Architectural Columns

Tag Archives: #AskAWorkersRightsAttorney

DIVERSITY, EQUITY, and INCLUSION are Not Dirty Words and They’re Not Going Away

Graphic promoting a new blog post. The main visual element features the acronym "DEI" representing Diversity, Equity, and Inclusion, with each letter enclosed in a hexagon. Below each letter are corresponding icons: a globe with people for Diversity, a group of gender-diverse figures for Equity, and a collaborative group for Inclusion. The text at the bottom reads: "DIVERSITY, EQUITY, AND INCLUSION are Not Dirty Words and They're Not Going Away". The website 'www.satterlaw.com/blog' is displayed on the left side.

 

Even before Inauguration Day 2025, corporations cravenly started rolling back their Diversity, Equity, and Inclusion[1] initiatives. Then the new administration came in swinging, implementing executive orders to eliminate “illegal” Diversity, Equity, and Inclusion measures.[2]  Now the new Attorney General has issued a memorandum instructing the DOJ to investigate, prosecute, and penalize “illegal” Diversity, Equity, and Inclusion programs in the private sector.

Guidance for employers, so far, is hilariously terrible: the last sentence in all the articles is: “talk to your lawyer.” Because no one knows what these orders mean. The people writing the articles don’t know. Corp counsel doesn’t know. Not even the attorneys making up these orders know.

We don’t know either, but we can tell you one thing: As of today, February 11, 2025, Diversity, Equity, and Inclusion are not “illegal.” They are statutory. There are federal statutes that prohibit employment discrimination on the basis of race, color, creed, national origin, sex, age, and disability. There are state statutes that prohibit other types of discrimination, for example, in New York, it is illegal to discriminate on the basis of marital status.[3]

What does this mean for workers? Well, it’s going to be harder to access opportunities. Programs aimed at leveling the playing field are now being dismantled. These programs weren’t perfect, but they were helping move folks into positions that would otherwise go to privileged, wealthy twerps.

Here’s the deal: you can still fight back. It is still illegal (as of February 11, 2025) for an employer to make a decision about your employment based on your race, color, creed, national origin, sex, age, or disability. In the State of New York, it’s also illegal for employers to discriminate on the basis of military status, familial status, marital status, status as a victim of domestic violence, arrest record, and citizenship and immigration status.[4]

Which means you can still sue their pants off if you can show they’re discriminating. And if they just rolled back a whole promotion program that was designed to help you advance on the basis of your qualifications rather than your golfing relationship with the boss, and the promotion you were after goes to a wealthy, privileged twerp, a really good way to show the corporation that discrimination is still illegal is to get a good employment lawyer to give them the message.

Diversity. Equity. Inclusion.

None of those is a bad word. Lawyer up, and let’s go.

_______________________

[1] In this article, we’re going to spell out Diversity, Equity, and Inclusion every time we mention it because we want to make it clear: people who oppose DEI are opposing Diversity, Equity, and Inclusion. Seriously, businesses, which one of those words is an issue for you?
[2] For example, federal agencies’ Diversity, Equity, and Inclusion initiatives and Lyndon B. Johnson’s 1965 Executive Order 11246, which built anti-discrimination policies into federal contracts.
[3] Talk to an employment lawyer in your jurisdiction to find out what additional protections might be in effect in your area.
[4] Seriously, talk to an employment lawyer in your jurisdiction to see if there are non-federal protections for you in your geographical location.

Got a “Return To The Office” letter? Here’s what you need to know.

In January, federal agencies were directed to require employees to return to in-person work. The feds are the latest in a series of employers to mandate their employees return to the office. Return-to-office mandates are being used as “quiet layoffs” – meaning, anyone who doesn’t return to work in-person gets fired. What does this mean for employees? Read on.

Medical Accommodations

If you are working remotely due to a medical accommodation, lawyer up. Well, first of all, document up. Dig out all the emails and documents from when you first went through the process of requesting and being granted your accommodation. You are going to need those to prove that you are still entitled to the accommodation, notwithstanding the current mania for in-person work.

