New York Employment Lawyer Blog

In Millea v. Metro-North Railroad Company (Aug. 8, 2011), the Second Circuit Court of Appeals (Federal Court covering New York) found that a "material adverse employment action" in the context of a Family Medical Leave Act ("FMLA") retaliation claim should be broadly defined to include any action "that is likely to dissuade a reasonable worker in the plaintiff's position from exercising his legal rights."

The Plaintiff, an employee who took intermittent FMLA leave for panic attacks related to post traumatic stress disorder, alleged that his employer retaliated against him for taking FMLA leave by; 1) placing a notice of discipline in his employment file for a year; 2) requiring him to update his FMLA certification; 3) creating a work environment that motivated him to transfer to a lower paying job; 4) delaying approval of his bid for the lead custodian position; and 5) subjecting him to heightened managerial surveillance.

The trial court had instructed the jury that an "adverse employment action" is defined as a "material adverse change" in the employee's terms and conditions of employment, such as "termination, demotion, loss of benefits, or significantly diminished responsibilities." Following these instructions, the jury found that the Plaintiff failed to show that an adverse employment action took place.

However, the Second Circuit disagreed, and held that an adverse employment action within the context of an FMLA retaliation claim was not limited to a material change in the terms and condition of employment, but rather also encompassed any action "that is likely to dissuade a reasonable worker in the plaintiff's position from exercising his legal rights." This means that employees bringing FMLA retaliation claims now have a much lower threshold to meet.

If you believe that your employer retaliated against you for exercising your rights under the FMLA, it's smart to immediately contact a New York City employment attorney to preserve your rights.

On May 9, 2011, The National Labor Relations Board ("NLRB") issued a complaint alleging that Hispanics United of Buffalo, Inc., a New York non-profit organization that provides social services to low-income clients, unlawfully discharged five employees after they complained about their working conditions in a Facebook discussion.

In this case, an employee was scheduled to meet with management to discuss working conditions. The day before the meeting, the employee posted on her personal Facebook page a comment by a co-worker that employees were not doing enough to help the organization's clients. Other employees posted comments, in which they defended their performance, and criticized working conditions, staff levels and workloads. When the employer learned of the postings, it fired the five employees who made the comments on the basis that their comments constituted harassment of the co-worker originally mentioned in the post.

However, the NLRB alleges that the Facebook discussion among coworkers, addressing working conditions like performance and staffing, constituted protected concerted activity within the meaning of Section 7 of the National Labor Relations Act ("NLRA") because it involved a conversation among co-workers about their terms and conditions of employment. The NLRA provides that "employees shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection." 29 U.S.C. § 157.

It is well established that the NLRA's protection extends beyond the context of labor unions. Speech of an individual employee is "concerted" as long as it is engaged in with the object of initiating or inducing group action. N.L.R.B. v. Caval Tool Div., 262 F.3d 184 (2d Cir. 2001). When an individual expresses dissatisfaction with terms and condition of employment in front of his fellow employees, "the object of inducing group action need not be express." Timekeeping Sys., Inc., 323 NLRB 244, 247 (1997).

The courts and the NLRB have repeatedly found that individuals who challenge working conditions through online conversations are engaged in concerted activity. In Care Ambulance Service Inc. and Elizabeth Tello, an Individual, 2007 WL 3070947 (2007), two employees were exchanging email messages that involved shared concerns about working conditions, including their concern that other employees were receiving preferential treatment from management. The NLRB found that because the employees' "were voicing their concerns for the purpose of mutual aid or protection activity," the email exchange fell comfortably within the definition of concerted activity.

In American Postal Workers Union and Cheryl Alves, an Individual, 2006 WL 2559848 (2006), another case involving conversations online, the NLRB found that the purpose of the employees' emails was to express their concerns that they, as field employees, were being treated differently than headquarters employees. Since the employees' online activity directly related to their conditions of employment, it also constituted protected concerted activity under the NLRA.

If you believe that your employer retaliated against you for engaging in some "concerted activity," it's smart to immediately contact a New York employment attorney to preserve your rights.

On January 24, 2011, in Thompson v. North American Stainless, LP, the United States Supreme Court held that an employee who does not directly engage in a protected activity can still assert a claim for retaliation under Title VII of the Civil Rights Act as someone who falls within the "zone of interests" of protection afforded by the statute. More specifically, the Court found that an employee who was fired after his fiancé filed a sex discrimination charge with the EEOC could bring a claim for unlawful retaliation under Title VII.

