Architectural Columns

Posts by Sarah Ruhlen

Talking About Your Case?  Let’s Talk About That.

 

Of course you want to take your story to the press. You feel you owe it to other employees to expose what has happened to you. It could be the trial of the century. Whether you want to explain it to TikTok, get hugs from Facebook, or rant on Twitter, the world needs to know what these people are doing to you, right?

 

Hold up!!!

 

Getting your story out may feel very satisfying in the short-term, but you may end up regretting the legal consequences later.

 

First, if you are pursuing legal action, or considering pursuing legal action, every word you say to the press or on social media could end up as evidence admissible in court – evidence you don’t want admitted. Plus, if your complaint uses the word “bluegreen” and your Facebook post says “turquoise,” the other side’s attorney is going to have a heyday with the perceived inconsistency. Even totally innocent statements can be twisted to contradict a key element of your claim, and your lawyer may not be able to untangle the mess.

 

Second, if you’re making allegations you can’t prove, the other side may be able to turn around and sue you for defamation. While in some states, statements made “in the course of litigation” may be privileged, the other side is going to have a mighty strong argument that allegations made on Twitter or in an email to a reporter aren’t made “in the course of litigation.”

 

Third, any time you speak you risk divulging confidential information. So if the employer thinks there is a confidentiality breach, you might find yourself getting sued for that breach.

 

Fourth, the employer might be willing to make a settlement offer – in return for a nondisclosure agreement. But an employer who is already paying lots of money to a PR firm to clean up the bad press you’ve created might not see a reason to pay you, too.

 

Fifth, you’ve heard of internet trolls. Internet backlash is real, vicious, and devastating, No matter how angelically you have behaved, some stranger out there may take devilish glee in throwing mud—or worse—at you.

 

What if the press contacted me?

 

All of the above applies, times 100. If the press contacted you then the last thing you want is to feed the fire at the same time you destroy your own case.

 

But the other side is saying terrible things about me!

 

Two points here:  First, if the other side is an employer, they can afford a lot more PR firm time than you can. Second, see above about all the ways a public statement can backfire. That said, if you have had a long talk with your attorney and your attorney has given you the go-ahead, preferably with a very careful set of rules about what you will and will not say, then it’s ok to respond to media attacks – but stick to the script. If you go off-message, you’re going to pay for a lot of legal hours while your lawyer cleans up the mess.

 

So mum’s the word?

 

Well, no. Your attorney may have some reasons for wanting to release measured statements. For example, if your matter involves a large group of people who may have experienced the same workplace violation, your lawyer may want to enlist the press in finding other victims. The same method can help locate witnesses. In some circumstances, the lawyer may even consider it useful to for you to give a statement.

 

Bottom line:  Whatever you do, if you want to win your suit, never speak to the press without consulting legal counsel first.

Seven Things LGBTQ Workers Need To Know About Protecting Title VII Rights

 

On June 15, 2020, the Supreme Court of the United States ruled in Bostock v. Clayton County, GA that Title VII protects LGBTQ employees from workplace discrimination.  Even in the midst of the pandemic shutdown and the murder of George Floyd, workers and workers’ rights activists took to the (virtual) streets in celebration. Social media was covered in rainbow flags and memes involving unicorns and RBG.  Bostock was a desperately-needed ray of sunshine that week.

 

It still is.

 

If you’re feeling like the magic is gone, it may be because Title VII rights are tough to assert—for workers in any protected class.  Here are some lessons from the trenches:

 

  1. Get a lawyer. A workers’ rights attorney can advise whether there’s something legally wrong in the workplace, what options you have for combatting it, and how much it will cost to combat.  While it’s possible you have the case of the century, more often an attorney is going to be helping you decide when to fight, when to walk away, and when to run… (cue Kenny Rogers…)

 

  1. Document like mad. Is your employer needlessly complicating a name change process?  Do your coworkers constantly misgender and dead-name?  Is health insurance paying for cancer-related mastectomies but not those for TGNC patients?  Are you being asked non-job related health questions?  Is someone obsessed with which bathroom you use?  Specific, real-time documentation is your talisman.  Write down dates, times, locations, witnesses, what happened, what was said, and the effect the incident had on you (e.g., high blood pressure, PTSD, shaky hands all afternoon, felt humiliated, etc.)  The more exactly you can remember the wording of any comments, the better.  Send this information to yourself on your personal email account (NOT your work account, please).  Your attorney will be grateful for this real-time documentation.

