New York Employment Lawyer Blog

The New York Law Journal reports on June 20, 2008 that the Office of Court Administration and the New York State Trial Lawyers Association have reached an agreement allowing the administrative board of the state to set forth a new set of rules regulating jury selection in trials.

The bill, proposed by Assemblywoman Helene Weinstein, would propose three main changes to the existing regulations on jury selection. First, judges would not be allowed to permit jurors who have a bias, but claim that they will serve in an unbiased manner to be accepted as jurors. The new rules also permit plaintiffs to appeal immediately, even without waiting for the outcome of a trial. Finally, the new rules allow judges to set time limits on the selection of jurors.

While these rules, at first, seem to be in the best interests of all parties concerned, there exists some dissent. New York City Corporation Counsel Michael Cardozo and Judge Ann Pfau are dismayed by the changes, saying that the rules are too time consuming and restrictive. Instead of improving the existing system, Judge Pfau claims, the rules would in fact slow the system down, making it even less appealing to prospective jurors.

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Posted In: Employment Law , Evidence

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In an important May 27th decision, the United States Supreme Court decided in a seven to two decision that a 19th century civil rights statute known as Section 1981 provides a cause of action for retaliation. Section 1981’s previous construction allowed it to be used to protect employees against racial discrimination in making and enforcing contracts. It was commonly used in trial, due to its breadth and allows for an unlimited cap on recoverable damages.

As a result of these attributes, Section 1981 may be used more frequently and can now be applied to retaliation cases. If you believe that you were discriminated against at your job or retaliated against when you complained, please feel free to contact us for an initial free consultation at which we would be pleased to discuss your issues with you.

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Posted In: Employment Law , Retaliation

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The New York Law Journal reports on June 20, 2008 that the former legal representation for two former partners from a failed hedge fund has had their scope of discovery narrowed. The legal counsel is defending a $4 billion suit for fraud and legal malpractice filed by the two partners. This new ruling from an appeals court makes it harder for the law firm to defend itself in the suit.

The plaintiffs are accusing their former legal counsel of authorizing their practice of “late trading.” This advice prompted an investigation from former New York Attorney General Eliot Spitzer which ultimately led to a $36 million penalty for the former hedge fund, a $750,000 fine for each partner, as well as a ban from the industry.

The plaintiffs also claim legal malpractice, asserting that their legal representation pushed to settle on one occasion when the correct course of action was a defense.

The defense states that they have waivers from their clients for all actions taken and, therefore, are relieved of all responsibility.

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Posted In: Employment Law , Evidence

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A recent National Law Journal article from June 16 reports that unemployment has reached major law firms around the country. The article describes the situation at a major New York City law firm, which has seen an exodus of associates and partners as a result of alarmingly low projected profits for 2008.

There are legitimate and illegitimate reasons for termination. The law provides protection for employees who are wrongfully terminated due to such factors as race, gender, age, or national origin.

If you feel you have been terminated for an illegitimate reason such as those listed above, feel free to contact us for a free consultation.

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A recent whistleblower case involving the firing of a Catholic school’s principal is set to appear before the Florida Supreme Court, according to a June 16 Daily Business Review article. The case, previously tossed out of the third District Court of Appeals, pits a plaintiff who claims she was wrongly forced out of her job as a principal at a Catholic school in Miami after complaining that her supervisor assaulted her against the Archdiocese of Miami.

The two sides differ on their interpretation of the Church’s domain. The plaintiff believes that she was fired for a purely secular reason; the archdiocese believes the case lies within the Church’s jurisdiction and therefore not subject to the courts’ ruling.

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Posted In: Employment Discrimination , Employment Law

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Over the past several months, we have discussed several significant issues in the field of employment discrimination. We have touched upon everything from evidence in discrimination cases to recent verdicts and decisions to emerging trends and ideas in the field.

