LIEB BLOG

Legal Analysts

Tuesday, June 18, 2024

Age Discrimination Law Explained: Protecting Older Workers with Attorney Andrew Lieb on Scripps News

In this interview with Scripps News, Attorney Andrew Lieb discusses the protections for older workers from discrimination under Federal and New York State laws. 

Key points include:

  • Individuals aged 40-69 are fully protected and cannot be forced out of their positions due to age.
  • Executives over 65 can be required to retire if they meet certain payment standards.
  • In New York, everyone 18 and older has these protections and more.
  • Companies can mandate physical or mental tests for employees if they are relevant to the job's essential functions and uniformly applied.


Monday, June 10, 2024

Clarifying Anti-Discrimination Protections in New York State

On June 6, 2024, the New York State Senate passed Bill S4467, to clarify the state’s anti-discrimination law, the New York State Human Rights Law (“NYSHRL”). 


Under the law, a plaintiff only needs to prove that unlawful motivation was a motivating factor and not "the sole motivating factor" or a "but-for cause" of the challenged treatment. 


This clarification allows mixed-motive claims to succeed by showing that discrimination was one motive driving a negative work-related decision. 


This Bill addresses an issue with age discrimination where it was unclear if New York mirrored the standard from federal law, the Age Discrimination in Employment Act, which requires sole motivating factor. Clearly, the legislature knows that all victims of discrimination in New York need to be treated the same with the same standards. 


This clarification will go into effect immediately once passed by the New York State Assembly and signed by the Governor. 


If you’d like to read more, click here




Wednesday, May 29, 2024

Exciting Opportunity: Join Lieb School as Our National Expansion Coordinator!

We are seeking a college graduate who is interested in the law and wants to gain practical experience in a dynamic, entrepreneurial, environment before continuing with their education. This full-time, in-office, position in Smithtown, NY, offers a unique opportunity to join a successful startup that has already made significant inroads in the NY market and is now poised to expand nationally with your help.


Full job description

Lieb School, a leader in online real estate continuing education in New York, is embarking on an ambitious expansion to offer our courses nationwide. We are seeking a dynamic and driven National Expansion Coordinator to spearhead this initiative. This role is ideal for a business or marketing graduate eager to make their mark in a startup-like environment, with the backing of a company already established in one state. If you thrive in fast-paced settings, excel at multitasking, and possess a knack for meticulous organization and fearless communication, this position offers a unique opportunity to play a crucial role in scaling our operations across the country.

Key Responsibilities:

  • Coordinate daily activities related to expanding our educational offerings across the United States.
  • Engage with state licensing authorities and manage compliance with local regulations to facilitate market entry.
  • Assist in recruiting and organizing local instructors, ensuring adherence to state and educational standards.
  • Support marketing initiatives to boost our presence and drive student enrollment in new markets.
  • Oversee updates to the website and digital content to reflect our expanding service offerings.
  • Develop partnerships with local businesses and educational entities to broaden our market impact and brand visibility.
  • Maintain meticulous records of licensing processes, marketing campaigns, and operational data across various states.
  • Act as a liaison between legal teams, educational staff, and external stakeholders to ensure efficient operations and communication.
  • Lead sales and promotional activities to attract new students and establish strategic partnerships.
  • Lead customer support and liaison between technical engineers and platform developers of online classes.

Qualifications:

  • Bachelor’s degree in Business, Marketing, or a related field.
  • Strong project management skills, capable of leading initiatives from concept through to execution.
  • Excellent communication and interpersonal skills, adept at relationship building and negotiations.
  • Highly organized with outstanding attention to detail.
  • Independent worker with a proactive approach and a fearless attitude towards new challenges and information gathering.
  • Knowledge of digital marketing tools and content management systems preferred, but not mandatory.
  • Background in education, real estate, or legal fields is a plus, but not required.

Opportunities for Growth:

In this position, you will be working exclusively for the company's owners, who will guide you through every step. This role offers extensive opportunities for professional development and career advancement. As Lieb School expands, so too will the opportunities for our team members to assume greater responsibilities and leadership roles within the organization.

