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The Second Circuit Court of Appeals Delivers Big Win to Gay Workers in New York

Workplace Discrimination Based On Sexual Orientation Now Illegal Under Federal Law In New York

Gay-Heart-web

Published by Aaron Ferri

Yesterday, in a landmark 10-3 ruling, the Second Circuit became the second federal Court of Appeals to hold that Title VII of the federal Civil Rights Act of 1964 (“Title VII”) includes protections against sexual orientation discrimination in the workplace. Employers in Connecticut, New York, and Vermont can no longer discriminate against gay and lesbian workers with respect to compensation, terms, conditions, or privileges of employment, without running afoul of Title VII’s prohibition of discrimination on the basis of sex.

While the Second Circuit had previously held that sexual orientation discrimination claims were not cognizable under Title VII, yesterday’s majority opinion, written by Chief Judge Robert Katzmann, acknowledged that the legal framework for evaluating such claims had, “evolved substantially,” requiring the overturning of the Circuit’s prior precedents.

According to the majority, one’s sexual orientation is largely defined by an individual’s sex and the sex of the person he or she is attracted to. Therefore, the Court held, sexual orientation discrimination is motivated, at least in part, by sex, and is thus covered under Title VII’s prohibition against discrimination on the basis of sex.

Additionally, the Court found that discrimination against a gay or lesbian employee on the basis of sexual orientation constitutes unlawful “sex stereotyping”, under Title VII. The U.S. Supreme Court has long recognized that employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females. For instance, a company cannot fire a female employee because she is deemed insufficiently “feminine” in her demeanor, dress, or mannerisms. In yesterday’s Opinion, the Circuit Court acknowledged that stereotypes about homosexuality are inescapably related to people’s preconceived notions regarding the proper roles of men and women, and therefore, any adverse employment action taken on account of sexual orientation would necessarily involve impermissible gender-based stereotyping.

Finally, the Court held that sexual orientation discrimination is a prohibited form of associational discrimination on the basis of sex. Just as an employer may violate Title VII if it takes action against an employee because of that employee’s association with a person of another race, an employer cannot take action against an employee because of that employee’s mere association with a person of the same (or opposite) gender. Importantly, the Court held, with limited exception, that the prohibition on associational discrimination applies with equal force to all the classes protected by Title VII, including race, color, religion, and national origin.

A Huge Win For The LGBTQQ Community In New York, Connecticut & Vermont

Although this ruling does not apply nationwide, for the time being, it represents binding precedent in the Second Circuit, which is includes Connecticut, New York, and Vermont. Gay and lesbian workers in these states will now be able to challenge the discriminatory behavior of their employers in Federal Court, and may be eligible to recover attorney’s fees and punitive damages if they are successful. The decision also creates another avenue to bring the issue back to the U.S. Supreme Court, which could give the decision nationwide effect.

If you work in New York and feel you are being discriminated against by your employer based on your sex or sexual orientation, or if you have additional questions regarding the protections granted under Title VII, you should consider meeting with a New York Employment Attorney to learn more about your rights.

The case discussed in this blog post is Zarda v. Altitude Express, No. 15-3775 (2d Cir. 2017)

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Why You Want an Experienced Workers’ Compensation Attorney to Handle Your Claim

You Want a Lawyer Well-Versed in the Complexities of Workers’ Compensation Law

attorney-michael-serresIf you’re an injured worker seeking benefits to cover lost wages or unreimbursed medical expenses, or you’ve developed an illness because of a jobsite exposure to toxic materials, it’s critical that you retain a lawyer with extensive knowledge, skill and experience handling workers’ compensation and workplace injury claims. The workers’ compensation process can be complex, even for legal professionals—the best chance of full financial recovery is with an attorney who understands the workers’ compensation process, who has successfully recovered benefits for other injured workers.