But, perhaps, the most significant item that had been discussed were the recent statistics regarding claims filed by employees in the workplace. This means that employees are further realizing and becoming aware of the rights they have against discrimination in all its forms. This is particularly gratifying.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law , Evidence , Gender discrimination , Pregnancy Discrimination , Racial Discrimination , Retaliation , Sexual Harassment , Sexual Orientation Discrimination

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An article recently appeared in the National Law Journal which discussed the fact that twelve geographic Federal circuits have now decided to permit jurors to pose written questions during a trial to witnesses. It appears however, that although the circuits are permitting this procedure there are reservations that are shared by some of them. In some instances, several of the circuits have actually requested judges to actually advise the jurors that this procedure is permitted. The circuits have actually permitted the matter to be decided through the discretion of the judges.

It is often appeared to us that during the course of a trial it becomes clear that the depth of the jury’s interest becomes evident. It also appears that in such cases the granting of this power to a jury might well be of help in arriving at a more meaningful result. It is a subject that is certainly worth following and for ourselves we look forward to the outcome which can only probably be determined after the practice has been followed for a period of time. We believe that once the practice is used for a reasonable period of time the courts and the attorneys practicing in them will be in a better position to judge the efficacy of this procedure. We look forward with keen interest to the outcome.

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Posted In: Employment Law , Evidence

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In a recent article in the National Law Journal from May 5, 2008, the results of a recent survey revealed differences in the amount of post-law school debt among gender and races.

The survey put forth data stating that women generally are in greater debt than men and minorities are likely to have a larger debt than Caucasian law graduates. One can come to their own individual conclusions regarding this data, but perhaps disparities in hiring after law school among genders and races may force some students to carry this debt longer and not be able to pay it back sooner or that even among those who attain gainful employment shortly after graduating, still suffer the effects of a glass ceiling in the salaries they are able to earn.

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Posted In: Employment Law , Gender discrimination , Racial Discrimination

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A recent bill has passed both the United States House of Representatives and the United States Senate and is awaiting the signature of the President. This bill represents the intersection of anti-discrimination and human rights laws with that of privacy rights.

The issue was discussed in the May 2, 2008 edition of The New York Times. The bill is called the Genetic Information Nondiscrimination Act and it will prohibit both employers and health insurers from discriminating based on the genetic information of individuals. This bill has received broad bi-partisan support and has the possible effect of increased public participation in genetic testing and related fields.

This issue receiving national attention also promotes an increased awareness to the public of possible discrimination by employers, especially, even beyond the scope of genetic information, but because of such protected reasons as race, gender, and national origin.

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Posted In: Employment Discrimination , Employment Law

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The New York Times reported on April 24, 2008 that the US Senate fell four votes short needed to begin consideration of the Lilly Ledbetter Fair Pay Act, named for an Alabama woman, who lost her case against the Goodyear Tire and Rubber Company, because she had not filed her complaint within six months of the initial instance of discrimination.

Ms. Ledbetter had often been paid 40% less than her male counterparts and continues to suffer from that pay disparity in her retirement because that disparity has affected her pension and social security payments. Perhaps this issue may be reconsidered in the next Congress.

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Posted In: Employment Discrimination , Employment Law , Gender discrimination

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A recent article in the National Law Journal of April 28, 2008, was entitled, "Hot Year Predicted for ADA Litigation." This reflects the fact that the Americans with Disabilities Act (ADA) is currently at a point in which many issues related to it are before the courts. Among the significant issues that relate to the ADA are web-site accessability and handicapped vehicle accessibility.

We encourage our readers to view the relevant portion of our website at www.schwartzandperry.com which has a lengthy discussion of disability and perceived disability issues.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law

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Recently, it has been sad to witness the frequency in Reductions in Force (RIF) which seem to be increasing in intensity. We do wish, however, to point out that there have been occasions, where the “reduction” although identified as such, was, in some part, motivated by age discrimination.

