of employment. The purpose of this amendment, as stated by Gale Brewer, Manhattan borough president, is to “combat discrimination on the basis of family responsibilities, which can occur when employees with caregiving responsibilities are treated less favorably due to a perception that they may be less committed to their work because of external obligations.”

In Mayor de Blasio’s press release, he stated, “caregivers are our unsung heroes. They literally keep families together. It’s critical we give them the employment protection they need and deserve.” New York City has some of the most employee-friendly regulations in the country and this new protection is another example of such. The law will take effect on April 14, 2016.

NOVARTIS AGREES TO SETTLE SEX DISCRIMINATION SUIT FOR $8 MILLION

Earlier this year, a class and collective lawsuit was filed by two female former-employees of the Alcon eye-care products unit of Novartis, alleging that the Company discriminated against female employees by denying them equal pay and promotion opportunities. The lawsuit was filed by Elyse Dickerson, a former Global Director of Pharmaceuticals and Susan Orr, Global Director for New Product and Product Strategy. In their lawsuit, they claimed that women made up fewer than 15% of senior management positions, they were paid less than their male counterparts, and were denied promotions and career enhancements opportunities despite their qualifications.

In 2010, in a separate class action lawsuit, a New York jury found that Novartis engaged in gender discrimination against its female employees and awarded plaintiffs $250 million, the largest award in an employment discrimination case at that time. This lawsuit alleges that despite that jury award and Novartis’ representations, “no effective female management initiatives have been rolled out” and Alcon’s website “does not reference any initiatives to promote or support female advancement.”  Last week, however, Defendants agreed to pay $8 million to settle the sex discrimination claims brought by four groups of employees and plaintiffs sought preliminary approval of the settlement.

TEMP WORKER QUALIFIES AS EMPLOYEE IN DISCRIMINATION SUIT

The Third Circuit recently ruled that a client of a temporary staffing agency could be considered an employer in race bias suit. In Faush v. Tuesday Morning, Inc., Labor Ready, a temporary staffing agency, assigned Faush to work at a home-goods retail store, Tuesday Morning. Faush’s duties included unloading merchandise, setting up display shelves and stocking merchandise. In his lawsuit, Faush claims that he and other African-American temporary employees were subjected to racial slurs, accused of stealing and was told by the store owner’s mother to work in back of the store with the garbage until it was time to leave. Faush was terminated. He sued Tuesday Morning under Title VII, the Pennsylvania Human Rights Act and other statutes alleging race discrimination.

The lower court granted Tuesday Morning’s motion for summary judgment, concluding that Tuesday Morning was not Faush’s employer and thus could not be held liable for discrimination under the statutes. Faush appealed the lower court’s decision, and the Third Circuit reversed. The Court found that the employment arrangement between Labor Ready and Tuesday Morning rendered the store liable for Faush’s discrimination claims. Although the Court found that the staffing agency paid Faush’s wages, payroll taxes, and maintained workers’ compensation insurance for him, the Court ruled that Tuesday Morning was, in fact, Faush’s employer under the Darden test because the store controlled his employment, pay and daily activities. The case was remanded and sent back to the lower court for further proceedings.

This decision is significant for both temporary employment firms and businesses that use temporary workers. The full decision can be read here.

NEW JERSEY BASED ENVIRONMENTAL TESTING FIRM TO PAY $2 MILLION IN FALSE CLAIMS ACT SETTLEMENT

In a press release issued yesterday, New Jersey Acting Attorney General John J. Hoffman announced that Accutest Laboratories, an environmental testing firm based in Middlesex County, will pay the State $2 million to resolve allegations that it submitted false claims to the State and its agencies for payment. The State and its agencies contracted with Accutest to perform environmental tests and in 2013, a former-Accutest employee filed a whistleblower lawsuit claiming that the firm violated state and federal False Claims Acts by not following Environment Protection Agency requirements in the extraction and testing of certain semi-volatile organic compounds and that some laboratory technicians did not adhere to the Standard Operating Procedures or proper protocols.

This settlement is the largest non-Medicaid-related False Claims Act settlement entered into by the State since New Jersey’s False Claims Act took effect in March 2008.

NEW JERSEY LATEST STATE TO PASS “BAN THE BOX” BILL

New Jersey has become the twelfth state to pass “ban the box” legislation, which prohibits employers from inquiring into a job applicant’s criminal history during the initial stages of the interviewing process.  The law, titled “The Opportunity to Compete Act,” was signed by Governor Chris Christie on August 11, 2014 and went into effect on March 1, 2015.  The Act bars employers with 15 or more employees from asking about a job applicant’s criminal history until after his or her first interview.  Additionally, employers are prohibited from posting job advertisements stating that individuals who have been arrested or convicted or a crime will not be considered for employment.  However, there are exceptions which allow employers to inquire about an employee’s criminal history during the interview process if the work involves law enforcement or if the work cannot be legally performed by a person with a criminal record under state or federal laws.

