Employment Lawyer Blog

The US Equal Employment Opportunity Commission (EEOC) has reportedly filed charges against a New York City restaurant, Sparks Steakhouse, for permitting male to male sexual harassment and for retaliating illegally against an employee who complained about the abuse.

After trying and failing to reach a voluntary settlement with the restaurant outside of court, plaintiffs are charging that Sparks' managers violated Title VII of the Civil Rights Act of 1964. The plaintiffs allege that they were groped, touched, and rubbed involuntarily while at work. Some fellow employees and managers also made obscene jokes and taunts that constituted sexual harassment in New York. Lastly, when one employee complained about the mistreatment, he was at first refused good shift assignments and subsequently terminated without an appropriate explanation.

If you or a coworker has experienced sexual harassment at a New York City restaurant, turn to Joseph, Herzfeld, Hester, & Kirschenbaum. For years, our firm has taken on some of the most high profile and complicated cases of New York City restaurant sexual harassment and retaliation, and we've proven our mettle many times over. We are passionate advocates for servers, busboys, and other restaurant workers who often labor under extremely difficult conditions and who do not benefit from either job security or a stable pay structure. Please read the rest of this blog or visit our website at www.jhllp.com for examples of our tenacity in discrimination, harassment and retaliation cases. Or, phone us at (866) 348-7394 immediately to get confidential legal help with your problems.

On January 22, a protracted age discrimination lawsuit came to a close in California, when 17 Hollywood studios, television networks, and talent agencies agreed to pay out $70 million to a class of television writers over the age of 40 who had alleged violations of the Labor Management Relations Act, the Federal Age Discrimination in Employment Act, and California's Fair Employment and Housing Act. The talent agency International Creative Management (ICM) settled a related matter in August, 2008 -- paying out around $4.5 million in settlement monies to the plaintiffs.

Around two thirds of the $70 million will be paid by insurance companies representing the defendants. 165 members (and settlement classes) will divvy up the money through something called the Fund for the Future, which will be overseen by members of the settlement class to be used for loans and grants to help writers with medical insurance and pensions.

This age discrimination litigation has been keeping lawyers for the networks and studios busy for about a decade. The ruling by the California Superior Court may mark a turning point for the entertainment industry, which only recently resolved a protracted and painful TV and movie writers strike.

Industry insiders have often argued that studios and networks -- which relentlessly target youth culture and the 18-25 demographic -- cultivate a hostile climate for older writers. Not all industry players agree, however. For instance, one analyst has pointed out that many of today's most successful television comics -- and writers for both drama and comedy -- are age 40 and above. An opposite charge is also often levied: that Hollywood can be unusually hostile to aspiring talent. Hollywood wannabees often must endure years of busy work and grueling assistant jobs before being able to work in truly creative capacities.

If you or anyone you know has been the victim of age discrimination in Hollywood, New York, or anywhere else, the firm of Joseph, Herzfeld, Hester, & Kirschenbaum may be able to assist. As with most employment-related claims, there are inherent deadlines by which you must take specific legal action to preserve your rights. Discuss your matter with us in confidence ASAP at 1-866-348-7394, or visit us online at www.jhllp.com for information about our services and credentials.

Employment discrimination, harassment, and retaliation in New York can be punished pursuant to the City Human Rights Law. Let's review the basics of this crucial law.

1. On discrimination based on classes:

Employers may not hire or fire individuals -- or assign work projects, salary/benefits, and so forth -- based upon a number of criteria, including:

• Citizenship status
• National origin
• Creed
• Color
• Race
• Age
• Sexual orientation
• Marital status
• Physical/mental disability
• Arrest record
• Victim status (of offenses such as violence and stalking)

2. On disability discrimination in NY:

The City Human Rights Law of New York requires employers to provide 'reasonable accommodation' for workers who have medical, mental, or physical impairments or a history of said impairments. To provide accommodation, employers must modify job schedules, restructure positions to accommodate for disabilities, provide interpreters and readers, and modify, adjust or acquire certain devices and training procedures.

3. On reasonable accommodations required for the religiously observant:

Bosses and managers must make 'reasonable accommodation' for people who are religiously inclined. For instance, if a religious person requires time off for the Sabbath, his employer should accommodate said request in general. But the law does not require the employer to pay for time off; and you may have to make up the time later on.

