BLOG / 09.15.20 /Jack Malley

Burlington Coat Factory’s $19 Million “Manager” Overtime Settlement, Another Big Employee Misclassification Hit

Companies of all sizes have taken big lawsuit hits for misclassifying managers as exempt employees – not entitled to overtime pay, merely because they are paid a salary. Under federal and New York law, in order to assert an exemption from paying overtime to its employees an employer must be prepared not only to show …

BLOG / 08.26.20 /Nancy Durand

Conducting Internal Investigations: What You Need to Know

by Nancy Durand On Thursday, August 20, 2020, Smith Buss & Jacobs’ attorney, Nancy Durand, presented a webinar entitled “How to Effectively Conduct an Internal Investigation: A Practical Guide.” In case you missed it, here’s what you need to know. An internal investigation can serve as an important tool for responding to incidents of suspected …

BLOG / 05.28.20 /Eric P. Blaha,Jeffrey D. Buss,Kenneth R. Jacobs,Emanuela Lupu-Ferrante,Thomas W. SmithandDomenick J. Tammaro

COVID-19: Guidelines for Reopening Buildings

Guidelines for Reopening Buildings The pressure to relax the guidelines for access to condominium and cooperative buildings, including their common facilities, has been growing. Boards need to develop a plan for handling the increased risks that come with increased traffic within the premises and social interaction among owners. The following assumes that you have guidelines …

BLOG / 03.19.20 /Jack Malley

Governor Cuomo Issues Executive Order Requiring 75% Reduction In On-Site Workforce At All Locations; Union and Real Estate Industry Assert that Building Service Personnel and Managing Agents Provide “Essential Services.”

Governor Cuomo has ordered that all New York businesses, including not-for-profit businesses, shall utilize to the extent possible all telecommuting and work from home procedures. Further, the Governor ordered that every employer in the state shall reduce its in person workforce at all locations by 75% no later than March 20 8 p.m. This Order …

BLOG / 03.18.20 /Jack Malley

What Penalties Can Employers Suffer for Denying Coronavirus-Based Paid Sick Leave Requests?

Many of our clients have been consulting us regarding paid leave requests they anticipate related to the coronavirus. Employers should be aware of the penalties for an unlawful denial of such requests under paid sick leave laws enacted by Westchester County and NYC. The penalties include fines, back pay, job reinstatement and the payment of …

BLOG / 01.21.20 /Jack Malley

A Three Month Checkup on Important Recent Changes You Need to Know as an Employer

Over the last year or so, New York State has passed significant new legislation on employment issues and labor rights, some of which have been effective since October 2019. Thus, a three month checkup is in order. Have you faced any harassment claims under the New York State Human Rights Law? Since October 2019, claims …

BLOG / 11.15.19 /Jack Malleyand

Medical Documentation Under the ADA: Consider Now or Pay Later

A client recently presented our firm with an interesting and complex question regarding employers’ rights to request medical documentation under the Americans with Disabilities Act (“ADA”). The inquiry gave us the opportunity to review the law on this subject and to offer two important points that all employers should consider when addressing ADA-related issues. First, …

BLOG / 10.23.19 /Jack Malley

Decision in Favor of Nike Highlights Factors that Defeat Retaliation Claims

Although the termination of an employee after he/she has complained to the employer about discrimination is often prohibitively risky, there are common factual scenarios that diminish that risk. Among these scenarios are a clear record of poor performance established prior to an employee’s discrimination complaint and a termination by a manager who is unaware of …

BLOG / 10.15.19 /Emanuela Lupu-FerranteandJack Malley

Co-op and Condo Boards Must Pay Overtime to Live-In Supers

In our practice, we have seen an uptick in lawsuits by live-in superintendents and other full-time employees against cooperatives, condominiums, homeowners associations (HOAs), and even managing agents (who are defined as employees under federal regulations). These lawsuits are frequently commenced after the employee has been terminated, and they typically allege that the employer failed to pay overtime wages …

BLOG / 09.13.19 /Jack Malley

Why have a well-drafted handbook? Let a federal court answer that question . . .

