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Edgar M. Rivera, Esq.

People suffering from a range of physical and mental disabilities frequently rely on companion animals, most commonly dogs, to assist them as they go about their day.  Most employers, however, prohibit employees from bringing animals to work, creating a tension between employer and employee based on a misunderstanding about disability.  As part of our series on mental health, this blog covers a case involving a companion animal for someone suffering from depression and post-traumatic-stress disorder (PTSD).

Joyce Riggs worked for the Bennett County Hospital and Nursing Home (the “Hospital”) from March 2006 until her termination in March 2015.  Between 2006 and 2012, Joyce brought a companion animal to work with her to help manage her depression and PTSD.  When Ethel Martin became CEO in 2012, however, the Hospital adopted a more restrictive policy regarding pets in the workplace.  Joyce informally requested permission to continue bringing her companion animal to work, but the Hospital denied her request.

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by Owen H. Laird

This Summer, The Harman Firm Blog is running a series of articles on mental health in the American workplace.  Millions of Americans suffer from a wide range of mental health issues, be they diagnosed or undiagnosed, treated or untreated, living with the stigma surrounding mental illness and the lack of understanding about these disorders.  The variety and severity of these conditions runs the gamut from relatively minor issues to disabilities so severe they are completely debilitating.  But they are too often overlooked.  With that in mind, we will undertake a comprehensive analysis of how mental health issues – both arising out of the context of employment discrimination and those arising independently – affect workers, employers, lawyers, legislators, and the courts.

People with mental health issues make up an important segment of the workforce: they work in every sector of the economy and at every level – from the mail room to the boardroom.

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Edgar M. Rivera, Esq.

On April 30, 2018, in Sépulveda-Vargas v. Caribbean Restaurants, LLC, the First Circuit affirmed the U.S. District Court for the District of Puerto Rico’s dismissal of Victor Sépulveda-Vargas’s reasonable accommodation claim under the Americans with Disabilities Act (ADA).

Mr. Sépulveda, an assistant manager at Caribbean Restaurants LLC (“Caribbean”), which operates Burger King restaurants in Puerto Rico, suffered from post-traumatic stress disorder (PTSD) and depression after he was attacked at gunpoint, hit over the head, and had his car stolen while making a bank deposit on behalf of Caribbean Restaurants.

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This month, New York State and New York City made groundbreaking expansions to the sexual harassment provisions of several state and city statutes and regulations, including the New York State Human Rights Law (NYSHRL), New York City Human Rights Law (NYCHRL), general business law, and civil practice law and rules. Some of the most important changes involve extending legal protections against sexual harassment to previously unprotected workers, including independent contractors and other non-employees; prohibiting mandatory arbitration of sexual harassment claims and non-disclosure provisions in sexual harassment settlement agreements; and requiring employers to provide sexual harassment training to employees.

As of April 12, 2018, the NYSHRL now protects all non-employees in New York State against workplace sexual harassment. Most other state employment discrimination statutes cover only employees, leaving most independent contractors (including models, actors, and other entertainers who are typically represented by agents), consultants, and other non-employees with few legal protections against workplace discrimination. The new changes to the NYSHRL, however, extend sexual harassment protections under state law to any “contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.” Under the NYSHRL, an employer is liable for sexual harassment of a non-employee if the employer knew (or should have known) about the harassment but did not take immediate and appropriate corrective action.

We have previously reported on the prevalence of—and problems with—mandatory arbitration agreements (which require employees to agree to resolve any future discrimination and harassment claims in a private forum, rather than in court) and nondisclosure provisions, better known as NDAs, in settlement agreements (which swear employees to silence about their experiences of discrimination in exchange for settling their claims). Beginning July 11, 2018, however, the New York general business law will be amended to prohibit New York State employers from forcing employees to arbitrate sexual harassment claims—including nullifying any arbitration agreements signed prior to that date. And amendments to New York’s civil practice law and rules and general municipal law will prohibit employers from including NDAs in settlement agreements concerning workplace sexual harassment claims unless the plaintiff specifically voices a preference for including the nondisclosure language. Together, these changes will hopefully begin to end the silence around workplace sexual harassment by giving victims of sexual harassment the chance to pursue their claims in court and share their stories of discrimination with others, unrestricted by silencing clauses in settlement agreements.

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On April 2, 2018, the U.S. Supreme Court held in Encino Motorcars, LLC v. Navarro that an auto dealership’s service advisors were exempt from overtime under the Fair Labor Standards Act (FLSA), which excludes “any salesman, partsman or mechanic primarily engaged in selling or servicing automobiles” from the FLSA’s overtime provisions. While the case turned on this fairly specific overtime exemption question, however, the Court’s decision has much greater implications, laying out a new standard for analyzing overtime exemptions under the FLSA and rejecting the longstanding precedent that FLSA exemptions be “narrowly construed” in favor of a broader “fair reading” standard.

The FLSA is a federal wage-and-hour statute which establishes, among other things, minimum wage and overtime requirements for covered employers. Under the FLSA, most employees are entitled to overtime premium pay—pay at one-and-a-half times the regular hourly rate for hours worked in excess of 40 in a given work week. Some workers, however, are exempt from the FLSA’s overtime provisions, including executives, administrative employees, learned professionals (such as doctors and lawyers), and creative professionals (such as musicians and actors), among a number of others.  Encino Motorcars dealt with a less common, more obscure FLSA exemption, set forth in § 213(b)(10)(A) of the FLSA, which states that “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements” is exempt from overtime under the FLSA.