4. On sexual harassment in New York:

Sexual harassment is gender discrimination that includes unwelcome physical or verbal conduct of a sexual nature. For instance, if a boss requests that you perform a sexual favor in exchange for a promotion or job assignment, that would be considered sexual harassment under the law. Similarly, if pervasive taunts prevent you from doing your job, this could constitute actionable harassment.

5. On retaliation:

Employers who lash out against employees who complain about harassment, discrimination, and other workplace problems can be punished for retaliation. Even if your allegations of impropriety get dismissed, as long as you had a good faith belief that a discriminatory practice had been going on, your employer cannot retaliate against you.

Could the New York City Human Rights Law apply to your workplace problem? For quality guidance from some of the top anti-discrimination and harassment attorneys in the nation, call (866) 348 7394 to speak with counsel at Joseph, Herzfeld, Hester & Kirschenbaum LLP. Find out more about our credentials at www.jhllp.com.

It seems like every day in the news we read about new cases of ferociously unfair workplace discrimination in New York, as well as harassment, wage and hour violations, and retaliation. Unfortunately, by the time that independent parties are brought in to resolve workplace frustrations, it is often too late to avoid lawsuits and litigation. But could there be a simpler way to preserve employee rights and protect the business interests of employers?

Perhaps.

One new method has shown startlingly positive results in a number of industries. It can be summed up in single word: Awareness.

Simply put, when workers become more aware of one another's concerns, sensitivities, and proclivities, uncomfortable situations seem easier to resolve. This may sound like common sense, but it is common sense uncommonly practiced.

How might increased awareness of others lead to problem resolution?

1) Awareness leads to empathy.

Often, in workplace situations, people have a 'me against the world' mentality. This isn't necessarily a bad thing -- after all, we live in a capitalistic culture that has generated amazing results. But when the pursuit of wealth and power becomes the singular objective of workers and bosses alike, it can lead to insensitivities that can corrupt institutions and ultimately drag down efficiency. For instance, suppose a manager at a bank ruthlessly pursues policies to squash his subordinates and better his peers for the sole purpose of climbing the corporate ladder. He might ultimately get promoted. But his behavior diminishes his corporation. As a result, everybody loses in the end. Moreover, this ruthless pursuit of power blinds him to legitimate concerns that his subordinates may have, including concerns about untoward harassment and discrimination.

Conversely, consider a manager who cultivates awareness of his coworkers and subordinates. He may develop 'win-win' solutions to common on-the-job problems. As a result, he will likely be more sensitive to concerns about harassment and discrimination, be faster at resolving these situations and therefore be more effective at advancing not only his interests but also the interests of his colleagues and his organization.

2) Greater awareness breeds greater mutual trust.

In modern corporations, depersonalization of employees is almost always a big problem. But by practicing awareness of those around you, you can identify problems proactively and nip them in the bud.

3) Awareness reduces stress.

A plethora of studies shows that mindfulness can reduce stress. This in turn can lead to a cascade of health benefits, including reduced cortisone levels, a higher level of fulfillment and satisfaction, and a greater sense of control and perspective. An ancillary benefit of practicing awareness of your moods and concerns -- and the moods and concerns of others -- is that you should be more alert at identifying office discrimination, harassment, and other misbehaviors before they become major problems.

For legal help resolving difficult or even intractable-seeming hostile workplace problems, contact the lawyers here at Joseph, Herzfeld, Hester & Kirschenbaum LLP at www.jhllp.com or dial us toll free at (866) 348 7394.

While harassment and discrimination in New York workplaces can make the lives of city employees miserable, the Big Apple offers a slew of resources and solutions to aid workers and bosses alike in the ongoing quest for a stress-free, discrimination-free workplace. Here are some New York City specific resources and tools to combat discrimination, harassment, and retaliation on the job.

1. Ample free resources exist for members of the New York labor force. For instance, check out:

a. The New York Department of Labor's workforce website
b. The New York State's Workers' Compensation Board website
c. City service organizations -- including volunteer groups, non-profits, and religious groups -- also offer support, job placement help, and useful info.

