Using the 'N' Word Illegal At Work

Jury Agrees Use of N-Word by Black Employer Creates Hostile Work Environment for Black Employee.

Alex Granovsky appears on Dealin’ Straight Radio Show

Brandi Johnson, a 38 year old black woman from New York, was recently awarded a $280,000 verdict in her hostile work environment claim which was heard in a Manhattan federal court. Johnson was awarded $30,000 in punitive damages and $250,000 in compensatory damages after the jury agreed with Plaintiff that her boss’ use of the N-word in a workplace tirade was hostile and discriminatory in nature. Johnson’s complaint comes after the founder of East Harlem STRIVE, Rob Carmona, a black male, repeatedly disparaged her with the use of the N-word and other harsh statements during a 4-minute long berating.

Carmona, the founder of STRIVE, defended his actions, testifying that his verbiage was merely tough love with no discriminatory intent. In fact, Carmona referenced “multiple contexts” in his defense, stating the black and Latino communities use the N-word in affectionate contexts.

Johnson testified during the trial that Carmona’s tirade left her feeling offended, hurt and degraded. Johnson she cried for 45 minutes following Carmona’s rant, feeling embarrassed and disrespected. To Johnson’s benefit, she recorded the March 2012 tirade, in which Carmona repeatedly used the N-word. Johnson’s attorney, Marjorie M. Sharpe, played the recording during the trial, allowing the jury to hear for themselves the language used by Carmona to Johnson and to determine whether or not Carmona’s actions were discriminatory and hostile in nature.

Carmona reiterated his sentiment in regards to his intentions of the use of the N-word, stating, "I come from a different time," where “tough love” and “tough words,” including the N-word, were accepted as motivators.

Believing that Carmona used the N-word and create a hostile work environment, jurors awarded Johnson with a favorable verdict. Although some will argue that the N-word is acceptable in certain contexts, the jury verdict reiterates the very offensive nature of using the N-word, especially in a working and professional environment.

If you feel you have been the victim of harassment or discrimination in New York, contact our New York employment law office today.

Paralegal Sues Bankruptcy Firm Over Wrongful Termination

It happens. Sometimes you end up working through lunch. Your boss is pressed for time on a deadline and needs you to lend a hand. When this happens, though, you should be compensated appropriately for your time. Unfortunately, that was not the case according to Carla Muskrath. After more than four years working as a paralegal for California bankruptcy law firm, Simon Resnik & Hayes LLP, Plaintiff was fired and has filed a wrongful termination lawsuit as a result. According to Ms. Muskrath’s allegations, her employer forced her to work through her lunch break and did not compensate her by paying her overtime. In accordance with the Fair Labor Standards Act, employers are required to pay one and a half times an employee’s hourly wage if he/she works more than 40 hours in a week. Ms. Muskrath claimed that during her time at Simon Resnik & Hayes LLP, she was entitled to overtime pay for her work during lunch. When she finally decided to stand up to her employer and begin taking her scheduled 30-minute lunch, she was retaliated against. Plaintiff was promptly fired.

In response, Ms. Muskrath filed a wrongful termination law suit in the Los Angeles County California Superior Court. In her claim, Ms. Muskrath indicates that in addition to not compensating her for overtime, the employer did not keep records of all of the hours that she worked.

It is unfortunate, but these situations occur frequently. Retaliation and wrongful termination can lead to financial and emotional stress. If you feel that you have been wrongfully terminated, contact the experienced NY employment law firm of Granovsky & Sundaresh. You may be entitled to monetary compensation, medical benefits, attorney fees, and more.

Apple Retail Workers Sue Over Unpaid Wages, Overtime

Many retail stores require security bag checks of employees as they are leaving the store on break or ending their shift. But, stand and wait for the inspection for up to 10 minutes when you’re supposed to be getting a break or going home? Many employees find it unfair, but that’s exactly what two former Apple retail store employees are alleging. Amanda Frlekin and Dean Pelle are suing the technology titan, Apple Inc., for back pay. Both plaintiffs claim that they are owed monetary compensation for overtime and unpaid wages. While Frlekin feels that she was not paid approximately $1,500 in wages each year, over the course of her time with Apple, Pelle similarly calculates that he was shorted about $1,400. These sums were based on each employee’s hourly wage and the approximate total time that they spent waiting for security bag checks each week. If this is true, the Fair Labor Standards Act may have been violated by Apple Inc.