The Americans with Disabilities Act (“ADA”) and, federally, the Rehabilitation Act, require employers to provide “reasonable accommodations” to workers who can perform the essential functions of their jobs if they are accommodated. Be prepared to show that you have been performing your essential functions just fine without being in the office. Technically, you shouldn’t have to do this, but Employers will try it anyway. If someone gives you a hard time, you should consult with an attorney. Go ahead and gather up your evidence just in case.

Intermittent FMLA Leave

Like a medical accommodation, intermittent Family And Medical Leave Act (“FMLA”) Leave is something that you shouldn’t have to fight for – but be prepared to fight. Dig out your FMLA paperwork and have it ready to scan to HR.

Employment Contracts

If you are one of the few lucky people with an employment contract, check the contract. If it’s in writing that you are a remote worker, and someone tries to make you return to the office, get ready to enforce your contract. Take the contract to an employment lawyer who knows what they’re doing and make sure you understand what the contract requires. If you have a Union, check out the Collective Bargaining Agreement and talk to your Union Rep. Do this before you go storming into the HR office.

Don’t Have Any Of The Above?

Unless there’s some statutory or contractual restriction, employers pretty much have the right to control and direct their workforce, and there’s not a lot of legal leverage for the average employee. But there may be steps you can take.

For example, the federal guidance carves out “other compelling reason[s] certified by the agency head and the employee’s supervisor.” You might be able to negotiate a compelling reason (for instance, is there even an extra desk at agency headquarters?) with your boss and your boss’s boss. Never mastered the art of negotiating? A reputable workplace attorney may have some strategies to help you navigate that conversation.

If you have a legit medical accommodation and your doctor is telling you to stay remote, get it documented and get in that accommodation request ASAP. Word to the wise: Employers are going to be mighty suspicious of anyone who suddenly needs an accommodation now that they’re being ordered to return to the office. Get yourself a good employment law attorney who can help guide you through the process.

Conclusion

The deck is stacked against workers who want to continue teleworking, but there are a couple strategies that might help. If you are determined to stay remote, talk to a reputable workplace lawyer in your jurisdiction, and get ready to fight.

What Happens During A Legal Consultation?

 

Let’s face it. Most people don’t schedule consultations with attorneys for fun. The stress of the underlying situation, concerns about cost, the idea of trusting a stranger with personal details of your life, and not knowing how the attorney will react – all of this can add up to a bad feeling in the pit of a person’s stomach.

We understand that seeking legal assistance can be a daunting experience, and it’s completely natural to feel anxious about your initial consultation with an attorney. To help ease some of those concerns, here’s a little about how it works at the Satter Ruhlen Law Firm.

  1. How to Prepare

If you really want a productive consultation, take a little time, before you come in, to write down, in chronological order, the events you are about to describe to the attorney. You don’t need to write a novel. Just date, location, what happened, what was said, and witnesses.

Here’s an example:

  • 6/13/24 9:37 am in the parking lot at the north facility: Joe spat on my truck and called me a dumb b—-. Ron and Patty saw it. Julie heard him call me a dumb b—-.
  • 10:45 am I reported the incident to HR. (Email attached.)
  • 6/14/24 10:00 am HR called me to a meeting at headquarters. Present were Kathy the HR Rep, Fred the boss, and myself. Kathy told me I was fired. She had Ron escort me off the premises.
  • 6/15/24 I applied for Unemployment.
  • 7/15/24 Unemployment told me I’m not eligible because the boss claims I stole money from the petty cash drawer.

This isn’t for the attorney to read, so don’t worry about spelling, grammar, etc. This list is to help you stay on track and give a clear account of what happened.

As far as documents, bring that totally crazy email that the boss sent you. Feel free to bring recordings, pictures, screen shots, or your spouse or friend for moral support. Bring the contract if you have one, or bring the policy or handbook that you think is being violated. If you think there’s a statute or regulation involved, bring a copy of the statute or regulation.

In some cases, the attorney may ask you to send documents prior to the consultation. Make sure you send them at least 24 hours prior to the appointment so the attorney has time to review them.

If you have seven binders of documents, the attorney isn’t going to review everything. But if you think it’s relevant, bring it.

