Architectural Columns

Tag Archives: #attorneynearme

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!

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.

Avoiding the Legal Snare: The Perils of Training Repayment Agreement Provisions (TRAPs)

 

Employers are increasingly using Training Repayment Agreement Provisions (TRAPs) to replace other restrictive covenants such as noncompetes and nonsoliciation agreements. But TRAPs can be even more restrictive—and more exploitative—than noncompetes.  In this article, we’ll explain what a TRAP is and how to avoid getting caught in one.

What is a TRAP?

TRAPs, also known as Training Repayment Agreement Provisions, are contractual terms that employees sign when they are hired. While the wording may vary, a TRAP requires an employee to work for a certain period of time. If the employee separates from service prior to that timeframe (whether they quit or are fired), the employee has to pay back the employer’s training costs, the costs of buying or renting equipment, or the costs of replacing the employee.  Sometimes those fees are prorated depending on how long the employee has worked.

How TRAPs Hurt Employees

TRAPs can be very misleading. Often they don’t state how much the employee will have to pay back, or they don’t disclose interest accrual rates or other information a person would usually be entitled to when entering an agreement that might affect their credit. Sometimes the “training” that an employee is expected to pay for is just the orientation or legally-required videos. Sometimes the fees for such “training” are outrageous – we’ve seen TRAP fees ranging anywhere from $5,000 to $50,000. Some TRAPs accrue interest so fast there is no way an employee will ever repay it. And TRAPs usually don’t provide any exceptions in situations where, the employee quits for reasons beyond their control – like sexual harassment, disability, or lousy working conditions.

A TRAP can reduce an employee’s pay below minimum wage. It can destroy an employee’s credit. Worse, employers use TRAPs as a threat: don’t leave this job or we’ll sue you, destroy your credit, report you to immigration, and make it so you can never find another job. There’s a word for this, and it was outlawed by the 13th Amendment to the United States Constitution. 😡 😡 😡

How To Spot A TRAP

TRAPs are often hidden in piles of onboarding paperwork, so employees might not even realize they’ve signed one. They are commonly used in nursing, trucking, and service industries, but we’ve also seen them in child care and professional contexts.

The only way to know if your employer is trying to get you to sign a TRAP is to read everything before signing. This can be difficult. People get trapped into TRAPs because they are so desperate for a job that they’ll sign anything. But that’s the trap. Employers may be counting on you to sign because you just need the money, and they may pressure you to sign by acting like the job won’t be there if you take your time.

What To Do When You See A TRAP

GET LEGAL ADVICE. TRAPs are illegal in some, but by no means all, jurisdictions—there’s no way to know without consulting an employment law attorney in your area. Legal or not, if someone is pressuring you to sign a document without having an attorney review it, that’s a sign you probably shouldn’t be signing the document. No job is worth your freedom.

Dressing for Success: Workplace Dress Codes, Grooming Standards, and Your Rights

 

Employers may establish dress codes or grooming standards to create a particular image or comply with safety requirements. These workplace rules may require uniforms or simply require a particular type of attire. Companies generally have the authority create these rules, as long as they apply them equally. As long as the dress code does not stifle Union activity, treat certain groups less favorably, or interfere with a reasonable accommodation, then the dress code wins. But there are some exceptions.

1. Union Clothing

Union-related clothing is a great way to show solidarity with your coworkers. In general, an employer can’t just say “don’t wear Union paraphernalia.” But they can prohibit buttons and pins of any type, or make rules about safety, or say that their dress code prohibits wearing t-shirts. The rules on this issue flip-flop approximately every four years, so talk to your Union rep or a workplace lawyer if you are getting called out for wearing that “Respect Our Contract” button.

2. Discrimination

Although employers have the right to implement dress codes, they must do so in accordance with anti-discrimination laws. Any dress code policy that disproportionately impacts certain protected groups may be deemed discriminatory:

A. Gender

The EEOC has concluded that a dress code that requires only women to wear uniforms probably violates Title VII. Historically, dress codes requiring roughly equivalent standards for male and female employees were considered nondiscriminatory if they were enforced equally (for example, neckties for men, skirts for women). But the Supreme Court’s decision in Bostock v. Clayton County has moved the needle, affirming that Title VII prohibits employers from discriminating on the basis of gender identity or sexual orientation.  Under Bostock, dress codes and grooming standards may be discriminatory if they are based on outdated sexual stereotypes.

B. Race

Grooming standards that are harsher on one group than another may be discriminatory. For example, if white men are allowed to wear long sideburns and facial hair but Black men are not allowed to wear afros, the grooming policy may be discriminatory. Many states (including New York) have implemented legislation to prevent discrimination on the basis of hair textures and hair styles that protect hair from damage.

Likewise, if shaving causes you skin problems, you may be able to get a reasonable accommodation allowing you to deviate from an employer’s “clean shaven” policy – but you’ll probably have to ask for it.

C. Reasonable Accommodations for Religious or Disability-related Considerations

If a dress code conflicts with an employee’s religious practices or medical condition, the employee may request an accommodation. The employer is then required to modify the dress code unless to do so would result in an undue hardship.  Caution:  If you don’t request an accommodation, the employer isn’t going to just hand one out.  Also, the employer doesn’t have to provide the accommodation requested, just one that doesn’t cost them too much money.

In case you’re wondering, a dress code that allows pregnant workers to wear maternity clothes does not violate Title VII as long as other employees with medical conditions are allowed to deviate from the dress code as needed.

