Have you been denied employment due to a previous conviction?
If you’ve ever been convicted of a crime, you understand how hard it can be to move on and get your life back on track. Often, people who have been convicted of a criminal offense find that it can be very difficult to obtain employment – or to keep their job once their employer finds out about their checkered past. But there is hope.
In New York, it is generally unlawful for an employer to discriminate against an employee – or even a potential employee – based on that person’s prior conviction unless there is either a direct relationship between a prior conviction and the employment, or when continuing or offering employment would involve an unreasonable risk to property or safety.
So for instance, if you are a construction worker who was convicted of shoplifting, it would generally be unlawful for your job to fire you on those grounds. On the other hand, if you are an accountant and have in the past been convicted of an accounting fraud, you might have difficulty finding or keeping a job in your field.
If you have been convicted of a crime, and you believe you have lost or been denied employment as a result, you can contact us to speak with an attorney and see how we can help.
CONSTRUCTIVE DISCHARGE (OR HOW MUCH MUST I SUFFER BEFORE I CAN QUIT MY JOB)
Many of our clients, who are the victims of employment discrimination, find themselves in the difficult position of either having to endure the stress and torment of the discriminatory conduct or quitting before they are terminated, or can make a proper record that they were forced to quit to avoid the mistreatment. Indeed, many employers who discriminate will purposefully not terminate the victimized employee, hoping that the employee will just get fed up and leave on their own accord, relieving the employer of any liability for the discriminatory conduct, along with the added bonus of not being assessed for unemployment insurance payments.
Fortunately, the law permits the victimized employee to quit under certain circumstances, while still preserving their claims for discrimination or retaliation. These situations are known in law as either “involuntary resignation” or “constructive discharge”.
In order for a victimized employee to prove that he or she was constructively discharged, he or she must show that a reasonable person in their shoes would have felt compelled to resign. In assessing this proof, the Courts will consider the relevancy of all of the surrounding events of the employment before the resignation, including, but not limited to, demotions, reductions in salary or commissions, the removal of territories, a reduction in job responsibilities, the performance of work well below their previous job duties, or reassignment to a younger or less-experienced supervisor. The Courts will also look at whether the employer encouraged the employee to resign, made offers of early retirement, or offered less-favorable continued employment.
If you are suffering, or have suffered, one or more of the foregoing events as a result of discrimination, your job environment may be deemed so hostile and offensive as to constitute a constructive discharge, making you eligible for a proper wrongful termination claim despite the fact that you have not been officially fired.
To learn more about your eligibility for constructive discharge, call us for a consultation at (918) 848.7778
Retaliation in the Workplace After Sarbanes-Oxley, Dodd-Frank Wall Street Reform and Consumer Protection Act
Under federal law, employees of publicly-traded companies are often protected against retaliatory actions when they report certain types of fraud and other illegal activities. Congress enacted the Sarbanes-Oxley Act of 2002 (commonly referred to as “SOX”) in order to prevent securities fraud and alleviate investment concerns. This law applies to employers required to register with the Security Exchange Commission (SEC) under the Security Exchange Act, or required to file reports under the act. It also applies to private companies acting as contractors, subcontractors, or agents of publicly traded companies.
Under SOX, a publicly traded company may not discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee: (1) for assisting in an investigation or providing information to a federal agency, a member of Congress, or a supervisor at work regarding the violation of an SEC rule or federal securities fraud; and (2) for filing, testifying, or participating in a proceeding filed or about to be filed. Examples of protected reported information are shareholder fraud, mail fraud, wire fraud, accounting fraud, employer’s non-disclosure of accurate financial statements to investors, employer’s improper entries on financial statements, and alteration of delinquency reports.
An employee who prevails in proving their retaliation may be awarded back pay with interest, compensatory damages, litigation costs, expert witness fees, and attorney fees.