In this case, the Plaintiff and his fiancé both worked for Defendant. The Plaintiff's fiancé filed a charge of discrimination with the EEOC, and three weeks later, the Defendant terminated Plaintiff's employment. The Plaintiff thereafter brought a lawsuit under Title VII, claiming that he was fired in retaliation for his fiancé filing her complaint. The Defendant argued that only the employee who actually complained could sue - not the complaining party's fiancé.

The Supreme Court held that "Title VII's anti-retaliation provision must be construed to cover a broad range of employer conduct." The statute "prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The Court then noted, "We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired." In other words, the purpose of Title VII's anti-retaliation provision would be undermined if an employer could simply fire a third party to punish an employee who complains about discrimination.

The Court determined that an employee is thus eligible to bring a Title VII claim when that person "falls within the 'zone of interests' sought to be protected by the statutory provision." Since Title VII was meant to protect employees from unlawful actions by their employers, and the Plaintiff was an employee of Defendant, the Plaintiff was protected by the statute.

However, the Court also stated: "Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. . . . Given the broad statutory test and the variety of workplace contexts in which retaliation may occur, Title VII's anti-retaliation provision is simply not reducible to a comprehensive set of clear rules." In layman's terms, there is no bright line test for determining who is protected from retaliation under Title VII.

As we now know that third parties have standing to sue for retaliation under Title VII, it's more important than ever for employers to consult with a New York employment attorney before taking any adverse employment action against a spouse, fiancé, or family member of an employee who recently complained.

In El Sayed v. Hilton Hotels Corporation (Dec. 17, 2010), the U.S. Court of Appeals for the Second Circuit (Federal court covering New York) held that temporal proximity alone is insufficient to support a claim of retaliation under Title VII.

In this case, the Plaintiff, a hotel employee of Egyptian descent, alleged that the Defendant violated Title VII when it terminated his employment in retaliation for complaining about a co-worker's derogatory comment concerning his background and religion. More specifically, the Plaintiff claimed that he was terminated approximately three weeks after he complained to the Defendant that a co-worker referred to him as a "Terrorist Muslim Taliban."

The Defendant stated that the Plaintiff was not terminated based on his complaint about the co-worker's comment, but rather, was terminated based upon the fact that the Plaintiff had failed to disclose certain information on his employment application - an omission that constituted grounds for dismissal under the Defendant's employment policies.

When analyzing unlawful retaliation cases, the courts use a burden-shifting standard, which first requires the employee to make out a prima facie case of retaliation under Title VII. However, making out a prima facie case establishes only a rebuttable presumption of retaliation. The burden then shifts to the employer to articulate a legitimate non-retaliatory basis for the adverse employment action. At this point, the burden shifts back to the employee to come forward with evidence establishing that it is more likely than not that the employer's decision was motivated, at least in part, by a retaliatory animus. In other words, the employee must produce some evidence showing that the articulated reason for the adverse employment action is merely an excuse to cover up the real unlawful reason - that the articulated reason is "pretext."

Here, by demonstrating temporal proximity between his complaint about the derogatory comment and his discharge, the Court found that the Plaintiff established a prima facie case of retaliation under Title VII. The Court also accepted the Defendant's explanation of the legitimate non-retaliatory reason for the Plaintiff's termination. However, the Court found that because the Plaintiff had produced no evidence of pretext, his claim of retaliation must fail.

The Second Circuit explained: "The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy [the plaintiff's] burden to bring forward some evidence of pretext. Indeed, a plaintiff must come forward with some evidence of pretext in order to raise a triable issue of fact. In this case, [the plaintiff] produced no evidence other than temporal proximity in support of his charge that the proffered reason for his discharge was pretextual. Additionally, [the plaintiff] concedes that he omitted certain employment history from his application to work [for the defendant], and has not disputed the [the defendant's] assertion that this omission was grounds for termination under [the defendant's] employment policies."

Although this decision was favorable to employers, we believe it is always smart for employers to consult with a New York City employment attorney before terminating or disciplining an employee who has recently complained.

The New York Wage Theft Prevention Act (the "Act") was signed into law today by Governor Paterson. The Act, effective April 12, 2011, amends the New York Labor Law to provide new protections for employees in New York, as well as stiffer penalties for employers who fail to pay their employees overtime or the minimum wage.