A Third Circuit decision on August 22, 2019, which upheld FedEx’s termination of two employees, demonstrates the value of well-drafted employee handbook policies.[1] FedEx’s employee handbook included a code of conduct that prohibited workplace violence. Among other things, the code barred “gestures and expressions” and “oral and written statements” that communicate a direct or indirect …

BLOG / 07.19.19 /Jack Malley

Judge’s Decision Shows Why HR Professionals Must Train Supervisors On FMLA Procedures

Last month, in Moore v. GPS Hospitality Partners [i] , an Alabama judge granted a Burger King restaurant shift supervisor partial summary judgment on her FMLA interference claim. Lashondra Moore prevailed because her supervisors did not recognize that her initial requests for leave triggered her FMLA rights and did not understand how FMLA claims should …

BLOG / 06.26.19 /Jack Malley

New York State Joins The Trend Prohibiting Salary History Inquiries

Last week the New York State Legislature approved a bill prohibiting employers from soliciting prior salary information from job applicants. Governor Cuomo is expected to sign on. The new law continues a trend in the state as New York City, Albany County, Westchester County and Suffolk County have previously enacted similar laws. The New York …

BLOG / 05.09.19 /Jack Malley

Summer’s Almost Here! Welcome to the Unpaid Intern Conundrum

Summer is approaching and employers are now considering whether to bring on unpaid interns for the season. This article discusses the parameters that employers should follow to properly classify workers as unpaid interns instead of employees entitled to minimum-wage and overtime pay under the Fair Labor Standards Act (“FLSA”) and/or New York Labor Law (“NYLL”). …

BLOG / 03.21.19 /Jack Malley

U.S. Department of Labor Rejects New York Law Regarding Wages Paid To Live-In Superintendents

On March 14, 2019, the U.S. Department of Labor (the “U.S. DOL”) issued an opinion that resolves a conflict between federal law and the New York Department of Labor Building Service Industry Minimum Wage Order (the “NY Wage Order”). Although U.S. DOL opinion letters are not binding law that courts must follow, courts often give great weight to the guidance set forth in them, and employers can rely on such guidance as a good faith defense to a wage claim arising under the Fair Labor Standards Act (the “FLSA”).

BLOG / 03.08.19 /Jack Malley

New Employment Laws Alert

Please be aware of the following new laws that are effective this month:
Westchester County Paid Sick Leave Law & NYC Mandates Workplace Lactation Rooms

BLOG / 02.22.19 /Jack Malley

Tiffany Beats Religious Discrimination Claim

On February 11, 2019, the United States District Court for the Southern District of New York dismissed an employee’s claim for religious discrimination against the world renowned luxury jewelry retailer, Tiffany and Company.

BLOG / 01.30.19 /Jack Malley

Jury Awards $21.5 Million To Dishwasher Who Was Fired For Requesting A Religious Accommodation

On January 14, 2019, a Florida federal court jury found a Hilton affiliated hotel liable for retaliation after it terminated the plaintiff dishwasher for seeking a religious accommodation, and awarded her $21,000,000 in punitive damages, $500,000 for emotional pain and mental anguish, and $36,000 in lost wages and benefits.

BLOG / 01.03.19 /Jack Malley

Subway Franchisee Called to Task by EEOC for Sexual Harassment of Job Applicants

On November 29, 2018, the EEOC and Draper Development, LLC, a Subway franchisee operating 24 Subway restaurants in the Albany area, entered into a Consent Decree arising from texts sent by a Schenectady store manager seeking sexual favors from two 17-year-old job applicants.

BLOG / 11.30.18 /Jack Malley

Ninth Circuit Finds Employer Not Liable For Employee’s Alleged Groping Of Co-Worker

In Robello v. Mandalay Corp. the plaintiff, Deborah Robello, a bartender employed by the Mandalay Bay Resort and Casino in Las Vegas, alleged that a male bartender, Jesse Estrada, groped her breast while Robello handed him several bottles of wine. Estrada denied Robello’s allegation. Robello subsequently sued the casino for creating and tolerating a hostile work environment based on sexual harassment. The U.S. District Court for the District of Nevada dismissed Robello’s claim against the casino and she appealed.