2. The city boasts many laws designed to protect the rights of workers and to ensure that legal redress is possible. These include:

a. New York State Employment Safety and Security Act
b. Title 12 of the New York Codes, Rules and Regulations (NYCRR)

3. If you don't like your job, it is (relatively) easy to find a new one in the Big Apple.

New York City may have been slammed by the recent recession, but job opportunities in a wide variety of industries abound. Talk to an employment counselor to identify your career and financial objectives.

4. New York City boasts amenities to help people de-stress.

From four star gyms to superlative day spas to top notch executive career counseling, New York City has endless resources to help struggling workers relax, refocus, and re-engage. By taking advantage of these resources, employers and employees alike can reduce stress at the workplace and thus indirectly limit the number of sexual harassment, discrimination, and retaliation cases.

5. New York City has excellent legal help.

If you or a friend or coworker is struggling to deal with discrimination, harassment or retaliation at a New York City job, speak with the attorneys of Joseph, Herzfeld, Hester & Kirschenbaum LLP. Phone us for a free consultation at (866) 348-7394, or explore our many online resources at www.jhllp.com.

Workplace harassment, discrimination, and retaliation claims can drain the time and energy of small business owners. No employer wants to deal with a contentious lawsuit. But when owners and managers don't understand their legal responsibilities, problems can emerge and compromise even healthy and functional workplaces. So what are some behaviors to avoid when cultivating a respectful, harmonious work environment?

1. Distributing workload unfairly among employees. Favoritism can leave 'unfavored' workers feeling frustrated, out of the loop, and marginalized. Conversely, a favored employee may likewise feel uncomfortable, particularly if the favoritism could be construed as unwanted flirtation.

2. Not respecting the privacy of employees. For a good primer about how NOT to behave as a manager of a small business, watch the antics of the fictional employer Michael Scott on NBC's The Office. Scott regularly engages in behaviors that would - in the real world - be construed as creating a hostile work environment.

3. Failing to document events. If an employee complains to you about the behavior of a colleague, for instance, take notes and keep these notes on file. If you are confused about how to process a complaint, contact your human resources department or even a government agency such as the EEOC. By keeping careful track of complaints and official company responses, you can hopefully resolve employee issues faster and more efficiently and thus protect everyone's rights.

4. Maintaining a biased promotion and firing policy. Whether the economy expands or contracts, employers must constantly reshuffle their human resources decks. To avoid giving the appearance of impropriety to any hiring or firing decision, maintain clear, realistic, and legal policies regarding your HR decisions. Your employees should understand your decision-making criteria. Above all, practice empathy!

5. Failing to pay attention to the demeanor of employees and to the general attitude of your workers. Gauge the esprit d'corps of your employees carefully and methodically. If even one person on your team seems uncomfortable, investigate carefully and mindfully. Be on the look out for signs of bullying, intimidation, inappropriate humor, and illegal behaviors (like drug use at work).

6. Allowing the office to get messy. A work environment that's not clean, tidy and attractive can corrode morale. This can create stresses between co-workers and even contaminate relationships with clients. Ensure that the physical space in which you and your employees inhabit meets strong standards of hygiene.

For help assessing whether you may have a legally actionable employment discrimination, harassment, or retaliation case, talk to the accomplished lawyers here at Joseph, Herzfeld, Hester & Kirschenbaum at (866) 348-7394 (you can also find out more at www.jhllp.com). Our expert litigators can help you determine your next actions. Call today to get the help you deserve.

The Fourth U.S. Circuit Court of Appeals has ruled that three employees of a horse racing and gambling center in West Virginia were incorrectly classified as exempt from overtime eligibility, the West Virginia Record reported May 4. John Desmond, Dana Witherspoon and M. Larry Sanders sued Charles Town Races & Slots, alleging that they routinely worked more than 40 hours per week, but had never been paid overtime for it. The ruling allows them to collect years of unpaid overtime wages.

All three plaintiffs were employed as "Racetrack officials," which, on race days, meant that they served as judges, clerks of scale and horse identifiers. On days with no race at the track, they handled clerical duties such as putting together racing programs and tracking changes in riders. During their trial, the racetrack argued that these clerical duties meant they were correctly classified as exempt from overtime, because those duties were required by state law, and thus indispensable general business operations. This would make them administrators exempt from overtime under the Fair Labor Standards Act. The federal district court agreed.

