Remote Work and the ADA: Why Employers Should Think Twice Before Mandating Return to Office

Smith v. District of Columbia should embolden all disabled employees, whose disability necessities remote work to perform the essential function of their job, in their reasonable accommodation requests. 

Interestingly, this case stems from a court employee of the Superior Court for the District of Columbia. Here, plaintiff was in remission from breast cancer and operatively, was permitted to work remotely for over 2 years because COVID heightened her health risks where she received exemplary reviews, but was then instructed to return to the office under a hybrid rotational schedule, which caused her to resign based on a failure to accommodate her health-related needs. 

The issue before the Court was whether return to office was an essential function of the case-specific job, and thus, the refusal to return would pose an undue hardship, which would permit the employer to deny the accommodation request. To determine this issue, the Court advised that: 

• "The plaintiff bears the burden of showing by a preponderance of the evidence that she has a disability but can perform the essential functions of the job with a reasonable accommodation."
• “Essential functions are ‘the fundamental job duties of the employment position.’”  
• "In determining what duties are 'fundamental,' the ADA expressly provides that 'consideration shall be given to the employer’s judgment as to what functions of a job are essential.'" 
• “[I]f an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” 
• "Also relevant are the “work experience of past incumbents in the job.” 
• "The current work experience of incumbents in similar jobs.”  
• "Whether the employer actually requires employees in the position to perform the functions that the employer asserts are essential” and “[i]f so, then the question of essentiality comes down to ‘whether removing the function would fundamentally alter that position.’

During the case, the "Defendant identified a list of no less than 18 public-facing job function," which were substantiated by "[t]he written job description... and a USA job posting." Additionally, plaintiff failed to identify any comparator "who worked only from home." In all, the evidence demonstrated a very good case for a hardship, except for plaintiff's prior remote work where she "received the highest overall performance ratings during this time," where her work was even described as "exemplary."

In all, the Court held that because "she was able to perform the job at the highest levels while working remotely for two years[, a] reasonable juror may conclude from that fact that the on-site elements of the job were marginal, rather than essential."

The lesson is simple - employers who give remote work and then take it away, by requiring return to office whereby they argue that in-office is an essential function of the job, are going to have a hard time getting failure-to-accommodate cases dismissed on summary judgment.  

If your employer denied your request for remote work or other accommodations related to your disability, you don’t have to face it alone. Contact Lieb at Law, P.C. today to discuss your rights and legal options.

From Texas to New York: Understanding Pregnancy Discrimination Protections at Work

The federal Pregnant Workers Fairness Act has been effective since June 27, 2023 and requires reasonable accommodations and prohibits the denial of job opportunities incident to pregnancy from both public and private employers based on the need for such an accomodation. To illustrate, the law provides pregnant employees the right to obtain reasonable accommodations to go to medical appointments and to limit their job function incident to restrictions on movement, except if such function is an essential job function. Under the law, victims can file a charge with the Equal Employment Opportunity Commission (EEOC), within 180 or 300 days (based on whether the applicable state has a Fair Employment Practices Agency), and then, after receiving a right to sue letter from the EEOC, they can sue their employers, in court, for back pay, front pay, emotional distress damages, punitive damages, and attorneys' fees. 

However, after the Pregnant Workers Fairness Act passed, the US District Court for the Northern District of Texas temporarily blocked its enforcement against the State of Texas, as an employer, based on arguments that it was passed unconstitutional by proxy voting in violation of the Constitution's Quorum Clause. Now, the Fifth Circuit Court of Appeals brought it back to life as against the State of Texas.

While this is great for pregnant Texas employees, pregnant employees throughout the United States should not just stop at leveraging this federal law when exercising their rights because this law is just a floor of rights under which other federal, state, and local laws may not fall.

For example, a pregnant worker in New York is also protected by the State's Human Rights Law, which has been protecting victims from pregnancy discrimination since 1974. In fact, the New York State Division of Human Rights has published a comprehensive Guidance on Pregnancy Discrimination and Reasonable Accommodations of Pregnancy-Related Conditions for Employers in New York State. The guidance explains that in 2015, the Human Rights Law was amended to expressly address the rights of those with a "pregnancy-related condition," rather than just affording those rights to the extent that pregnancy caused a disability, which was separately protected under the Human Rights Law. Under either route under the Human Rights Law, a pregnant worker can bring a case in state court or before an administrative tribunal at the Division of Human Rights while seeking compensation for the emotional distress, lost wages, and attorneys' fees incident to their employer's failure to accommodate their reasonable needs or if such employee experiences an adverse employment action due to their pregnancy status.