  1. Our Office

The Satter Ruhlen Law Firm is located on the 6th Floor of the historic McCarthy Building (217 South Salina Street) in downtown Syracuse, New York, at the corner of Salina and Fayette streets. It’s a lovely old turn-of-the century structure, with wreath and ribbon decorations over the windows. If you’re looking at the Wildflowers shop, you’re looking at our building. (The McCarthy Building is also home to two delicious restaurants – Jamaica Cuse and Aloha Bento. We recommend both!) There’s a heart painted on the north side of the building, with the words “Heart of Syracuse” written inside.

The good news is that there’s plenty of parking, whether on the street, in the open lot at the corner of Salina and Washington streets, in a parking garage, or a block or two in any direction. The bad news is that it’s all metered parking. The parking meters are kind of weird so you may want to download and use the Flowbird parking app.

The elevators are on the left as you enter from Salina Street. (On the right you’ll see the indoor entrance to Wildflowers, as well as stairs down to the shops in the McCarthy Mercantile). Come up to the 6th Floor and turn right. You’ll see our door with gold lettering on it. Currently our floor is under construction, so there’s an odd entryway area as you come in. You’ll see a big window, and behind the window is our office manager. At least, that’s where their desk is – the job keeps them busy! The door to our office is to the left of the big window. Come on in!

  1. Checking in

The office manager will greet you and get you checked in. You can hang up your coat and hat, and if it’s snowy, feel free to ditch your boots in the boot tray. If the office manager is not at the desk, have a seat – they’ll be there in a minute. Take some time to peruse the books and magazines on the coffee table. (For remote consultations, we’ll send you a secure video link.) Once you’re checked in, the office manager will show you into the conference room and then they will tell the attorney that you’re here. It may take the attorney a minute – we always seem to get phone calls just before someone comes in. Take some time to check out the books on display and the wall hangings, which provide some fascinating background on the history of workers’ rights.

  1. The Consultation

One purpose of the consult is to for you to determine whether you want to work with us. So, in addition to figuring out whether there is anything that we can do for you, we’re also going to be considering whether it makes sense for us to enter an attorney-client relationship with each other. There are a lot of different factors that go into that decision, including but not limited to the strength of your case, whether it’s financially feasible, and what type of work needs to be done. Legal fees are expensive! So if you’re going to retain a lawyer, it makes sense to be choosy and make sure you’re getting someone you can work with.

Once the office manager has got you settled, the attorney will come into the room and greet you. If you bring somebody with you, the attorney will get the name of the person and their relationship to you. This is important for purposes of determining how protected the conversation may be from subpoenas or discovery. The attorney will usually start off by explaining a little bit about confidentiality rules. They will confirm that they have good contact information for you, including a mailing address, phone number, and email address where they can send confidential communications.

The attorney may ask you for some background information about your workplace. For instance, if you’re an educator, they may ask if you’re tenured. There may be some jurisdictional questions, such as how many other employees work for the company, or whether you get paid hourly or salary, on a W-2 or via 1099. They may ask where the employer is located, or ask you to describe a little bit about the industry you work in.

At some point the attorney is going to say something along the lines of, “Tell me why you’re here.”  This is a good time to refer to  that timeline you jotted down before you came in. Now, you’ve already given the office manager a little bit of information for purposes of conflict checking. But the attorney needs your personal perspective on what’s happening, and the best way for them to get that perspective is for you to tell them, in your own words.

Be prepared to be interrupted. The attorney isn’t trying to be rude. What they’re trying to do is to get key, relevant details that help them assess your situation. They’re probably going to ask you when things started to go wrong at work, why they started going wrong, and who’s involved. They’re going to be really annoying about dates, names, titles, and locations. They may ask if there are any witnesses to what you’re describing. They will probably ask about policies and procedures. They’ll ask who you’ve tried to talk to about the situation you’re facing. They’re going to be typing or taking notes as you talk, and they may ask you to slow down or to go back and repeat something they missed. They may ask you to pause for a moment as they review their notes.

At some point, the attorney’s going to explain the legal framework they think you’re operating within, and go over potential legal issues that they’ve spotted while you’ve been describing your situation. If you are a public employee, the attorney might help you draft up a Notice of Claim right then and there. They’re going to ask you if you’ve considered different options, and help you think about what options might make sense for you in your particular situation. For example, if you haven’t already reported the problem to the HR rep, the attorney may talk with you about whether it’s a good idea, what strategy to take, potential language to use, whether to copy other people, when to do it. This is your opportunity to strategize with the benefit of the attorney’s expertise and experience. You might end up making a pros-and-cons lists, or the two of you working together may discover other possibilities.