Tougher Civil Penalties

The Act increases the amount of liquidated damages an employee can recover in cases where a violation is shown and the employer fails to prove that it had a good-faith basis for believing it was acting in compliance with the law. Specifically, the Act now permits liquidated damages of up to 100% of the total amount of wages due, an increase from 25% under the existing law. This means that employees may be entitled to recover twice what they are owed in wages or overtime.

The Act also provides for the recovery of prejudgment interest and attorneys' fees in any civil action to recover unpaid wages brought by an employee.

The new law also gives employees expanded protections against employers who have been found to have violated the law, but still fail to pay. If an employer loses in court and still fails to pay within ninety (90) days, the employee can now collect an extra 15% of the judgment owed, as well as attorneys' fees and costs for enforcing the judgment.

Employee Notice of Wages

The New York Labor Law already requires employers to notify all newly hired employees at the time of hiring, in writing, of their regular rate of pay, regular pay day, and overtime rate of pay if they will be eligible for overtime. The Act now also requires employers to include the basis of the wage payment (e.g., whether paid by the hour, shift, day, week, salary, piece, or commission, or on another basis) as well as the employer's intent to claim allowances (e.g., tip or meal allowances) as part of the minimum wage.

Under the Act, the notice must be updated and provided again to the employee at least seven (7) calendar days prior to any changes to the employee's pay or other terms contained in the notice (unless such changes are reflected in the employee's wage statement).

Lastly, the Act requires that all employers obtain from each employee a signed and dated written acknowledgment, in English and in the primary language of the employee, of receipt of the notice.

If an employer fails to provide the required notice of wages within ten (10) business days of the employee's first day of employment, the employee may bring an action in court to recover damages of $50 for each workweek that the violation occurred or continues to occur (not to exceed a total of $2,500), plus costs and reasonable attorneys' fees.

Employers are now required to preserve and maintain the employee's acknowledgment(s) of the notice for a period of six (6) years.

Pay Statements

The Act requires that employers provide pay statements that specify the applicable dates the wages cover and the rate and basis of pay. For non-exempt employees, pay statements must also include the regular and overtime pay rates and the number of regular and overtime hours worked.

If an employer fails to provide the required pay statement, the employee may bring an action in court to recover damages of $100 for each workweek that the violation occurred or continues to occur (not to exceed a total of $2,500), plus costs and reasonable attorneys' fees.

The Act also increases the length of time an employer must preserve and maintain payroll records and/or pay statements from three (3) to six (6) years.

Anti-Retaliation Provisions

The Act also increases protections for employees who complain about employer violations, as well as for workers the employer merely believes has complained about violations. The Act permits the Commissioner to order additional remedies in the event of retaliation, specifically enjoining conduct, liquidated damages not to exceed $10,000, reinstatement with back pay, and/or front pay instead of reinstatement.

Criminal Penalties

The Act imposes new criminal penalties against employers that fail to pay minimum wage or overtime compensation. Any employer that pays less than the amount owed may be guilty of a misdemeanor, and if convicted will be fined a minimum of $500 and a maximum of $20,000 or imprisoned for up to a year. If a second violation occurs within six (6) years of the first conviction, the employer will be guilty of a felony.

The new law also includes new criminal penalties against employers that fail to maintain records. Such a violation is deemed a misdemeanor, with fines between $500 and $5,000 or imprisonment for up to one year. A subsequent violation and conviction within six (6) years will result in either a fine of $500 to $20,000 or imprisonment for a period not to exceed one year and a day, or both.

In sum, although the new law does not radically change the duties of New York employers, the Act does impose significant civil and criminal penalties for employers that fail to comply with the law. If you have any questions with respect to these new requirements, we recommend speaking with a New York overtime attorney as soon as possible.

In Mullins v. City of New York (2nd Cir. 2010), the U.S. Court of Appeals for the Second Circuit recently upheld a ruling by the U.S. District Court for the Southern District of New York barring the City of New York (the "City") and the New York City Police Department ("NYPD") from conducting internal investigations related to the Plaintiffs' claims under the Fair Labor Standards Act ("FLSA") until the FLSA litigation ended.