Even further, as of 2025, New York because the first state in the nation to offer Paid Prenatal Leave for prenatal care or any medical care related to pregnancy in an amendment to Labor Law 196-b. Now, privately-employed pregnant workers are able to receive an additional 20 hours of paid sick leave for prenatal care in addition to their existing sick leave, which includes physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy. Interestingly, under this Paid Prenatal Leave law, employers cannot even ask pregnancy employees to disclosure confidential information about their health as a condition of use, which when exercised is to be paid at normal hourly rates and enforced by the Department of Labor. 

Additionally, and regardless of the state that the victim is located, other federal laws also protect pregnant workers from discrimination, including Title VII, which was amended by the Pregnancy Discrimination Act of 1978, and which prohibits discrimination based on pregnancy, childbirth, or related medical conditions with respect to adverse employment actions. This law requires employers to treat pregnancy workers the same as other temporarily disabled employees and to provide health benefits to pregnant workers to the extent otherwise provided to other workers. Additionally, the federal Americans with Disabilities Act (ADA) separately protects pregnant workers' pregnancy related conditions that qualify as a disability from discrimination. Both Title VII and the ADA are enforceable to the same extent as the federal Pregnant Workers Fairness Act, by filing a charge with EEOC and suing thereafter in federal court. 

Finally, pregnant workers should also pay attention to the Family and Medical Leave Act (FMLA), that provides unpaid job-protection for certain family and medical leave reasons, and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which amends the Fair Labor Standards Act to give rights to nursing mothers at work, which is enforceable by private lawsuit, but with a 10 day notice for compliance provision. 

In all, pregnant workers enjoy a lot of job related protections and while the federal Pregnant Workers Fairness Act now being applicable to Texas state workers is important, employers and employees alike need to take a deep dive into understanding all of the applicable pregnancy employment rights before a misstep causes a very expensive lawsuit.

If you believe your employer has denied you pregnancy-related accommodations or treated you unfairly because of your pregnancy, you don’t have to navigate it alone. Lieb at Law, P.C. represents employees in New York, New Jersey, Connecticut, and Colorado in pregnancy discrimination and accommodation cases. Contact us today to protect your rights and explore your legal options.

Is Calling a Male Employee BALD Employment Discrimination?

Apparently, the UK thinks so, but what about in NYS?

In NYS, you'd have to prove that such a comment rose above a petty slight or trivial inconvenience so context would be everything. In such, we have questions:

1. Was it said as a joke or a slight?
2. Who said it - management or a co-worker?
3. When / Where was it said?
4. Was it only said once or repeatedly?
5. Did the victim ask for it not to be said and then, was it said again after?
6. Was it just said, or was the victim given clothing that called him "the bald guy"? 
7. Was it just a comment or an identity?
8. Were other bald men not called bald? 
9. What about bald women?
10. Did the victim have an underlying medical condition contributing to being bald - like cancer treatments? 

The list goes on, but the answer isn't simple. Regardless, NYS has a relatively low standard to prove hostile work environment discrimination under the New York State Human Rights Law. In contract, federal law, under Title VII, requires proof that the harassment was severe and pervasive, which would be much harder to prove. Either way, context is everything and eliciting the right evidence is what makes you win or lose this type of case. So, don't just ask an AI, sit down for a comprehensive consultation to learn whether you have a sexual harassment case. 

Use our Discrimination Case Checklist to see how your situation measures up, and then contact Lieb at Law to discuss your rights and options. Our team is here to help you determine if you have a case and fight for the justice you deserve.

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Think You Were Racially Discriminated Against at Work? You’re Not Alone - And Here’s How to Prove It

According to Survey on Racism, Discrimination and Health: Experiences and Impacts Across Racial and Ethnic Groups, a 2023 national study, these are the percentages of people who reported that they have experienced discrimination within the past year:

• White People = 38% 
• Black People = 54% 
• Latino People = 50%
• Asian People = 42%

Yet, believing that you were discriminated and proving it are two totally different things. 

The key to proving discrimination is that you can demonstrate an adverse employment action with respect to available of a job, or a term, condition, or privilege of employment, that occured BECAUSE of your race. 

The fact that you are black and something bad happens to you at work is not discrimination. However, the fact that something bad happens to you at work BECAUSE you are black is discrimination. 

