The Supreme Court this week issued a decision in 14 Penn Plaza LLC v. Pyett that takes away the right of union members to bring statutory claims, such as Title VII or the Age Discrimination in Employment Act, against their employers in court, if their collective bargaining agreement says that those claims must be arbitrated. This decision overturns longstanding precedent in the Second Circuit and other circuits that held such CBA clauses unenforceable. Justice Thomas wrote the opinion.
Just as in the Court's prior decisions enforcing employer-mandated arbitration clauses, this decision repeats the usual fig-leaf that when employees are forced into arbitration they are only giving up their choice of forum, not any of their substantive rights. What makes this decision even more dishonest is that it glosses over the fact that the right to a CBA arbitration does not belong to the employee at all, but their union. It is the union's choice alone to decide whether or not to arbitrate, and which claims to bring. A union is given great discretion under the law to make these decisions, since it must act for the good of all its members, and it is easy to envision various scenarios, all perfectly legal, where a union decides to forego raising a potentially inflammatory discrimination claim in order to preserve relations with management, or to devote their energies elsewhere.
Indeed, in Pyett the union decided not to bring the employees' discrimination claim, and there is no suggestion that choice was wrongful. According to Justice Thomas, this means the employees had no way to vindicate their right to be free from discrimination. Thus, a union member will often find him or herself in the absurd position of having fewer rights to be free of unlawful discrimination than someone without a union.
The reach of the opinion is limited to those CBA's that "clearly and unmistakably" state that statutory claims must be arbitrated. Not all CBA's have these provisions, and it remains to be seen if this decision leads management to push for such provisions in future CBA's. This may place unions in a difficult bargaining position, as they may be pressured to, in effect, give up their employee's statutory rights in return for wages or benefits.
Union members who believe they are victims of discimination now have even more reason to consult with a private attorney. If the member's CBA "clearly and unmistakably" requires arbitration of statutory claims, the member should consider asking the union to allow outside counsel to represent the member at the arbitration, since union lawyers are likely to be unfamiliar with the applicable statutes and available remedies. BMBB has represented union members under those sort of arrangements, including arbitrations involving Local 32BJ, the same union involved in the Pyett decision.
Finally, the Court's misguided decision can and should be remedied by Congress. Section 159(a) of the National Labor Relations Act should be amended to remove statutory claims from the collective bargaining process. This needed not just to allow union members to proceed in court, but to alloe them to have their rights at all.
Friday, April 3, 2009
Monday, January 12, 2009
NYLJ Article about BMBB's Case, Anderson v. NYS
Today's New York Law Journal published on its first page the following article about one of BMBB's cases, Anderson v. New York State et al:
New York state, in a motion for summary judgment filed last week, portrayed an attorney who sought $10 million damages for her firing by the First Department's Departmental Disciplinary Committee as violating the direct orders of her superiors. The lawyer, Christine C. Anderson, filed the lawsuit in 2007 claiming she was fired after six years as a staff attorney because she complained the committee's chief counsel and his top deputy were "whitewashing" complaints against "certain select attorneys" (NYLJ, Oct. 30, 2007). A brief filed for the defendants -- the state and three committee officials -- stated that instead of following her direct supervisor's orders, Ms. Anderson engaged in "an eight month campaign to circumvent and berate" the supervisor, Sherry K. Cohen. The brief, which was written by Assistant Attorneys General Lee Alan Adlerstein and Wesley E. Bauman, also contended that the "highest officers" in the First Department were aware of Ms. Anderson's "ascerbic and posturing conduct." Ms. Anderson's attorney, John A. Beranbaum, reported that the defendant's brief is using an "employers' time-honored technique of trying to trivialize a valid whistleblowing claim" by labeling "a disgruntled employee's personal grievance." Mr. Beranbaum, of Beranbaum Menken Ben-Asher & Bierman, added, "at the end of the day, this tactic will prove unsuccessful."
New York state, in a motion for summary judgment filed last week, portrayed an attorney who sought $10 million damages for her firing by the First Department's Departmental Disciplinary Committee as violating the direct orders of her superiors. The lawyer, Christine C. Anderson, filed the lawsuit in 2007 claiming she was fired after six years as a staff attorney because she complained the committee's chief counsel and his top deputy were "whitewashing" complaints against "certain select attorneys" (NYLJ, Oct. 30, 2007). A brief filed for the defendants -- the state and three committee officials -- stated that instead of following her direct supervisor's orders, Ms. Anderson engaged in "an eight month campaign to circumvent and berate" the supervisor, Sherry K. Cohen. The brief, which was written by Assistant Attorneys General Lee Alan Adlerstein and Wesley E. Bauman, also contended that the "highest officers" in the First Department were aware of Ms. Anderson's "ascerbic and posturing conduct." Ms. Anderson's attorney, John A. Beranbaum, reported that the defendant's brief is using an "employers' time-honored technique of trying to trivialize a valid whistleblowing claim" by labeling "a disgruntled employee's personal grievance." Mr. Beranbaum, of Beranbaum Menken Ben-Asher & Bierman, added, "at the end of the day, this tactic will prove unsuccessful."