 

  1. Use the complaint process – with caution. This is where the advice of an attorney is indispensable.  Making an internal complaint is sometimes like painting a target on your own back.  But if you’re already wearing a target, making a complaint puts the employer on notice that it may be looking at some pretty gritty legal liability.  For some employers, that fear will spur them to make some positive changes.

 

  1. Use the complaint process – with precision. Get an attorney to review your complaint. (Don’t rely on a verbal complaint.  Just don’t.)  The words “My boss is acting inappropriately” do not have the same effect as “On September 1, 2020 at 11:45 am, Henry Frick followed me to the restroom and asked whether I was leaving the seat up or not. Joe Hill and Hattie Canty witnessed this incident. I felt sick to my stomach the rest of the afternoon. I consider this to be gender-based harassment.”  The words you use will have an enormous effect on the strength of your legal position.

 

  1. Don’t let other employees turn you into “Queer Google.” You are there to do a job.  Your coworkers’ non-work related curiosity, even if it is well-intentioned, will interfere with your productivity and get you into trouble.  It is not your job to educate your cis colleagues.  If they are asking invasive or impertinent questions, it’s worth a conversation with your attorney to decide how to handle it in a way that ensures your Title VII rights are protected.

 

  1. Don’t quit – unless your attorney, doctor, spouse, or career coach says to. If you quit, you may cut off your ability to recover monetary losses. Courts don’t like speculative damages in the first place, and it’s hard to argue you had any expectation of continued earnings if you were the one who cut off your own earnings by quitting. But if the job is affecting your health, relationships, or career – or if your attorney says you can’t fix the problem—you may need to consider your big picture priorities.

 

  1. Don’t rely on lists you read on the internet. Speak with an attorney.  You deserve the peace of mind that comes with understanding your new legal rights at work.

 

 

Please note that the information contained in this blog is for informational purposes and is not to be considered legal advice. This blog does not create or imply an attorney-client relationship. Satter Ruhlen Law Firm makes no representation that the information herein reflects the most current state of the law.  This blog is not a substitute for consultation with an attorney licensed in your jurisdiction.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.

Ask A Worker’s Rights Attorney!

Law Books

The Satter Ruhlen Law Firm presents:

 

Ask A Worker’s Rights Attorney!

A webinar for workers.

Thursday, March 11, 2021 at 6:00 pm

 

Do you work in New York?  Do you have a question about your workplace rights?  This is your chance to ask an attorney about it.  One lawyer, six participants, eight minutes per participant (we’ll have a timer!)  Quick answers to your questions about wage and hour violations, discrimination, harassment, whistleblowing, unionizing, non-compete clauses, and other questions like “can they really do that to me?”

CLICK HERE TO REGISTER

Space is limited, so sign up soon!*

Participants will receive a 10% discount on a one-hour consultation with the Satter Ruhlen Law Firm.

Please note that this webinar is for informational purposes and is not to be considered legal advice. Participation in the webinar does not create or imply an attorney-client relationship. If you would like a dedicated one-hour consultation with us, please contact the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.

*Registrations will be screened for employees’ protection.

 

Satter Ruhlen presents: Workplace Bullying CLE Feb. 25, 2021

One week to our Workplace Bullying CLE Presentation.  Hope you can join us!

The Disturbing Racial Realities Of Workplace Safety

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.

Even before COVID-19, workplaces were deadly places for Black, Latinx, and Asian American Workers. The U.S. Bureau of Labor Statistics Census of Fatal Occupational Injuries, released on December 16, shows shocking disparities along racial lines in worker fatality increases between 2015 and 2019.

It’s bad enough that worker deaths across the board have risen by 10%. What is more frightening is that where white worker deaths have risen by 1.7%, Latinx workers have seen a 20% increase; Black worker deaths have increased by 28%, and Asian American deaths have risen by 59%. That’s not a typo. Fifty-nine percent more Asian American workers died in 2019 than in 2015.

In a statement released by the National Council for Occupational Safety and Health [“NCOSH”] on December 21, NCOSH co-executive director Jessica Martinez says “The answer lies in decades of racism and discrimination, with workers of color routinely being assigned to the dirtiest and most dangerous jobs.” The NCOSH statement notes that the BLS statistics do not account for COVID-19 deaths. Moreover, future statistics likely will not reflect the effect of COVID-19 on workplace fatalities because even though COVID-19 may be contracted at the workplace, death resulting from COVID-19 does not take place at work, so data collection will miss those fatalities. Meanwhile, the CDC reports that Black or African-American individuals are 2.8 times more likely than whites to die of COVID-19. 