  1. Ending the Consultation

The consult may end in several ways. Here are three common possibilities: 1) we decide to offer representation, 2) we decide not to offer representation, or 3) we decide to do some more research and analysis and get back to you about whether we can offer representation.

If we offer representation, you will be presented with a retainer proposal that describes what we propose to do and how we expect to be paid for it. It is a proposal to provide legal services, and the “retainer” is a written contract for those services. It’s important to understand that having consulted with an attorney is not the same as being represented by an attorney. No one is represented by our firm unless there is a written retainer with both our signatures on it.

We may conclude that it doesn’t make sense for us to offer representation. There are a myriad of reasons that might happen. Sometimes, the consultation gives an individual enough information to navigate the situation without needing to retain us. Sometimes, employees realize they’d be better off socking that money into their 401(k) than hiring us. If we decide not to offer representation, we’ll follow up in a day or two with a nonengagement letter. We always recommend getting a second opinion if you feel we’ve missed something – different lawyers see things differently, and what one firm might not be willing to take on, another firm may specialize in.

A lot of times, we need to do some additional work, such as reviewing your situation with another attorney in the firm, calling up your witnesses, or reviewing your documents. We may want to talk to an outside attorney about a referral or maybe bringing in their particular expertise as potential co-counsel. If we need to do more follow-up work, the attorney will give you a ballpark about when you can expect to hear back from us, usually within a few days to a week. The follow-up is not a commitment to offer representation – it’s an opportunity for us to get more information to decide whether we can offer representation. Once we have made a decision, we’ll either send you a retainer proposal or a nonengagement letter.

  1. Final Thoughts

Signing up for a legal consultation can feel overwhelming, but understanding what to expect can significantly ease your anxiety. From thorough preparation to knowing what happens during the meeting, each step is designed to ensure you receive the best advice possible tailored to your unique situation. At Satter Ruhlen Law Firm, our goal is not only to assess your case but to foster a relationship grounded in trust and transparency. Whether you leave with legal representation or empowered with guidance to handle your issues independently, our commitment is to make your consultation a constructive experience. Seeking legal assistance is a vital step towards asserting your rights, and we are here to support you.

 

Remembering Lilly Ledbetter and Her Impact on Women’s Rights in The Workplace

Posted by Sarah Ruhlen on behalf of William Hand

It is no secret that women are generally paid less than men. This phenomenon is commonly referred to as the Gender Pay Gap. Nationally, employers are paying women working full-time, year-round jobs, on average, eighty-three cents for every dollar paid to men. When part-time and part-year workers are included in the comparison, women were typically paid only seventy-eight cents for every dollar paid to men in 2023.[1]

Lilly Ledbetter was a modern pioneer fighting against this Gender Pay Gap. She recently passed away at 86 on October 12, 2024. Given her recent passing, let us take some time to remember Lilly and appreciate her significant contribution to fighting gender inequality and workplace discrimination.

Lilly Ledbetter, a Jacksonville Alabama native, was a supervisor at a Goodyear tire plant in Gadsden, Alabama starting in 1979. She was one of the few female supervisors at the Gadsden tire plant and worked there for almost 20 years. Lilly faced substantial sexual harassment in her time with Goodyear, including her boss telling her that he did not think women should be working there.

One day while working at the Goodyear plant Lilly received an anonymous note informing her that Goodyear was paying her less than her male coworkers in the same position. In an interview with National Public Radio in 2009 Lilly recalled “When I saw that, it took my breath away. I felt humiliated. I felt degraded. I had to get my composure back to go ahead and perform my job and then my first day off, I went to Birmingham and filed a charge with the EEOC.”

Filing a claim with the EEOC was Lilly’s first step in her ten-year fight for women’s equality in the workplace.

LEDBETTER V. GOODYEAR TIRE & RUBBER CO.:

After she filed a complaint with the EEOC, Lilly sued Goodyear for gender discrimination in violation of Title VII of the Civil Rights Act of 1964, alleging that the company had given her a low salary because of her gender. A jury found that Goodyear had discriminated against Lilly Ledbetter and awarded her $3.5 million in compensatory and punitive damages for the extreme nature of the pay discrimination that Goodyear subjected her to.