It becomes necessary, therefore, that when a potential client discusses termination as part of a reduction in force, we inquire further to determine whether he or she was identified in the reduction in a fair and appropriate fashion. We have, on occasion, identified instances, in which, during an appropriate and acceptable “reduction” we have found that discrimination existed. When such is found to be the case, the courts have responded by labeling the discriminatory conduct as such, despite the label that was affixed to it by the employer. We believe, therefore, that we must be vigilant in order to identify unlawful conduct, as such, despite the label that may be affixed to it. We would invite our colleagues to review Ferguson v. Lander, 3:06-CV-0328, with respect to this subject.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law , Gender discrimination

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Recently, a Federal Magistrate Judge concluded that a factory controller was in part terminated because of age discrimination. Although the company argued that the termination was the result of a “Reduction in Force” (RIF), the fact was that his termination was based, at least in part on his age. It would be worthy, therefore, to read the decision of Magistrate Judge Peebles in Ferguson v. Lander.

Although we are aware that the law clearly permits an employer to engage in a RIF. The employer is not protected if it can be determined that the termination was the result of “intentional discrimination under ADEA.”

The case is particularly enlightening because the findings of fact by the Magistrate Judge reflects the mechanism that sometimes occurs in these cases. We are citing the case therefore, not only for its legal interest but also for the fact pattern which is clearly worthy of the attention of all of us.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law , Evidence

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The National Law Journal reported on March 17, 2008, that employment class action suits are on the rise. According to the article, because securities class actions have waned in recent years, plaintiffs’ lawyers have refocused on employment wage and hour claims, as well as employment discrimination claims.

The trend towards more “labor-intensive class actions” has prompted law firms across the country to expand their employment litigation practices. In fact, one firm has reported that its employment litigation team has expanded by thirty percent (30%) each year since 2005. This is a significant change in the landscape and may demonstrate increased awareness by employees of their rights in the workplace.

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Posted In: Employment Discrimination , Employment Law

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On March 6, 2008, an article appeared in the New York Times, reflecting the increase in complaints of discrimination in the workplace. The article went on to state that, “federal job discrimination complaints by workers against private employers rose by 9% last year, the biggest annual increase since the early 1990s.” According to the statistics, this was the most filed since 2002.

Based on the article, one might reasonably conclude that job discrimination has intensified. Another reasonable conclusion might also be that more individuals who suffer discrimination in the workplace have been able to observe, from their experiences, that those who complain of discrimination do not suffer the results of reporting discrimination to the same extent they did previously. They have had an opportunity to witness friends and colleagues in the workplace who have reported discrimination but somehow did not suffer the results of discrimination for reporting what they recognized was a violation of their human rights.

There is a reasonable likelihood to believe that it is not necessarily the increase in discriminatory conduct that caused the number of individuals who report discrimination to be greater than before. Instead it will be that they have learned that reporting discrimination does not necessarily produce retaliation. The strong retaliation laws that our lawmakers have enacted throughout our country have, in large part, effectively protected those who report discrimination from the retaliatory conduct they feared in the past. This is certainly a hopeful result.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law , Gender discrimination , Racial Discrimination , Retaliation , Sexual Harassment , Sexual Orientation Discrimination

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In a recent decision, the United States Supreme Court has allowed employees the right to sue over losses to their 401(k) plans in certain circumstances. This is a significant issue in the field of employment law as more employees will retire in the coming years in numbers far greater than ever before and, thus, have a strong interest in their pension and retirement plans.

The Court held that recovery is authorized where the fiduciary breaches are such that, “they impair the value of plan assets in a participant’s individual account.” The case before the Court arose over an employee who sued because his employer failed to make the changes he requested over a plan of two years. This mismanagement led to a loss of $150,000. The case is LaRue v. DeWolff, Boberg, & Associates.

The issues with respect to one’s retirement are quite complex and it entails both financial and legal aspects. Obtaining advice from professionals in those areas is essential in ensuring a sound investment for the future, relating to both financial and legal consequences.

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Posted In: Employment Law

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