Here are some of the specific ways that a proven workers’ compensation attorney can help you or your client:

  • Properly developing and presenting medical evidence—One of the principal reasons many workers’ compensation claims are initially denied is because claimants offer insufficient or incomplete medical evidence. An experienced workers’ compensation attorney will know when it’s necessary to obtain an expert medical opinion, to depose medical experts or when medical records are missing something.
  • Development and introduction of vocational evidence—It’s not enough to show that you’ve suffered injury. You also need to show what the physical requirements are for your job and why you can’t meet them. This may require testimony about your daily activities or about current safety or training programs at you place of employment.
  • Negotiating a settlement, if appropriate—Unless your attorney has handled quite a few workers’ compensation claims, he or she won’t have a realistic idea of the value of your claim. An experienced workers’ compensation lawyer will be able to quickly look at your disability rating, whether it partial/total or temporary/permanent, and incorporate the costs of past and future medical expenses to determine the full extent of your losses.

 

Results-Oriented Workers’ Compensation Attorneys in Queens, New York

At Pyrros & Serres, we bring more than a half a century of combined workers’ compensation experience to injured workers in Queens and across the New York City metropolitan area. We built our reputation on personal service and attention, always taking the time to learn the details of your situation, so that we can tailor our representation to get the outcome you deserve. Many of our new cases come to us as referrals from our colleagues in the legal profession, from satisfied clients and from medical professionals.

We handle all types of work-related injury claims, including cases involving:

Occupational Disease or Illness | Hip, Leg, Foot and Toe Injury| Burns | Paralysis | Spinal Cord Injury | Permanent Scarring or Disfigurement | Amputation or Loss of Limb | Hearing or Vision Loss | Accidental Death | Back and Neck Injury | Traumatic Brain Injury (TBI) | Fractures | Shoulder, Arm, Hand and Finger Injury

 For more information about the services we provide, see our practice area overview page.

Pyrros & Serres LLP

Workers’ Compensation Attorneys—Queens, New York

Job Termination: What Should You Know?

Frequently Asked Questions About Job Termination

Deciding to fire or layoff an employee is often a tough decision. Sometimes employees have adverse reactions and retaliate if they believe the termination was unjust.

Does New York State have “employment-at-will”?

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What is your responsibility for giving terminated employees their last paycheck?

When you decide to lay off employees, must you give notice of termination?

Employers in the private sector who have 50 or more employees (part-time employees excluded) must provide at least 90 days notice before closing their business. This refers to shutting down a single site of employment that results in laying off 25 or more full-time employees during any 30-day period. Employers must send a WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners. Read More

If employers are doing a mass layoff (excluding part-time employees) but not closing down the business, they must still provide at least a 90 days notice about the layoff when the layoff affects 33 percent of the workforce (at least 25 workers) or 250 workers from a single employment site. Employers must send the WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners. Read More

 

Author: Stephen D. Hans & Associates

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Using Our Schools to Curb School Shootings

 

Access to Counseling and Instilling Values are Key to Addressing Culture of Violence

Once again, we are collectively stunned, watching reports of a number of high school students dying on school grounds at the hands of an armed gunman. Once again we look upon the horrified faces of grieving parents, classmates and community members, shocked that such a thing can happen…and happen…and happen. Unfortunately, once again, the political bickering and backlash has begun, the finger-pointing and blaming that always takes the place of actually doing something that might make a difference.

More often than not, the finger gets pointed at the National Rifle Association and gun advocates. Sometimes, astonishingly naïve and short-sighted measures are proposed in the emotional aftermath of tragedy-the recommendation by a Kentucky legislator that teachers be armed comes to mind. We want to do something—we all want to put an end to the needless and wrenching gun violence that regularly puts our children at risk. The really tough question—what can we do?

I am convinced that we need to develop and support measures that address gun violence where it has the greatest potential to be remedied—in our homes and in our schools. How often have we heard, in the days following a school shooting, that the perpetrator was someone who had been bullied or harassed at school? How often have we read that the shooter’s home life was a major contributing factor to his or her anger or rage? Why can’t we implement measures that give parents resources to recognize potential problems, and that give schools the tools to help defuse potential lethal situations before they fully develop?

I know, from experience, the difference that access to counseling and a compassionate ear can have on an angry young person. I knew a young man who faced merciless verbal and emotional harassment from his peers while he was a high school student. He also had challenges at home, with a rift with his mother leading his father to throw him out of the house at an early age. He had all the attributes and all the earmarks of someone who might let his accumulating rage explode into violence against others. Instead, he found a counselor at his school, who gave him a safe place to address and overcome the pain of the bullying he faced. His counselor became a trusted friend, such that, when his relationship with his parents broke down, he went to live with the counselor and his family for a period of time. Over the next couple years, he worked through his anger, reconnected with his parents and started his own business. He became a happy and productive member of society, primarily because of the counseling that was available to him at his school.

