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Federal Workers: What Now?

March 7th, 2025 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, Federal Workers, New York, NY., Syracuse, Workplace Rights, Wrongful Termination |

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A group of professionally dressed men and women stand together in a modern office setting with stairs in the background. They are diverse in age, gender, and ethnicity, with confident and friendly expressions. A blue graphic overlay includes text that reads "New Blog - Federal Workers: What Now?" Below the main text, a website link is provided: "Read More: www.satterlaw.com/blog"

If you are a federal worker, first things first: You’re not crazy. What’s happening is completely bizarro-land.

            Now that we’ve got that clear, what do you do?

The lawyer answer (sorry) is: It Depends. The reality is that tons and tons of these terminations are illegal, but there are different ways they may be illegal.

For example, career civil service workers – even probationary employees – are protected by merit systems principles, which include protection from “arbitrary action, personal favoritism, or coercion for partisan political purposes.” 5 U.S.C. § 2301(b)(8). (That’s a federal statute right there btw, not some loosy-goosy theory about fair treatment. It’s the actual law.) Because of this requirement, there are procedures that agencies have to follow when they are terminating a bunch of people to cut costs, otherwise known as a Reduction In Force or “RIF.” RIFs are governed by a procedure for making sure that terminations are made based on merit system factors, for example, examination of performance ratings and length of service. 5 U.S.C. §3502. Federal employees who are getting RIF’d are supposed to get 60 days’ notice and information about rights to reemployment and career transition assistance before the termination goes into effect.

Additionally, many Federal employees are union members, and as such have additional protections including a statute that requires a union contract to provide grievance procedures. 5 U.S.C. §1721(a)(1). Another source of protection is in the federal civil rights laws prohibiting discrimination, such as Title VII, Rehabilitation Act (prohibiting disability discrimination), and Age Discrimination in Employment Act (ADEA).

            What to do?

OK first, re-read the first sentence of this article. This is legit Wacky-land and you are legit encountering stuff that could have been dreamed up by Salvadore Dali. Or Kafka.

Second, call your union. As of the writing of this article, an AI-assisted search (so take this with a grain of salt) states that there are currently 101 class actions involving federal workers. Your union will know if you’re part of one of these. If you’re not, see if there are other ways your union can help you, such as filing a grievance.

If you’re not union, or if the union can’t help with your particular situation, get hold of a reputable workplace lawyer. For sure it’s expensive. This is your livelihood.

Whatever you do, don’t just assume there’s nothing you can do. There are super-talented, intelligent people fighting for your rights. Make sure they know your situation so they can help you plan your next step.

It’s (Probably) Not Wrongful Termination If You’re Not Terminated.

February 18th, 2025 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, New York, NY., Syracuse, Workplace Rights, Wrongful Termination |

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A promotional image for a new blog post features a man in a suit holding a cardboard box filled with office supplies, including binders, folders, and notebooks. The text overlay reads: 'NEW BLOG POST' in large, bold black letters. Above this, within a speech bubble-like shape, the text says: 'It's (Probably) Not Wrongful Termination If You're Not Terminated.' At the bottom, the website URL www.satterlaw.com/blog is displayed.

 

Employees who feel they are about to be fired for illegal reasons sometimes choose to quit, thinking it will spare them the embarrassment of being terminated. In other cases, employers might try to avoid firing an employee by making the workplace so hostile that the employee feels forced to resign.

What many employees don’t realize is that quitting can cost them the opportunity to file a wrongful termination case against their employer. To pursue a wrongful termination claim, you must prove that you were actually terminated.

In New York State, a wrongful termination claim requires the employee to demonstrate the following:

  1. They are part of a recognized protected class.
  2. They were qualified for the position in question.
  3. They were discharged.
  4. Their discharge occurred under circumstances that suggest the motivation for the termination was prohibited by law.

However, if you voluntarily quit your job, you may lose your ability to pursue a wrongful termination claim. That’s because you can no longer demonstrate that you were discharged, which is a necessary element of the claim. In most cases, if you’re not terminated, you cannot claim wrongful termination.

Additionally, only a small percentage of individuals who quit their jobs will meet the requirements to successfully bring a constructive discharge lawsuit. Proving a constructive discharge case is difficult, and it’s often challenging to demonstrate that the work environment was so intolerable that resignation was the only option.

If you feel that your employer is about to illegally fire you, or if you’re dealing with a hostile work environment, it’s crucial to consult an employment attorney before you make any decision, especially before quitting. Quitting could significantly impact your legal rights.