As an expansion to SOX, the Dodd-Frank Wall Street Reform and Consumer Protection Act (commonly referred to as “Dodd-Frank”) was enacted in 2010. Dodd-Frank provides employees with protections not covered by SOX. It provides that no employee may be terminated, or in any other way discriminated or retaliated against, for initiating or acting within his/her duties to: (1) provide or about to provide, information to the employer, the Bureau of Consumer Financial Protection (commonly referred to as “the Bureau”), or any other state, local, or federal government authority or law enforcement agency relating to any violation of the Act or any other provision of law that is subject to the jurisdiction of the Bureau, or prescribed by the Bureau; (2) testify or will testify in any proceeding resulting from the administration or enforcement of any provision of the Act or any other provision of law that is subject to the jurisdiction of the Bureau, (3) file or institute any proceeding under any federal consumer financial law; or (4) object to, or refused to participate in, any activity, policy, practice, or assigned task that the employee reasonably believed to be in violation of any law, rule, order, standard, or prohibition, subject to the jurisdiction or enforceable by the Bureau.
If you have raised concerns about corporate fraud and are worried about retaliation, you can contact our firm at (918) 848.7778 for a confidential discussion with an attorney confidentially.
U.S. Equal Employment Opportunity Commission (EEOC) Protocol – How to Pursue a Discrimination Claim
When pursuing a discrimination claim, in violation of federal law, you must exhaust all of your remedies with the EEOC before you can file a private lawsuit.
If your employer has 15 or more employees, and you believe you have been discriminated against by your employer while on the job or while applying for a job because of your race, age (40 or older), gender (including pregnancy), sexual orientation, color, religion, national origin, or disability, in violation of federal law, you must file a charge of discrimination with the EEOC. However, if you plan to bring a lawsuit under the Equal Pay Act, you may go directly to court without filing a charge with the EEOC.
First, either visit the New York EEOC office or contact the EEOC to file a charge. The New York office is located at 33 Whitehall Street, 5th Floor, New York, NY 10004 and the phone number is 1-800-669-4000. An interview will be conducted to better understand the facts of your claim and assess whether your employment experiences are covered under the laws in which EEOC enforces. You also have the option of filling out an online assessment form, https://egov.eeoc.gov/eas/. You have 300 days, from the date of the alleged harm, to file a charge with the EEOC.
However, if your employer has less than 15 employees, and you believe your employer, in violation of state law, has discriminated against you, it is unnecessary to file a charge with the EEOC, and an action may be brought directly in state court. You may contact us immediately to pursue a private lawsuit. In this case, you have 365 days, from the date of the alleged harm, to bring a lawsuit against your employer.
For more information on how to file a charge with the EEOC, you can visit their website: https://www.eeoc.gov/employees/howtofile.cfm.
Second, once you file a charge, you may be asked to try and settle the dispute through mediation. Mediation is an informal and confidential way to try and resolve the situation with your employer with the help of a neutral mediator. However, if the mediation is unsuccessful, or if the case is not sent to mediation, the EEOC will begin an investigation into your case.
Third, if the investigation finds no violation of the law, the EEOC will give you a “Notice of Right to Sue” letter, which gives you permission to file a suit in a court of law. However, if the investigation does find a violation of the law, the EEOC will try to settle with your employer. If a settlement cannot be reached, the EEOC’s legal team will determine whether the EEOC should file a lawsuit. If the EEOC decides not to file a lawsuit, it will issue you a “Notice of Right to Sue.”
Lastly, if you receive a “Notice of Right to Sue,” you must file your lawsuit within 90 days. However, if you plan to file an age discrimination lawsuit, you do not need to wait for a “Notice of Right to Sue.” You may file a lawsuit anytime after 60 days from the day you filed your charge.
If you want to file a lawsuit before the investigation is complete, you can request a “Notice of Right to Sue.” If more than 180 days have passed since you filed your charge, and you make a written request to the EEOC for a “Notice of Right to Sue,” the EEOC is required to give it to you if they cannot finish the investigation within the 180 days. Once the EEOC gives you a “Notice of Right to Sue,” it will close your case and take no further action.
If you have received a “Notice of Right to Sue” and you want to pursue a private lawsuit, you can contact us at (918) 848.7778 for further assistance.
(Written by Jasmine Madiou)
Can Your Employer Fire You For Being Pregnant?
Many women wonder if they can be fired for being pregnant. Thankfully, in New York, the plain and simple answer is, no. Both New York State and Federal law prohibit gender-based discrimination generally, and, more specifically, pregnancy-based employment decisions.
Pregnancy discrimination occurs when a woman is discriminated against because of their pregnancy or intention to become pregnant. Examples of such discrimination include not being hired, being terminated, being demoted or having your hours and wages reduced, or denied a promotion.