Unfortunately, it seems that every time we turn around, fewer and fewer dollars are being allocated to any kind of counseling services in our schools. Let’s put some time and money into helping our schools and our school administrators identify and address problems before they occur. Though I believe that it’s just as critical to provide resources to parents and family, studies show that the vast amount of time our children spend on social media sites dramatically reduces their opportunities to learn basic social skills at home. Combine that with the fact that, in nearly 90% of household in America both parents work outside the home, and it’s clear that the schools must play a role.

In the Los Angeles schools, there’s a program called the “School Threat Assessment Response Team, which provides the tools for school officials to recognize the warning signs of potential school violence. Other schools have successfully used programs that teach children and young people basic social skills, including how to channel or control their emotions. We also need to provide funding for more counselors and school resource officers. Research indicates that doing so may be the best way to minimize school violence.

Let’s be clear about this, though. To do what needs to be done, we have to be willing to spend some money, to commit to improving the services our schools offer. And we have to understand that, whether we have children in a school system or not, we as a community have a vested interest in the mental health and well-being of all students in our schools.

 

Author:Cindy LeClaire

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Court Limits Scope of Release Involving Estate and Trust Accounting

Law-Office-of-Bonnie-LawstonIt’s pretty common procedure for a fiduciary to a trust to obtain a release, with the objective of waiving the fiduciary’s obligation to provide an accounting of the assets of the estate and trust. A recent opinion from the Surrogate Court in New York County casts some doubt on the potential validity of such releases.

In Matter of Ingraham, NYLJ, June 16, 2017, at p. 28 (Sur. Ct., New York County), the court considered the validity of a receipt and release and ruled that it did not absolve the trustee from the legal responsibility to provide an accounting. In Ingraham, a successor trustee had filed a petition with the Surrogate Court asking that the former trustees submit an accounting. One trustee complied with the request, but the other trustee objected, citing both the language of the trust document, which she argued relieved her from any obligation to provide an accounting; and releases that had been signed and executed by the trust’s grantor and by the other trustee.

According to evidence entered during the proceeding, the document signed by the grantor released the trustee from “any and all claims related in any way to her role as trustee,” other than claims arising as a result of fraud or willful misconduct. The document also included a provision waiving the right to a formal accounting of the trust. The other trustee had executed a similar release.

The court, however, found that that trustee could not use the release to avoid the duty to provide an accounting, citing two specific reasons:

  • The release specifically reserves the right to seek relief if there are allegations of willful misconduct or fraud
  • The duty to provide an accounting is a fundamental aspect of any fiduciary relation, an essential part of a trustee’s duty

The court also concluded that, even if the released waived the grantor’s right to an accounting, it was not legally binding on the other trustee, successor trustees and trust beneficiaries. Furthermore, the court rejected the argument that the trust document waived the requirement that trustees provide an accounting, concluding that the trust document only waived the obligation to provide periodic accountings, not the requirement that there be a final accounting.

When you’re involved in an estate or trust administration dispute, it’s essential that you have knowledgeable, skilled and experienced legal representation. Estate and Probate Attorney Bonnie Lawston has protected the rights of individuals in trust and estate matters on Long Island for more than 20 years.

Contact Probate and Estate Administration Attorney Bonnie Lawston for all your Probate and Estate Administration matters. 

 

HELPING RESTAURANT OWNERS NAVIGATE THE NEW YORK LABOR LAWS

FAQ for Restaurant Owners

For restaurant owners, who are busy running their day-to-day business, New York Labor laws can seem like an added burden. Having access to a NY employment defense lawyer is often vital to navigate the laws and make your business successful.

According to the NY State Department of Labor, here are some frequently asked questions employers often ask:

Can you require employees to wear uniforms?

Yes, you can. What is considered a uniform? Black slacks and white shirts are not uniforms. A shirt with the company insignia or custom-made slacks and shirts would be considered uniforms. If your worker’s pay is minimum wage, then the cost of buying the uniform and taking care of it cannot bring the employee below the minimum wage rate. Employers must either clean and take care of the uniforms or pay their employees to care for them.

