According to the New York State Division of Human Rights, the employee worked for a Long Island medical provider for 34 years and was 70 years old. After the pandemic started, the company implemented a reduction in force plan which included the 70 year old employee. The employee alleged that she was replaced with a younger employee who had less experience, showing her inclusion in the plan was pre-text for discrimination. But, the company alleged 28 employees in total were terminated and their ages ranged from 20 to 79, undermining a claim that age played in role in termination decisions.

During the Division’s investigation, it learned that the employee’s position was indeed given to a younger employee with much less experience. The company argued the decision was based on the replacement’s efficiency as compared to the terminated employee, but could not articulate any demonstrable basis for this comparison.

Later in the investigation, the company provided statistics which it argued showed that the terminated employee’s work productivity was not as good as other retained employees and that those statistics supported the legitimacy of the employee’s termination. But, F&W pointed out that the statistics did not account for a medical leave of absence the employee took during the comparison period. In other words, if true that the company compared work productivity of employees without considering the terminated employee’s medical leave absence, then the employee was penalized for treating a medical condition.

Based on the information gathered during the course of the investigation, the State Division determined that it could not find that age and disability were not a factor in the termination decision. The Division specifically noted that if the company did not account for the time that the employee was on medical leave, then its decision may be unlawful disability discrimination.

After considering the facts discovered in the course of its investigation, the State Division found that Probable Cause exists to support the allegations of the complaint. The case will be sent to one of the Division of Human Rights Administrative Law Judges to set a hearing date. At the hearing, F&W will present the evidence and the judge will make the final determination of whether discrimination took place.

Evidence of workplace discrimination often consists only of circumstantial evidence. Direct evidence of discrimination is rare. In this case, the State Division was persuaded by several pieces of circumstantial evidence, including that an older employee was replaced by a younger employee, and that the employer’s reasons for terminating the employee just did not add up.

If you think you’ve been selected for termination as part of a reduction in force plan based on an unlawful reason, such as disability, age, race, religion, or sex, speak to an experienced employment law attorney to discuss your rights. The Long Island employment law firm Famighetti & Weinick PLLC are experienced in such cases and offer free case evaluations for workplace discrimination cases.

Our phone number is 631-352-0050. More information about unlawful employment discrimination, unlawful layoffs, and wrongful terminations is available on our website at http://linycemploymentlaw.com.

Probable Cause in Age/Disability Discrimination Case

Other exceptions to at-will employment in New York include circumstances where the employee has an employment contract which alters the employment at-will default rule. Employees, typically high ranking executives or professionals such as doctors and lawyers, may have individual employment contracts. Other employees such as laborers, may have union contracts, known as collective bargaining agreements. Additionally, government employees may have job protection under the Civil Service Laws.

But, most employees in New York are at-will and have no job protection.

Seeking to expand the class of New York employees who have job protections and who will no longer be at-will, New York City has expanded the Fair Workweek Law to require that fast food workers be fired only for “just cause.” Today’s Long Island employment law blog discusses this law.

New York City’s expansion of the Fair Workweek Law covers fast food workers who work for fast food restaurant chains with 30 or more restaurants across the country. The law requires that employers provide an initial 30 day period of probation. After the probation period, the employer may terminate the employee, reduce the employee’s work hours by 15%, or indefinitely suspend the employee, only for just cause.

The definition of just cause is the employee is unable to satisfactorily perform the job duties or where there is misconduct which is demonstrably and materially harmful to the employer’s business interests. Before discharging the employee, the employer must provide five days notice indicating the precise reason for the termination. The factors used to determine just cause are:

• Did the employee know or should the employee have known about the employer’s policy, rule, or practice used as the basis for discipline or discharge;
• Did the employer adequately train the employee;
• Did the employer fairly, reasonably, and consistently use the policy or rule to discipline the employee;
• Did the employer investigate the misconduct or inadequate job performance in a fair and objective way;
• Did the employee in fact violate a rule or policy which is the basis of the discipline.

The law further requires that employers use a progressive discipline model which includes a range of discipline, termination being the most serious level of discipline which should be reserved the most egregious violations.

The law does not prohibit employers from laying off workers due to economic reasons, but it imposes some requirements which businesses must follow. For example, employers must have a bona fide economic reason for the layoffs, such as changes in the company’s organization, or reductions in profit or sales.

When conducting layoffs, companies must first layoff the least senior employees. If the company reaches a position where it can re-hire employees, employers must first try to re-hire laid off employees before hiring new employees.