On appeal, the Fourth Circuit reversed that ruling, saying the trial court interpreted the law incorrectly. The legal indispensability of a employee's job does not influence whether that employee is eligible for overtime, the court wrote. Instead, it reminded the lower court of the established test for whether an employee is exempt, laid out in the Fair Labor Standards Act. An employee is exempt from overtime rules as an administrator if he or she:

• earns $455 or more per week;
• primarily performs office work or non-manual labor related to the management of the employer or its general business operations; and
• exercises discretion and independent judgment in matters of significance.

The work the plaintiffs did, especially on race days, did not meet all three parts of that test, the court wrote. They were not supervisors and they did not make high-level decisions about the business. Thus, they were non-exempt employees entitled to overtime for each minute they spent on the clock after an ordinary 40-hour week.

Misclassifying employees eligible for overtime as "exempt" is a common strategy employers use to illegally avoid paying overtime wages. Others include requiring or pressuring workers to work off the clock and simply shaving time off employee time cards. The overtime attorneys at Joseph, Herzfeld, Hester & Kirschenbaum LLP have years of experience fighting these and other illegal tactics by employers. Our wage and hour lawyers also handle related complaints, such as denying employees their legally mandated breaks, illegal tip pooling or "tip outs" of managers and paying employees less than the minimum wage for their states and job categories. In a successful overtime lawsuit, you can win up to double the amount of the unpaid overtime you are owed, along with payment of attorney fees.

If you believe you and your colleagues are being exploited by your employer and you'd like to fight back, please contact the wage and hour attorneys at Joseph, Herzfeld, Hester & Kirschenbaum via e-mail as soon as possible or call 1-866-348-7394 from anywhere in the United States.

According to a March 18, 2009 article, a New York noodle shop owner named Tsu Yue Wang has been ordered to shell out more than $2.3 million in back pay owed to hundreds of current and former employees at his restaurants in Queens, Flushing, and the Upper West Side. The suit alleges long term and systematic violations of labor laws.

 

Mr. Wang was accused of failing to pay minimum wage to his delivery people, cooks, wait staff, and other employees and denying overtime legally due. Kitchen staff, for instance, regularly labored more than 60 hours a week and received just $300 in compensation - a rate well below New York City's minimum wage. A separate lawsuit filed against Mr. Wang in 2007 alleges even grosser abuses of Wage and Hour rules - some of Mr. Wang's employees claimed to have earned just $1.40 per hour for brutal and demanding restaurant work.

 

Unfortunately, this noodle shop abuse case appears to be more the rule than the exception when it comes to restaurant Wage and Hour violations. Joseph, Herzfeld, Hester & Kirschenbaum's attorney Maimon Kirschenbaum has prosecuted many similar Wage and Hour matters over the past several years. Three conclusions can be drawn:

1.  Wage and hour violations seem systemic and built into the culture of the U.S. restaurant industry.

2. Despite the rash of recent lawsuits filed as well as education efforts made by groups like the Department of Labor, many restaurateurs stubbornly refuse to change their employee-abusive labor practices, while denying  it is occurring.

3. The employees harmed by these violations tend to be from particularly vulnerable and defenseless classes. That is, abused employees disproportionately tend to be relatively uneducated, poor, and foreign born.

Fremantle North America - a massive reality TV production company best known for co-producing the world's biggest television program, American Idol - has come under the gun for Wage and Hour violations. Several Fremantle employees filed suit against Fremantle in Los Angeles Superior Court on March 19, 2009, accusing the company of forcing producers and coordinators to work seven days a week without appropriate breaks for food or downtime. In some cases, employees had to work as many as 20 hours or more during shifts. The suit also alleges that Fremantle illegally doctored its payroll.

 

Fremantle isn't the only reality TV production company facing potential Wage and Hour violations. Producers of other hit shows, like Temptation, The Janice Dickinson Modeling Agency, and The Bachelor have also come under fire.

 

Over the past several years, reality TV segment and story producers have attempted to unionize or otherwise stand up for their collective rights. But despite the support of many of their brethren in the scripted entertainment world (represented by the Writers Guild of America), this effort to date has yielded little fruit.

 

Moreover, the Wage and Hour violations described in these suits seem to be culturally normative within the universe of reality television.  Inside experts speculate that cost cutting measures employed by the "majors" (NBC, ABC, CBS, & FOX) as well as cable networks may be indirectly responsible for this epidemic of Wage and Hour violations. Since production companies don't have their previous (larger) budgets for their shows, they're forced to scrimp and cut corners; as a result, producers, coordinators, and other employees often must "pick up the slack" to make sure shows get in on time and on budget.

