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Westchester Employment Law Blog

After-acquired evidence in employment discrimination cases

Employers in New York and around the country sometimes defend themselves against discrimination complaints by arguing that the worker involved deserved to be fired. This tactic can benefit employers even in cases where discrimination is clear because it may limit recoverable damages, and employers sometimes go to great lengths to gather evidence of misconduct when terminated workers have filed, or are thought to be about to file, discrimination claims.

The information collected during these efforts is known as after-acquired evidence, and the U.S. Supreme Court ruled in 1995 that it should be taken into consideration when calculating damages in discrimination cases. However, the nation's highest court said that evidence of misconduct alone was not sufficient grounds to prevent such a case from moving forward. The case involved a woman who admitted during a deposition that she had copied a number of confidential documents without permission.

Changes in attitudes about sexual harassment over the decades

New York employees who have been in the workplace for decades may find that while general awareness about workplace sexual harassment has increased, the issue continues to be a problem. In a 1980 survey by the Harvard Business Journal, fewer than 30 percent of companies had a formal policy against sexual harassment and only 8 percent provided training in the form of manuals and films. Today, 98 percent of companies have sexual harassment policies in place and 70 percent have some kind of training. However, sexual harassment persists as a workplace problem as has been demonstrated with the high-profile firing of Fox News personality Bill O'Reilly on April 19.

The 1980 report found that only half as many men as women thought workplace sexual harassment was a serious problem. Women also tended to want a more formal resolution process for dealing with sexual harassment claims while men were more inclined to think the women handle the situation on their own. Perceptions differed as well. While a lot of the female respondents believed that men would not disapprove of incidents of sexual harassment that they witnessed, the males reported their disapproval in higher numbers than the women predicted.

Case over pension plans goes to U.S. Supreme Court

New York employees may be interested in learning that the U.S. Supreme Court recently began to hear arguments in a case where workers employed at religious hospitals argued that their pension plans were underfunded due to being wrongly classified. The lack of funds occurred because the affiliations could claim a religious exemption from the Employee Retirement Income Security Act of 1974.

The court heard oral arguments in the case on March 27. At this time, the attorney for the religious nonprofit organizations stated that pension plans have been exempt from ERISA for three decades regardless of whether or not the pension plans were established by the church. The attorneys representing the affected employees argued that, since the church had no direct involvement in the pension plans, they should not be considered exempt from ERISA.

Older workers may face age discrimination from employers

Research led by a professor of economics at the University of California, Irvine, indicates that people who are middle aged or older are less likely to be contacted by an employer in New York or around the country after submitting a resume than individuals who are younger. This was determined by sending out 40,000 resumes applying for thousands of jobs.

The economists running the study used the exact same resumes for the same type of job with the exception of the applicant's age. It was discovered that employers were far more likely to contact individuals who were younger than people who were middle aged or older.

The fallout from the Sterling case

New York residents may have heard about a class-action claim against Sterling Jewelry. The first claims were filed in 2008, and the matter eventually involved more than 69,000 employees. The plaintiffs alleged that the company engaged in promotion discrimination as well as sexual harassment against women. Among the allegations were claims of being groped or being asked for sex in exchange for promotions or other prime assignments.

While the case was originally handled through private arbitration, the nature of the claims were made public as part of a Washington Post report. After a Feb. 27 report about the sexual harassment suit, shares of the company fell 13 percent, and trading was briefly halted at one point. In a statement, the company said that the claims were related to gender discrimination and not sexual harassment. Furthermore, the claims were said to have been distorted by the press.

Arbitration case against Sterling made public

New York residents who shop at stores such as Kay Jewelers or Zales may be interested to learn that Sterling Jewelers, the parent company of those retailers, is facing a class-action sexual harassment arbitration case according to the Washington Post. The class includes 69,000 current and former female workers in addition to statements from 250 former employees outlining an alleged culture of sexual harassment over two decades.

While the case went to arbitration in 2008, over 1,300 pages of testimony were not made public until the night of Feb. 26. Not all of the 69,000 class members are alleging that they were sexually harassed. However, they are making claims of wage discrimination and gender bias. Some are also making claims that they were unfairly passed over for promotions. According to the Post report, male store managers would coerce female employees into having sex in exchange for pay raises or promotions.

How technology may hurt hourly workers

New York residents may be aware of the Fair Labor Standards Act of 1938. It outlines wage and hour laws that ensure workers get paid a minimum wage and that employers observe overtime regulations. However, timekeeping software may make it easier for employers to change or modify employee timesheets without workers knowing that changes have been made. Regulations related to how employers record a worker's hours have not been updated since 1987.

Back then, hours were typically written by hand on a piece of paper. Today, software programs make it possible for managers to round employee time while also automatically deducting time for breaks. In some cases, these functions could cause employers to run afoul of wage and hour laws. A study entitled 'When Timekeeping Software Undermines Compliance" found that better laws led to changes in software design.

Court rules subgroup age discrimination claim can proceed

Employers in New York who discriminate against workers because of their age could face legal repercussions. The Age Discrimination in Employment Act protects workers who are over the age of 40 from disparate treatment in employment decisions. A recent ruling in the Third Circuit court may expand the ADEA's definition of age discrimination to include subgroups.

The decision in Karlo v. Pittsburgh Glass Works involved a group of employees who were all over the age of 50. The former Pittsburgh Glass Works employees claimed that they were laid off in a discriminatory reduction in force. According to the plaintiffs, the employer favored workers who were in their 40s over workers who were over the age of 50.

Women experience sexual harassment in all industries

Workplace sexual harassment occurs in all different types of New York industries in New York. In November, ABC News brought 10 women together who had all experienced sexual harassment in the workplace. While each of the 10 women worked in a different industry, a majority of them had experienced workplace sexual harassment on more than four occasions.

One of the women in the ABC News interview said that during her 10-year career in the hospitality industry, she could never walk into a restaurant kitchen without hearing a whistle. Another woman said that someone at work had used guilt to manipulate her into agreeing to sexual activity. Only two of the women who were interviewed said that they had complained to human resources about the sexual harassment they were experiencing.

Lunch breaks may be compensable in some situations

Most full-time New York workers need to take a lunch break at some point in their day. Lunch breaks typically last between 30 minutes and an hour, and they are different from the shorter rest breaks that may be offered throughout the day. While short breaks are always paid for, lunch breaks may not be compensable.

According to the Fair Labor Standards Act  and New York State Labor Law, employees must be compensated for all of the time that they work. A lunch break could be considered "work time" if an employee is restricted in their activities. For example, an employee should be paid for their lunch period if the employee is required to eat their lunch in uniform and on the work site and may be suddenly called to perform work duties, or if the employee stays at their desk and performs work during their lunch period and the Company is aware that the employee is doing so.