New York City has given the new law teeth. Violations of the Fair Workweek Law can be costly for employers who violate the law. Employees who have had their rights violated can sue the employer in court or (after January 2022), can file an arbitration with the New York City Department of Consumer Affairs. Employers found liable for violating the law may be subject to damages to the employee, including back pay and compensatory damages, and attorneys’ fees. Employers may also have to pay for the arbitration and may be ordered to reinstate the employee.

In sum, New York City’s changes to the at-will employment rule are sweeping and dramatic. If you have questions about the at-will employment rule, the changes to the New York City Fair Workweek Law, or other questions about wrongful terminations, contact a Long Island employment lawyer at Famighetti & Weinick PLLC. Our phone number is 631-352-0050.

New York City Modifies Some At-Will Employment

Sometimes, the decision can be easier for employees. Employees who are at-will or in probationary assignments which can be terminated for any reason, have no job protections. Thus, when an employer delivers the resign or be fired ultimatum, it truly is a threat that the employee will be fired, and the employer may genuinely be offering the employee a benefit of leaving without the scar of a termination on the employee’s record.

Other times, employees enjoy job protections and cannot be fired without a hearing or some level of process. This is particularly true with civil service employees in New York. It is quite common for municipal employers to offer permanent civil service employees the option of resigning in lieu of a termination hearing. This provides the employee the benefit of leaving without a record of termination (an important benefit for civil service workers) and gives the employer the benefit of certainty of separation. Indeed, when a termination proceeding proceeds in good faith with a neutral decision maker, the outcome of the hearing is not foreseeable for either party.

In certain circumstances, however, the decision of a neutral hearing officer is merely a recommendation. Once the employer fulfills its obligation to the employee of providing a hearing, the employer retains the ultimate decision of whether to fire the employee, regardless of the outcome of the hearing. In these situations, the employee’s decision to accept an offer of resignation verse taking chances at a hearing, becomes blurrier because the hearing looks like a sham, with the outcome seeming to be certain termination.

In still other situations, the employer outright tells the employee to resign because the outcome of the hearing will be certain termination. In other words, the employee’s termination is pre-ordained and the employee has no real decision to make other than resignation. When this happens, does the employer’s ultimatum constitute a coerced resignation or constructive discharge? In other words, is the ultimatum really a termination, even though the employee resigned?

On March 10, 2020, the Second Circuit Court of Appeals answered that question. Today’s Long Island employment law blog discusses the decision.

In Green v. Town of East Haven, the employee worked for a local police department. In sum, the employee was caught “red handed” with property which did not belong to her. In a tote bag, the employee placed a package of Pillsbury buttermilk biscuit dough she found in the office refrigerator and also a wire basket which belonged to the office. She alleged that her intent was to cook the biscuits for her co-workers, since she noticed the package remained unused in the refrigerator for a while and the office did not have an oven. Further, she alleged she was borrowing the basket for a party, and that it was common practice for workers to borrow such items for personal use, but then bring them back.

The employer did not care and took steps to proceed towards a hearing to determine her guilt and proper penalty. Before the hearing, the employee’s union representative advised her to resign, after a meeting with department officials, including the chief of police. The employee testified that the union representative told her that the chief said that if she didn’t resign, she would almost certainly lose at the hearing. Accordingly, she resigned, but later sued, alleging she was forced to resign and that the actions taken against her, were taken because of her age, thereby constituting unlawful age discrimination in violation of the ADEA.

The trial court dismissed the case at summary judgment. The court ruled that the employee’s resignation was voluntary, so she could not establish that the department took an adverse employment action against her, a necessary element of her age discrimination claim.

On appeal, the Second Circuit disagreed and reversed. The Circuit held a constructive discharge sufficient to establish an adverse action can be shown when the employee established evidence that as a whole, shows a reasonable person in the employee’s shoes would have felt compelled to resign.

On the facts of the Green case, the Second Circuit further determined that the employee’s case showed questions of fact which require resolution by a jury. Specifically, in Green’s case, a jury had to decide whether she chose to resign “on her own,” or whether she felt compelled to resign to avoid termination. Indeed, the Second Circuit thought there to be persuasive evidence that the employee had a reasonable belief that her firing was inevitable and the hearing would “almost certainly” result in her termination.

In sum, the Second Circuit believed the trial court improvidently dismissed the case and committed both legal error and an error in interpreting the evidence.

The circumstances in Green are not unfamiliar to the employment lawyers at Famighetti & Weinick PLLC. We regularly counsel employees who are similarly faced with an ultimatum to quit or be fired. If you have questions about similar circumstances, the decision in the Green case, or about coerced resignations or constructive discharges, contact a Long Island employment lawyer at 631-352-0050.