You are protected from discrimination while pregnant so long as you can satisfactorily continue your job functions and responsibilities. Furthermore, if you are unable to perform your duties due to your pregnancy, your employer must modify (or accommodate) your tasks until you are able to return to your regular duties. Additionally, under the Family Medical Leave Act (FMLA), depending on the number of employees in the company, you are entitled to maternity leave so long as you have been employed for at least 12 months, and worked at least 1,250 hours in the last 12 months of employment. If eligible, you must receive up to 12 weeks of unpaid leave and health insurance from your employer. Some employers offer full or partial paid leave. Your employer must also leave your position open for your return at least as long as they do for non-pregnant disabled employees.
If your employer is targeting you because of a pregnancy, it is important to keep a record of every negative incident and comment. As always, it is also important to continue to do good work and keep a record of your performance. If, for instance, you believe that you were fired because of your pregnancy, and your employer, as a pretext, says that you were terminated because of your performance, it is helpful to have documentation and performance reviews to prove what you already know..
If you believe you have been discriminated against in the workplace as a result of your pregnancy, you may contact us for a confidential consultation regarding your rights at (918) 848.7778.
A FOOT IN THE DOOR: PIERCING THE IN-HOUSE ATTORNEY-CLIENT PRIVILEGE
Many of our clients who have been wrongfully discharged from their corporate jobs find themselves victimized again when their former employers attempt to cloak their non-legal communications — often revealing the true reasons for the termination — by involving in-house counsel in their communications and correspondence to claim attorney-client privilege. This wall of silence, which for years has shielded corporate employers from having to disclose these communications in discovery to the employees, has, in recent years, begun to erode.
This article sets forth the genesis of the corporate in-house counsel privilege rules and the recent court-devised exceptions that have begun to curtail this insidious practice.
Since the Supreme Court held in Upjohn v. United States, 449 U.S. 383 (1981) that the attorney client privilege could apply to in house counsel, corporations have pushed the boundaries of the attorney-client privilege. For example, corporations have strategically placed their in house counsels to be part of the decision making with respect to marketing, advertising, scientific research, and public relations, thereby invoking the privilege over communications concerning virtually all corporate matters, be they legal or non-legal in nature. In response, courts are beginning to limit corporations’ use of the in-house attorney-client privilege, giving plaintiffs a way to bring critical communications out of the shadows and into the courtroom.
1. Communications Disseminated to Third-Parties
The attorney-client privilege covers communications that are “made for the purpose of seeking legal advice”. If an employer discloses privileged legal communications he or she has learned from in-house counsel to a third party, that disclosure may be deemed to have waived the attorney client privilege, as the revelation of attorney communications to non-clients are generally not being made for the purpose of seeking legal advice. Instead, such communications are deemed to be the sharing of information that courts have considered to be non-privileged.
2. Communication That are Non-Legal in Nature
Another area where courts are limiting the in-house attorney-client privilege is where the communication in question involves non-legal subject matter. Corporations often operate under the assumption that because a matter is spoken to an attorney, that this communication is automatically privileged. In many jurisdictions, this is no longer the case. If an employer is trying to invoke the privilege with regard to communications that served anything but a “primary legal purpose,” the courts are now finding the privilege inapplicable. This rule is especially valuable in the area of employment law because communications that reveal the reasons for an individual’s termination are generally shared with in-house counsel, but often are not communications where legal advice is requested or divulged. Indeed, many times off-hand comments or casual conversations are a useful source for proving wrongful termination, and, should not receive the privilege’s protection.
3. Electronic Communications
Courts are also piercing the attorney-client privilege where the privileged communications are made through email. Typically, corporate managers are simply “cc-ing” corporate counsel on emails and later claiming those emails privileged. Courts generally approach the privilege in the email context as they would any other face-to-face communication. Therefore, if either the email was not written for the purpose of seeking or receiving legal advice, or if the email was shared with any employees without a strict “need to know” the email will not be privileged.
In sum, while the in-house attorney-client privilege is a powerful tool for corporate employers to thwart the discovery of the grounds for an employee’s discharge, the courts are beginning to limit its use. Using the above court-devised exceptions, employees can successfully force corporate employers to disclose revealing communications regarding the real reasons for an employee’s termination.