Friday, December 12, 2008
Nurse's Aide Exonerated
BMBB partner Jason Rozger earlier this month represented a certified nurse's aide (CNA) accused of patient abuse. After deliberating a little more than an hour, the jury acquitted the aide of all charges. This is the fourth time Rozger has represented a CNA at a criminal trial, and each time his client was found not guilty.
The agency prosecuting these cases, the Medicaid Fraud Unit of the N.Y. State Attorney General's office, in our view brings criminal prosecutions for incidents (if they occurred at all) that would be more appropriately handled through workplace discipline or civil proceedings in the Department of Health. Four juries, so far, have agreed.
The AG's office also has policy of not plea bargaining in these cases, which results in wasted time and money to both the government and the accused. BMBB will continue to fight for the rights of employees, in both the civil and the criminal courts.
The agency prosecuting these cases, the Medicaid Fraud Unit of the N.Y. State Attorney General's office, in our view brings criminal prosecutions for incidents (if they occurred at all) that would be more appropriately handled through workplace discipline or civil proceedings in the Department of Health. Four juries, so far, have agreed.
The AG's office also has policy of not plea bargaining in these cases, which results in wasted time and money to both the government and the accused. BMBB will continue to fight for the rights of employees, in both the civil and the criminal courts.
Wednesday, November 26, 2008
The Americans with Disabilities Amendment Act of 2008
The Americans with Disabilities Act of 1990 was a failed law. Its stated purpose was “to provide consistent, enforceable standards addressing discrimination against individuals with disabilities.” However, the ADA resulted in years of litigation that, rather than clarifying standards for employers and disabled to live by, was mired down in defining what is meant by “disability” and who is eligible for the statute’s protection. Worse, the Supreme Court interpreted “disability” very narrowly, which resulted in a large number of disabled employees not being covered by the law’s anti-discrimination protections.
On September 26, 2008, Congress enacted the ADA Amendment Act of 2008 (“ADAAA”) in order to breathe life into the ADA. The ADAAA’s purpose is to carry out the ADA’s original goal of providing “a clear and comprehensive national mandate for the elimination of discrimination” against the disabled and to restore the broad protections that Congress intended to give disabled individuals when it enacted the ADA.
The ADA defines “disability” as:
(1) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(2) a record or such impairment; or
(3) being regarded as having such an impairment.
In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court held that mitigating measures – such as medication or prosthetic limbs – must be taken into account when determining whether an individual was substantially limited in a major life activity. The Court’s ruling contradicted the understandings of the Equal Employment Opportunity Commission, the U.S. Departments of Justice and Transportation, and with how the ADA’s predecessor statute, the Rehabilitation Act, had been interpreted. The holding in Sutton led to the dismissal of scores of cases because, once mitigating measures were taken into account, the disabled employee was considered insufficiently disabled to be covered by the ADA.
In another decision, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court set a very high burden for employees claiming a “disability.” The Court held that the terms “substantially limits” and “major life activity” must be “interpreted strictly” to create a “demanding standard” for individuals seeking to qualify as disabled. In addition, the Court effectively redefined “substantially limits” to mean “prevents or severely restricts.” In Toyota, the Supreme Court created an additional requirement for employees with manual restrictions nowhere found in the ADA itself. The Court also held that an employee who claims that his impairment restricts manual activities must show that those activities are “of central importance to most people’s daily lives,” such as tending to personal hygiene or doing personal and household chores.
The ADAAA repudiates Sutton and Toyota . The ADAAA provides those decisions “created an inappropriately high level of limitation necessary to obtain coverage under the AD[A].” Under the ADAAA, courts must define disability “in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” The ADAAA discards Sutton’s requirement that mitigating measures be taken into account when determining a disability. The statute also rejects Toyota’s rulings that proving one’s disability involves a “demanding standard,” and that “substantially limits” means “prevents or severely restricts.”