Resignation or termination ultimatums

The Mount Lemmon Fire District is a municipal fire department in Arizona. Purportedly because of a budget shortfall, the District laid off two employees, John Guido and Dennis Ranking, ages 46 and 54, respectively. The firefighters sued alleging their terminations violated the ADEA because the decisions were based on their age. The District moved to dismiss arguing that the ADEA only covers employers who have more than 20 employees, which the District did not. Ultimately, SCOTUS was asked to decide the issue.

Writing for the court, Justice Ginsburg noted that the ADEA was enacted to prevent “arbitrary age discrimination” in employment. She noted further that Congress initially excluded governmental agencies and required that employers employ a threshold number of employees for the law to apply to them. But, in 1974, Congress amended the ADEA to specifically define employer as including “a State or political subdivision of a State.”

The issue in Mount Lemmon is whether the amendment means that all government entities are covered by the ADEA or that only government entities which employ more than 20 employees are covered by the ADEA. Since the federal courts have decided the issue differently, the Supreme Court agreed to take the case to resolve the conflict.

The words SCOTUS was required to interpret were “employer . . . also means . . . a State or political subdivision of a State” and whether “also means” added a new category of employers to the ADEA’s coverage. The court noted that “also means,” enhances language and acts to “additively” create a new category of employer. The court further noted that “also means” is used across many federal statutes and is used to add to a meaning, rather than to clarify a meaning.

The court rejected the Fire District’s argument that the court’s interpretation would mean that the ADEA would have broader coverage than Title VII (the anti-discrimination statute) and that Congress did not intend such a result. In fact, the court said its conclusion was reached precisely because Congress used different language in the ADEA than in Title VII. Further, the ADEA’s language mirrored the FLSA’s language which was intended to have broad application to even small employers.

Finally, the Fire District argued that the court’s decision would impact public services, but SCOTUS rejected this argument as well. Justice Ginsburg noted that many states regulate age discrimination for municipal employers of any size and that the court is not aware of any disruption in service because of those regulations.

In sum, the Supreme Court held that the plain language of the ADEA means that regardless of size, state and local governments are covered by the ADEA.

The Mount Lemmon decision was one of the first issued decisions concerning employment law decided under the new composition of the court, in other words, since Justice Kavanaugh’s confirmation. Thus, we thought it prudent to comment on what, if anything, this decision teaches us about how the court will handle employment law cases moving forward. In brief, “the jury is out.” Notably, Justice Kavanaugh did not participate in the decision as the case was argued before he was confirmed. But, the court nonetheless decided the case unanimously by the eight judges who heard the case. To those who believe the court will intentionally find ways to rule against employee and individual rights, the decision is confirmation that while there will certainly be legal issues which reasonable minds may disagree about, the justices of the Supreme Court are committed to making decisions based on the law. It is encouraging to see this court issue a unanimous employee-side decision.

If you have questions about age discrimination, the ADEA, the Mount Lemmon decision, or employment law issues under the new Supreme Court, contact a Long Island employment lawyer at 631-352-0050 or visit us on the internet at http://linycemploymentlaw.com. In addition to our experience in employment discrimination matters, we can help New York and long island firefighters in matters including disciplinary 209-l proceedings.

Are small fire departments covered by the ADEA?

Before even getting to the question of damages, plaintiffs must always first prove liability. This means that an employment discrimination plaintiff must first prove that the employer in fact engaged in unlawful discrimination or retaliation. We often describe this step by analogizing it to baking. In a lawsuit, a plaintiff must prove certain elements. Elements are like ingredients. If, for example, we were baking a cake, we need, for simplicity purposes, four ingredients: (1) flour, (2) sugar, (3) butter, and (4) eggs. If we did not have one of these ingredients, we may make something resembling a cake, but it would not be a cake.

Similarly, in the world of employment discrimination, a plaintiff must prove four “elements” or “ingredients” to win the liability part of his or her lawsuit. In short, those elements are: (1) membership in a protected class (such as race, religion, disability, etc.), (2) being qualified for the job; (3) an adverse action (meaning something legally “bad” happened such as being fired); and (4) causation – a showing that the bad thing happened because the employee belongs to a protected class. If the plaintiff does not prove one of these elements, then the “cake” won’t reason, i.e. the plaintiff cannot prove the case and will not be entitled to any damages whatsoever.

Once a plaintiff proves his case by meeting each one of the elements, the plaintiff can prove damages. Victims of employment discrimination in New York can, generally, recover four different types of damages: (1) economic damages; (2) emotional damages; (3) punitive damages; and (4) attorneys’ fees and costs. Each of these damages are described below.