On Day 1 of his new job, President Biden called upon OSHA to issue clear guidance on COVID-19 safety. OSHA responded with Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, issued January 29, 2021. The guidance does not contain any surprises; many workplaces have already implemented many of OSHA’s recommendations by enforcing physical distancing, installing barriers, instituting face mask requirements, and implementing cleaning and disinfection procedures.

The OSHA guidance is non-binding, meaning it contains recommended COVID-19 safety procedures, but so far no one is required to abide by the guidance.However, the Biden administration has ordered OSHA to consider issuing an Emergency Temporary Standard [“ETS”] no later than March 15, 2021. A standard, unlike guidance, is enforceable, and an employer may face consequences for not abiding by it. If OSHA follows Biden’s recommendation, the ETS will likely include many of the measures that appear in the current guidance.

Which is a good start. But workplace safety experts interviewed by Safety and Health Magazine say that racial disparities in workplace safety won’t go away without significant structural change, including measures to eliminate workplace harassment, training inequities, and barriers to advancement. Organizations all over the country – including the Satter Ruhlen Law Firm – are participating in diversity and racial equity programming designed to help employers and workers recognize and examine unconscious biases, remove recruitment barriers, understand the racist history behind familiar structures and processes, and improve workplace communication – especially the listening part, which the safety experts say is one of the major barriers to equitable workplace safety.

The key to whether OSHA’s initiatives eliminate racial disparities in workplace safety is not just in the implementation of long-overdue COVID-19 safety guidance. It will have to do with how hard we work together to make sure no one gets left out when that guidance is implemented.

If you believe your workplace is more dangerous due to discrimination, it’s not a bad idea to contact an employment law attorney admitted to practice in your jurisdiction.  The attorney will help you determine what actions make sense for you to take to get and stay safe.

Getting “RIF’d” During COVID-19

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights. 

The pandemic has closed a lot of doors.  Currently about 12.6 million people are unemployed in the U.S.  Everyone who is still employed dreads getting the infamous Reduction In Force [“RIF”] or “pink slip.”  Here’s what the Employer owes you under Federal and State WARN Acts if you get “RIF’d”:

The Federal Worker Adjustment and Retraining Notification Act [“WARN”] (23 U.S.C. §2101 et seq.), generally, requires Employers with 100 or more full-time Employees to provide written notice to affected Employees, the State, and your Union president at least 60 days prior to a plant closing or mass layoff.  Penalties for violations can include back pay and benefits for each Employee up to 60 days, as well as civil penalties. The deadline to file a lawsuit varies from jurisdiction to jurisdiction (for more specificity, call a qualified labor and employment attorney in your jurisdiction!)

Now the bad news: Temps and strikers do not get WARN protection. A plant closing must involve at least 50 Workers at a single site, or a closing plus a layoff that, combined, affects 50 or more Workers.  A mass layoff involves either 500 or more Workers at a single site during a 30-day period, or layoffs of 50-499 Workers at a single site if the layoffs affect at least 33% of the Workers at that site.  A temporary layoff can trigger WARN obligations if it exceeds 6 months. A 50% or more reduction in hours for 50 or more Workers may also require an Employer to provide WARN notice.

Under normal circumstances, the New York State WARN Act [“NY WARN”] adds an additional 30 days to the notice requirement for some Employers, for a total required notice of 90 days. New York Labor Law §§ 860 et seq.  NY Warn applies to businesses with only 50 or more full time Workers.  Under NY Warn, the Employer must provide notice not only for plant closings and mass layoffs, but also if the plant is relocating, or if 25 or more Workers experience a 50% reduction in hours.

But on April 17, 2020, Governor Cuomo signed Executive Order No. 202.19, relaxing some of those requirements for Employers who initially laid off Employees (and complied with WARN the first time) and then hired them back after receiving Paycheck Protection Program (PPP) loans.  If Employers institute another round of layoffs after receiving PPP funding, they only have to provide notice “as soon as practicable.” 

On November 11, 2020, Governor Cuomo signed an amendment to the NY WARN that additionally requires Employers to provide notice to chief officials of local government and school districts, and to every locality that provides police, fire prevention, EMS or ambulance, or other emergency services to the job site. 