BLOG / 10.26.18 /Jack Malley

Deadline For New York State Employers To Provide Sexual Harassment Training Extended To October 9, 2019

Please be advised that the state has announced that the deadline to provide the training has been extended to October 9, 2019.

BLOG / 10.05.18 /Jack Malley

Judge Dismisses Warner Wolf’s Age Discrimination Claim Against Imus

On September 27, 2018, Hon. James E. d’Auguste dismissed the age discrimination lawsuit that Warner Wolf commenced against Don Imus earlier this year in Supreme Court, New York County.

BLOG / 09.20.18 /Jack Malley

New York Employers Required To Provide Sexual Harassment Training By January 1, 2019

As we previously reported, the New York State Sexual Harassment Law passed in April 2018 required all employers to:

Adopt the policy prohibiting sexual harassment in the form promulgated by the New York State Department of Labor (the “NYSDOL”) in consultation with the New York State Division of Human Rights, or adopt another policy that equals or exceeds the standards set by NYSDOL; and
Provide annual sexual harassment training for all their employees.

BLOG / 08.10.18 /Jack Malley

Columbia U. Professor Awarded $1.25 Million For Retaliation After Her Report Of Sexual Harassment

On July 27, 2018, former Columbia University finance professor, Enrichetta Ravina, was awarded $750,000 by a SDNY jury to be paid by the University and Geert Bekaert, the professor who allegedly harassed her, and $500,000 in punitive damages to be paid by Bekaert only.

BLOG / 07.20.18 /Jack Malley

Third Circuit Decision Sustaining Sexual Harassment Claim Influenced By Impact Of #MeToo Movement

On July 3, 2018, the Third Circuit issued a decision indicating that the #MeToo Movement has caused judges to be more cognizant of the fear of retaliation that victims of sexual harassment frequently feel.

BLOG / 07.02.18 /Jack Malley

Wal-Mart Prevails Against Sympathetic Reasonable Accommodation Plaintiff

Sophisticated employers are well-schooled in their obligations to engage in an interactive process to determine if a reasonable accommodation can be provided to an employee with a disability. And some employers will err on the side of providing an accommodation even if the employee cannot perform an essential function of the job.

BLOG / 06.08.18 /Jack Malley

Supreme Court Opens Door For Employers To Require Employee Class Action Waivers

In a long awaited and hotly contested case, the United States Supreme Court has upheld an employer’s right to require employees to waive their right to commence or join class and collective action lawsuits against their employer. This decision, in Epic Systems Corp. v. Lewis, provides a powerful mechanism for an employer to reduce the risk of costly and time-consuming multi-plaintiff litigation.

BLOG / 05.30.18 /Jack Malley

Employment Law Update

All employers should be concerned about the recently passed New York State Sexual Harassment Law. The law requires all employers to comply with the following new requirements by October 9, 2018…

BLOG / 04.09.18 /Jack Malley

Jury Awards Age Discrimination Claimant $200,000 For Retaliation

The verdict last month in Konsavage v. Mondalez Global, LLC, Case No. 3:15-cv-01155 (M.D. Pa.) provides another example of the difficulty in predicting the outcome of a retaliation claim – even where the underlying discrimination claims appear to be weak.

BLOG / 03.13.18 /Jack Malley

Jury Hits Hospital With $3.8 Million Verdict For Failing To Protect Employee From Harassment

On March 2, 2018 a Hawaii jury awarded a nurse $3.8 million on her claim that her employer, a hospital, ignored her reports of racial discrimination and harassment. The incidents occurred after the nurse reported a coworker for failing to safely care for patients in the intensive care unit. The nurse received a retaliatory note that contained racially charged language, including the “N” word. After the two people suspected of planting the note were interviewed by the hospital, a picture of a noose was taped to the nurse’s locker.