In order to expand the coverage of the statute’s anti-discrimination provisions, the ADAAA also provides that episodic impairments (like epilepsy) or impairments in remission (like cancer) should be treated as disabilities, so long as they are substantially limiting when active. Previously, courts routinely dismissed ADA claims because the employee’s condition was only episodic. The statute also expands the meaning of “major life activity” to include such activities as eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. Of critical importance, the ADAAA provides that “major life activities” include “major bodily functions,” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, brain, respiratory, circulatory, endocrine, and reproductive functions.” That means that if a disabled employee shows that her medical impairment, without medication, substantially limits one of these bodily functions, she does not have to prove that she is unable to perform a daily life activity, such as walking or thinking.
The ADAAA also makes it easier to prove that an employee was “regarded as” disabled. Sutton held that an employee had to show both that the employer regarded him as having an impairment and that it believed the impairment substantially limited a major life activity. The ADAAA, instead, provides that an employee is “regarded as” disabled so long as the employer perceived him as having an impairment, regardless of whether the employer believed the impairment to be substantially limiting.
The ADAAA promises to resuscitate a statute rendered stillborn by restrictive court rulings. It is hoped that the courts, and most importantly the Supreme Court, are now set on the right track, and will no longer interpret the statute in ways that excludes disabled employees clearly meant to be covered by the ADA.
For a fuller discussion of the changes made to the ADA by the ADAAA, and the impact the changes will have on the law, see my article by the same title in the “Cases and Publications” section of the BMBBLaw website.
On September 26, 2008, Congress enacted the ADA Amendment Act of 2008 (“ADAAA”) in order to breathe life into the ADA. The ADAAA’s purpose is to carry out the ADA’s original goal of providing “a clear and comprehensive national mandate for the elimination of discrimination” against the disabled and to restore the broad protections that Congress intended to give disabled individuals when it enacted the ADA.
The ADA defines “disability” as:
(1) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(2) a record or such impairment; or
(3) being regarded as having such an impairment.
In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court held that mitigating measures – such as medication or prosthetic limbs – must be taken into account when determining whether an individual was substantially limited in a major life activity. The Court’s ruling contradicted the understandings of the Equal Employment Opportunity Commission, the U.S. Departments of Justice and Transportation, and with how the ADA’s predecessor statute, the Rehabilitation Act, had been interpreted. The holding in Sutton led to the dismissal of scores of cases because, once mitigating measures were taken into account, the disabled employee was considered insufficiently disabled to be covered by the ADA.
In another decision, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court set a very high burden for employees claiming a “disability.” The Court held that the terms “substantially limits” and “major life activity” must be “interpreted strictly” to create a “demanding standard” for individuals seeking to qualify as disabled. In addition, the Court effectively redefined “substantially limits” to mean “prevents or severely restricts.” In Toyota, the Supreme Court created an additional requirement for employees with manual restrictions nowhere found in the ADA itself. The Court also held that an employee who claims that his impairment restricts manual activities must show that those activities are “of central importance to most people’s daily lives,” such as tending to personal hygiene or doing personal and household chores.
The ADAAA repudiates Sutton and Toyota . The ADAAA provides those decisions “created an inappropriately high level of limitation necessary to obtain coverage under the AD[A].” Under the ADAAA, courts must define disability “in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” The ADAAA discards Sutton’s requirement that mitigating measures be taken into account when determining a disability. The statute also rejects Toyota’s rulings that proving one’s disability involves a “demanding standard,” and that “substantially limits” means “prevents or severely restricts.”
In order to expand the coverage of the statute’s anti-discrimination provisions, the ADAAA also provides that episodic impairments (like epilepsy) or impairments in remission (like cancer) should be treated as disabilities, so long as they are substantially limiting when active. Previously, courts routinely dismissed ADA claims because the employee’s condition was only episodic. The statute also expands the meaning of “major life activity” to include such activities as eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. Of critical importance, the ADAAA provides that “major life activities” include “major bodily functions,” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, brain, respiratory, circulatory, endocrine, and reproductive functions.” That means that if a disabled employee shows that her medical impairment, without medication, substantially limits one of these bodily functions, she does not have to prove that she is unable to perform a daily life activity, such as walking or thinking.
The ADAAA also makes it easier to prove that an employee was “regarded as” disabled. Sutton held that an employee had to show both that the employer regarded him as having an impairment and that it believed the impairment substantially limited a major life activity. The ADAAA, instead, provides that an employee is “regarded as” disabled so long as the employer perceived him as having an impairment, regardless of whether the employer believed the impairment to be substantially limiting.