Job Type: Full-time

Pay: $47,221.23 - $56,868.58 per year

Benefits:

  • Paid time off

Schedule:

  • Monday to Friday

Education:

  • Bachelor's (Required)
To apply: Email info@liebschool.com with your resume and cover letter.



Monday, May 06, 2024

Addressing Ethnic and Age-Based Harassment: Understanding Your Legal Options

Discrimination in the workplace can take many forms, affecting employees' well-being and career progression. If you're facing or have observed discrimination based on a combination of ethnicity and age, it's important to recognize that such behavior not only undermines professional environments but also violates federal and state laws.


Example of Discrimination:

Consider Angela's experience—a Hispanic woman in her fifties working as a technician in a manufacturing plant. Despite her dedication and hard work, Angela was subjected to continuous ethnic and age-based harassment from her colleagues. This harassment created a toxic atmosphere, making it difficult for her to perform her duties effectively. Angela attempted to address the issue by reporting the harassment to her shift supervisor, who unfortunately failed to take the necessary steps to escalate the complaint to human resources. This neglect allowed the harassment to persist, severely affecting Angela’s work life and mental health.


Guidance from the EEOC:

The Equal Employment Opportunity Commission (EEOC) emphasizes that employers have a legal obligation to address harassment once they are aware of it, regardless of whether the complaint comes directly from the victim or a third party. The EEOC guidelines help to clarify that any indication of harassment should prompt an employer to investigate and take appropriate action. This includes situations where the harassment is not explicitly labeled as such but is evident through the conduct described, such as unwanted physical contact or derogatory comments.


Advice from Andrew Lieb, Managing Attorney at Lieb at Law, P.C.:

"Employers must take immediate and effective action to investigate any allegations of harassment. Simply having a policy is not enough; the policy must be enforced to protect employees and maintain a respectful workplace. Victims should not hesitate to seek legal redress when their concerns are dismissed or inadequately addressed by their employer because they have a right to be protected."


Taking Legal Action:

If you relate to Angela’s situation or witness similar discriminatory practices, it's crucial to know that you have legal options available. Reporting the issue within your organization is a critical first step. If the response is insufficient, contacting a legal professional can help you navigate the complexities of filing a formal complaint and pursuing further legal action.

For personalized legal guidance and to explore the full scope of your rights and options, reach out to Lieb at Law, P.C. Our dedicated team is committed to advocating for those affected by workplace discrimination and ensuring that they receive the justice and support they deserve.


*Attorney Advertising

Thursday, May 02, 2024

Antisemitism Definition for Title VI Education Discrimination Passes House

Title VI prohibits discrimination on the basis of race, color, and national origin. Notably absent from that list is religion. So, are jews protected from antisemitism in elementary, secondary, and post-secondary (colleges & universities) schools?

In 2021, former President Trump signed Executive Order 13899 on Combating Anti-semitism, which explains that "[i]n enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin, all executive departments and agencies (agencies) charged with enforcing Title VI shall consider the following: (i) the non-legally binding working definition of anti Semitism adopted on May 26, 2016, by the International Holocaust Remembrance Alliance (IHRA), which states, 'Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews.  Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.'” 

An explanation of the impact of that Executive Order on education was then set forth in a Q&A by the Department of Education, here

Now, the US House of Representatives have passed a codified version of this EO and further defined antisemitism in the face of rising discrimination faced by jewish students in colleges and universities throughout the country. We await the Senate and then the President to see if this Bill, HR 6090, will become the law of the land. 

If this bill is passed, it expressly provides that the definition of antisemitism under Title VI "means the definition of antisemitism adopted on May 26, 2016, by the IHRA, of which the United States is a member, which definition has been adopted by the Department of State." In fact, the bill states that antisemitism can constitute a hostile educational environment, under Title VI, as follows: "individuals who face discrimination based on actual or perceived shared ancestry or ethnic characteristics do not lose protection under such title for also being members of a group that share a common religion."

While HR 6090 should become the law, the real question is why Congress didn't just expand Title VI to include religion as a protected class to be free from discrimination? Fortunately, states like New York have done just that in Executive Law 296(4). So, if you are a victim of religious discrimination in education in New York, you have rights.



