Pay Issues with Professionals, with Larry Moy, Partner with Outten and Golden, Employment Law Firm in New York

There are several scenarios in which professionals can seek legal help regarding pay issues. At Outten and Golden, LLP in New York, an employment law firm, with which Larry Moy is a partner, the most common problem they see is when an employee simply doesn’t get paid.

Moy says that an employee can work an entire year and not receive their bonus or incentive pay that they were promised. Another issue people come in for is to make sure the terms of their contract or offer letter match the terms as they understand them. People sometimes get let go close to retirement age, which is close to their critical vesting period, or right before Christmas or before bonuses are paid out.

The first step Moy takes is to try to give the employer the chance to make it right. He also can counsel the employee on how to negotiate. Often times, it ends up in litigation or arbitration, for those in the financial or securities industries. Moy notes that the chance of success can depend upon the field the employee is working in, to a certain extent.

Moy says that the biggest preemptive measure one can take to avoid problems is to be “careful on the way in, during the honeymoon period,” which is when the employer is going to be more willing to engage in such discussions. He says it is much harder to work out a compromised solution on the way out.

Disabled Employees and Flex Time, With Paul Mollica of Outten & Golden in New York

The issue with a case in New York City, where the medication a disabled case worker employee was taking medication was not with the fact that it was impairing his job performance, rather that the medication used to control the disability had a side effect of drowsiness, says Paul Mollica, employment lawyer with Outten and Golden in New York.

This person’s employer maintained a flexible work policy that required employees to be at their desks by 10:15.  However, due to the side effects associated with the medication this employee was taking, he was not able to show up until 11:00.  When a new manager came in, it was decided that situation needed to end and he was penalized with suspension.

Mollica says that a district court judge found initially that this claim couldn’t prevail because timely attendance is always an essential function in the workplace.  The employee then brought an appeal to the second circuit which held that on certain cases, offering employees flexible hours may be a reasonable accommodation if they allow the employee to perform their job duties.

Mollica believes that employers need to weigh the balances and see if imposing a strict schedule can affect the rights of people with disabilities.  The employee in this case feels he’s entitled to the accommodation because it entitled him to do his job, adds Mollica.

Paul Mollica is counsel for Outten and Golden LLP, a law firm focusing on employment law. For more information on Paul Mollica, click here. For more information on the case referenced in this video, visit the Employment Law Blog. Paul’s commentary was hosted by the Employment Law Channel, part of The Legal Broadcast Network.

NYC Bill to Ban Discrimination Against Unemployed Job Seekers, With Naomi Sunshine, Lawyer with Outten and Golden in New York

There is a bill presented in New York City that would allow job applicants, who are rejected on the basis of unemployment, to file a complaint with the city or file in court. Washington D.C. has a similar law in that it prohibits both discrimination in hiring and consideration and also prohibits job postings that require job applicants to be employed. New York City’s law would be the only city that would allow someone to bring a lawsuit if they were discriminated against due to their unemployment status, says Naomi Sunshine, employment lawyer and associate with Outten and Golden in New York.

A study done by the National Employment Law Project looked at the pervasiveness of job postings that said “unemployed need not apply” or “you must be currently employed to be considered,” and since that time, especially with similar laws passed in New Jersey and Oregon, there are far fewer job postings like this, says Sunshine.

Sunshine thinks that this law in New York City will hopefully send a message to recruiters and employers that they should not discard a resume or look no further when a person is unemployed because that person could be the most qualified.

Sunshine points out that this law still allows employers to inquire as to the reasons why someone last left a job and to consider those reasons if it’s significantly job-related. What this law does, says Sunshine, is it requires and encourages employers to pick the most qualified applicant regardless of employment status.

As New York City is an “HR capital and a business headquarters,” Sunshine thinks this bill will have an impact on other states as well. “The unemployment rate is 10% in New York City, which is higher than the state and national average, so it’s a real issue here,” says Sunshine.

If someone believes they are a victim of unemployment discrimination, Sunshine advises that they write down everything that was said or communicated and if in New York City, they may soon have a right to file a lawsuit. If unemployed, Sunshine recommends staying on top of their field and to be prepared to explain gaps in employment.