Later A federal district judge reduced her damages to $360,000.

Goodyear appealed, citing a Title VII provision that requires grievants file their Title VII discrimination claims within 180 days of the employer’s discriminatory conduct. The jury had examined Lilly’s entire career for evidence of discrimination, but Goodyear argued that the jury should only have considered the one annual salary review that occurred within the 180-day limitations period before her complaint. Ergo, Lilly’s claims were time-barred because any decision to pay Lilly less than her male counterparts happened more than 180 days before she filed her claim.

The U.S. Court of Appeals for the Eleventh Circuit reversed the lower court, but without adopting Goodyear’s position entirely. Instead, the Circuit Court ruled that the jury could only examine Lilly’s career for evidence of discrimination as far back as the last annual salary review before the start of the 180-day limitations period. The Circuit Court ruled that Lilly getting a low salary during the 180 days did not justify the evaluation of Ledbetter’s entire career. Instead, only those reviews that affected Lilly’s pay during the 180 days could be evaluated. The Circuit Court found no evidence of discrimination in those reviews, so it reversed the District Court and dismissed Lilly’s complaint.

The Supreme Court then heard Goodyear’s appeal and decided against Lilly with Justice Samuel Alito writing for the 5-4 majority. Justice Alito wrote that the Court found Title VII’s limitations period barred Lilly’s claim because the “current effects alone cannot breathe life into prior, uncharged discrimination.” Justice Alito further opined adopting Lilly’s argument would mean “if a single discriminatory pay decision made 20 years ago continued to affect an employee’s pay today, the dissent would presumably hold that the employee could file a timely EEOC charge today.”

In dissent, Justice Ruth Bader Ginsburg called the majority’s decision “a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose.” Justice Ginsburg included in her dissent that, “the Legislature may act to correct this Court’s parsimonious reading of Title VII.”

THE LILLY LEDBETTER FAIR PAY ACT:

In response to the Supreme Court’s decision, Congress passed the Lilly Ledbetter Fair Pay Act on January 29, 2009. The introductory finding section of the Act states:

Congress found The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.

The Act goes on to reinstate prior law, making it clear that pay discrimination claims based on sex, race, national origin, age, religion, and disability “accrue” each time an employee receives a discriminatory paycheck; when a discriminatory pay decision or practice is adopted; when a person becomes subject to the decision or practice; or when a person is otherwise affected by the decision or practice. The law is retroactive to May 28, 2007, the day before the Court issued its ruling in Ledbetter v. Goodyear Tire & Rubber Co.

IMPACT:

The Lilly Ledbetter Fair Pay Act of 2009 means that every paycheck from an employer that violates the Equal Pay Act refreshes the period for filing the claim. Further, it now allows the successful grievant to obtain relief including recovery of back pay for up to two years before they filed the claim of unlawful pay discrimination. However, while the Act is a great step forward in advancing pay equality, recovery is still limited to backpay for a maximum of two years before filing a claim. Therefore, anyone who feels they are being illegally discriminated against in their pay or compensation should consult an attorney sooner rather than later, or risk losing out on back pay they might otherwise be entitled to.

CONCLUSION:

Lilly Ledbetter did not set out to be a modern activist fighting the Gender Pay Gap. She was a woman who gave nearly twenty years of her career to an employer who paid her less than her male counterparts. However, what truly set Lilly apart was that she simply did not accept this discrimination. She fought it in Federal Courts for nearly ten years, all the way to the Supreme Court of the United States, to hold her employer accountable. While her case was ultimately unsuccessful, it was because she fought so hard for equal pay that Congress passed The Lilly Ledbetter Fair Pay Act of 2009 bringing us a little closer to fair pay and workplace equality.

Thank you, Lilly Ledbetter!

[1] The Wage Gap, State by State – National Women’s Law Center; 2024 Gender Pay Gap Report (GPGR) | Payscale Research

– William P. Hand

Welcome our newest attorney, William Hand!