According to the Fair Labor Standards Act, nonexempt employees must be paid time and a half (one and a half times the hourly rate) when work exceeds 40 hours in a week. It also demands that all employees be paid at least the federal minimum wage. However, if found guilty, it is possible that Apple has also violated labor laws in the states where the plaintiffs were employed – New York, California, Georgia, and Florida. It is also possible that the lawsuit will be expanded to include numerous Apple retail workers in a class action suit.

Other retail businesses, such as Forever 21 and Polo Ralph Lauren, have already experienced similar lawsuits involving similar accusations by their employees. In the case of Polo Ralph Lauren lawsuit, it was reportedly settled in 2010 for $4 million. Whether the Frlekin and Pelle have a winning case, the message the two are sending is clear – your time is always worth something. If you can relate to this violation of labor laws and feel that you've experienced unfair compensation, contact a knowledgeable NY employment law attorney at Granovsky & Sundaresh PLLC.

Business Owner Found Personally Liable, Employment Law Case Study

The ruling issued by the US Court of Appeals for the Second Circuit against John Catsimatidis is an eye-opener to employers and business owners across the US. By holding Gristedes Supermarket owner, John Catsimatidis, personally liable for a Fair Labor Standards Act class action suit, the Court fundamentally redefined the meaning of ‘employer’ under FLSA guidelines. This ruling sets a new precedence that broadens the interpretation of ‘employer’ and District Courts may now apply this analysis in other contexts, which could have a significant impact on future cases.

Qualifying as an 'employer'

The Catsimatidis case originally began in 2004 as a class action lawsuit against various Gristedes Supermarkets’ corporate and individual defendants by several manager and co-managers working in the supermarket. The plaintiffs in the case claimed they were misclassified as exempt under NYLL and FLSA and were wrongfully denied overtime. Two years of litigation led to a settlement agreement of $3.5M by the supermarket to the plaintiffs in the case with $425,000 paid initially and following with 27-month installment payments thereafter. The defendants in the case defaulted on their settlement obligations and the plaintiffs subsequently sought enforcement of the settlement against Catsimatidis, Gristedes Supermarket owner, personally. The Court found that Catsimatidis qualified as an ‘employer’, and thus, held him personally liable.

The Appeal

Catsimatidis appealed this ruling, stating that he was merely a high-level executive and made only general corporate decisions. Catsimatidis argued that the FLSA defined an ‘employer’ as one who exercises day-to-day decision making within the business and that his role in the company did not qualify under that interpretation. To determine Catsimatidis’ capacity at Gristedes Supermarket, the Court endorsed a ‘totality of circumstances’ versus ‘operational control’ test and found that Catsimatidis exercised decision-making which directly affected the conditions of the employees’ employment and made general managerial decisions, including the responsibility for decisions in respect to employee wages.

What The Decision Means

Although this decision is quite notable because of its broadening definition of ‘employer’ under the Fair Labor Standards Act, this is still a case where circumstances played a significant role in the outcome. Had the corporate defendant not defaulted on their payment obligations, Catsimatidis would not have been held personally liable. Nonetheless, the ruling by the US Court of Appeals for the Second Circuit does prompt much food for thought.

If you think your rights have been violated or have questions about a potential case contact our New York City Employment Lawyers today.

Racial Discrimination in The Workplace: Vance vs. Ball

The rules have now changed in discrimination lawsuits and hostile work environments, as proven in Vance v. Ball State University, the US Supreme Court’s workplace discrimination ruling. In a 5-4 outcome, the US Supreme Court altered the landscape in which employees could sue for discrimination and hostile work environments by narrowly defining what constitutes a ‘supervisor’. The federal court defined a supervisor as one with the ability to hire, fire, demote and discipline in the workplace; specifically, one who is authorized to ‘take tangible employment actions against the victim’.