Naomi Sunshine is an associate with Outten and Golden, an employment law firm in New York. For more information on Naomi, visit http://www.outtengolden.com/lawyer-attorney/naomi-b-sunshine. Naomi spoke with the Employment Law Channel, part of the Legal Broadcast Network.

Corporate Data Use , With Paul Mollica, Employment Attorney With Outten & Golden, Chicago

An employee of a Connecticut-based company, when fearing termination, used her personal email address to transfer data using her desktop in Canada to locate data that was on the Connecticut-based servers and then emailed it to herself. The company sued the former employee in Canada but filed in Connecticut, contending that she violated state law by accessing servers in Connecticut. Paul Mollica, employment attorney with Outten and Golden, an employment law firm in Chicago and New York, says that the employee challenged it by saying that because she was in Canada when she accessed the data and she obtained the data using a desktop based in Canada, that the Connecticut court didn’t have any personal jurisdiction over her. The District Court agreed but the Second Circuit Court of Appeals reversed the decision, holding that there was jurisdiction.
Mollica believes this case is important and employees should bear a few things in mind. As an employee, you should know your company’s data access rules and that employees are generally allowed limited access to data based on a set of rules, such as having a password. Like having a key to a safe, Mollica says there are purposes to use it and purposes not to use it and the employer usually sets out these rules. In this case, the company apparently had a policy that employees are not allowed to use personal emails to access or mail information to themselves and this policy was violated by the former employee.
Additionally, the company alleges this was done for unlawful purposes, notes Mollica. The ordinary rule is that if the employer sets limits or controls on an employee’s access to data, an employee’s violation of those protocols might violate state law, according to Mollica. When data is accessed remotely, it might subject the employee to jurisdiction in a remote place. Mollica says that this employee thought everything she was doing was in Canada but she was using telecommunications technology that enabled her to access information on a server that was actually located in Connecticut.
The Second Circuit Court availed herself of Connecticut jurisdiction and said that she committed at least part of the violated law in Connecticut, Mollica adds. An employee needs to be thoughtful about the circumstances of collecting data and the consequences of accessing remote data, cautions Mollica, as the employee in this case now faces a lawsuit in a foreign country. The focus of the Second Circuit Court wasn’t the location of the device used to get the data, which was the employee’s argument, rather it was the fact that the employee was accessing data that was in Connecticut, says Mollica.
Paul Mollica is counsel for Outten and Golden LLP, a law firm focusing on employment law. For more information on Paul Mollica, click here. For more information on the case referenced in this video, visit the Employment Law Blog. Paul’s commentary was hosted by the Employment Law Channel, part of The Legal Broadcast Network.

Why Victims of Sexual Harassment Still Stay Silent, With Kathleen Peratis, Attorney with Outten and Golden, New York

Things have come a long way since the days of Anita Hill and sexual harassment cases, yet victims still say silent even today. Kathleen Peratis, attorney and partner with Outten and Golden, an employment law firm in New York, says there are many reasons victims don’t pursue a remedy as far as they can.

For many kinds of jobs, it makes the victim a “marked woman,” and other companies may not be so eager to hire her, even though that’s illegal, because employers worry about anyone with a penchant for suing them. Additionally, having a bad reputation is a strong reason why women didn’t sue years ago and don’t now. It can also be extremely difficult to be a plaintiff in these cases, so the empowering aspect and possibility of getting money aspect has to be balanced against the painful process of a lawsuit, says Peratis.

Sexual harassment training is less of a problem now than it used to be, especially in large companies, and it’s not so much the clarity of the law but more of the unacceptability of the conduct, says Peratis. Sexual harassment is much less socially acceptable than it used to be and the training has helped but it is not a 100% deterrent, adds Peratis.

An employee can be part of a “hostile environment,” which is filled with sexism, gender jokes, threats and an overall bad atmosphere, making women feel fearful and marginalized. Sexual harassment itself applies when you are a specific victim, ie, when your boss is hitting on you specifically. For many people, notes Peratis, both exist at the same time.

People often don’t complain because they’re afraid to lose their job or position and this puts the victim in a difficult position, says Peratis, because when they worry about losing their job, they are right to worry. There is always an element of risk associated with pursuing legal action in a sexual harassment case, she adds.