William is a New York native who graduated from SUNY Empire with a Bachelor of Science in Mathematics and Political Science. William earned his Juris Doctor summa cum laude from Albany Law School in 2021, where he was enrolled in the school’s rigorous two-year accelerated J.D. program. While at Albany Law School, William studied labor law and employment discrimination litigation. He also served as an Associate Editor of the Albany Law Review, participated in the Domenick L. Gabrielli Appellate Advocacy Moot Court Competition, and volunteered with the Legal Aid Society’s Pro Bono Divorce Clinic.

During the Summer of 2021, William interned with the New York State Division of Veterans Services, helping wrongfully discharged soldiers, sailors, and marines restore their lost benefits. While working for the Divisions of Veterans Services, William had the honor of writing benefits appeals memoranda for veterans seeking to have their benefits restored under New York’s Restoration of Honor Act.

William comes to us from the Hudson Valley, where he practiced as a general litigation attorney. He is excited to put his litigation experience to work on behalf of the workers served by Satter Ruhlen Law Firm, PLLC. As someone who has always been enthusiastic about social justice, William feels strongly about advocating for workers’ rights because he believes in the dignity and fairness that every employee deserves. He believes that it is crucial that we protect workers’ right to fair wages, safe working conditions, and the ability to organize and advocate for themselves. He is a welcome addition to the Firm!

Know Your Rights: A Guide to Workplace Privacy for Employees

 

The workplace is not a private place, but people may bring their private information to work, sometimes without even realizing it. The rules on what an employee can expect to keep private – and what does not stay private – may not be what you expect. Here are three key takeaways to empower you to protect your privacy while on the job.

  1. The Bad News

Employees have no reasonable expectation of privacy in most areas of the workplace, so don’t expect the boss to respect your personal privacy. Employers generally have the right to monitor work-related activities. Additionally, there is no obligation to respect employee privacy on the job site with respect to personal phone calls, emails sent from personal accounts, and personal belongings—even in personal lockers or during break times or in the break room.

In the State of New York, section 52-c of the New York Civil Rights Act requires employers to provide written notice if they intend to e-monitor their employees, but the requirement is pretty weak. There is no prohibition on spying, just a requirement that the employer let workers know if it intends to spy. Additionally, there’s no private remedy if the employer does spy without notifying. Other jurisdictions may have similar rules, so speak with a workers’ rights attorney in your area to find out if there’s any protection against e-spying in your jurisdiction.

Be cautious about the type of personal information you share at work. Avoid sharing sensitive personal details, even with your work friends, during work hours.

  1. Medical Information

If you talk about your medical condition with your coworkers, the employer has no duty to keep that information confidential. If you don’t want people talking about it, don’t tell them.

Outside of a request for an accommodation, there is no duty for an employer to avoid disclosing medical information that an employee has volunteered. If you do request an accommodation or medical leave, don’t reveal what you need the accommodation for until that information is requested. Remember – if you volunteer it without being asked, the employer does not have to keep it private. The only information the employer has to keep private is medical information that it specifically requests from you.

Usually, once an employee requests an accommodation or medical leave, the employer will provide a request form with sections for the employee and the employee’s medical provider to fill out.  It’s not a bad idea to mark the forms “CONFIDENTIAL” at the top. That goes for any medical information you provide to the employer as well. Try to make sure that any medical information is directed only to the person whose job it is to handle the accommodation request – usually this is a human resources employee.

Word to the wise, the medical information needed to handle an accommodation request can, and will, be disclosed to anyone the employer believes needs to have it for purposes of implementing the accommodation. So even though you might not want your direct supervisor to know about your personal medical needs, that person may be looped in when it comes to determining how to accommodate your condition.

Bottom line, don’t talk about medical information unless you need to request an accommodation. And then, be very sparing about what you tell and whom you tell it to.

  1. Anti-Union Surveillance

One area that is often litigated is whether surveillance is “coercive,” thereby crossing the line into a violation of the National Labor Relations Act [“NLRA”]. Under the NLRA, employees have the right to engage in concerted activity for purposes of mutual aid and protection. If surveillance—for example, cameras in the breakroom, or supervisors butting in to an employee-owned Slack group—could reasonably be construed as intimidating employees so they will not discuss terms and conditions of employment, then the surveillance may constitute an Unfair Labor Practice [“ULP”] under the NLRA. So, if it seems like the employer is trying to stop employees from, say, discussing wages or talking to Union reps, then the action may constitute illegal surveillance and should be reported to the National Labor Relations Board [“NLRB”]. This tends to be a very fact-specific inquiry, so if you’re not sure whether the spying constitutes illegal surveillance, it’s a good idea to talk to a Union representative or workplace attorney.