The best way to prove that the adverse action occurred BECAUSE of your race is by having:

1. A comparator of a different race, in the same position, with the same essential job functions, who did not have the same adverse employment action or compensation;
2. Experienced a hostile environment in terms of discriminatory speech that was documented or witnesses - saying something to you that was offensive and tied to your race, like the N-Word;
3. Received false reasons for the actions taken - you can prove they are pretextual; or
4. Actions taken that expressly violate a company policy or procedure. 

If you believe you may have been a victim of workplace discrimination, the first step is understanding whether your experience meets the legal test. Use our Discrimination Case Checklist to see how your situation measures up, and then contact Lieb at Law to discuss your rights and options. Our team is here to help you determine if you have a case and fight for the justice you deserve.

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Can a CEO Have an Affair with HR Without It Constituting Sexual Harassment at Work?

We are asking for Andy Byron and the entire Astronomer team  after the Coldplay Kiss Cam fiasco.

The truth is that a consensual sexual relationship between a supervisor and an employee does not, in itself, constitute actionable sexual harassment. The reason is simple: Actionable sexual harassment under Title VII requires that the sexual acts at issue be unwelcome by the other participant - Here, Kristin Cabot sure seemed to welcome the sexual acts and she was the HR Head, so she would be hard pressed to act like she did not know her rights to say no. 

However, Andy and Astronomer, we aren't done there - here is where you have problems. The real problems for Astronomer stem from how this relationship between Byron and Cabot, and any related conduct, affects other employees who are not directly involved in the consensual relationship as follows:

1. Adverse employment action for female employees who did NOT submit to sexual advances can support a Title VII claim of employment discrimination. Here are some case quotes to consider:
1. "[R]efusing to accede to sexual advances is an activity protected under Title VII." Rashid v Beth Israel Med. Ctr., 96 CIV. 1833 (AGS), 1998 WL 689931, at *2 (SDNY Oct. 2, 1998)
2. "Sexual harassment in the context of employment can form the basis for a Title VII claim. In the typical case, the female plaintiff claims that her male supervisor requested sexual favors from her and conditioned some job benefit, for example a promotion, on her assent. Such a claim is cognizable under Title VII." Toscano v Nimmo, 570 F. Supp. 1197, 1199 (1983)
3. "[S]he suffered what amounted to a 'reassignment with significantly different responsibilities' under Ellerth. She testified at trial that after she refused Flick's sexual advances, he substantially reduced her job responsibilities." Roberts v County of Cook, 01 C 9373, 2004 WL 1088230, at *2 (ND Ill May 12, 2004)
2. Hostile environment of sexual harassment for non-direct victims can support a Title VII claim of employment discrimination. Here are some case quotes to consider:
1. "Evidence of the general work atmosphere, involving employees other than the plaintiff, is relevant to the issue of whether there existed an atmosphere of hostile work environment which violated Title VII. This is so because “[e]ven a woman who was never herself the object of harassment might have a Title VII claim if she were forced to work in an atmosphere in which such harassment was pervasive.”" Broderick v Ruder, 685 F. Supp. 1269, 1277 (D.D.C. 1988)
2. "Past California decisions have established that the prohibition against sexual harassment includes protection from a broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex. Such a hostile environment may be created even if the plaintiff never is subjected to sexual advances." Miller v Dept of Corr., 36 Cal. 4th 446, 461 (2005)
3.  “[A]n employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment." - Miller v Dept of Corr., 36 Cal. 4th 446, 461 (2005) (note that NYS Courts only require inferior rising above petty slights and trivial inconveniences rather than severe or pervasive)
3. Preferential treatment for female employees who submitted to sexual advances (like Kristin Cabot) can support a Title VII claim of employment discrimination by creating a hostile environment. Here are some case quotes to consider:
1. "[A] plaintiff makes out a prima facie case of sex discrimination by offering proof that a woman who was promoted to a job in the plaintiff's stead was having a sexual relationship with a person partially responsible for the hiring decision." Drinkwater v Union Carbide Corp., 904 F2d 853, 860 (3d Cir 1990)
2. "Additionally, Title VII is also violated when an employer affords preferential treatment to female employees who submit to sexual advances or other conduct of a sexual nature and such conduct is a matter of common knowledge." Broderick v Ruder, 685 F. Supp. 1269, 1277 (D.D.C. 1988)
3. "In those cases in which Title VII was extended to allow recovery based upon a supervisor's voluntary sexual relationship with a subordinate, the claims usually were premised upon the paramour receiving some form of preferential treatment over the claimant. (in this case, no Title VII because plaintiff alleged she was fired because she knew of the affair, a motivation that did not rely on her gender)" Ellert v Univ. of Texas, 52 F.3d 543, 546 (1995)
4. "[W]here a supervisor's preference for his or her paramour is transformed from simple favoritism to the concrete bestowal of tangible, economically valuable employment benefits denied other employees, such conduct can constitute prohibited discrimination." Perron v Sec'y Dep't of Health and Human Services, 2008 WL 5101577 at *5 (2008)
5. "Plaintiff opposes summary judgment in this regard on grounds that she in fact suffered three such adverse actions: 1) her failure to receive an annual special award; 2) her supervisor's selection of his paramour, Pamela Kite, for the desirable Katrina Detail; and 3) James Greer's failure to nominate her for a QSI. Plaintiff further points to circumstances surrounding all three of these actions as evincing Greer's discriminatory intent." Forrest v Brinker Int’l Payroll Co., LP, 511 F.3d 225, 229 (1st Cir. 2007)
6. "… plaintiff, without any doubt, was forced to work in an environment in which the WRO managers by their conduct harassed her and other WRO female employees, by bestowing preferential treatment upon those who submitted to their sexual advances. This preferential treatment undermined plaintiff's motivation and work performance and deprived plaintiff, and other WRO female employees, of promotions and job opportunities. The record is clear that plaintiff and other women working at the WRO found the sexual conduct and its accompanying manifestations which WRO managers engaged in over a protracted period of time to be offensive. The record also establishes that plaintiff and other women were for obvious reasons reluctant to voice their displeasure and, when they did, they were treated with a hostile response by WRO's management team." Broderick v Ruder, 685 F. Supp. 1269, 1277 (D.D.C. 1988)