Peratis says that often times a victim will report an incident to human resources “for the record” and asks that they don’t do anything about it. The human resources person should always do something. Also, if a company decides to retaliate against the victim, that is considered illegal and much easier to prove, according to Peratis.

Kathleen Peratis is a partner with Outten and Golden and has been practicing employment law for over 25 years. More information about Kathleen is available here. For more information on the article Kathleen wrote on this topic in The Atlantic, click here. Kathleen spoke with The Employment Law Channel, an affiliate of The Legal Broadcast Network, both of which provide online, on-demand legal video content.

Hilton Hotel Retirement Plan Lawsuit, With Paul Mollica of Outten and Golden, Chicago

When Congress passed the Employment Retirement Income Security Act (ERISA) in 1974, they were trying to reform a number of practices that pensions engaged in, which cheated employees out of accrual of benefits under retirement plans. Paul Mollica, employment attorney with Outten and Golden in Chicago, Illinois, explains that Hilton Hotels uses a defined benefit plan for retirement. Like a traditional pension, the employee and the employer contribute to a trust that creates an annuity and when you retire, you get a set benefit every month that’s adjusted for the cost of living for the rest of your life.

Some employers became engaged in a practice called backloading, which meant that instead of an employee accruing their benefit regularly during employment, they would have their benefits “bulked up,” so they would acquire most of them at the end of their career, says Mollica. He adds that this is a problem for employees who leave and want to roll out their benefits and as a result of fewer benefits accrued earlier in their career, they wind up with smaller payments.

Congress decreed that for defined benefit plans, employees must be allowed to accrue their benefit in a regular way until retirement, says Mollica. Congress added the 133 1/3% rule which says that in no one year should the benefit provide more than that percentage of accrual and has to be consistent each year and in the Hilton case, this rule applies, according to Mollica.

In the Hilton Hotels case, there was violation of this rule, so benefits didn’t accrue evenly but much greater as one’s career moved on. An employee filed a class action against Hilton to have that plan term rewritten and benefits recalculated so that it would be paid out as if they were properly accrued. Mollica says that a district court in D.C. affirmed this. The court agreed the plan violated the statute and ordered the recalculation.

Mollica says that a well-counseled plan will be updated regularly to conform to the ERISA statute and amendments that pertain to retirement plans. Sometimes, he says, employers will skirt right to the edge of the line and in the Hilton case, went right over the line. He notes that sometimes, a plan simply gets out of date but when Hilton became aware of the class action, they amended their retirement plan.

The D.C. circuit court mentioned in their ruling that these violations are very technical in nature, making it very hard for a beneficiary to determine if there’s a problem. However, if an employee suspects there is a problem, Mollica advises that they get a copy of the plan from the plan administrator in the company and not to rely on the plan summary but to look at the plan itself. Upon written request, they are required to get that to an employee within 30 days, adds Mollica. He also suggests comparing the statement against the plan and if a problem exists, to go to a lawyer with expertise in pension plans to see if the plan has made in error in calculating the benefits.

Paul Mollica is counsel for Outten and Golden LLP, a law firm focusing on employment law. For more information on Paul Mollica, click here. Paul’s commentary was hosted by The Employment Law Channel, part of The Legal Broadcast Network.

Computer Privacy in the Workplace, Featuring Attorney Wendi Lazar of Outten and Golden, LLP

In a private workplace, an employer has control over its communications, mobile devices, computer systems and phones. This is not new case law, as it’s been this way for quite a while, says Wendi Lazar, attorney in employment law at Outten and Golden, LLP in New York. What’s changed over the past few years, she says, is that we now have communication devices and mobile devices that are working all the time and so the lines are blurred.

Lazar says that what the courts have made very clear is that employers need to set very clear, concise policies that let the employee know what they can or can’t do, such as accessing private emails throughout the day, shopping online, emails that are confidential or text messaging on a device that belongs to the company. It is important for an employer to have set policies.