Conclusion: 

Generally speaking, don’t reveal anything in the workplace that you wouldn’t tell a newspaper reporter. But there are minimal privacy protections in specific workplace contexts. Always talk to a workplace attorney if you need to understand the parameters of your workplace privacy.

Good Jobs: What Biden’s Executive Order on Investing in America and American Workers Means to Workers

 

On September 6, 2024, President Bident signed the “Good Jobs” Executive Order. In a nutshell, the Order describes what makes a job “good” and directs federal agencies to prioritize projects that improve labor standards.

What is a “Good Job?”

According to the Order, a Good Job:

  • Promotes positive labor-management relationships by entering agreements with labor and community groups, such as:

    • Project Labor Agreements (pre-hire collective bargaining agreements that establish terms and conditions for a specific project)
    • Community Benefits Agreements (agreements between a developer and community groups to provide benefits identified by the community groups)
    • Collective Bargaining Agreements (“CBA” or union contract)
    • Agreements ensuring uninterrupted delivery of services
    • Agreements facilitating first CBAs
    • Voluntary Union Recognition
    • Neutrality Agreements
  • Promotes family-sustaining wages by:

    • Paying prevailing wages, wages in the top 25% of industry pay, or union scale wages
    • Promoting equal pay
    • Eliminating discriminatory pay practices
    • Implementing pay transparency
  • Promotes economic security by:

    • Providing paid sick, family, and medical leave
    • Providing health care
    • Providing retirement benefits
    • Providing child, dependent, and elder care
  • Fights discrimination by:

    • Adopting recruitment, hiring, and retention policies to attract workers from underserved and local communities
    • Implement reporting structures and ongoing training to prevent discrimination and harassment
    • Participate in programs supporting compliance with the EEO, Rehab Act, and VEVRAA
  • Strengthens the workforce by:

    • Investing in union-affiliated training programs, apprenticeships, and pre-apprenticeship programs
    • Partnering with community colleges, career and tech programs, disability services organizations, the public workforce system, and the American Climate Corps
    • Providing child care and transportation assistance, as well as other services that will help workers complete training
  • Protect worker health and safety by:

    • Engaging in supplemental safety training
    • Working with unions to design and implement workplace safety and health systems
    • Disclosing occupational safety and health violations

How Do I Get One Of These Good Jobs?

It’s a little tricky, because no one has created a central clearing house for workers to search for these jobs. Also, each municipality or region has its own mechanisms and acronyms. For example, here in Syracuse, we have ON-RAMP, “Real Life Rosies,” CREATES, and Syracuse Build. Your area will have different acronyms. But one thing you can do is look at job postings for

First, the “good jobs” criteria apply to projects selected by the following Federal departments:

  • Department of the Interior
  • Department of Agriculture
  • Department of Commerce
  • Department of Labor
  • Department of Housing and Urban Development
  • Department of Transportation
  • Department of Energy
  • Department of Education
  • Department of Homeland Security
  • Department of the Environmental Protection Agency.

Second, the criteria apply to projects selected by the above agencies for funding through:

  • The American Rescue Plan
  • The Infrastructure Investment and Jobs Act
  • The CHIPS Act
  • The Inflation Reduction Act.

So one way to find work that is covered by the Good Jobs Executive Order is to do a web search using one of the Departments, one of the Acts, and your city.

Another way to locate the Good Jobs is to pay attention to news stories in your area: are there any infrastructure projects happening near you? How about tech companies coming to your town? Are there environmental conservation projects underway?

You can also reach out to unions and community organizations in your area. Projects receiving federal funding from these initiatives are expected to engage with community stakeholders, so local chapter of Citizen Action, Jobs to Move America, or your local labor council should be involved with the project already and may know where potential applicants can get more information.  Additionally, if you run into trouble getting jobs that you are qualified for, these organizations are going to want to know that so they can make the companies hold up their ends of the bargain.

