The EEOC Says "Gotcha!"

It's a sad time for retirees. Yesterday, the Equal Employment Opportunity Commission (the "EEOC") issued a regulation permitting employers to reduce or eliminate health benefits for employees who turn 65 and become eligible for Medicare. The regulation allows employers to establish two classes of retirees: (a) those under 65 receiving comprehensive benefits; and (b) those 65 or over receiving limited to no benefits.

Employers are now free to use age as a basis for reducing or eliminating health care benefits for retirees 65 and older. Discrimination, you say? Hold on to your hats, folks. To add insult to injury, the regulation creates an explicit exemption from age-discrimination laws for employers that scale back benefits of retirees 65 and over. I say "baloney!" If this isn't age discrimination, I don't know what is. Even though it looks, acts and smells like a duck, the EEOC says it isn't. Give me a break, will ya?

The employer lobby contends that having such a two-tiered system will save oodles of money for companies because Medicare picks up much of the tab and coverage for those 65 and over. Thus, those in the second tier have nothing to worry about. Excuse me, but has anyone over at the EEOC looked at the joke of a program that is Medicare? The infamous Part "D" alone, with its exclusions, exceptions and monetary thresholds is enough to make anyone's head spin. Many senior citizens still lack proper coverage and care even when they have Medicare. By issuing the new regulation, the EEOC merely exacerbates and validates an already broken system.

As an attorney who represents employers mostly, the EEOC's action is great news as it will result in tremendous cost savings. However, in my capacity as "Joe Citizen," I believe that this is an awful and disgraceful result; it merely serves to reaffirm this country's general view of senior citizens as unwanted, disposable beings who are undeserving of compassion and respect. To those who agree with the EEOC, I remind them that they, too, will reach 65 one day. How will they feel about all this then?

Wage Claim Retaliation Under New York and Federal Law ... The Differing Standards

Higueros v. New York State Catholic Health Plan, Inc. (U.S. Dist. Ct., E.D.N.Y., 12/1/07), provides a generally good discussion of the differing standards concerning retaliation claims under the Fair Labor Standards Act (the "FLSA") (29 U.S.C. Sec. 215, et seq.) and New York Labor Law Section 215, et seq. In Higueros, the Plaintiff worked as a marketing and sales representative for the Defendant, and alleged that the Defendant employer failed to pay overtime compensation in violation of the FLSA and New York Labor Law. The Plaintiff further alleged that she was fired in retaliation for complaining to supervisors about the Defendant's failure to pay overtime. The Defendant's Motion to dismiss was granted in part and denied in part.

In dismissing the claim under the FLSA, the court relied on Second Circuit precedent in holding that: (i) FLSA Sec. 215(a)(3) required either the filing of a formal complaint with the employer, the institution of a proceeding, or testimony in a proceeding for protection to attach; and (b) the FLSA did not encompass informal complaints made to a supervisor. In Higueros, the Plaintiff admitted that she made only informal complaints to her supervisors about the Defendant's failure to pay overtime wages.

Interestingly, the court upheld the retaliation cause of action asserted under New York Labor Law Sec. 215 (1) on the grounds that the State statute is less specific as to what form an employee's complaint to management must take to qualify for protection against retaliation. Unlike the FLSA, New York Labor Law does not require a formal complaint. Accordingly, the Plaintiff's informal complaints to her supervisor were held to be sufficient under State law to survive the Motion to Dismiss.

This is the kind of stuff that gives lawyers fits. On the FLSA front, the statute's requirement of a formal complaint is appropriate to ensure the existence of objective evidence with respect to the employer's knowledge of the allegations and its subsequent actions to remedy the situation, if any. On the other hand, it penalizes those individuals who complain only to their supervisor based on either naivete or a fear of putting something in writing which the employee believes will come back to hurt them later. As to the New York statute, the problem is just the opposite. The lack of a requirement for filing a formal complaint benefits the employee greatly while putting the employer in the unenviable position of having to defend a claim based solely on testimonial evidence.