The ADAAA promises to resuscitate a statute rendered stillborn by restrictive court rulings. It is hoped that the courts, and most importantly the Supreme Court, are now set on the right track, and will no longer interpret the statute in ways that excludes disabled employees clearly meant to be covered by the ADA.
For a fuller discussion of the changes made to the ADA by the ADAAA, and the impact the changes will have on the law, see my article by the same title in the “Cases and Publications” section of the BMBBLaw website.
Thursday, October 16, 2008
Victory to Report
In October 2008, Eugenie Gilmore, of the Law Office of Eugenie Gilmore, and BMBB's John A. Beranbaum, tried a case in the United States District Court for the Southern District of New York, Judge Victor Marrero presiding, on behalf of two former employees of the Department of Information Technology and Telecommunications, a City of New York agency. The plaintiffs claimed that the agency failed to re-hire them during a restructuring in unlawful retaliation for their having previously sued the agency for racial discrimination, or having assisted in such a suit. (One of the plaintiffs also alleged he was not re-hired because of his diabetes). After trying the case for six days, and immediately before summations were to be delivered, the City agreed to pay the plaintiffs $400,000 to settle the case. See Stewart and Kalembwe v. Department of Information Technology and Telecommunications, 04 CV 10179.
Tuesday, July 29, 2008
BMBB files overtime suit against celebrity bakery
BMBB recently filed suit against "celebrity baker" Cake Man Raven in the U.S. District Court for the Eastern District of New York. The suit is to recover unpaid overtime wages for the bakery employees. Under Federal and New York law, nonsupervisory workers are entitled to time and a half for all hours worked in excess of forty per week.
The case was covered on Page 8 of today's New York Daily News.
http://www.nydailynews.com/gossip/2008/07/28/2008-07-28_celebrity_brooklyn_chef_owes_500g_in_har.html.
The case is filed as a class action, on behalf of all employees who are owed unpaid overtime by Cake Man. If you worked for Cake Man and think you are owed overtime pay, contact Bruce Menken at bmenken@bmbblaw.com.
The case was covered on Page 8 of today's New York Daily News.
http://www.nydailynews.com/gossip/2008/07/28/2008-07-28_celebrity_brooklyn_chef_owes_500g_in_har.html.
The case is filed as a class action, on behalf of all employees who are owed unpaid overtime by Cake Man. If you worked for Cake Man and think you are owed overtime pay, contact Bruce Menken at bmenken@bmbblaw.com.
Friday, March 7, 2008
Constructive Discharge
What is a “constructive discharge”? A constructive discharge is a legal concept meaning that even though an employee has resigned, the law will treat the resignation as an involuntary discharge so long as the employee quit because of intolerable discriminatory or retaliatory working conditions. Here, “constructive discharge” means, “it’s as if” the employee were discharged.
You may ask, what does it matter if I resigned or the employer discharged me as long as I was discriminated against at the job? It matters because if you decide to sue your employer for discrimination, you can claim a lot more economic damages if you were discharged (actually or constructively) than if you quit. If you were discharged for discriminatory reasons, you may claim economic damages arising after your termination (e.g. loss of wages or other benefits). But if you resign, even though you have been discriminated against, you effectively forfeit your right to claim post-termination damages because, so reasons the courts, you made a voluntary decision to give up your job and the economic benefits coming with that job.
When is a resignation a constructive discharge? Or put differently, when can you resign in the face of discriminatory work practices without giving up your right to post-termination economic damages? The touchstone for a constructive discharge claim is the existence of “intolerable working conditions.” As the Supreme Court has written, a constructive discharge occurs when “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Pennsylvania State Police v. Suders, 542 U.S. 129 (2004).
The mere existence of discrimination or retaliation at a job does not turn a resignation into a constructive discharge. The discrimination or unlawful conduct must be severe for there to be a constructive discharge. For instance, the sexual harassment experienced by an employee must be of a heightened form, or, in the words of the Supreme Court, “ratcheted up.” Id. Likwise, merely suffering a discriminatory demotion or pay cut does not qualify as a constructive discharge. For there to be a constructive discharge, the demotion must be “humiliating,” the pay cut “extreme,” a transfer so unfavorable that the employee would face unbearable working conditions. Id.