It is very hard to tell an employee, for example, who is involved in a lawsuit that they cannot contact their lawyer or access medical records via email or get a prescription from a doctor, Lazar notes, as these conversations or emails may need to get done at work. The courts have given some freedom to employees to protect employee privacy in the context of attorney/client privilege and certain states say that if you talk to your lawyer on a company computer, it’s not confidential, says Lazar.

In New Jersey, they have made it clear that an employer should not be looking at an employee’s confidential communications with his or her lawyer. In fact, emails are not discoverable in a court of law and the courts have gone as far as to sanction counsel for the employer for looking at emails, says Lazar.

The employer has the right to protect all of its confidential information and some states allow employers to make complete mirror images of their data on their server. On the other hand, Lazar says, there are states that say an employer cannot without authorization access any personal email, as it is a violation of the Stored Communications Act.

Sending trade secrets or proprietary data from your current employer’s computer or company email to a possible future employer or recruiter can result in trade secret violation and can be criminal and very serious. Lazar cites the car industry and financial industry as having this situation arise.

Lazar says that it is best for an employer to have clear, written policies that describe in detail what an employee can and cannot do on a workplace computer and what an employee can and cannot use. Also, employers need to understand that there are certain limited privacy rights that employees do have and they can’t use employees’ private passwords to get into their email accounts. An employer cannot monitor without advising the employee that they’re doing so, Lazar adds.

As for an employee, Lazar says “if you have private issues to deal with, do it on a private device and don’t involve the company in your private life.”

For more information about Wendi Lazar and Outten and Golden, LLP in New York, click here. She is a contributor on the Employment Law Channel, hosted by The Legal Broadcast Network.

Employer Bonus Offers and Importance of Terms

In a bonus offer or letter, Katherine Blostein, attorney and associate with Outten and Golden, LLP in New York, likes to see a few terms that actually say it is guaranteed bonus. The amount, she says, should be qualified by words such as “a minimum guarantee,” or “an amount equal to a certain amount of dollars.”

The offer should also describe what portion of the bonus will be paid in cash and what will be allocated to deferred compensation, such as granted stock options or any other form of deferred compensation, says Blostein.

Blostein says that if the company isn’t willing to commit to a certain percentage or number, there should be at least a representation that the employee will be treated the same way as other similarly-treated employees at the person’s level.

Regarding when the payout should occur, Blostein says that is definitely should be specified in the offer letter itself or on the plan when the bonus should be received. It is important, she notes, because any bonus, whether it’s guaranteed or not, should be paid to the employee within 2 1/2 months of the end of the company’s end of fiscal year. If not, the employee might be subject to deferred tax issues and thus possible tax fines.

It is important to get the correct language in the offer letter to protect the bonus and a reason the employee might not get it is if they’re terminated for cause or if they resign voluntarily, notes Blostein. In terms of death or disability, typically, an employee should get the entire guarantee or at least a pro rata portion of it dated to the termination. If the terms are not written down, the company can make an argument that the person wouldn’t be entitled to it, Blostein adds.

One term that is important is the form selection and choice of law, which states where an employee would be able to bring a dispute over their offer letter or contract and what state law would govern that dispute, Blostein says. It is important, she says, because the employee needs to know where they’d be filing a lawsuit or proceeding if they want to enforce the terms of the contract. For financial services employees in particular, it’s important to know that most of the time the offer letter or contract they’re asked to sign will require mandatory arbitration, Blostein points out.

“All terms of an offer letter should be carefully reviewed by the employee and their attorney, especially if there’s a guarantee because that needs to be protected,” says Blostein.

Katherine Blostein is an associate in Outten & Golden’s Executives & Professionals Practice Group in New York. For more information about her, click here. She spoke with the Employment Law Channel, part of The Legal Broadcast Network, providing online, on-demand legal video content.

Social Media in the Workplace, with Wendi Lazar of Outten and Golden, LLP

The National Labor Relations Board (NLRB) came down with a decision recently that tossed out Costco’s social media policy, which stated that an employee could not go on any social media sites and damage the reputation of the company or damage the reputation of its employees or management of the company.

This decision equated to preventing workers from discussing conditions at the workplace which has been a long-standing principal in employment law, says attorney Wendi Lazar of Outten and Golden, LLP, an employment law firm in New York, adding that these are “associational rights” that workers have, akin to “water cooler” discussions. Freedom of expression and other associational freedoms are what we hold so true in our constitution, Lazar says.