Are you limited by the number of hours an employee can work in a day?

Except for children under 18, there are no limitations on how many hours in a day an employee can work. There also are no limitations on how early or late an employer can ask an employee to work. However, in the restaurant industry, an employee must have 24 hours of rest one day in a calendar week. This does not apply to small, rural restaurants.

What are the rules for giving workers meal breaks?

For work shifts of more than six hours that begin before 11:00 a.m. and continue until 2:00 p.m., the workers must be provided with an uninterrupted lunch period of at least half an hour between 11:00 a.m. and 2:00 p.m.

Employers do not have to pay for meal periods, and they do not have to provide other breaks for workers. However, if an employer permits a break of up to 20 minutes, then the employer must count it as work time and pay the employee.

Do You Have Other Questions about NY Labor Laws that Apply to Your Business?

Our attorneys at Stephen Hans & Associates are glad to explain the laws, offer legal guidance, and provide representation for employment dispute issues.

Is Workers’ Compensation the Only Source of Recovery for a Work Injury?

Author: Pyrros & Serres, LLP

Queens | New York City | Brooklyn | Bronx Workers’ Compensation Lawyers

Under the workers’ compensation in New York, when you have been injured on the job, you have the right to pursue benefits through a workers’ compensation claim. In many instances, it will be your exclusive remedy—in other words, the only avenue you have to pursue compensation for your losses. But that’s not always the case. In fact, there are situations where you can simultaneously file a workers’ compensation claim and a personal injury lawsuit. Here’s how it works.

Read More:

In addition, you won’t be able to recover twice for the same loss. For example, if your medical expenses are paid by workers’ compensation, you cannot recover for those same expenses in a civil suit.
Is Workers’ Compensation the Only Source of Recovery for a Work Injury?

At Pyrros & Serres LLP, we handle all matters related to workers’ compensation and Social Security disability claims for people in Queens, Brooklyn, the Bronx and across the greater New York City metropolitan area. Because of our reputation for effective advocacy, many of our new clients come to us as referrals from clients and other lawyers.

To learn more about the full scope of our practice, see our practice area overview page.

Pyrros & Serres LLP

Queens | NYC | Brooklyn | Bronx Workers’ Compensation Attorneys

Sexual Harassment in the Workplace: Investigation

 

 

How Should You Conduct Sexual Harassment Investigations?

It is vital to conduct an investigation as soon as possible when an employer receives a complaint of sexual harassment (or any other type of discrimination harassment). Delays in investigating can be viewed as neglect and as a failure to take effective measures to prevent harassment in the workplace, which makes employers vulnerable to sexual harassment claims.

harassment Q & A

What Comprises an Effective Investigation?

The EEOC  recommends that employers incorporate the following into their investigations to ensure prompt and effective investigations:

Ensure the investigation is conducted immediately, thoroughly and with impartiality. Individuals who are alleged harassers should have no control, whether direct or indirect, over the investigation.

  • Those who should be interviewed during the investigation include:
  • The employee complaining about harassment
  • The alleged harasser(s)

Anyone with relevant information or who would be expected to have reasonable information about the harassment.

sexual harassment in the workplace, is the employer responsible

Ask the Complainant, Alleged Harassers and Witnesses Specific Questions

The following are some examples of specific questions that the EEOC suggests employers ask during a harassment investigation:

Questions for Complainant

  • Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
  • How did you react? What response did you make when the incident(s) occurred or afterwards?
  • How did the harassment affect you? Has your job been affected in any way?
  • Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
  • Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • How would you like to see the situation resolved?
  • Do you know of any other relevant information?

was there harassment

Questions for the Alleged Harasser

  • What is your response to the allegations?
  • If the harasser claims that the allegations are false, ask why the complainant might lie.
  • Are there any persons who have relevant information?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • Do you know of any other relevant information?

Questions for Witnesses

  • What did you see or hear? When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you? When did s/he tell you this?
  • Do you know of any other relevant information?
  • Are there other persons who have relevant information?

Stephen Hans & Associates has decades of experience assisting business owners with employment related issues.

