Articles Posted in Retaliation

If employees gossip or spread rumors about a co-worker falsely having sex with a supervisor, does that constitute a hostile work environment? At least one federal appellate court says yes, at least if the employer knew about the rumors, participated in spreading the rumors, and disciplined the worker based on the rumor.  Today’s Long Island employment law blog discusses this workplace issue.

In Parker v. Reema Consulting Services, the plaintiff was initially hired to a low level warehouse position with the company.  But, in the course of two years, the plaintiff, a female, was promoted several times, eventually to an assistant manager position.  Within weeks of this promotion, male employees began circulating rumors that the plaintiff had a sexual relationship with a high ranking manager, and that she entered into the relationship for the purpose of obtaining the promotions. The rumors started from a male employee who was jealous about the plaintiff’s quick rise to her position.

The plaintiff met with the highest ranking manager at her location to discuss the matter. At the meeting, the manager blamed the plaintiff for “bringing the situation into the workplace,” and warned her that he could not recommend her for any further promotions because of the rumor. He specifically stated she would not progress any higher in the company because of the rumor.

Courts have long recognized a constitutional right to intimate association. Intimate association protects close family relationships from undue interference from the government.  Today’s Long Island civil rights blog discusses some of the contours of these claims and a recent appellate court decision concerning intimate association under the Fourteenth Amendment.

Close family relationships enjoy constitutional protections. In fact, courts have determined that two amendments protect individuals’ rights to enter into and enjoy close personal relationships. The First Amendment was determined to protect close family relationships in 1999 by the Second Circuit Court of Appeals in New York. The First Amendment prohibits the government from intruding into a familial relationship as retaliation for one family member’s exercise of free speech rights.

The relationship at issue must be very close. For instance, a husband and wife, parent and child, and brother and sister (or other siblings), have all been determined to be close enough so as to constitute a constitutionally protected familial relationship. Two longtime childhood friends, however, are not constitutionally protected as an intimate association, even if those friends consider themselves so close as to constitute a de facto family.

The Long Island employment lawyers at Famighetti & Weinick PLLC obtained a decision that probable cause exists to believe that a national investment bank discriminated and retaliated against their client.  The case will be scheduled for a public hearing at the New York State Division of Human Rights.

The age discrimination and retaliation case was brought on behalf of one of the bank’s traders. According to the allegations in the case, the trader had been successfully working on Wall Street for decades.  Then, co-workers and supervisors began subjecting the trader to a hostile work environment based on his age.  The abusive conduct consisted of age based jokes and comments, some of which were documented in e-mails.  The complaint filed with the New York State Division of Human Rights detailed other improper hostile workplace conduct directed at the trader based on his age.

Further, the trader complained about the age discrimination on multiple occasions, also at times in writing. Despite these complaints, the hostile work environment continued.  The trader opposed other unlawful discriminatory conduct in the workplace and after one such time, a supervisor threatened to run the trader out of the company.  Indeed, soon after these complaints, the bank issued a poor performance evaluation to the trader and removed from him many of his top accounts.  The complaint alleged that the reasons the bank gave the trader for removing the accounts were demonstrably untrue. Ultimately, the bank terminated the trader’s employment.

The First Amendment’s freedom of speech guarantee remains a hot topic in the courts. The First Amendment lawyers at Famighetti & Weinick PLLC handle First Amendment cases ranging from employment retaliation to retaliation against private citizens. Today’s Long Island civil rights blog discusses retaliatory arrests and the effects of government officials censoring speech.

The Constitution has limits. The First Amendment is not unlimited and neither is the Fourth Amendment. For instance, the Fourth Amendment places limits on a police officer’s arrest power. Specifically, the Fourth Amendment requires police officers to have probable cause before making an arrest, meaning a reasonable belief that a crime has been committed. Otherwise, the arrest is unlawful. Establishing probable cause, however, is easy and police officers are given a significant amount of discretion and deference when it comes to arrests.

On June 18, 2018 in Lozman v. Riviera Beach, the question before the U.S. Supreme Court was whether the existence of probable cause prevented an individual from suing for retaliatory arrest.

How much is an employment discrimination lawsuit worth? As Long Island employment lawyers, this is a frequent question we hear from victims of unlawful workplace discrimination in New York.  Victims of discrimination may be able to recover several categories of damages which comprise the total amount that an employment discrimination lawsuit may be worth. Today’s Long Island employment law blog discusses the damages available to discrimination victims.

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.

Retaliation in the workplace is illegal. The law protects employees who speak up when they believe the employer discriminated against them because of a protected characteristic such as race, gender, age, disability, religion, or national origin. Employers cannot try to “get back” at the employee by negatively affecting his or her job such as by demoting, firing, or reducing the employee’s hours or pay. Continue reading

The False Claims Act allows an individual to file a lawsuit on behalf of the government, against another individual or company who has defrauded the government. This type of lawsuit is called a qui tam action. If the person bringing the lawsuit wins, he or she may be entitled to receive up to 30% of the recovery. Additionally, the False Claims Act protects whistleblowers from retaliation of their employers. For example, an employer cannot fire an employee because of a lawful act the employee engaged in to prevent the government from being defrauded.

On July 27, 2017, New York’s Federal appellate court decided a case which discusses a qui tam action and the retaliation provision of the False Claims Act.

The first issue in Fabula v. American Medical Response, Inc., was whether the plaintiff’s complaint satisfied the particularity standard.

The Family Medical Leave Act (“FMLA”) is a federal law which allows eligible employees to take a leave of absence from work for several reasons such as when dealing with a serious health condition of the employee or their family.

FMLA Retaliation and Interference

On July 19, 2017, in Woods v. START Treatment & Recovery Centers, Inc., the highest federal court in New York decided a case relating to the FMLA and answered two important questions.

The Family Medical Leave Act (“FMLA”) is a federal law which allows eligible employees to take a leave of absence from work for several reasons such as when dealing with a serious health condition. The FMLA prohibits an employer from interfering, restraining, or denying an employee’s right to exercise a leave of absence under the FMLA.

A Serious Health Condition Under the FMLA

A “serious health condition” under the FMLA includes “an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider.”

To start a federal discrimination or retaliation lawsuit, a plaintiff must file a complaint with the court. The complaint is a document which states the facts which the plaintiff alleges add up to causing the defendant to be liable to the plaintiff. In Federal courts, the complaint must set forth enough facts to make the plaintiff’s claims plausible, otherwise, the case risks being dismissed by the court. On June 15, 2017, New York’s Federal appellate court decided a case which discusses this “plausibility” standard.

The Plausibility Standard

For years, Federal courts applied a liberal “notice pleading” requirement to determine whether complaints should be dismissed or not. Courts looked to determine whether there were enough facts to give notice to the defendants about the basis for the plaintiff’s case. Then, in 2009, the Supreme Court in Ashcroft v. Iqbal, applied a stricter standard and held that complaints must “contain sufficient factual matter, accepted as true” to state a plausible claim for relief. If not, the complaint will likely be dismissed. The Supreme Court did not provide much guidance about what that standard means and so courts have struggled to apply the standard to the cases coming before them.

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