If you have recently been discharged by your employer, and believe that closed door discussions could reveal the true (and unlawful) reasons for your termination, your claims may now be more valuable as employers begin to perceive the risk that their communications may no longer be uniformly protected.
Can Your Potential Employer Ask About a Prior Arrest?
When I was a public defender, I was often asked for advice on whether a potential employer is allowed to question an applicant about their criminal history. In New York, the answer is yes, an employer can ask about your criminal past, but only whether you have actually been convicted of a crime. Employers are not allowed to ask you whether you’ve ever been arrested and you are not required to tell them about any prosecutions that ended in your favor (generally by dismissal or acquittal). Similarly, while an employer is free to conduct a “background check” of any potential hire, investigative and credit agencies are only allowed to report convictions, not arrests (unless the prosecution is currently pending).
The reason for this distinction is the fundamental basis of our criminal justice system: “Innocent Until Proven Guilty.” The law recognizes in most instances that an arrest, in and of itself, is proof of nothing, and citizens should not suffer any undue civil consequences just because they have been arrested. That is why the “burden” is on the prosecution to prove the defendant’s guilt “beyond a reasonable doubt.” Anything less is unconstitutional.
While the merits of basing a hiring decision on an applicant’s criminal history – regardless of how serious the offense was or how long ago it was committed – are debatable, Massachussetts recently became the second state to take that debate away from employers by enacting a “ban the box” law. (Hawaii was the first.) Under such laws, most employers are not allowed to use criminal history check boxes (hence the name) or inquire from initial applicants whether they have even been convicted of a crime.
Meanwhile, back in New York, my advice to those wondering how to handle criminal history questions during an interview was, and is: be honest and be professional. Try to understand why the employer is interested in the answer, and do your best to distinguish yourself and your situation from their concerns.
(Written by Benjamin Leftin)
Is Your Non-Compete Agreement Enforceable?
Good employees often become handcuffed to their employers by means of non-compete agreements. The use of such agreements, however, can hinder the growth and efficiency of our economy and the employees themselves. We all suffer as a result. Luckily, in New York, as in most other jurisdictions, non-compete agreements must be limited in scope and duration, and therefore it is possible in some situations for an employee to “break” a non-compete agreement and free themselves from its shackles.
Where a non-compete agreement is at issue, the Courts are chiefly concerned with whether such an agreement is “reasonable”. Accordingly, they try to balance the employee’s need to earn a living within their chosen profession against the employer’s legitimate need to protect its own interests., the most prominent of which is keeping their trade secrets confidential. With this in mind, Courts generally look to the following factors when assessing a non-compete agreement.
1.Duration of the agreement
Does the agreement prevent the employee from working for a competitor for one year? Two years? Ten years? As a matter of public policy, the courts generally disfavor restrictions that last for more than two years. At that point, they reason, any privileged information that the employee possessed would be stale and virtually useless to a competitor.
2. Geographic Scope
Courts will generally only enforce a non-competition agreement against an employee within the geographic area that the company and the employee realistically competed, usually deemed to be a 10-25 mile radius in New York. In some instances, it may be far greater. For instance, the Chief Executive Officer of an international software firm may reasonably be restricted from becoming the Chief Executive Officer of another international software competitor, regardless of location. A local salesperson, on the other hand, will generally only be restricted from selling products within the area where they worked before.
3. Scope of Activities
Bearing in mind the employer’s concern for protecting its trade secrets, the courts will generally only enforce a non-compete agreement when the employee’s responsibilities included exposure to confidential information. Because a secretary has less access to confidential information than a salesperson, a secretary will be less restricted in their future employment than the salesperson. There is less likelihood that the secretary will disclose trade secrets at their next job. Similarly, non-compete agreements will generally only be enforced to prevent actual competition. Therefore, a person who sells medical devices in a certain area should not be prevented by a non-competition agreement from selling cars in the same area. In sum, the Courts have recognized in certain instances that because greater competition results in lower prices and better products and services for the consumer, the public interest is served by allowing employees to freely compete.
If you are looking to change jobs, and believe that you have a non-competition agreement that may restrict your ability to work in your field and/or geographic location, or your new prospective employer wants you to sign a non-compete agreement, contact us for a consultation to determine the legality of these non-competition agreements.
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