Accused of Racial Discrimination

In the case of Vance v. Ball State, a racial discrimination case, Maetta Vance accused her supervisor, Sandra Davis, of creating a hostile working environment and claimed racial discrimination. Vance, an African American woman, was the only black employee in the catering department at Ball State University and repeatedly suffered racial harassment by co-workers and workers in superior positions, to include Ku Klux Klan references, physical altercations, and demeaning tasks. Vance’s supervisors investigated the claims, but only provided written and oral reprimands to Vance’s co-workers and the harassment continued.

What is a 'Supervisor'

Under the court’s ruling and definition of ‘supervisor’, Vance’s discrimination case was thrown out, as Vance’s supervisor, Sandra Davis, did not meet the newly defined requirements of ‘supervisor’. Although Davis supervised daily work activities and had the ability to impact employment actions, Davis’ functions did not meet the comprehensive definition set forth by the US Supreme Court, as Davis did not have the authority to fire or demote Vance. In light of this failure to meet the new definition, Ball State University could not be held accountable for the hostile work environment. Vance has appealed this ruling based on the definition of supervisor by the Equal Employment Opportunity Commission. The EEOC defines supervisor as any individual in the position of recommending employment actions and assigning or directing daily work activities.

Currently under the decision of the court, workers such as Maetta Vance will have little to no recourse for discrimination and harassment endured in the workplace. Other victims of discrimination and harassment who find themselves in the shoes of Maetta Vance will find proving their case a much heavier burden since the ruling of the US Supreme Court.

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If you've been treated unfairly based on a protected characteristic such as race you have the right to sue and seek compensation. Contact a New York Discrimination Lawyer to learn your rights.

Recent Supreme Court Case - Pharmaceutical Sales Reps Exempt from FLSA Minimum Wage and Overtime

On June 18, 2012, the United States Supreme Court resolved a split between circuit courts and held that pharmaceutical sales reps engage in “sales” and therefore are exempt under the Fair Labor Standards Act (FLSA). Under the FLSA, “outside salespersons” are exempt from minimum wage and overtime.  The issue for the Supreme Court was whether pharmaceutical reps “sell” drugs to doctors or whether they merely obtain a promise from the doctor to prescribe their employer’s pharmaceutical products.

Plaintiffs argued that because the pharmaceutical rep makes no actual “sales” he/she should not be considered a salesperson.  Plaintiff argued that these reps should be treated as “promoters” and should therefore be entitled to minimum wage and overtime payments.The Department of Labor filed an amicus brief on behalf of the Plaintiffs and took the position that pharmaceutical reps were non-exempt because “[a]n employee does not make a ‘sale’ for purposes of the ‘outside salesman’ exemption unless he actually transfers title to the property at issue.”

The Supreme Court refused to accept the DOL’s interpretation reasoning that such an interpretation would remove from the exemption many sales persons who previously were exempt, and that it was much narrower than regulations and prior case law.

The decision was 5-4.  The dissent agreed that the DOL’s interpretation was not worth much thought that the duties performed by pharmaceutical reps do not amount to "sales" but are promotion activities and are therefore non-exempt.

The case is Christopher v. Smithkline Beecham:

Please contact us if you have any questions about minimum wage or overtime pay.

NLRB Upholds Termination of Employee for Facebook Postings

A National Labor Relations Board Administrative Law Judge ruled last week that a Chicago area car dealership did not wrongfully terminate an employee for his Facebook postings. However, Judge Joel P. Biblowitz also found that the dealership had an overly broad employee policy, and ordered posting of a notice informing employees of their right to engage in protected concerted activity. The case involved two Facebook postings by a single employee.  The employee's first post involved a dealership sales event.  The second post involved an accident at another dealership.

The employee's first post chided the dealership for offering its customers hot dogs and bottled water, and included photos.  The National Labor Relations Board held that this post was protected activity, because the employee discussed with his co-workers how sales could suffer as a result of the apparently "low-rent" offerings.

The second post included photos of an accident involving a car from another dealership that was accidentally driven into a pond.  The National Labor Relations Board found that this post was not a protected activity.

Because the employee was terminated for making the second post, the National Labor Relations Board Judge found that the employee was not terminated for engaging in protected activity, and that the employer was justified in making the decision to terminate.

The bottom line - think before you post.  Or better still, make it your policy to never post about your job or work-related matters.  If you have any questions, contact Granovsky and Sundaresh PLLC.