According to a December 24, 2008 story in The Associated Press, the discount retail giant Wal-Mart has been ordered to pay out well over half a billion dollars to settle dozens of lawsuits for violations of Wage and Hour laws.

 

This settlement marks the culmination of years of legal wars between Wal-Mart and its employees. Wal-Mart's alleged violations have been documented in countless newspaper articles, magazine stories, books, and even a documentary movie (Wal-Mart: the High Cost of Low Prices). Allegations against the company have included:

 

• Failing to pay employees for over time.

 

• Forcing employees to do work "off the clock."

 

• Illegally withholding benefits.

 

• Failing to give meal and rest breaks to workers.

 

• Putting workers in dangerous situations.

 

In a spectacular example of the perils Wal-Mart employees have faced, last year an employee was literally trampled to death by customers stampeding to take advantage of an early morning clearance sale on electronics. This tragedy stirred even the most apathetic and Wal-Mart friendly media to demand better treatment for workers.

 

Now that the Bentonville, Arkansas based firm has been ordered to remunerate employees on this massive scale, hopefully the company will be motivated to modify its corporate culture to avoid future Wage and Hour violations.

For years, Manhattan residents have enjoyed the delights of Saigon Grill, a Vietnamese restaurant owned and operated by a self made entrepreneur from Cambodia named Simon Nget. Unfortunately, behind the scenes of this bustling eatery, serious wage theft violations were going on. According to a New York Post article from October 22, 2008, these blatant violations included the following:

•    Paying delivery workers $2 an hour - well under the minimum wage of $7.15.
•    Demanding that employees cash their paychecks and then return significant portions of the money to Nget in cash.
•    Fining employees for failing to put orders into the system computer.
•    Firing workers who picketed the restaurant for unfair practices.

The District Court judge who oversaw the case, Michael Dolinger, drove home a message -- not just to Nget but also to other restauranters in New York City who might be unfairly garnishing their employees' wages or committing other forms of wage theft -- that behavior like failing to pay overtime and unfairly classifying employees as independent contractors would not be tolerated.

All told, the Vietnamese cuisine owner was ordered to pay out $4.6 million to three dozen delivery employees - many of whom were illegal immigrants from China - to cover wages lost, punitive damages, Federal and State wage violations, and other fines and expenses. One delivery worker was awarded over $300,000.

Whether Judge Dolinger's ruling will send an effective message to others in the business to community remains to be seen. But it's good to see at least some crackdown on egregious wage violations and harassment practices.

On Wednesday March 4th, 2009, a group organized by Richard Iannuzzi of the New York City United Teachers Union and local city Bishop, Howard Hubert, sought to raise awareness about the growing problem of wage theft in the city. This unfortunate and unethical practice involves the exploitation of wage level laborers. For instance, a boss or shift manager at a coffee shop may "take" (steal) money from the tip jar, thereby depriving baristas of their weekly tips. Or a shop owner may - illegally  - categorize a full-time worker as a freelance worker or independent contractor to get out of paying benefits.

At this media conference, Iannuzzi discussed how significant a problem wage theft has become in America--and it's a particularly pernicious one during the current down economy. Some studies suggest that 10 million US workers may already have been victims of wage theft. And regulators seem to be doing less and less about it!

Consider that, last July, the Government Accounting Office came down hard against the Wage and Hour Division of the Labor Department for being lax in enforcing violations of Wage Theft Law. For instance, a decade ago, the Labor Department was on average pursuing nearly 50,000 violations. By 2007, that number had dropped to under 30,000. Punitive tactics--to prevent recidivism among offending employers--have also been watered down significantly. And the GAO estimates that, over the past decade, hundreds if not thousands of wage theft cases have gone unresolved due to bureaucratic incompetence or improper handling.

New York boasts a Wage Watch Program which goes to bat on behalf of around 17,000 jilted New York employees every year. But programs like this notwithstanding, the issue will likely remain at the forefront of the American consciousness for some time.

Consider that, in the 1940s, the ratio of federal wage investigators to workers was more than 1,000% of today's ratio of investigators to workers. A disturbing trend, indeed!