In 2004, about 4300 current and former New York City police sergeants sued the City and NYPD, claiming systematic violations of their overtime rights under the FLSA. Because of the sheer volume of plaintiffs, the parties agreed to limit depositions to "test plaintiffs" - individuals from seventeen job categories.

After the test plaintiffs were chosen, the City's attorneys and outside counsel met with the Chief of the NYPD's Internal Affairs Bureau ("IAB") regarding the "topic of deposition testimony." The very next day, IAB officials began collecting documents, gathering command logs, memo books, activity reports, overtime slips, and requests for leave from all test plaintiffs. It was clear to the plaintiffs that this was nothing more than retaliation, as IAB did not normally conduct such collections.

In addition to establishing minimum wage and overtime requirements, the FLSA also provides that it is "unlawful for any person... to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under [FLSA]." 29 U.S.C. § 215(a)(3).

In another example, when one plaintiff was ready to retire, he was told his retirement was being deferred while the NYPD "investigated" him. It subsequently came to light that he was being investigated regarding his deposition testimony that he had given months earlier.

In addition, IAB sent an Integrity Control Officer to attend the deposition of another plaintiff, who explained that Integrity Control Officers do not normally attend depositions, and he was, therefore, "surprised and concerned" by the officer's presence. He also testified that he found the officer's presence to be "intimidating."

Next, NYPD ordered another plaintiff to undergo a type of interview reserved for allegations of serious misconduct or corruption. This plaintiff was questioned for four (4) hours - entirely about the testimony he had given regarding the FLSA lawsuit.

The Court found that IAB investigated the veracity of testimony given by plaintiffs as part of the lawsuit, and collected documents from all of the test plaintiffs, not just those plaintiffs they suspected of perjury. Further, the Court found that the NYPD sent an IAB officer to one plaintiff's deposition before there was any basis on which to conclude he had given false testimony.

As a result, the Southern District of New York issued a preliminary injunction, restraining the City and NYPD from continuing its retaliatory activities. The Southern District concluded that the evidence clearly showed that absent injunctive relief, numerous plaintiffs would likely (and reasonably) withdraw from the litigation rather than testify and face a line-by-line IAB interrogation.

The defendants appealed the decision to the U.S. Court of Appeals for the Second Circuit, which upheld the order barring the City and NYPD from conducting internal investigations related to the FLSA case, finding that the City's actions were designed to encourage the plaintiffs to drop out of the lawsuit. The Court held that the district court did not abuse its discretion in finding that the plaintiffs are likely to succeed on the merits of their FLSA retaliation claim, and that plaintiffs have established that irreparable harm is likely to flow from the putative FLSA violation absent injunctive relief.

This decision should remind all employers to always consult with a New York City employment attorney before terminating, disciplining, or even investigating an employee who has recently complained or initiated a lawsuit.

Under the Occupational Safety and Health Act of 1970 ("OSH Act"), employers are responsible for providing safe and healthy workplaces for their employees. Section 11(c) of the OSH Act, which is enforced by the Occupational Safety and Health Administration ("OSHA"), prohibits retaliation against employees for filing a health or safety complaint or for exercising a wide range of other rights afforded to them by the OSH Act. Basically, it protects an employee's right to file a complaint with OSHA or to bring health and safety issues to the attention of his or her employer without fear of termination or other retaliation.

On October 14, 2010, OSHA announced that it obtained a consent judgment ordering The John Galt Corp. and two of its former managers to compensate a worker who was fired for raising a health and safety issue during an asbestos removal project that the company oversaw in New York City.

In this case, the worker alleged that he had been fired after requesting additional respirator cartridges for himself and for fellow workers performing asbestos removal at the site. OSHA brought a legal action, and as a result, the defendants signed a consent judgment that orders them to pay the worker $55,000 in back wages and expunge all references to suspension or dismissal from his personnel file. The judgment also prohibits the defendants from discriminating against employees who file a complaint with OSHA, participate in an OSHA inspection or otherwise exercise their rights under Section 11(c) of the OSH Act.

On October 20, 2010, OSHA announced that it filed a lawsuit against Promesa Systems Inc., a New York City nonprofit organization providing care to individuals with developmental disabilities, for allegedly firing an employee who voiced workplace safety and health concerns and filed a complaint with OSHA. A few days after the employee advised the defendants that she would consult OSHA regarding an assignment that they had given her, the defendants suspended her during an internal investigation which included a review of her on-the-job performance. At the end of the company's investigation, the employee was fired. OSHA found evidence that the internal probe was used as a pretext to terminate the employee for her whistleblower actions.