Therefore, the "principle that emerges from the above cases is that absent claims of coercion or widespread sexual favoritism, where an employee engages in consensual sexual conduct with a supervisor and an employment decision is based on this conduct, Title VII is not implicated because any benefits of the relationship are due to the sexual conduct, rather than the gender, of the employee." Tenge v Phillips Modern Ag Co., 446 F3d 903, 909 (8th Cir 2006)

But here’s where the Coldplay Kiss Cam scandal takes a sharper turn. Andy’s wife, Megan Kerrigan, could pursue a divorce and depending on the terms of their prenup or postnup (if one exists), she might need to lean into the workplace discrimination angle to strengthen her financial claims. In doing so, she risks simultaneously substantiating a hostile work environment claim for other Astronomer employees, potentially encouraging those who’ve stayed silent to come forward. As Astronomer’s owner, Megan is caught in a bind - staying quiet protects the company by limiting further exposure to discrimination and retaliation claims, but the scorned spouse in her might not be willing to keep the peace.

If you have been involved in this situation at work and you want to know if you have a discrimination claim, ask yourself the following questions:

1. Did this sexual relationship between a supervisor and a co-worker create a workplace atmosphere where sexual harassment was either pervasive or, in New York, rose above petty slights and trivial inconveniences?
2. Was there a general workplace atmosphere where multiple employees experienced a hostile environment and was the situation widely discussed among staff? The more employees consistently affected, the stronger the potential case.
3. Was there favoritism shown toward employees who submitted to sexual advances from leadership or management and was that favoritism common knowledge? Did it result in lost promotions, missed job opportunities, or a decline in overall morale? 
4. Most importantly, ask yourself this - Were you ever propositioned by a supervisor and if you refused, were you denied any work benefits, opportunities, or advancement as a result?

If you're navigating a workplace relationship scandal or believe favoritism or harassment is impacting your career, contact Lieb at Law. Our employment law team is ready to evaluate whether your rights under Title VII or the NYS Human Rights Law have been violated. 

Visit https://www.liebatlaw.com or call us today to schedule a confidential consultation.

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Florida's CHOICE Act - Non-Competes and Garden Leave - Employers Celebrate

Effective July 1, 2025, Florida's CHOICE Act causes a four-year non-compete agreement to be presumptively enforceable.

Does that mean that all employers are changing their choice of law provisions to take advantage of Florida's non-compete rights?

Nope - the CHOICE Act requires an employer to have a principal place of business in a Florida County for the law's effectiveness. In fact, the law ties qualification to the CHOICE Act to an employee having an annual salary greater than twice the average wage of the Florida county where the employer's principal place of business is located. So, no dice.

However, is this a trend? Regardless, employees - you don't have to sign such non-competes and the law makes that clear by giving you a 7-day review period before its binding with notice of your right to have an attorney, in writing. 