Economic damages include all out of pocket costs incurred by the discrimination victim because of the employee’s unlawful conduct. Examples include loss of pay, loss of pension or retirement payments, and health insurance costs. Victims are typically entitled to interest on awards of economic damages. The damages, however, typically are awarded only for back-pay which is damages calculated from the time of the discrimination until the time of the award. Courts are reluctant to award front pay, or future damages. In other words, a victim who is unlawfully terminated in 2016 and receives a favorable jury verdict in 2018 can receive back pay from 2016 to 2018, but usually not front pay from 2018 to some other point in the future. In addition, victims must try to mitigate damages by looking for new work.

Emotional damages are the hardest category of damages to quantify. But, emotional damages are generally considered either garden variety or more severe. Garden variety emotional damages fall on the lower end of the spectrum of awards and typically will not exceed $50,000. Garden variety damages may be awarded where a plaintiff does not have medical corroboration for her symptoms or where the plaintiff testifies about vague and general symptoms of emotional distress. Higher awards of $200,000 may be appropriate where a plaintiff testifies about significant emotional distress such as changes in eating and sleeping behavior, withdrawing from socializing, hair loss, and other extreme symptoms. If a medical professional testifies about those symptoms, the awards may exceed $200,000 and can reach into the millions, but only with evidence of the most extreme mental distress.

Punitive damages are designed to punish defendants who acted recklessly or wantonly. They are also used to deter others from acting in a similar manner. Punitive damages, if awarded, must be relative to the other damage awards. For instance, a court will not likely uphold a punitive damage award of $10,000,000 where the plaintiff was able to prove only $10,000 in other damages.

Prevailing plaintiffs in employment discrimination lawsuits are also able to recover attorneys fees and costs. At the conclusion of an employment discrimination lawsuit, the attorney can submit time records to the court and ask the judge to order the defendants to pay for the attorneys’ time on the case. Costs may be also be imposed against the employer, including the costs for filing the lawsuit and the costs for deposition transcripts.

The damages available to victims of discrimination can be confusing. Damages are highly fact specific and each case must be reviewed individually to determine the amount of each category of available damages. To determine how much your employment discrimination case may be worth, contact a Long Island employment lawyer at Famighetti & Weinick PLLC at 631-352-0050 or http://linycemploymentlaw.com.

Damages in an Employment Discrimination Lawsuit

Generally speaking, New York employees are considered at-will, meaning employers can fire employees for any reason or no reason, as long as the reason is not otherwise illegal. This rule gives employers broad discretion in deciding whether to terminate an employee.

New York Labor 201-d, however, identifies several reasons for which an employer may not terminate an employee. 201-d prohibits employers from terminating an employee, refusing to hire or promote an employee, or otherwise discriminate against an employee for an employee engaging certain activities outside the workplace. Those activities include participating in political activities, an employee’s “legal use” of consumable products, an employee’s “legal” recreational activities, or participating in union activities.

Specifically, the statute may protect employees who run for a public office, fund raise for political purpose, or campaign for a political candidate. The statute further protects employees who participate in or watch sports, who play games, working on hobbies, read, or watch television or movies. Further, the law protects employees who smoke cigarettes or otherwise use tobacco or other “legal consumable products.”

Notably, the law does not protect employees who engage in such activities during work time. For example, if an employee’s boss sees the employee outside of work on a non-work day and the employee is smoking, it could be unlawful for the boss to fire the employee because the employee smokes. But, if the employee left his assigned work station during working hours to smoke, and left without permission, the employer could lawfully fire the employee.

Similarly, an employee could support a particular political candidate. If the employee’s boss supported a different candidate, the boss could not fire that employee for that reason. But, if the employee made calls while at work trying to fund raise for his candidate, the employer could lawfully fire the employee.

Like most rules of law, there are plenty of exceptions. For example, an employer make employment decisions based on its good faith belief that the decision is based on an established substance abuse program or policy. Further, if the decision is based on an employee’s illegal conduct or because of poor performance, the employment action may be legal. The employer may also take action against an employee if the employee’s conduct implicates issues related to the employer’s trade secrets or otherwise proprietary information.

An emerging question which courts may face is how 201-d relates to an employee’s use of recreational marijuana. If, for example, an employee visits a state in which recreational marijuana is legal and uses marijuana, can a New York employer terminate the employee if it finds out about the employee using marijuana in another state? The answer is probably yes. Marijuana remains illegal under federal law and the recreational use of marijuana in New York is also illegal. We will, however, continue to watch this developing area of law.