The burden of showing “intolerable working conditions” is a very difficult one. Most claims of constructive discharge fail. Courts are very hesitant in finding an employee’s conditions so bad as to justify his or her resignation. The New York State and federal courts within the Second Circuit (that includes New York, Vermont and Connecticut) require in order to prove a constructive discharge, a plaintiff must not only show that the working conditions were objectively intolerable, but that the employer acted intentionally in creating those conditions. Under this standard, it is not enough to demonstrate that the employer was negligent in allowing the intolerable working conditions to exist. In the Second Circuit, a plaintiff who shows that the employer knew that the plaintiff was suffering intolerable sexual harassment, but did nothing to stop the harassment, still has not established a constructive discharge because the employer’s inaction or ineffectiveness in stopping the harassment was negligent, not deliberate.
Fortunately, there are signs that the courts within the Second Circuit have begun to recognize that inequitable results occur when the constructive standard requiring a plaintiff to prove the presence of intolerable working conditions as well as the deliberateness of the employer’s conduct. I predict that in the coming years, we will see the New York and Second Circuit courts relax the “employer deliberateness” requirement. If that development occurs, the burden of proof for a constructive discharge within this Circuit will be a little less daunting.
What is the lesson if you are laboring under discrimination at the job and are considering quitting? Wait if you can. At least wait until you have had a chance to speak to a lawyer. Otherwise, you may find yourself out of your job without being able to prove a constructive discharge. And if you cannot prove a constructive discharge, you will have lost your claim to post-termination economic damages, no matter how clear the discrimination. Also, you or your lawyer are always in a better position to negotiate some form of severance if you haven’t quit and you are still employed. So, if in doubt, stay at the job. You can always quit later.
John A.Beranbaum
You may ask, what does it matter if I resigned or the employer discharged me as long as I was discriminated against at the job? It matters because if you decide to sue your employer for discrimination, you can claim a lot more economic damages if you were discharged (actually or constructively) than if you quit. If you were discharged for discriminatory reasons, you may claim economic damages arising after your termination (e.g. loss of wages or other benefits). But if you resign, even though you have been discriminated against, you effectively forfeit your right to claim post-termination damages because, so reasons the courts, you made a voluntary decision to give up your job and the economic benefits coming with that job.
When is a resignation a constructive discharge? Or put differently, when can you resign in the face of discriminatory work practices without giving up your right to post-termination economic damages? The touchstone for a constructive discharge claim is the existence of “intolerable working conditions.” As the Supreme Court has written, a constructive discharge occurs when “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Pennsylvania State Police v. Suders, 542 U.S. 129 (2004).
The mere existence of discrimination or retaliation at a job does not turn a resignation into a constructive discharge. The discrimination or unlawful conduct must be severe for there to be a constructive discharge. For instance, the sexual harassment experienced by an employee must be of a heightened form, or, in the words of the Supreme Court, “ratcheted up.” Id. Likwise, merely suffering a discriminatory demotion or pay cut does not qualify as a constructive discharge. For there to be a constructive discharge, the demotion must be “humiliating,” the pay cut “extreme,” a transfer so unfavorable that the employee would face unbearable working conditions. Id.
The burden of showing “intolerable working conditions” is a very difficult one. Most claims of constructive discharge fail. Courts are very hesitant in finding an employee’s conditions so bad as to justify his or her resignation. The New York State and federal courts within the Second Circuit (that includes New York, Vermont and Connecticut) require in order to prove a constructive discharge, a plaintiff must not only show that the working conditions were objectively intolerable, but that the employer acted intentionally in creating those conditions. Under this standard, it is not enough to demonstrate that the employer was negligent in allowing the intolerable working conditions to exist. In the Second Circuit, a plaintiff who shows that the employer knew that the plaintiff was suffering intolerable sexual harassment, but did nothing to stop the harassment, still has not established a constructive discharge because the employer’s inaction or ineffectiveness in stopping the harassment was negligent, not deliberate.
Fortunately, there are signs that the courts within the Second Circuit have begun to recognize that inequitable results occur when the constructive standard requiring a plaintiff to prove the presence of intolerable working conditions as well as the deliberateness of the employer’s conduct. I predict that in the coming years, we will see the New York and Second Circuit courts relax the “employer deliberateness” requirement. If that development occurs, the burden of proof for a constructive discharge within this Circuit will be a little less daunting.
What is the lesson if you are laboring under discrimination at the job and are considering quitting? Wait if you can. At least wait until you have had a chance to speak to a lawyer. Otherwise, you may find yourself out of your job without being able to prove a constructive discharge. And if you cannot prove a constructive discharge, you will have lost your claim to post-termination economic damages, no matter how clear the discrimination. Also, you or your lawyer are always in a better position to negotiate some form of severance if you haven’t quit and you are still employed. So, if in doubt, stay at the job. You can always quit later.
John A.Beranbaum
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