HOW TO PROTECT YOUR SMALL BUSINESS AGAINST SEXUAL HARASSMENT

HOW TO PROTECT YOUR SMALL BUSINESS AGAINST SEXUAL HARASSMENT

Q&A that Applies to Sexual Harassment in Small Business Environments

If you are a small business owner, you may wonder how to protect your small business from sexual harassment and resulting claims that put your business at risk.

Here are some questions and answers (Q&A) that are a good place to start when dealing with sexual harassment.

This Q&A relates to harassment by supervisors:

Who is considered a supervisor?

Any individual who has the authority to recommend tangible employment decisions affecting the employee is a supervisor. Tangible employment decisions include significant employment actions that change an employee’s status, such as:

  • Hiring
  • Firing
  • Promotion
  • Demotion
  • Work assignment
  • Undesirable reassignment
  • Significant benefits changes
  • Compensation decisions

HOW TO PROTECT YOUR SMALL BUSINESS AGAINST SEXUAL HARASSMENT

When are employers liable for a supervisor’s sexual harassment?

Whenever a supervisor engages in harassment that results in a tangible employment action, the employers are always liable. When no tangible employment action occurs, employers are still liable unless they can show the following:

  • They took reasonable care to prevent and promptly correct sexual harassment.
  • The employee reasonably failed to complain to management or failed to otherwise avoid harm.

What steps should employers take to prevent and correct sexual harassment?

Employers need to establish policy that prohibits harassment, put it in writing and pass it out to all employers.

Employers should create procedures for making complaints and notify employees.

When a business is sufficiently small that the owner is regularly in contact with all employees, the employer does not have to put policies in writing. Employers can tell employees at staff meetings that harassment is not allowed, that employees should report harassment immediately and they can even report incidents of harassment directly to the owner.

The business should conduct a prompt investigation when harassment is reported.

When sexual harassment is discovered, the discipline for the offending employee should be comparable to the extent and type of harassment.

As much as possible, the employer should keep the harassed employee’s identity confidential. Otherwise, if the offender retaliates against the reporting employee, the company could be held liable for the retaliation.

(This Q&A applies to all types of harassment, not just sexual harassment and more information is available in the EEOC article, Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisors ).

Are You Dealing with Sexual Harassment Issues in Your Business?

Stephen Hans & Associates can offer valuable legal assistance to help you protect your business. Our attorneys have more than 20 years of experience defending employers.

Avoid Drunk Drivers During the Holiday Season

 

Author: Sacksteinlaw

Thanksgiving marked the beginning of the holiday season, which ends after New Years Day. This festive time irations with lots of parties, gift giving, dining out and drinking alcoholic beverages.
However, despite the good cheer, statistics show that binge drinking spikes during the holidays, so much so that it makes the rest of the year pale by comparison. More drunk drivers are on the roads than any other time, which ucreases the risk for accidents.

Drunk Drivers Statistics from Thanksgiving to New Year’s Day

Alcohol Monitoring Systems (AMS) , runs a campaign called “Sober Days for the Holidays.” According to AMS, DUI rates and deaths increase during the holiday season.

AMS monitored more than 360,000 drunk drivers who were at high risk for alcohol consumption and discovered that the five-week period between Thanksgiving and New Years had 33% more violations than any other time of the year. The monitoring was for drivers who knew they were subjected to tests every 30 minutes, understood they would be arrested for DUI and could be sure they would face legal consequences, such as jail time. Despite all these deterrents, they could not stop themselves from drinking.

The Centers for Disease Control and Prevention (CDC) reports that between Thanksgiving and Christmas 728 people will die or suffer injury, a statistic that is double or triple the rest of the year.

As a way to avoid drunk driving during the holiday season, be sure to designate drivers and put transportation plans in place before drinking alcohol. If you see a car weaving in a lane or other evidence of drunken driving, keep your distance.

Consult with Experienced Personal Injury Lawyers

The attorneys at Sackstein Sackstein & Lee, LLP have decades of experienceand success representing clients in vehicle accident cases. When another party appears to be at fault, by investigating the accident, we can often establish liability and help you recover compensation.  Contact our firm at (888) 519-6400 to determine whether you have a viable case.