Monday, April 29, 2024

EEOC Releases Guidance in Workplace - Employer Liability for Harassment

The Equal Employment Opportunity Commission (EEOC) has released official Enforcement Guidance on Harassment in the Workplace, which is effective immediately. 

The Guidance, EEOC-CVG-2024-1, is designed to "serve[] as a resource for employers, employees, and practitioners; for EEOC staff and the staff of other agencies that investigate, adjudicate, or litigate harassment claims or conduct outreach on the topic of workplace harassment; and for courts deciding harassment issues."

This resource includes an explanation of the definition of each covered protected characteristic, including race, color, national origin, religion, sex, age, disability, genetic information, and retaliation. More so, for each protected characteristics are numerous examples of what type of harassment is actionable. 

In evaluating the examples, the Guidance provides:

These are key questions that typically arise in evaluating a hostile work environment claim and whether it amounts to unlawful harassment:

  • Was the conduct both objectively and subjectively hostile?
    • Objective hostility: was the conduct sufficiently severe or pervasive to create a hostile work environment from the perspective of a reasonable person?
    • Subjective hostility: did the complainant actually find the conduct hostile?
  • What conduct is part of the hostile work environment claim?
    • Can conduct that occurred outside the workplace be considered?
    • Can conduct that was not specifically directed at the complainant be considered?

As a reminder, the Guidance provides, at Example 39, that a hostile environment needn't cause a resulting decline in work ability or psychological injury to be actionable. Specifically, it states: "Based on these facts, Irina was subjected to a hostile work environment. Although the harassing conduct did not result in a decline in her work performance or in psychological injury, the nature of the conduct and Irina’s reactions to it were sufficient to establish that the ongoing sexual conduct created a hostile work environment because the conduct made it more difficult for a reasonable person in Irina’s situation to do her job."

That said, the Guidance goes into declining work ability and injuries across the board. It discusses employer liability for acts of alter-egos, supervisors, and co-workers. It explains systemic harassment and how a pattern or practice of harassment needs to be addressed by an employer. 

Overall, this is the go to resource of Title VII discrimination and best practices in the workplace moving forward. 






New Overtime Time and a Half Final Rule under the Fair Labor Standards Act

Ready for a big jump in being entitled to overtime pay, which is 1.5 times pay?


The Department of Labor has set new effective earnings thresholds to be entitled to overtime pay per 29 CFR 541.  


Starting on January 1, 2025, we are moving the Fair Labor Standards Act (FLSA) from an entitlement to overtime pay for those making under $35,586 to those making under $58,656 per year ($1,128 per week). Note that this threshold does not apply to employees who are "bona fide executive, administrative, or professional capacity . . . or in the capacity of [an] outside salesman," which terms are defined at 29 CFR 541.


These numbers are particularly important because a worker who is not paid properly can recover 2X back wages (liquidated damages) on unpaid overtime from the prior 2 years. 




New Sex Discrimination Federal Regulation Effective August 1, 2024

Title IX's anti-discrimination obligations on elementary schools, secondary schools, postsecondary institutions, and other recipients of federal financial assistance have been updated and become effective August 1, 2024, by regulation 89 FR 33474 (34 CFR 106)


Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” absent certain exceptions. 20 U.S.C. 1681.


Consistent with Title VII's SCOTUS decision in Bostock v. Clayton County, the regulations define sex broadly to "include[] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity" in § 106.10.


The regulations have been updated for the following purposes:

  • "to provide greater clarity regarding: 
    • the definition of “sex-based harassment”; 
    • the scope of sex discrimination, including recipients' obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and 
    • recipients' obligations to provide an educational environment free from discrimination on the basis of sex."
  • to ensure that "recipients' procedures for investigating and resolving complaints of sex discrimination are fair to all involved." 

In fact, the regulations require grievance procedures under § 106.45.


These regulations are the floor under which states and locales cannot go, but don't forget that local laws like New York State's Human Rights Law provide for emotional distress damages whereas Title IX does not. 