Amazon Flex Drivers: You Might Be Owed More Than You Think

Amazon’s “Flex” program promises freedom - work when you want, earn on your terms. But if you’ve ever driven for Flex, you probably know that the reality doesn’t match the marketing.

According to recent reports, Flex drivers are locked out of the app after working certain hours, penalized for late deliveries even when delays aren't their fault, and subjected to rigid performance metrics. The system tells you when and how to work. That’s not independence. This is control and control is the name of the game when it comes to the distinction between employment status and independent contractor status - think misclassification.

So, that kind of control that Amazon apparently has comes with legal consequences.

Here’s What That Means Legally

If Amazon is telling you when to work, how to perform, and punishing you for noncompliance, they may have misclassified you as an independent contractor when you should be treated as an employee, which gives you access to recover damages in the form of: 

• Unpaid wages and overtime plus liquidated damages and attorneys' fees

• Reimbursement for expenses (like gas and vehicle wear-and-tear)

• Other employee protections under wage and labor laws (employer contributions to health insurance, retirement, workers' compensation premiums, paid time off, etc.) 

Over 15,000 Flex drivers have already filed arbitration claims and reporting indicates that Amazon has lost most of them.

Why You Are Forced into Arbitration
Companies like Amazon often make workers agree to arbitration so they can't sue in open court or join class actions. It’s designed to keep things quiet and discourage claims. But it’s backfiring because thousands of drivers are taking action, one case at a time. And they’re winning.

Know Your Rights - Especially in New York
In New York, the State's Labor Law offers enhanced protections over the Federal Fair Labor Standards Act for misclassifications, including a 6 year statute of limitations rather than a 2 year. Moreover, if you can't prove a misclassification, New York gives freelancers (independent contractors) their own set of labor protections in the Freelance Isn’t Free Act (FIFA). Under FIFA, you have the right to a written contract with specific protective terms, timely payment, and protection from retaliation. If Amazon (or any company) fails to pay you properly or takes advantage of your contractor status, you can pursue legal action, depending on the facts.

Bottom Line
If you’ve worked for Amazon Flex or any gig platform and felt more like an employee than a business owner, you may have a case. The law protects workers from companies that try to cut corners by calling employees “independent contractors.”
You have rights. And at Lieb at Law, we’re here to help you enforce them.

Workday Lawsuit Proves Discrimination Risk: Audit Your AI Now

Well, here it is, a federal judge just let a discrimination lawsuit move forward against Workday, the tech giant behind hiring software used by over 10,000 companies. Who is the plaintiff? A Black man over 40 with anxiety and depression who says he was auto-rejected more than 100 times by companies using Workday's AI.

He alleges the algorithm itself is biased, filtering out applicants based on race, age, and disability. This isn't just speculation, and he argues that it is supported by studies, which have shown AI hiring tools regularly replicate the same discrimination humans are supposed to avoid.

In July 2024, we blogged about New York’s DFS warning insurers, if you’re using AI and third-party tools, you’re responsible for making sure they don’t discriminate. That means audits, transparency, and clear legal accountability, even if the tool wasn’t built in-house.

In the New York Law Journal, we outlined exactly what a proper AI audit looks like, because when the lawsuits come, and they are coming, ignorance isn’t a defense, but a proper audit and intervention are very good defenses.

Workday says it “opposes discrimination.” Great. But denying wrongdoing doesn’t stop a lawsuit from moving forward, or a reputation from unraveling. If you’re using AI in hiring or other decision-making, the Workday case is a giant red flag. Start auditing NOW.

If your software is doing the sorting, you better know how it’s doing it, and who it’s leaving out.

So here’s the question: Have you audited your AI tools yet? 

SCOTUS Makes It Harder for Workers to Recover Wages

On January 15, 2025, the U.S. Supreme Court ruled in E.M.D. Sales, Inc. v. Carrera that employers only need to prove that employees are exempt under the provisions of the Fair Labor Standards Act ("FLSA") by a "preponderance of the evidence" (more likely than not) to defeat a wage and hour claim. This decision replaces the tougher "clear and convincing" standard that had been applied by some courts prior to this decision.

The FLSA requires an employer to pay overtime to employees unless the employer can prove that the employees fall under an exemption, such as being an Executive, Administrative, Professional, Computer & Outside Sales Employees.

In the case before SCOTUS, the employees claimed that they were misclassified as outside salesmen and sued their employer for overtime pay, liquidated damages (double damages), and attorneys' fees. 