What about furloughs?  Furloughs involve reduced hours or days for a finite amount of time.  So whether a furlough triggers Federal or NYS WARN depends on its duration, how many Employees are affected, and how many hours are reduced.  Under WARN, if a furlough originally intended to last three months is extended to seven months due to unforeseeable circumstances, the Employer has to give notice when it realizes it needs to extend the duration. Employers aren’t supposed to be able to play games with the timing and extent of their layoffs to avoid WARN obligations.  It’s complicated, but there’s an “aggregation” rule that is supposed to stop Employers from gaming the system by implementing staggered layoffs.

Even if your layoff fits the above circumstances, there are some reasons the Employer may not be required to provide you notice:  the notice period can be shortened or bypassed under three exceptions:  the “faltering company” exception, the “unforeseeable business circumstance” exception, and the “natural disaster” exception. 

The “faltering company” exception is available when advance notice to Employees would interfere with the company’s ability to obtain new capital or business that could help the company avoid a shutdown or layoff. 20 CFR §§639.9(a)(3)-(4). The Employer has to have a reasonable, good faith belief that the notice would interfere with, for example, its ability to secure a loan. 

The “unforeseeable business circumstances” exception occurs when a “sudden, dramatic, and unexpected action or condition outside of the Employer’s control” causes a layoff or closure.  20 CFR §639.9(b)(1). For example, the unexpected cancellation of a lucrative contract could be an unforeseeable business circumstance.  The unforeseeability is defined as “reasonable business judgment” at the time of the occurrence—not by a court looking at the situation in retrospect. An Employer is required to give as much notice as practicable when there is an “unforeseeable business circumstance” layoff.

The “natural disaster” exception applies if a layoff is directly caused by a natural disaster. 20 CFR §693.9(c). For example, if a tornado destroys a manufacturing plant, resulting in the Workers there being laid off, the exception applies. But if a tornado leaves the plant standing and wipes out a lot of other businesses, causing an economic downturn, the “natural disaster” exception does not apply because the tornado is not the direct cause of the lack of work. 

A Florida court recently pondered whether the COVID-19 pandemic constitutes an unforeseeable circumstance, natural disaster, or special financial circumstance that would excuse an Employer from providing notice. In Benson et al. v. Enterprise, et al., the court concluded that COVID-19 might be a natural disaster, but that the layoff in question was not a direct result of the pandemic. 6:20-cv-00891 (MD Fla. Jan. 4, 2021). Thus, the Employer could not resort to the “natural disaster” exception. But the parties are still litigating –further discovery is required to determine whether the pandemic is an “unforeseeable business circumstance.” So, could a state ordering all businesses to close for three months constitute an unforeseeable business circumstance?  You can bet your hat Employers will argue it does.

Bottom line, Federal and State WARN acts are designed to give you a little safety net in the event of an extended layoff or plant closing.  It won’t make you rich, but it may help you get through the winter. If you think you’ve been RIFfed without proper notification, call a qualified labor and employment attorney in your jurisdiction to learn more about your rights.

Satter Ruhlen presents: Workplace Bullying CLE Feb. 25, 2021

Welcome, Diane!

We are pleased to announce that attorney Diane Williamson, Esq., has joined the Satter Ruhlen Law Firm.

Diane earned her J.D., magna cum laude, from Syracuse University College of Law in 2019. She came to us from the Hiscock Legal Aid Society’s Civil Department, where she defended low income tenants in landlord tenant court. Before law school, she taught philosophy at Syracuse University, amongst other colleges in New York, and she is the author/editor of two books on Kant.

Diane grew up in Oregon and went to college in Iowa, at Grinnell College. After living in several other states, she moved to Syracuse in 2008, where she now lives with her two children. In her free time she volunteers at May Memorial Unitarian Universalist Society and Eastern Farmworkers Association.

Diane enjoys running, swimming, hiking, and camping.

Returning To Work During COVID-19

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

It’s scary, or a relief, or a mixture of the two.  The workplace now has cleaning requirements, PPE requirements, screening requirements, and social distancing requirements.  You may have to take a test before you go in.  You may be on staggered shifts with your co-workers, working at the office on some days and at home on other days. There are rules about who can be in different parts of the workplace and under what circumstances.  There may be one-way hallways and closed breakrooms. The rules are changing every day, and it’s hard to know what you’re supposed to do and when.  Here are some frequently asked questions facing employees these days:

  • Can my employer require me to take a COVID-19 test before allowing me to return to work?
    • It depends on the type of test. 
      • Antibody tests: On June 18, 2020 the EEOC updated its guidance in response to new CDC guidance stating that antibody testing should not be used to make decisions about whether an employee should return to work. If an employer is insisting that you take an antibody test in order to determine whether you should be allowed to return to work, call an attorney.
      • Viral tests:  However, a viral test is still an acceptable return to work requirement, as it is job-related and consistent with business necessity.
      • Temperature checks:  An employer can require employees to have their temperature taken prior to entering a workplace.  However, if your employer insists on a particularly invasive temperature-taking method, call an attorney immediately. 
      • Written tests:  Many New York employers are required to have their employees certify that they are symptom free, COVID-free, and have not been in contact with a COVID case in the past 14 days.  This may be a paper you sign when you arrive at the workplace, or the employer may require you to fill out an online form before you even start your commute.  As long as these certifications only ask about your COVID-19 symptoms, whether you are COVID-19 positive, and whether you’ve been exposed, those certifications are allowed. If the employer is asking you other medical questions, call an attorney.
      • Watch this space.  The rules are changing almost weekly.  What was correct last week may not be correct this week.  When in doubt, call an attorney.
    • What’s the difference between an antibody test and a viral test?
      • Antibody tests involve blood work.  They show whether someone has previously had the virus. The EEOC considers an antibody test a “medical examination” under the ADA.  In light of the CDC’s guidance that state that antibody testing can produce false positives, the EEOC has deemed antibody tests as impermissible medical examinations or inquiries for current employees. 
      • Viral tests check the mucus to detect if a person is currently infected and contagious.  Viral tests can be achieved with swabs and are relatively non-invasive.
    • What about a new employer?
      • If you have a conditional offer of employment, the employer is allowed to send you for a medical evaluation to make sure you are fit to perform the essential functions of your job, as long as the employer requires all new employees to undergo testing.  Any medical exams are permitted between a conditional offer of employment and the employee’s start date. 
      • An employer may delay the start date or withdraw the job offer if there is medical evidence that you are currently positive for COVID-19.
  • Can my employer make me wear a face mask?
    • 99% of the time, yes.
    • If you have a disability that precludes you from wearing a face mask, you will need to request a reasonable accommodation, which involves your doctor providing medical documentation of your condition.
    • Be aware that COVID-19 is considered a “direct threat,” so if you have medical documentation showing that you cannot wear a face mask, and your job cannot be done remotely, the likely outcome is termination – not because of your disability, but because the employer can’t risk having you in the workplace without PPE.
  • What if a person in my home is at high risk of serious health problems due to COVID-19?
    • The employer is not required to accommodate you due to the health conditions of a person in your household.
    • If you cannot telework due to needing to care for a high-risk family member, you may be eligible for FMLA, EFMLEA, or New York Paid Family Leave.  Note that these protections require medical documentation showing that the person needs you to provide care – so if the concern is simply that you don’t want to expose a person who is capable of caring for themselves, you might not have much luck getting time off under these statutes.
  • What if I am recovering from COVID-19?
    • COVID-19 is considered a “serious health condition” for purposes of workplace law.  As such, you may have accommodation and leave rights under the ADA, FMLA, EFMLEA, New York State Human Rights Law, and/or New York State Paid Leave [not to be confused with NYS Paid Family Leave, which gives you time off to care for other people]. 
    • If you are recovering from COVID-19 and believe you are ready to return to work, or if you need some more time before you’re ready to return to work, your employer may need to get medical documentation from your health care provider.  The employer is allowed to get information that will enable it to determine whether you can perform the essential functions of your job, whether more leave is warranted, and what, if any, accommodations it might be able to offer you. 
    • If you are concerned about returning to the workplace due to an underlying condition that puts you especially at risk, then it’s appropriate to ask for a reasonable accommodation.  If your work can be done remotely, you may be able to get an accommodation that allows you to do telework.
    • If your job cannot be done remotely, it’s likely the only accommodation an employer can offer is more leave.  Do not ask for indefinite leave – an employer faced with a request for indefinite leave has an easy out for terminating your employment.  Make sure your leave request has a definite end date.  It is more difficult for an employer to deny a request for additional leave as an accommodation when there is a definite end date to the leave.

Reopening is a hopeful development for people who want to “get back to normal.” But, as continually repeated by the media, social media, experts, and politicians, there is no “normal” any more.  You may find yourself returning to a very different workplace than the one you left. The majority of employers are trying to create workplace rules that keep workers safe – but you don’t have to let yourself be exploited in the name of workplace safety.  The above guidance may help you navigate some common workplace pitfalls. When in doubt, call an attorney. 

Be safe.

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