This is one of those announcements that the news doesn’t usually pick up, so tell your worker friends about the Good Jobs Executive Order. And if you get one of these Good Jobs, join the Union and make it even better.

The Independent Contractor Shilly-Shally: Navigating the Maze of Worker Classification

Introduction

Workers who are classified as independent contractors are cut out of a host of Federal workplace protections, such as anti-discrimination statutes, the right to unionize, and wage and hour laws. It’s easy for employers to misclassify workers because the definition of “independent contractor” is hard to pin down – it varies from statute to statute, and even from state to state. But workers who understand the distinction between being an independent contractor and being an employee are empowered to fight misclassification and win the protections they are entitled to. Here are some guidelines:

  1. Understanding the Basics

An independent contractor is considered to be self-employed, while an employee is employed by the employer (try saying that ten times fast.) Workers suffer a tremendous amount of harm when they are misclassified as independent contractors. So it’s important for every worker to understand how they are classified and why.

Don’t try this at home. This is a complicated inquiry, so always contact an experienced workers’ rights attorney in your jurisdiction before making any big decisions.

Courts and agencies, when deciding whether a worker is an independent contractor or an employee, tend to look at a list of factors to make their determination. Complicating the inquiry, different courts and agencies look at different factors. Generally speaking, the underlying question is how much control the employer has over what, how, and how much the worker does. Decisionmakers will look at things like whether the employer sets the work schedule, whether the worker is allowed to engage in work for other companies, who sets the worker’s wages, whether the worker receives benefits, and whether the worker can refuse tasks. The more independence, the more likely the worker is legitimately an independent contractor.

  1. Why Does It Matter?

Being an employee means having workplace protections against excessive overtime, wage theft, sexual harassment and discrimination, safety violations, and a host of other exploitative practices.  It can also mean eligibility for benefits such as health, disability, and life insurance;  participation in retirement plans, and paid time off. From a tax perspective, taxes on a W-2 are much simpler than taxes on a 1099.

By contrast, being classified as an independent contractor opens a worker up to exploitative workplace practices, without much legal recourse. For example, federal anti-discrimination laws do not protect independent contractors – only employees. So if an independent contractor is being sexually harassed, an EEOC complaint isn’t going to do them much good—no matter how bad the harassment is.

That said, there are some reasons a worker might choose to be an independent contractor. True independent contractors can usually control their hours of work, the type and number of tasks they’ll complete, and how they complete them.

The problem is that, if a worker hasn’t chosen to be an independent contractor, an employer’s misclassification of that worker puts the worker in a position to be exploited and injured without good legal protection. So, workers who suspect they have been misclassified should definitely seek legal counsel.

  1. But I Heard A Different Rule…

Some states (including New York) and municipalities (including New York City) have implemented state statutes and regulations to protect independent contractors. For example, the New York State Human Rights Law extends its anti-discrimination and harassment protections to a variety of non-employees, including vendors, interns, and independent contractors.  Another example, the New York City Freelance Isn’t Free Act, requires anyone employing an independent contractor to enter a written contract which specifies the amount, rate, timing and method of compensation.

These laws form a patchwork across the nation, so something that works in New York City isn’t necessarily going to work in Buffalo or San Francisco. We’ll say it again:  Don’t try this at home. Always contact an experienced workers’ rights attorney in your jurisdiction before making any big decisions.

Conclusion

Understanding the distinction between being an independent contractor and an employee is crucial for workers to protect their rights and access workplace benefits and protections. Some states and municipalities have implemented laws to protect independent contractors, but these laws vary, highlighting the need for professional guidance in navigating worker classification. Because the definition of “independent contractor” can vary, it is easy for employers to misclassify workers. Therefore, workers should seek legal counsel if they suspect they have been misclassified.

217 S. Salina St., 6th Fl.,
Syracuse, NY 13202

T: 315-471-0405
F: 315-471-7849

Attorney Advertising. Prior results do not guarantee a similar outcome. This site is published for informational purposes only and does not constitute legal advice.  This site neither creates nor implies an attorney-client relationship.

Find us on Mastodon: @WorkplaceLawyer@union.place