The complaint seeks a judgment ordering all appropriate relief for the worker, including reinstatement, back pay with interest and compensatory damages, as well as prohibiting the defendants from future violations and having them post and comply with a workplace notice that they will not discriminate against employees who engage in protected safety and health activities.

It is always smart for employers to consult with a New York City employment attorney before terminating or disciplining an employee who has recently complained.

Under this country's H-1B visa program (which was created by the Immigration and Nationality Act ("INA")), employers may hire non-immigrant professionals to work temporarily in specialty occupations.

As part of this program, the employer must submit a Labor Condition Application ("LCA") to the US Department of Labor. The LCA specifies, among other things, the job, its salary, the employment period, and its geographic location. The employer also attests that it will abide by the LCA program's requirements.

The employer attests in the LCA that it will pay the H-1B non-immigrant professional the greater of the job's actual wage rate or the prevailing wage rate throughout the entire period of authorized employment, and will pay for non-productive time. The prevailing wage rate is the average wage paid to professionals who are similarly employed in the occupation listed on the LCA, at the location where the H-1B employee will work. If the employer has other workers with "substantially the same duties and responsibilities" as the H-1B worker who earn more than the area's "prevailing wage," their compensation becomes the "actual wage" the H-1B worker must receive. Should the employer have no other employees with comparable duties and responsibilities, it is free to pay the H-1B worker more than the area's prevailing wage, which becomes the H-1B worker's "actual wage."

As another condition of an LCA, the employer attests that it offers benefits to its H-1B non-immigrant workers on a par with those offered to U.S. workers it employs in similar jobs. As one example, health insurance plans must be offered "on the same basis and in accordance with the same criteria" that the employer offers to American workers.

When it signs the LCA and submits it to the Department of Labor, an employer represents that the statements in its LCA are accurate and acknowledges that it will comply with its obligations under the H-1B visa regulations.

The INA authorizes the Department of Labor "to determine whether an employer has engaged in misrepresentation or failed to meet a condition of the LCA," and to impose fines and penalties on culpable employers.

Whistleblower Protections

Those who employ H-1B workers may not discriminate against an employee in any manner for complaining internally (to the employer) or externally (to the government) about violations of H-1B program requirements. Under Title 20 of the Code of Federal Regulations, "No employer subject to this subpart . . . shall intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against an employee . . . because the employee has . . . [d]isclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation . . . of the INA . . . or . . . [c]ooperated or sought to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements . . . of the INA.

It's extremely important that employers not retaliate against an employee who raises issues with respect to misrepresentations made by the employer in an LCA. Also, any employee who feels that he/she was retaliated against for complaining about misrepresentations made in an LCA or for complaining about the employer's failure to meet a condition specified in the LCA should file a complaint with the US Department of Labor, Wage and Hour Division.

We also always recommend that employers consult with a New York City employment attorney before terminating or disciplining an employee who has recently complained.

The Second Circuit Court of Appeals (New York federal court) recently held, in Fincher v. Depository Trust & Clearing Corp., that an employer's failure to investigate a complaint of discrimination cannot be considered, in and of itself, an adverse employment action taken in retaliation for the filing of the same discrimination complaint. An employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint. This is because an employee's situation in the wake of making a complaint of discrimination is the same as it would have been had the employee not brought the complaint or had the complaint been investigated but denied for good reason or for none at all.

In this case, the plaintiff, an African-American, began working for the defendant in 2001 as a product manager in their international tax department. Her position was eliminated in 2004 and the company transferred her to the audit department as a senior auditor. After this reassignment, the plaintiff's performance evaluations deteriorated greatly, ultimately resulting in a March 2006 "performance warning," which stated that failure to improve could result in her termination.

In late March 2006, the plaintiff had a conversation with the company's Director of Employee Relations in the lobby of their office building. According to the plaintiff, she complained to him that "black people were set up to fail at [the Auditing] department because they were not provided and given the same training opportunities as the white employees."

She then resigned, in June 2006, saying her resignation was due to racial discrimination and the company's failure to act on her complaints. Four months later, she sued for, among other things, race discrimination and retaliation.