Tuesday, April 23, 2024

FTC Issues New Rule Banning Non-Compete Clauses - Retroactive Effect Raises Due Process Concerns

The Federal Trade Commission (FTC) has just issued a Non-Compete Clause Rule banning all Non-Competes. 


This Final Rule provides that it is an unfair method of competition for persons to, among other things, enter into non-compete clauses. While this Final Rule does not include a salary threshold, it does allow for non-competes when a business is sold, and also allows existing non-competes to be enforced for senior executives.


So, existing non-competes for workers, who are not senior executives, are no longer enforceable (retroactively undoing contracts). Is that a violation of due process / impermissible taking for employers? Are constitutional challenges next?  


Yet, the most interesting paragraph of the Final Rule reads:

Non-solicitation agreements are generally not non-compete clauses under the final rule because, while they restrict who a worker may contact after they leave their job, they do not by their terms or necessarily in their effect prevent a worker from seeking or accepting other work or starting a business. However, non-solicitation agreements can satisfy the definition of non-compete clause in § 910.1 where they function to prevent a worker from seeking or accepting other work or starting a business after their employment ends. Whether a non-solicitation agreement—or a no-hire agreement or a no-business agreement, both of which were referenced by commenters, as discussed previously—meets this threshold is a fact-specific inquiry. The Commission further notes that—like all the restrictive employment agreements described in this Part III.D—non-solicitation agreements, no-hire, and no-business agreements are subject to section 5’s prohibition of unfair methods of competition, irrespective of whether they are covered by the final rule. 


Moving forward, non-competes are mostly gone, but non-solicitation agreements, no-hire, and no-business agreements are clearly also on the chopping block where the utilization of each could easily result in protected litigation as to whether they are covered by the Final Rule or generally by section 5's prohibition of unfair methods of competition.


You can read the FTC's press release here.


You can read the Final Non-Compete Clause Rule here.  




Empowering Pregnant Workers: Inside the Pregnant Workers Fairness Act

The Federal Government recently passed the Pregnant Workers Fairness Act (PWFA), which significantly strengthens protections for pregnant workers and enhances the process for addressing discrimination claims related to pregnancy and related medical conditions in several ways including:

  • Clear Prohibitions: The PWFA explicitly prohibits discrimination against pregnant employees, including adverse actions, denial of employment opportunities, and coercion. This clarity empowers pregnant workers to assert their rights without fear of retaliation.
  • Mandatory Reasonable Accommodations: Covered entities are required to make reasonable accommodations for pregnant employees unless it causes undue hardship. This ensures that pregnant workers can continue working without facing unnecessary barriers due to their pregnancy or related medical conditions.
  • Interactive Process Requirement: The Act mandates an interactive process between employers and employees to determine appropriate accommodations. This process promotes transparency and collaboration, ensuring that accommodations are tailored to meet the specific needs of pregnant workers.
  • Expansive Definitions: The PWFA provides comprehensive definitions of terms such as "known limitation" and "related medical conditions," broadening the scope of protections for pregnant workers. This clarity reduces ambiguity and strengthens the basis for discrimination claims.
  • Limits on Supporting Documentation: The Act imposes limits on the type of supporting documentation employers can request from pregnant employees seeking accommodations. This prevents employers from creating unnecessary barriers or burdens for pregnant workers seeking to exercise their rights.


Additionally, under the PWFA, delays in providing accommodations may lead to violations and failure-to-accommodate lawsuits. Employers are obliged to provide accommodations unless the pregnancy prevents an essential job function.

Covered Entities cannot force leave if other accommodations are feasible, and it bars adverse action against employees for requesting or using reasonable accommodations. 

Finally, the PWFA outlines remedies and enforcement procedures, including provisions for damages, costs, and attorneys' fees. Notably, it prohibits retaliation or coercion against employees exercising their rights under the PWFA. These regulations enhance protections for discrimination claims related to pregnancy, childbirth, or related medical conditions in the workplace.

The PWFA will go into effect on June 18, 2024. If you'd like to learn more about the PWFA, click here