Tag Archives: retaliation

Changes in New York State Human Rights Law

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The NYS Legislature has passed sweeping changes to New York State Human Rights Law, the State’s discrimination law, that will make it easier for employees and outside contractors who interact with those employees to successfully bring discrimination claims. These claims involve, but are not limited to, sexual harassment, as well as discrimination based on race, gender, age, disability, ethnicity, familial status, pregnancy, etc. Similarly, it will have a significant impact on how employers manage their workplace.

The changes include eliminating size requirements for employers to be covered by Human Rights Law. It also broadens the application of hostile work environment to various forms of discrimination, such as based on race, gender, ethnicity, disability, age, etc., rather than only sexual harassment. Moreover, the legislature has eliminated the pervasiveness requirement as it relates to hostile work environment. Another significant change is eliminating the requirement that the employer have knowledge that the employee had been subjected to discrimination in order for liability to exist. Additionally, the legislature’s changes now make punitive damages available. It is critical to note that the significance of these changes cannot overstated.

Although the changes have not yet been signed into law by Governor Cuomo, the Governor has promised the laws will be signed immediately. Significantly, there are many other changes which will drastically effect the how New York State Human Rights cases are litigated moving forward. Employees and employers alike will be greatly impacted by these changes. If you have questions or concerns regarding these changes, or require legal counsel, call Gilbert Law Group today at (631) 630-0100.

Second Circuit Lowers Bar for FMLA Retaliation Claims

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Back on July 19, 2017, the United States Court of Appeals for the Second Circuit lowered the causation standard that an employee has to meet in order to bring a retaliation claim against an employer under the FMLA (Family and Medical Leave Act). The Second Circuit explained that FMLA retaliation claims should be analyzed through a “motivating factor” causation standard as opposed to a “but for” causation standard. With the usage of this standard, all an employee has to do in order to bring a viable claim for retaliation against an employer in the Second Circuit is to simply prove that their employer, in correlation with an adverse employment action, viewed an employee’s utilization of the FMLA, in a negative light. The Second Circuit now joins the Third Circuit in using this causation standard.

The Second Circuit expressed its intent to adopt this plaintiff-friendly causation standard going forward in the case, Woods v. START Treatment & Recovery Centers, Inc. This case involved plaintiff Cassandra Woods, who was employed as a substance abuse counselor for START, a nonprofit and one of the largest non-hospital health providers in New York state, from 2007 until she was fired in 2012. Starting in 2011, Woods found herself at the center of much criticism at work as she received multiple warnings regarding her poor performance and was placed on probation eventually because of it. Over the course of this time, Woods was dealing with numerous health problems including severe anemia. Woods alleges that she had requested time off under the FMLA to deal with these detrimental health conditions on multiple occasions over the course of her employment with START but was always denied this requested leave. Woods was eventually hospitalized for a week as a result of her condition in April of 2012; a period that START admitted was protected under the FMLA. Woods was terminated shortly after her return from the hospital due to what START claimed was because of her alleged incompetent work performance.

Going forward, it will be much less burdensome for employees within the Second Circuit, which consists of those in Connecticut, New York and Vermont, to succeed on FMLA retaliation claims. So long as a plaintiff is able to show that the usage of his or her FMLA rights was merely part of the reason their employer took an adverse employment action against them. Additionally, the adoption of this standard by the Second Circuit will also likely result in an uptick in the amount of FMLA retaliation cases that get past summary judgment and proceed to trial. Employers within the Second Circuit will now have to be more careful when terminating employees because although they may have legitimate business reasons for terminating an employee, they still may find themselves in legal trouble if it can be shown that they viewed an employee’s usage of FMLA provided leave as a motivating factor in making the decision to terminate them.

Should you have questions regarding FMLA and/or FMLA retaliation, call Gilbert Law Group today at (631) 630-0100.

Contributed by: Richard (RJ) Cherpak

Employers Be On Alert: Employment Retaliation Claims Are At an All-Time High

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Employers be on alert: employment retaliation claims are at an all-time high.

The number of discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) in the past year reached the lowest level since 2007, based on published statistics from the EEOC. Retaliation charges, on the other hand, are at their highest percentage ever of claims filed ever.

The EEOC’s Strategic Enforcement Plan for fiscal years 2013-2016 lists retaliation issues as one of six areas of priority for the agency. The EEOC describes this priority as “targeting policies and practices which discourage or prohibit individuals from exercising their rights under the employment discrimination statutes or that impede EEOC’s enforcement efforts.”

The 2014 statistics, and the priority placed on EEOC retaliation enforcement, are a significant reminder that employers should take the necessary steps to minimize the chance of a retaliation claim even when the underlying discrimination claim is not meritorious. Employers should make sure to consult a knowledgeable employment attorney to ensure their employment policies are up to date. Where there is an active discrimination claim against an employer, there are many acts which if taken, could constitute retaliation. In such circumstances, is important that the that an employer seek counsel before taking action.