The court explained that in order to constitute actionable retaliation, the employer must engage in "affirmative efforts" to punish the employee for having complained. The failure to investigate is not an "affirmative effort" that could constitute an "adverse" action. The court, however, did indicate that if the employer's failure to investigate a complaint was in retaliation for some separate, protected act by the plaintiff (not the filing of the same complaint that the employer then failed to investigate), then it may constitute an adverse action for purposes of a retaliation claim.

As most employers are aware, New York is an "employment-at-will" state. This means that without a contract (or collective bargaining agreement) restricting the reasons for termination, an employer has the right to discharge an employee at any time for any reason, even if that reason seems completely arbitrary and unfair. In fact, an employer may even terminate an employee for no reason at all. On the same note, employees in New York are equally free to quit their jobs at any time without being required to explain or defend their decision.

However, although it's an at-will state, it is nonetheless so important, when disciplining or terminating an employee, for employers in New York to provide that employee with a coherent and consistent explanation for the adverse employment action taken.

Why? Because any inconsistent or conflicting reasons given in the future will only strengthen an employee's claim for discrimination or unlawful retaliation. And believe me when I say that plaintiffs' attorneys jump all over this and will exploit the inconsistencies to the end.

In order to prove discrimination, the employee must first establish a prima-facie case by demonstrating that: (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered an adverse employment action; and (4) the action occurred under conditions giving rise to an inference of discrimination. If the plaintiff makes out a prima-facie case, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action. If the employer makes such a showing, the burden shifts back to the employee to show that the employer's proffered reason is pretextual.

Pretext generally refers to a reason that is false and offered to cover up the true motives or intentions. Pretext can be established by showing that the employer's explanation for termination is not credible. And here's the kicker - New York courts have held that an employee may show pretext by demonstrating inconsistencies, incoherencies, or contradictions in the employer's proffered "legitimate" reasons for its action. It is thus reasonable for a jury to find the proffered reason(s) unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.

As a New York City employment attorney, I always advise employers in New York to decide on a reason for termination, give that reason to the employee at the time of termination, and never contradict or change that reason in the future. By neglecting to give the employee any reason for the termination, employers only leave the door open for that employee to allege discrimination in the future.

On July 7, 2010, the Occupational Safety and Health Administration (OSHA) announced the launching of a new website that provides information for employees who complain about health and safety violations in the workplace.

Under the Occupational Safety and Health Act (OSH Act), employees may file complaints with OSHA if they believe their employer has retaliated against them for raising their rights pursuant to the OSH Act. These rights include filing health or safety complaints with OSHA, seeking an OSHA inspection, participating in an OSHA inspection, participating or testifying in any proceeding related to safety or health, or reporting an injury or illness to their employer.

OSHA also enforces the whistleblowing provisions of eighteen other statutes, protecting employees who report violations related to air carrier safety, commercial motor carriers, asbestos in school, consumer products, environmental safety, corporate fraud, health care reform, nuclear energy, pipeline safety, public transportation, railroad safety, and securities laws.

A person filing a complaint of retaliation with OSHA will be required to show that he or she engaged in a protected activity, the employer knew about that activity, the employer subjected him or her to an adverse employment action, the protected activity contributed to the adverse employment action, and the adverse employment action occurred within the last 30 days (some deadlines differ depending upon the statute alleged to have been violated).

An adverse employment action is generally defined as any action that would dissuade a reasonable employee from engaging in the protected activity. According to the site, examples include:

• Firing or laying off
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denial of benefits
• Failure to hire or rehire
• Intimidation
• Reassignment affecting prospects for promotion
• Reducing pay or hours

Now that OSHA is making an active effort to encourage employees to complain to them about health and safety violations and unlawful retaliation, it's more important than ever for employers to make sure there are comprehensive complaint procedures in place so that disputes get resolved internally before their employees decide to file with OSHA.

As an employment attorney practicing in New York City, I feel obligated to clarify the negative consequences that can occur as a result of lying on a resume. Most cases concerning falsified resumes arise from situations in which an employee has been terminated for reasons other than lying on his or her resume (ex. poor work performance). After being terminated, the employee commences a lawsuit for unlawful discrimination and/or retaliation, and during discovery, the employer discovers for the first time that the employee's resume that was submitted with the original job application had been falsified and is fraudulent.