The lower court sided with the employees, in using the tougher "clear and convincing" standard, but the employer appealed while arguing that it only had to prove that the exemption applied by a preponderance of the evidence. SCOTUS agreed with the employer and sent the case back to the lower court to reexamine the facts to determine the applicability of the exemption under the preponderance of the evidence standard. 

Regardless, the message is clear: Employers now have a lower hurdle when defending a wage and hour case in proving that an exemption applies to a wage and hour claim under the FLSA. 

Shedding Light on Pay Disparities: What You Need to Know from EEOC's Latest Data

Today, we bring to your attention the recent release of pivotal data by the U.S. Equal Employment Opportunity Commission (EEOC). This data, encompassing information from 2017 and 2018, provides an insightful glimpse into the state of pay disparities in American workplaces., which is illegal based on the Equal Pay Act. To learn more about the Equal Pay Act, take a CLE from Attorney Andrew Lieb here.

Key EEOC Findings:

The EEOC's data dashboard reveals a troubling reality: pay disparities based on sex and race persist across nearly every industry and state. Here are some crucial highlights:

• Gender Disparities: The data unequivocally shows that men continue to outearn women, with the median pay band for men consistently higher than that for women. In 2018, this gap was particularly pronounced, with men's median pay band being one or even two bands higher than women's.
• Racial Disparities: The disparities deepen when considering race and ethnicity. Black or African American women and American Indian or Alaska Native women find themselves in the lowest median pay bands, reflecting a distressing pattern of inequality.
• Industry and Job Category Trends: Across various industries and job categories, men consistently occupy higher median pay bands compared to women. While some sectors exhibit equal median pay bands, such as Accommodation and Food Services, these instances remain exceptions rather than the norm.
• Geographical Disparities: Disparities are not confined to specific industries or job categories but are pervasive across different states. For instance, in 2018, Wyoming, Louisiana, and West Virginia exhibited significant differences in median pay bands between men and women.

Implications for Legal Action:

The release of this data underscores the urgency of addressing pay discrimination in the workplace. Here's what you need to know:

• Equal Pay Act and Title VII: The EEOC enforces both the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, which prohibit pay discrimination based on sex, race, color, national origin, and religion. If you believe that you have experienced pay discrimination, you may have legal grounds to pursue a case and if you live in a State, like New York, you can go back up to 3 years on the state's anti-discrimination law to bring your case.
• Data as Evidence: The aggregated data provided by the EEOC can serve as compelling evidence in legal proceedings. If you find that your pay is unfairly lower compared to colleagues of a different
  gender or race in similar roles, this data can bolster your case.
• Consultation: If you suspect pay discrimination in your workplace or have questions about your rights, we encourage you to seek legal consultation. Lieb at Law, P.C. is here to provide guidance and support as you navigate the complexities of employment law.

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Major Retaliation / Discrimination Case by NYS' Highest Court

On February 15, 2024, The New York State Court of Appeals issued their decision in the Matter of Clifton Park Apts., LLC v. New York State Div. of Human Rights. 

We now know that the "threat of litigation" may support a retaliation claim under the New York State Human Rights law (Executive Law 296). So, if you notice a claim of discrimination and the perpetrator then threatens suing you for other reasons, you likely have a retaliation claim in NYS. 

That's why it is imperative that victims immediately notice perpetrators of their claims in a notice of preservation, notice to insurance, and demand letter. This is how you protect yourself. 

To read the decision, click here.

CLE - Proving and Calculating Front Pay and Back Pay in Employment Cases

Attorney Andrew Lieb is conducting a Continuing Legal Education course on Thursday, March 14, 2024 through the Connecticut Bar Association. 

Proving and Calculating Front Pay and Back Pay in Employment Cases (EDU240314)

About the Program

This course is designed to empower Connecticut Attorneys evaluating discrimination and whistleblower cases with the skills needed to calculate front and back pay. Attendees will delve into the intricacies of these calculations, exploring the underlying factors, and understanding the legal foundation established by case law and the rationale behind these formulas.

This course was created for both in-house and outside general counsel who need to provide an objective exposure analysis to their C-Suite counterparts when fielding discrimination claims. While this course is tailored for those with existing knowledge of the subject, it also serves as a valuable resource for referring attorneys to know what they have while undertaking an intake and giving initial advice to plaintiffs.

The course includes theory, math, and modeling with hypotheticals to walk participants through practical applications of the discussed concepts. To facilitate continued learning, participants will be provided with helpful links and reference materials, enabling them to further explore the subject matter beyond the course.

