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January 2015 Archives

The Age Discrimination in Employment Act

The age discrimination in employment act is found in federal law and prohibits just as it says discrimination in employment in the terms and conditions of employment in White Plains, NY, on the basis of age, and the age that is the bottom level of the protected class is 40 years of age and again it applies to employers in this case who have 20 or more employees. It’s slightly different from other anti discrimination statutes. The supreme court of the United States most recently has decided a case that is making it more difficult for employees to prove claims of age discrimination because the court is requiring now that the proof be and that the adverse employment decision with going forward. For example, termination was made because of age rather than the age and with a factor among many factors in making the employment decision.

What Should I Know About Title VII?

Title VII is actually a short name for a federal statute which is found at 42 USE section 2000 A and following sections. Broadly, it is a federal anti-discrimination law in New York. It forbids discrimination among other things employment on the basis of race, gender, national origin, religion and color and etc. and people hear that phrase Title seven and it covers a multitude of things. It applies in the employment arena to employers with 15 or more employees, therefore if an employer has fewer than 15 or more employees that statute is not applicable. There is a similar statute in the state of New York, it’s the New York state human rights law and it’s found in the executive law and it prohibits similar forms of discrimination but it covers much smaller employers. It covers employers who have four or more employees and therefore it’s most applicable to small businesses and when we deal with small businesses this is often the statute that we sight.

Filing Discrimination Charges with the EEOC

In order to bring a claim in federal court, the employee is required to file what is called a charge of discrimination with the EEOC. The EEOC is the Equal Employment Opportunity Commission and they have what I would refer to as a gate keeping function. Basically the EEOC will retain jurisdiction over the complaint for a period of at least 180 days over the state of New York. During that 180 day period the EEOC will do any number of things, one thing that can happen is nothing, basically the EEOC will maintain that file and at the end of 180 days or sometimes there after they will issue the employee with what’s called an issue of rights to sue and that right to sue is basically the employees ticket to go file in federal court a claim of discrimination against the employer. The EEOC however often times will do other things in reaction or as a result of an employee’s filing, one of those things is investigate, they have an investigative arm that has representative that will inquire of the employee and the employer and of the existence of records that could support or refute a claim and they may ask for affidavits or witness statements in order to determine whether there is some valid claim there. Absolutely employers should have representation if in anyway shape or form they are asked to respond to a request from the EEOC to forward information. A, you want to make sure you are complying with whatever that’s being asked of you and B, you want to make sure that you are on point and accurate with what you are providing but finally you want the attorney to be able to and what we do for you is present it in a way that shows that you did not engage in the discriminatory behavior. The other thing which the EEOC can do, which is really a critical function of the EEOC is to mediate the case, what that means is that they try to seek a resolution, a settlement if you will with the employee before the employee sues in court. So the EEOC does serve the function of trying to minimize the number of cases that end up being filed in court and they do that by approaching the case early on in form of a mediation or settlement. In terms of a settlement the employer should absolutely retain an attorney. One of the things that we do at Golden Berg is we always evaluate what your possible exposure is, that’s critical as an employer going forward in this agency situations. You don’t want to end up saying no absolutely not, I will not settle this employee and you end up finding that after three years of litigation its cost you not only a lot in attorney fees and costs in defendant action but now you are facing some type of damage award which depending on the claims the employee is bringing could very well reach a six figure range. So, there are very serious ramifications if you don’t have adequate representation at the beginning to advise you as to whether there is a cheaper less expensive more effective way to resolve the case. The EEOC can be a form of resolution for you in that instance and certainly having an attorney advice at that point in time is critical so that you can avoid the expenses that you would otherwise undergo if you didn't have the appropriate advice from the start.

A Former Employee Filed a Complaint with the NYS Division of Human Rights Alleging Discrimination. Do I Need a Lawyer?

Employees in White Plains, NY choose to bring claims of discrimination and agencies, such as, the New York State department of human rights or the Equal Employment Opportunity Commission, there are also often time’s county commissions on human rights or other commissions in town’s villages and cities where claims can be brought for discriminatory conduct in the employment setting. Furthermore, employees do actually bring those claims in court either before or after or during those administrative claims as well. As an employer you absolutely need legal representation in these settings and an employer who think they can go in and defend this subject, for example,  an employment claim. There are serious allegations that are being brought against you, that you engaged in a violence of law in discrimination and maybe perhaps because of the individuals’ race or religion, it could be because of their age or a disability or any number of factors that are protected under the law. These employees are entitled to have representation under the law but they don’t always have representation at these proceedings. You as an employer are entitled to have representation and you should always have representation at these proceedings as a result of the outcome of either a hearing in the United States department of human rights or even a county commission, you are subjected to very similar damages that you would get as if you were sued in court. You can be required to pay back pay, you can be required to pay emotional suffering payment damages and there are also penalties which can be imposed which are somewhat punitive. They are not called punitive damages under the New York state laws they are more of liquidated damages but there are several fines and penalties that are paid to the New York if claims are founded against you and these penalties can often run more than what the damages are that the employee is seeking so it’s really critical that if you are facing this kind of claim that you get representation from adequate company council upfront and right away. You want to develop strategy building and you want to approach it along the lines of that strategy throughout the course of the proceedings so that you make sure you are adequately represented so that at the end of the day you are not facing a huge damage or verdict against you or for example these civil fines and penalties.

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