As noted, 201-d is riddled with exceptions. Employees who believe they were terminated for engaging in activities outside the workplace should consult with an experienced Long Island employment lawyer. At Famighetti & Weinick, PLLC we offer free confidential case evaluations. Our Long Island employment attorneys can review the facts of each individual case to determine whether there may be a violation of 201-d.

If an employee has been terminated in violation of 201-d, the employee may file a lawsuit to recover damages. To discuss a wrongful termination lawsuit, talk to a Long Island employment lawyer at 631-352-0050.

New York’s recreational activities law

To successfully establish a retaliation case, the employee has to show that the negative employment action he or she suffered was “adverse” and that it occurred as a result of the employee complaining about the discrimination.

Technically, courts have ruled that an action is “adverse” when a reasonable employee would be hesitant or dissuaded from filing a discrimination complaint fearing that the same negative consequences would occur to them.

In practice, however, the actual meaning of “adverse” remains unclear. In fact, what action a court deems sufficiently “adverse” may surprise you. For example, in 2017, in Bien-Aime v. Equity Residential, a federal district court in New York decided that not saying good morning to an employee and speaking without a “warm welcome in his voice” were considered adverse actions.

Today’s employment law blog discusses a recent retaliation case, Duplan v. City of New York, decided by New York’s federal appellate court on April 30, 2018. Although this case did not clarify the meaning of “adverse,” it did change other parts of the legal landscape for retaliation cases in New York. Below are the facts of the case.

Duplan, a gay black male from Haiti, worked as the Director of Operations in the City’s HIV/AIDS Prevention and Control Bureau. Alleging that he was subjected to employment discrimination on the basis of his race, national origin, and sexual orientation, Duplan filed a discrimination lawsuit under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 USC Section 1981, and further alleged violations of his Constitutional rights via 42 USC Section 1983.

In the lawsuit, Duplan also alleged that his supervisors retaliated against him after he filed discrimination charges, in 2011 and 2014, with the Equal Employment Opportunity Commission (“EEOC”) and the New York State Division of Human Rights (“NYSDHR”). Specifically, some of his allegations were that his supervisors took away some of his job responsibilities, ostracized him, and repetitively denied him from promotions that he was otherwise qualified to receive.

The district court dismissed Duplan’s retaliation case because the court did not believe that Duplan proved an essential element of a retaliation case – causation. The causation element of a retaliation case requires a plaintiff to prove that the employer took action against the employee because of the employee’s complaint of discrimination. Duplan appealed his case to New York’s federal circuit court.

On appeal, the Second Circuit Court of Appeals agreed with most of the lower court’s decision, except for the retaliation portion. On appeal, the Second Circuit determined that sufficient evidence in the record supported the causation element. The court held that collectively, Duplan’s supervisors had “persistently discouraged him” and were slowly but surely trying to get rid of him which the court labeled as a “drumbeat of retaliatory animus.” These actions showed that his supervisors maintained a retaliatory animus against Duplan.

Additionally, the court also decided this was the chance to clarify two other parts of the law concerning retaliation.

First, the Second Circuit joined with several of its sister courts and held that discrimination claims under Section 1981 were off limits to government employees. This effectively leaves government employees with the option of bringing claims under only Title VII or Section 1983.

Next, the court discussed Title VII’s exhaustion requirements. Exhausting a claim is a pre-requisite to filing a discrimination claim under Title VII in court. Employees are generally required to first file a charge of discrimination with an administrative agency such as the EEOC within specific time limits, generally 300 days from the time of the discrimination or retaliation.

Prior to the Duplan decision, reasonably related claims were considered automatic exceptions to the exhaustion requirement. The Duplan decision, however, changed this after holding that reasonably related claims were an exception only if they occurred during the time that the EEOC was investigating the case or if the suit had been timely filed.

This new rule created an issue for Duplan’s retaliation claims that allegedly occurred prior to December 27, 2013, because he had not followed the timeliness requirements. For example, in 2011, he ignored the 90-day time limit to file a lawsuit which employees must comply with after receiving a right sue letter from the EEOC.

After the decision in Duplan, it is important that employees file their claims correctly and adhere to the time limitations. Otherwise, a court may later dismiss a claim.

The Long Island employment lawyers at Famighetti & Weinick PLLC can help you decide what agency it may be better to file a discrimination or retaliation case with, help you understand important time and filing requirements, and other important considerations that may be the key to a successful lawsuit.

Contact a Long Island employment lawyer at Famighetti & Weinick at 631-352-0050 for a free consultation. Our website is https://www.linycemploymentlaw.com/.

Today’s employment law blog was written by law clerk Thalia Olaya.