By the end of this CLE, Connecticut Attorneys will possess the skills and knowledge needed to confidently calculate front and back pay while having an invaluable resource for screening future employment law cases.

You Will Learn

• About the impact of the different factors that contribute to the calculation of front pay and back pay
• How to apply the different factors and how each impacts the calculations
• Helpful skills and knowledge needed to defend settlements with your C-Suite Team

Click Here to Register Here

To schedule a workplace training contact Lieb at Law, P.C.

New Rule Targets Salary History to Close Gender and Racial Pay Gaps

The Office of Personnel Management (OPM) has taken a significant step towards addressing gender and racial pay disparities within the Federal workforce with its latest regulation. Effective April 1, 2024, this rule prohibits the use of salary history in setting pay for new civilian employees, a practice that has historically contributed to ongoing pay inequities.

The private sector should take notice because the use of pay history is going to be a driving force in future claims under the Equal Pay Act based upon extrapolations from this regulation. 

Salary history has often been a determining factor in pay decisions, but this approach fails to account for the diverse experiences and qualifications individuals bring to their roles. More critically, it has perpetuated biases, inadvertently anchoring new salaries to previous ones that may have been influenced by discrimination. This cycle has been particularly detrimental to women and people of color, who statistically earn less than their white male counterparts. The gap is even more pronounced for women of color, underscoring the urgency of implementing measures that promote fair compensation.

By mandating that Federal agencies set pay based on merit, qualifications, and the requirements of the position rather than past compensation, the OPM aims to dismantle one of the barriers to achieving pay equity. This rule is a bold move towards creating a more equitable and inclusive Federal workforce, where pay disparities no longer shadow one's career.

For an in-depth understanding of the OPM's final rule and its impact on pay equity, visit the Federal Register: Advancing Pay Equity in Governmentwide Pay Systems.

NY Has a New Law Protecting Freelancers (independent contractors)

Governor Hochul enacted significant legislation this week marking a pivotal moment for freelancer workers across New York State by signing BillA06040, known as the "Freelance Isn't Free Act".

Before the introduction of this law (Labor Law 191-d), problems for freelancers included:

1. Delayed or Non-Payment: Without legal mandates, there was little to no consequence for payment terms leaving freelancers financially vulnerable.
2. Lack of Written Contracts: Many freelance engagements proceeded without formal written contracts, leading to misunderstandings and disputes about work scope, payment terms, deadlines, and other essential aspects of the work arrangement.
3. Limited Recourse for Contract Violations: Prior to this law, there was no straightforward legal recourse if an agreement was violated. Pursuing legal action was often costly and time-consuming, making it an impractical option.
4. Absence of Standardized Contract Terms: With no standardization of contract terms, freelancers often agreed to unfair or exploitative conditions due to lack of industry standards or fear of losing work.
5. Retaliation: Freelancers often hesitated to assert their rights or demand fair treatment due to the fear of being blacklisted or losing future work opportunities
6. Administrative Burdens: Freelancers were often burdened with the responsibility of chasing payments and resolving disputes on their own

The goal of the Freelance Isn't Free Act law is to ensure that all laborers get the right to fair and timely pay. Freelancers who are denied rights can claim liquidated damages plus attorneys fees making it easier to pursue a claim against the hiring party (previously, the economics of a lawsuit often effectively eliminated the option for freelancers to enforce their rights to get paid; now that is changed). 

Enhancing Utility Workers Rights: New York Assembly Bill A06978

The New York Assembly has introduced Bill A06978 to improve the working conditions of public utility workers. This bill aims to allow utility workers to have access to restroom facilities in businesses without needing to be paying customers.

Key Features of the Bill:

• Restroom Access for Utility Workers: Public utility employees can use employee restroom facilities in businesses during work hours.
• Conditions for Access: Access is allowed when the worker is on duty, with at least two employees of the business present, and when it doesn't pose safety or security risks.
• Compliance and Penalties: Businesses must comply or face a fine of up to $500 per violation, but are not liable for injuries to utility workers using their facilities.

Impact and Significance:

This bill recognizes the essential services provided by utility workers, addressing a basic need for restroom access during their duties. It balances the needs of these workers with the practical and safety concerns of businesses. A06978 is a step towards respecting the dignity and rights of utility workers in New York.

The Bill is on the governor's desk and once she signs it, it becomes effective. 

Employees Protected from Political Viewpoint Discrimination by Employers

Effective 9/6/2023, employees in NYS have greatly expanded rights to freedom of speech and conscience. Employees can now avoid their employer's views on politics or religion. This is huge. 