Because the evidence of the resume fraud was first discovered after the termination had already occurred, this new information is called "after-acquired evidence," and can be used by the employer as a defense to the claims of discrimination and/or retaliation.

In fact, in Quinby v. WestLB AG (2007), the Southern District of New York (federal court covering Manhattan) held that a plaintiff will not be entitled to certain remedies, such as reinstatement and front pay, if the employer can show that it would have terminated the employee anyway based on information that was not acquired until after she was terminated. However, the party asserting the "after-acquired evidence" defense must establish that the wrongdoing was of such severity that the employee would have been terminated on those grounds alone if the employer had known of it at the time of the termination.

All company personnel policies and procedures should always be assembled in an official employee handbook that is distributed to all employees. It is extremely important that all new employees be required to sign a form acknowledging that they have read the employee handbook and understand the contents contained therein. In fact, when investigating a claim of discrimination, the Equal Employment Opportunity Commission (EEOC) will usually request information on the employer's consistent enforcement of policies that it claims applied to the employer's adverse action in the discrimination charge.

However, it is also crucial to include an introduction section that expressly states that the handbook is not a contract and that all employees are terminable-at-will.

This was one issue that the Southern District of New York had to address in Fraser v. Fiduciary Trust Company International (Aug. 25, 2009).

In Fraser, the employer's employee handbook included a section that covered "Reporting Illegal Activity" and "Suspicious Activity Reporting," wherein the handbook encouraged employees to report potentially illegal conduct and assured employees that those who reported such conduct would not be subject to retaliation. When Fraser was terminated, he brought an action for breach of contract (among other claims), alleging that the handbook created a contractual promise that Fiduciary would not retaliate against him for reporting illegal conduct. Fraser contended that on two occasions he reported illegal activities of Fiduciary, and was terminated as a result, thereby breaching the contract.

The court noted that, "under New York law, express language in an employee policy manual indicating that employees are terminable at will prevents the creation of a contract and negates any protection from termination the employee may have inferred from the manual's no-reprisal provision." The Court also pointed out that the handbook even clearly stated in its introductory section that it "is not a contract to provide employees with permanent employment. Every employee's job is terminable at will by [Fiduciary], with or without cause." The Court therefore dismissed Fraser's breach of contract claim.

We also recommend being clear in the handbook that no employee other than specifically named individuals has the authority to enter into an employment contract, as this avoids situations that could be misconstrued. It should also be clear that the "at-will" category encompasses all employees who are not protected by express employment contracts that state that they may be fired only for just cause, or that contemplates the employee providing service for a specific period of time.

Although most employers understand and are cognizant of the numerous New York City, New York State, and Federal anti-discrimination laws, many supervisors often forget that those same statutes also prohibit retaliation for raising one's rights pursuant to those laws. Any criticism, discipline or other adverse employment action taken against an employee who recently complained of discrimination may be construed as unlawful retaliation.

All companies should develop an official policy that designates one or two individuals (preferably HR representatives) to investigate and resolve complaints of discrimination and/or retaliation. In addition, it's necessary to make sure that all complaints are kept as confidential as possible, as people can't retaliate for a complaint they aren't even aware exists.

Next, it's crucial to make sure that all complaints of discrimination are thoroughly investigated and resolved expeditiously. Although employees are protected against retaliation for complaining even if the investigation determines that the original complaint was without any merit, proper handling of the initial complaint will help to show that the company is committed to eliminating all discrimination and retaliation from the workplace.

During the investigation, the complainant should be kept abreast of any developments so that he or she feels his or her concerns are being taken seriously. After the investigation has been concluded, it's necessary to always advise the complainant of the ultimate outcome, as well as advise the employee of any action that was taken as a result of the investigation.

At the same time, an employer should never be afraid to discipline an employee for performing poorly, even if that employee recently complained of discrimination. However, companies must be diligent in documenting any and all performance issues concerning the complaining employee. Although the employee might claim that it's retaliation, if the action is well documented and consistent with the treatment of other employees, there is really nothing to worry about.

Lastly, it's important to know that courts have held that a close temporal proximity between the complaint and a subsequent adverse employment action is evidence of retaliation. Thus, to minimize the possibility that an employee will even allege retaliation, it's smart to let some time pass between the time the employee originally complained and when the employee is disciplined.

If you have any questions about, or need clarification of, any of the aforementioned information, please contact a New York City employment discrimination attorney.