D. National Origin:

In general, a dress code does not have to be modified to adhere to a person’s national identity. But a dress code that prohibits some kinds of national attire but not others may be discriminatory. For example, if brightly colored clothing is allowed but an employee gets into trouble for wearing Kente cloth, that could be discriminatory.

Conclusion:

This is a rapidly-changing area, so it’s important to get advice from legal professionals or government agencies when it seems like a dress code is cramping your style. Always speak with a qualified workplace attorney in your geographical area to determine whether you have legal protections against your employer’s dress code!

EEOC Update Regarding Workplace Harassment

 

 

 

For the first time in 24 years, the EEOC has updated its guidance on Workplace Harassment.  The guidance, which issued on April 29, 2024, provides new clarifications on duties to protect LGBTQIA+ workers, handling virtual harassment, and newly beefed-up protections against harassment based on pregnancy and religious expression.

In 2020, in Bostock v. Clayton County, the US Supreme Court concluded that Title IX prohibitions against gender discrimination include protections against discrimination on the basis of a worker’s sexual orientation or gender identity. The new guidance clarifies that this also means protections against harassment. New examples of illegal harassment include, among other things, intentionally and repeatedly using the wrong pronouns or name, “outing” a person without their consent, requiring an employee to wear clothes inconsistent with their gender identity, and denying use of a particular bathroom based on gender.

Harassment on the basis of pregnancy is also gender discrimination, and includes denial of reasonable lactation time, giving someone a hard time about contraception or abortion, or being nasty to or about a person because they are pregnant.

Employers have always been required to accommodate sincerely-held religious beliefs; the updated guidance clarifies that some amount of coworker proselytizing is acceptable, but if an employee asks not to be part of the discussion, a failure to honor that request is harassment.

The new guidance also specifies that harassment that occurs via email, social media, chat, videoconference, or other online technology is still harassment.

About 20 states’ AGs have sued to enjoin the guidance, mostly because they are freaking out about the gender identity protections. So far the guidance remains in effect…but stay tuned.

Wondering if this is still a thing? By the time you read this blog post, the whole landscape may have changed. So always, always, always talk to a workplace lawyer in your jurisdiction to determine what applies to your particular situation.

Happy Juneteenth!

     

On June 19, 1865, enforcement of the Emancipation Proclamation reached Galveston, Texas. Union troops posted General Order 3 in various places around town, such as the Customs House and the AME Church. Most enslaved people were aware of the Emancipation Proclamation, but they were still in held in bondage until the Union had enough military presence in Texas to force slave owners to comply. Many first heard the words of General Order 3 from the mouths of their enslavers.

The order includes inspiring language:

“The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor.”

But even General Order 3 didn’t deliver on the promise of freedom. In addition to the above quote, it included language ordering freed people to stay put and work for wages for their former enslavers. Nor was every enslaved person automatically emancipated on June 19. It took the passage of the 13th Amendment on December 6, 1865 to completely abolish slavery in the border states of Delaware and Kentucky.

Nevertheless, Juneteenth is a good time to reflect on our history, celebrate freedom, and recommit to “absolute equality of personal rights and rights of property.”

Wishing you a safe, cool, and free Juneteenth!

Pregnant Workers Fairness Act UPDATE

The EEOC has issued final rules clarifying how the Pregnant Workers Fairness Act (“PWFA”) is implemented. Those rules go into effect on June 18, 2024. These regulations clarify the availability of accommodations for limitations arising out of pregnancy, childbirth, and associated conditions.  

Employers don’t have to grant every accommodation request, just those accommodations that are “reasonable.” Without getting into a long discussion of how “reasonableness” is determined by legal decisionmakers, suffice it to say that accommodation requests often get watered down or negotiated out of existence.  These guidelines help set a baseline.

Predictable Assessments: The new rules are exciting because they propose four accommodations that are presumed reasonable—meaning that, if the employer wants to deny them, the employer has to prove that they aren’t reasonable. Those accommodations are: 1) keeping water nearby and breaks for drinking (for example, having a water bottle); 2) additional restroom breaks; 3) allowing standing, sitting, and alternating positions; and 4) allowing additional eating/drinking breaks. These accommodations are called “predictable assessments.”  

 

Limits on seeking additional documentation: Employers should not be seeking additional documentation in the following circumstances:  1) The need to adjust the workplace is obvious (for example, needing a larger uniform); 2) The employee has already provided sufficient information; 3) The employee is requesting one of the predictable assessments; 4) The employee requests time to pump or nurse; or 5) Non-pregnant or nursing employees would not be required to provide documentation for the same accommodation. 

 

New York Workers: Meanwhile, New York Pregnancy protections are gearing up. On June 19, 2024, New York employees will be entitled to a paid[1] 30-minute lactation break “each time such employee has reasonable need to express breast milk for up to three years following child birth.” While some employers are already wringing their hands about how often the need to pump might be “reasonable,” there is similar language in the FLSA (“a reasonable break time…each time such employee has need to express milk…”) 29 U.S.C. §218d (a)(1). Additionally, under New York’s Paid Prenatal Leave, on January 1, 2025, pregnant New York workers will be entitled to 20 hours of paid prenatal leave per calendar year, at the regular rate of pay, to be used to attend prenatal doctor’s appointments. This leave is in addition to New York statutory paid sick leave.  

 

Always contact a reputable workplace rights attorney to understand how new developments affect your rights! 

 

[1] This beats out the Federal PUMP Act, which only requires unpaid leave, unless the employee is not completely relieved from duty during the pump break.

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