Specifically, A6604, amends Labor Law 201-d, which prohibits employment discrimination for political activities and recreational activities. Under the law, an employee can sue for equitable relief and damages. 

Key Amendments 

Now, the law defines:

"Political matters" as "matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization."

"Religious matters" as "matters relating to religious affiliation and practice and the decision to join or support any religious organization or association." 

Under the amended law, employers cannot force employees to attend meetings or listen to / view communications primarily designed to express the employer’s opinions on Religious matters or Political matters.

There is also a notification requirement where employers must post a sign in workplaces informing employees of their rights as per this section.

New York Post - Attorney Andrew Lieb Interviewed on Workplace Rights / Union Implications

Attorney Andrew Lieb shared insights with the NY Post on workplace rights and union implications. While unions offer protections, they come with legal nuances. Addressing concerns internally, like through HR, is advised, yet unresolved issues may call for legal steps. Strikes, powerful yet consequential, need judicious thought. Lieb delves into factors like "strikes as a last resort" and the importance of a compliant workplace culture.  #WorkplaceRights #UnionConsiderations #LegalInsights #StrikeResponsibly #LiebatLaw #EmployeeAdvocacy #attorneyandrewlieb #employmentlawyer #Sagaftra

https://nypost.com/2023/08/13/fed-up-with-pay-or-working-conditions-youre-not-alone/

Newsmax: Attorney Andrew Lieb Talks About Mental Illness & Whether It's An Excuse For Being Late To Your Job

Attorney Andrew Lieb joined a Newsmax panel discussion about chronic tardiness at the workplace.

To qualify for accommodations under the Americans with Disabilities Act (ADA), a condition must be a statutorily recognized disability. Currently, chronic tardiness related to mental health doesn't meet this criterion.

If recognized, it must then be proven that the employer doesn't face undue hardship due to the employee's unpredictable timekeeping.

Lieb advised employers against bending rules for certain groups to avoid creating a reverse discrimination scenario. He advocated for strict, fair policies that benefit all employees and ensure genuine accommodations for recognized disabilities aren't undermined.

Scripps News: Employment Attorney Andrew Lieb Talks about In-N-Out Banning Workers From Wearing Masks on Scripps

In Attorney Andrew Lieb's discussion about the legality of In-N-Out's mask policy with Scripps News, Lieb emphasizes its potential issues regarding discrimination. Although it's legal in the majority of states as a general matter, the way the policy is worded could inadvertently lead to discrimination by not providing exemptions for religious reasons. He suggests that employees might have a chance to oppose this policy through unionization, concerted activity, or lawsuits related to religious accommodations and disability accommodations. 

Before pursuing a medical exemption, Lieb advises employees to consult a discrimination lawyer to better understand what counts as a statutorily recognized disability that would qualify for such an exemption. He also addresses the problematic nature of the restaurant chain's requirement for only company-provided masks, which could fail to accommodate those who might need different kinds of masks due to their religion or medical condition. He specifically points out that "Many Muslim women might need to cover their face. So the way they articulate it is really problematic and potentially discriminatory."

Analyzing the Legal Implications of the Pregnant Workers Fairness Act

The U.S. employment law landscape has been transformed with the implementation of the Pregnant Workers Fairness Act (PWFA). This law, endorsed by President Joe Biden, extends protections to employees dealing with pregnancy, childbirth, or related conditions. The U.S. Equal Employment Opportunity Commission (EEOC) will now begin processing discrimination charges under this fresh statute, opening a new chapter in labor rights.

Legal Provisions:

The PWFA mandates employers to provide reasonable accommodations for pregnancy, childbirth, or related conditions, except when these adjustments impose an undue hardship on the employer. The PWFA thus augments protections under Title VII of the Civil Rights Act. As EEOC Chair Charlotte A. Burrows stated, the PWFA aids workers in securing their entitlements under this new law.

EEOC's Role and Resources:

The EEOC has introduced educational materials to aid workers and employers in understanding the new law. These include a "Know Your Rights" video series, a revised poster, and a guide to the PWFA. The EEOC is also set to accept discrimination charges under PWFA.

The Bottom Line:

The Pregnant Workers Fairness Act fills a gap in employment rights, fostering a more equitable and inclusive working environment. It is a substantial step towards legally addressing the unique challenges faced by pregnant workers, fostering a fair workspace for all.

If you are a victim, you can bring a discrimination case and recovery monetary damages for your lost pay and emotional distress. You have rights.