On the other hand, other decisions have come down recently that draw a fine, yet definitive line that any social comments are not okay. Most recently, says Lazar, there was a decision made by the NLRB holding an administrative law judge to a decision, where he found an employee at a BMW dealership that showed terrible pictures of an accident on Facebook that involved the dealership in a negative way. The NLRB said that this was not okay and that it was not protected speech, adds Lazar.

Over 50% of recruiters and human resource professionals are looking at social media data to assess someone’s hirability, according to Lazar, and being aware of that is important, she adds. Employers can get into deep trouble if they use information found on a social media site not to hire an employee. If a hiring decision is based on any protected civil rights, such as if the person is part of a certain ethnicity or race or is disabled, it could be terrible liability for the employer, says Lazar.

Lazar says that an ancillary issue is at the workplace. If someone is terminated because an employer had access to a social media site where the employee was associated with a particular ethnic or religious group, there is increased civil liability for the employer.

When advising employees who come in when filing a suit, Lazar tells them to be very cautious while on Facebook and to check their privacy settings and that no third parties have any access. She also tells them to be very conservative while communicating on Facebook. Additionally, when advising younger people who are entering the job market, Lazar recommends they be very careful what they do on Facebook and other social media sites.

For more information about Wendi Lazar and Outten and Golden, LLP in New York, click here. She is a contributor on the Employment Law Channel, hosted by The Legal Broadcast Network.

How the Recession Has Impacted the Area of Employment Law

Employment law is a big umbrella and within that, there are many different practice areas in the Outten and Golden, LLP law firm in New York. Representing only employees or the plaintiff’s side, they have the Executive and Professional Practice Group, dealing with offer letters and contracts, the Financial Services Practice Group, dealing with bonus claims and arbitration, the Wage and Hour Practice Group, dealing with a lot of class action, and the Discrimination and Retaliation Practice Group, to name just a few.

When one talks about employment law, Tammy Marzigliano, partner at Outten and Golden, LLP, says it’s not really “pigeon-holed” like real estate. Instead, it is pretty diversified so in times when the economy is not doing well, they’re not impacted like other firms or specialities.

Outten and Golden, LLP is seeing more severance agreement claims because of all of the layoffs, due to the recession, says Marzigliano, who thinks that employers definitely try to cut corners when things are bad and this impacts wages that they’re paying people and they don’t want to pay out bonuses, creating an uptick in bonus claims.

The big thing, Marzigliano says, is how the recession impacts their area of law. “While there’s a lot more cases, there’s also a lot more fighting,” she says, explaining that when the economy is doing well, employers are more willing to settle cases and have conversations and when there is a recession, they’re more likely to fight it.

The approach at Outten and Golden, LLP remains the same, regardless of the economy, says Marzigliano but points out that a big part of their practice is advising clients and helping them navigate through their employment matter. Now they are seeing that more during the recession as employees are confused and don’t know what their rights are.

Marzigliano stresses that an employee should always be really careful before they sign anything and have someone review it, whether it’s an employment contract or severance agreement. When someone signs a severance agreement, they’re waving their rights and they may have more viable rights. The challenge, says Marzigliano, is that when you’re dealing with a recession, people don’t want to spend the money to have it reviewed.

Marzigliano thinks the hot trend right now is the Whistle Blower Retaliation Group, specifically the Dodd Frank Act, section 922, which was passed in 2010. There are two pieces, she says, that are of particular importance when it relates to employment law – the whistle blower bounty and the anti-retaliation piece. The whistle blower, who may not necessarily be an employee, would get a large percentage of any recovery. The anti-retaliation piece, which Marzigliano believes is pretty robust, is to incentivize people to speak out and the law will protect them and give them significant damages that were not otherwise available.

“This is an exciting time,” says Marzigliano, as she sees this playing out more and more.

Tammy Marzigliano is is a partner at Outten & Golden LLP, representing employees in litigation and negotiation in all areas of employment law. For more information on her, click here. She spoke with the Employment Law Channel, part of The Legal Broadcast Network, providing online, on-demand legal video content.