While I'd like to see more uniformity in the law, at least the attorneys are generating fees either way. That's a good thing, isn't it?

Employment-At-Will ...The New York Experience

If I’ve said it once, I’ve said it a thousand times ... New York is an employment-at-will State. Accordingly, one can be fired for any reason or no reason, provided that the basis for the discharge does not violate the law. Such was the reaffirmation in Ferraro v. Seamen's Church Institute of New York and New Jersey, (Supreme Court, N.Y. Co. - Decided: December 3, 2007).

In Ferraro, the Plaintiff (a maintenance worker), sued his former employer for constructive discharge, defamation and intentional infliction of emotional distress. The Plaintiff alleged that his supervisor: (a) began verbally humiliating him in front of co-workers by calling him names such as "stupid," "blind" and "senile," and criticizing his job performance; (b) wrongly accused him of having stolen property from his employer; (c) assigned him tasks more difficult than those assigned to his co-workers and made him work longer hours; and (d) falsely reported to the employer that he possessed marijuana at work. Plaintiff resigned from his position after the accusation of drug possession was made because he claimed that the job had become intolerable.

The court granted Defendant's Motion to dismiss on all causes of action, and denied Plaintiff’s Cross-Motion to amend the Complaint. In granting dismissal, the court relied upon the well-settled principle in New York that an employment relationship is presumed to be terminable at any time by either party absent an agreement establishing a fixed duration. No such agreement existed between the Plaintiff and his employer. The court held that even the alleged constructive discharge (i.e., that Plaintiff was forced to voluntarily leave his employment due to the employer’s intentional creation of a work environment that was so difficult or intolerable that a reasonable person would feel forced to resign) was appropriate. It is noteworthy that the neither the Complaint nor the proposed Amended Complaint alleged that the constructive discharge was based on employment discrimination due to Plaintiff’s race, religion, gender, nationality, age or sexual preference. Had such allegations been in issue, perhaps the court would have denied the employer’s Motion to dismiss and allowed the matter to proceed.

While the holding in Ferraro is not Earth-shattering, it does confirm that a strict interpretation of the employment-at-will doctrine is alive and well, and living in New York.

Time Has Come Today

Recently, I’ve been seeing far too many employers utilizing time sheets that reflect only the total number of hours worked per day; information with respect to time-in and time-out or employee signatures is not included. Such a practice can be fraught with pitfalls.

Time sheets are important source documents when prosecuting employee disciplinary proceedings and in defending against employee claims of wage underpayments; they can also be critical evidence in employer tax matters. Difficulties in proof arise when the time sheets lack relevant, substantive information or an employee's signature attesting to their accuracy. In such instances, it is typically necessary to rely on extrinsic evidence (such as contemporaneous documents and testimony) in order to corroborate the claim independent of the time sheets. Ultimately, this may or may not prove to be successful based on the credibility assigned to same by the trier of fact.

Employers may wish to review their practices regarding this issue in an effort to avoid potential problems and to identify existing problems which may require prompt, remedial action.

Lawyer Joke WEEKEND

Here's the latest to tickle your funny bones:

Q. Santa Claus, the tooth fairy, an honest lawyer, and an old drunk were walking along when they simultaneously spotted a hundred-dollar bill laying in the street. Who gets it?

A. The old drunk, of course. The other three are mythological creatures.

New OSHA Training Requirements For Public Work To Take Effect

Effective July 18, 2008, a new section will be added to New York's Labor Law. The new section, known as Labor Law Section 220-h, requires that workers on a public works construction project must be certified as having completed an OSHA-approved construction safety and health course which is at least 10 hours long. The certification for each worker must be in place prior to his/her performance of any work on the project, and applies to contracts where the total cost of all work to be performed is at least $250,000.

New York public works contractors and subcontractors may wish to start making plans for worker training well in advance of the new statute's effective date.