Employers who violate this law face civil penalties ranging from $1,000 to $10,000 depending on the frequency of its violations.

HOULIHAN’S RESTAURANT IN NEW JERSEY AND NEW YORK ACCUSED OF TIP VIOLATIONS UNDER THE FAIR LABOR STANDARDS ACT

On September 28, 2015, Secretary of the United States Department of Labor, Thomas Perez, filed a lawsuit against A.C.E. Management Group, operator of 17 Houlihan’s restaurants located in New Jersey and New York, and it’s President/Part-Owner, Arnold Runestad, for violations of the minimum wage, overtime and record-keeping requirements of the Fair Labor Standards Act (“FLSA”).

Last month, the Department of Labor issued a press release stating that its investigation revealed that the defendants unlawfully used employee tip pools by retaining a portion of the tips and also used tip pools to compensate non-tipped workers, such as custodians or kitchen workers, failed to pay overtime pay to employees for hours worked in excess of 40 hours per workweek, required employees to work “off-the-clock” and deducted money from employees’ paychecks for their meals during breaks but also charged them for those same meals.  Regional Solicitor of Labor, Jeffrey Rogoff, stated, “The severity of these violations and the number of affected workers is such that that restitution, we believe, could amount to millions of dollars.”  The Department of Labor seeks reimbursement on behalf of 1,430 current and former Houlihan’s employees.

This Firm will continue to monitor the developments in this case.

NEW YORK GOVERNOR CUOMO SIGNS LEGISLATION TO PROTECT WOMEN’S EQUALITY

A few weeks ago, New York Governor Cuomo signed various pieces of legislation in an effort to protect and further women’s equality in the state of New York.  The new laws are designed to help achieve pay equality, protect victims of sexual harassment and domestic violence, strengthen human trafficking laws and end pregnancy discrimination in the workplace, amongst other things.  Governor Cuomo also announced that the New York State has allocated a total of $6.4 million for Sexual Assault Prevention and Assistance providers.

In his press release, Governor Cuomo affirmed his commitment to advancing equal rights for women.  He stated, “This comprehensive set of laws will help to ensure that women are supported, protected and given all of the opportunities they deserve in life.  Today, New York stands once again as a monument for progress, and a sign of what can be achieved when we come to do the right thing for women everywhere.”

PANASONIC RESCINDS CONFIDENTIALITY RULES

The National Labor Relations Board (NLRB) recently approved an agreement between the National Employment Lawyers Association (NELA), an organization that exclusively represents employees involving employment-related matters, and Panasonic Corporation of North America regarding the Company’s confidentiality rules.

The Company agreed to rescind its policies restricting employees’ ability to communicate with others about their working conditions and other protected activity.  Specifically, the policies had interfered with employees’ rights to communicate about workplace grievances, seek legal advice or engage in other concerted activity, which violates the National Labor Relations Act (NLRA).  The Company also was required to post notices, that must be visible for 60 days in all of Panasonic’s Newark, New Jersey locations, that states that the Company “will not maintain or enforce language” in its employee handbook or other policies.

Claudia Reis, president of NELA’s New Jersey division, said in a statement, “By negotiating the settlement on behalf of NELA-NJ, the NLRB has sent a clear message to employers that it will enforce the protections of the [NLRA] that allow employees to discuss working conditions, and to advance their interests as employees, without unlawful interference from employers through sweeping confidentiality policies.”

BORGATA’S DRESS AND GROOMING RULES FOR SERVERS RULED NON-DISCRIMINATORY

The New Jersey Court of Appeals ruled last week that the dress and grooming policies for cocktail servers, known as the “Borgata Babes,” at the Borgata Hotel Casino & Spa did not constitute sex discrimination under the New Jersey Law Against Discrimination. 

The lawsuit was brought by twenty-two women who alleged that the casino viewed them as sex objects and had policies which prohibited them from gaining more than seven percent of their body weight at the time of hiring.  The lower court held that the hiring process made clear that the positions were meant to be part-entertainer and part-cocktail waitress and the waitresses voluntarily agreed to the weight policy by signing agreements, which the judged ruled were reasonable and lawful.  The waitresses appealed.

  Last week, the New Jersey Court of Appeals affirmed the lower court’s decision, holding that Borgata’s personal appearance policy was lawful and non-discriminatory; however, the Court ruled that “…the enforcement of the weight policy was applied in a discriminatory harassing manner targeting women returning from maternity and medical leave” and therefore remanded the case back to the lower court on that issue.

The full decision can be read here.