 

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

February 6th, 2025 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, New York, Remote Work, Syracuse, Workplace Rights |

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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?

February 4th, 2025 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, Legal Consultation, New York, Syracuse, Uncategorized, Workplace Rights |

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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

November 12th, 2024 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, New York, Syracuse, Women's Rights, Workplace Rights |

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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

Know Your Rights: A Guide to Workplace Privacy for Employees

October 15th, 2024 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, New York, Syracuse, Workplace Rights |

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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.

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

August 13th, 2024 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, New York, Non-Compete Agreements, Syracuse, Workplace Rights |

Tags: , , , , , , , , , , , , ,

 

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.

Pregnant Workers Fairness Act UPDATE

June 10th, 2024 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, Workplace Rights |

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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.

Federal Protections for Pregnant Workers Under the PWFA

May 28th, 2024 by Sarah Ruhlen

Posted in Advocating for Coworkers, Ask A Worker's Rights Attorney!, Workplace Rights |

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This is the 1-year anniversary of the passage of the Federal Pregnant Workers Fairness Act [“PWFA”], which went into effect on June 27, 2023. The EEOC has issued guidance on how it works, and final rules are due out any minute. What should employees know?

 

The PWFA prohibits employers from requiring employees to take leave if another accommodation would let them keep working, denying employment opportunities on the basis of the need for a reasonable accommodation, and interfering with or retaliating against employees who are exercising their PWFA rights.

 

The PWFA requires employers with 15 or more employees to provide reasonable accommodations to workers with limitations related to pregnancy, childbirth, or related medical conditions. Unlike previous pregnancy discrimination statutes, these requirements apply even if the pregnancy is uncomplicated or the limiting condition existed prior to the pregnancy. Additionally, an employee who is “temporarily” unable to perform the essential functions of the job is still considered “qualified” to do the job if they could perform the essential functions “in the near future.” No one knows exactly what these terms mean, so we’re waiting for the  regulations to give some indication.

 

Employers only have to accommodate “known limitations,” which means if you don’t tell the boss about the limitation, and they can’t see it, they don’t have to accommodate it. Technically, you don’t have to say “PWFA,” but it might be good idea to use the term to make sure the HR person knows what you’re talking about. Also, while there is some duty for the employer to detect obvious limitations, you shouldn’t count on the boss going out of his way to allow you to sit/stand or take frequent breaks if you don’t explain why you need them.

 

The EEOC says that four accommodations should be almost always granted: carrying and drinking water as needed, additional bathroom breaks, sitting and standing, and breaks to eat and drink. The key word here is “almost.” Remember, “reasonable” means that the accommodation does not impose an “undue hardship” on the employer, so if the requested accommodation is going to cost a lot of money or be disruptive to operations, it might not be considered “reasonable.”

 

Do some of these requirements sound familiar? That’s because in some cases, pregnant workers had protections under Title VII and the ADA (as well as various state and local laws). But the PWFA enhances, broadens, and clarifies those protections.

 

This is a new law with new regulations, so contact a reputable workplace attorney to make sure you have up to date information about your rights under the Federal Pregnant Workers Fairness Act!

Meet Margaret!

April 4th, 2024 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Internship, Meet Margaret!, Syracuse University |

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Meet our Spring 2024 intern, Margaret Grinnell, who is a part of Professor Grant Reeher’s Political Science Internship course at Syracuse University. Margaret is in her final semester at Syracuse, studying International Relations, and is drawn to areas of civil law.

Margaret has had the opportunity to volunteer for the Central Virginia Legal Aid Society in her hometown of Charlottesville, Virginia. In this role, she completed paralegal work in the family law division, helping to support attorneys provide free legal assistance to low-income clients. At Syracuse, she completed a research assistantship with the Muslim Family Law Index Project, assessing legal reform in fifty-three countries. Through these experiences, Margaret gained a passion for legal accessibility and research.

At Satter Ruhlen Law Firm, Margaret is learning about the continuing evolution of labor law legislation, and is developing an interest in advocating for employee rights. She has observed depositions, interacted with clients, and participated in discussions of case law. Different from her previous experiences, at Satter Ruhlen, Margaret has gained a new perspective in the legal field, researching and learning about how employees and unions are protected under the law.

Margaret says her experience at Satter Ruhlen has given her clarity and confidence in her plans to move forward with a career in law. She notes, “Observing the diverse caseload at the firm has allowed me to understand different legal procedures which has enriched my legal understanding.”

We’ve certainly enjoyed having Margaret with us this semester, and we’re excited to watch her pursue a legal career!

 

 

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