In Encino Motorcars, a group of current and former service advisors at an auto dealership brought suit under the FLSA, alleging that they were owed back pay because their employer had misclassified them as exempt from overtime under the FLSA. The defendant then successfully moved to dismiss on the grounds that the plaintiffs fell within the “selling or servicing automobiles” FLSA exemption, which decision plaintiffs appealed to the U.S. Circuit Court of Appeals for the Ninth Circuit. The Ninth Circuit reversed the district court’s ruling, finding the language of the FLSA “ambiguous” and the legislative history “inconclusive.” Encino Motorcars then appealed the Ninth Circuit’s holding to the U.S. Supreme Court, which reversed and remanded in a 5-4 decision.

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Edgar M. Rivera, Esq.

On March 26, 2018, the U.S. District Court for the Northern District of Illinois granted summary judgment in favor of the defendant in Westbrook v. Illinois Department of Human Services, dismissing the hostile work environment claims brought by Velma Westbrook against her former employer, the Illinois Department of Human Services (IDHS). Ms. Westbrook, an African-American security therapy aide, alleged that a patient repeatedly made racially derogatory comments and once tried to attack her. The court held that, due to the nature of Ms. Westbrook’s job, the patient’s offensive comments and behavior were not sufficiently severe or pervasive to alter the conditions of Ms. Westbrook’s employment, meaning that Ms. Westbrook could not sustain a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”).

In 2001, Ms. Westbrook began working as a security therapy aide for IDHS’s forensic treatment programs, which house and provide treatment for individuals who have been found not guilty by reason of insanity in criminal court. As a security therapy aide, Ms. Westbrook’s job duties included documenting residents’ inappropriate behavior, de-escalating resident behavior in potentially dangerous situations, and preventing residents from harming themselves or others. At the beginning of her employment at IDHS, Ms. Westbrook received training on how to deal with disruptive residents, restrain combative residents, and defend herself against residents who became aggressive, and she testified that she knew when she took the job that she would be dealing with mentally ill individuals. Over the course of her nearly 10-year employment at IDHS, Ms. Westbrook observed patients assault others on a regular basis, and she regularly worked with patients who said hurtful or offensive things to staff members.

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Leah Kessler

On March 27, 2018, in Del Toro Lopez v. Uber Technologies, Inc., Uber agreed to pay a $10 million settlement and make systemic changes to the way it evaluates employees to settle a class action brought by three Latina engineers, who alleged that they were paid less than their white and Asian male colleagues due to Uber’s unfair evaluative methods. The settlement will compensate about 285 women and 135 men of color for financial and emotional harm stemming from the alleged discriminatory practices.

In October 2017, Ingrid Avendaño, Roxana del Toro Lopez, and Ana Medina—all of whom are Latina women who were employed as software engineers at Uber—filed suit in California on behalf of themselves and other aggrieved employees, claiming that Uber engaged in unfair business practices and violated the California Equal Pay Act and Private Attorneys General Act. The complaint alleged that Uber uses a “stack ranking” system for evaluating employees, meaning that Uber evaluates each employee from “worst to best.” The result, as the suit claims, is that “female employees and employees of color are systematically undervalued….because [they] receive, on average, lower rankings despite equal or better performance.” These stack rankings are used, in part, to determine promotions.

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Owen Laird, Esq.

Today is Opening Day for the 2018 Major League Baseball season. Spring training is over, and while the Major Leaguers head back to their stadiums, the Minor League players who didn’t make the cut are headed back to work as well. Those Minor Leaguers might be a little worse off this year because of the sweeping $1.3 trillion budget bill that President Trump signed last week. One of the more nuanced aspects of the bill is an amendment to the Fair Labor Standards Act (“FLSA”) known as the “Save America’s Pastime Act.” This amendment aims to “save” baseball by suppressing the wages that minor league teams pay to their players.

While major league baseball players enjoy a minimum annual salary—which amounts to hundreds of thousands of dollars per year, with top players earning tens of millions of dollars a year—minor league baseball players are a different story. Not only do minor league players significantly outnumber major league players, but, unlike major league players, minor leaguers are not unionized. As a result, baseball’s minor leagues are populated with thousands of players, many of whom are barely squeaking by.

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Edgar M. Rivera, Esq.

On March 16, 2018, in Chauca v. Abraham, the Second Circuit vacated a district court’s denial of a plaintiff’s request for a jury instruction on punitive damages for pregnancy discrimination under the New York City Human Rights Law (NYCHRL). The Second Circuit explained that the lower court had erred in applying the federal test because the New York State Court of Appeals, on certified question, had expressly rejected the application of the federal standard for punitive damages under the NYCHRL. The case was remanded for further proceedings consistent with the opinion.

The Harman Firm, LLP, reported on Chauca v. Abraham on November 20, 2017. In our post “New York Court of Appeals Sets Punitive Damages Standard for NYCHRL Claims”, we explained how the New York State Court of Appeals set the standard for punitive damages awards in claims brought under the NYCHRL. The New York State Court of Appeals, in keeping with the New York State common law standard, held that the NYCHRL entitles a plaintiff to punitive damages “where the wrongdoer’s actions amount to willful or wanton negligence” or “recklessness” or involve “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.”

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The Harman Firm is proud to report that on February 12, 2018, Judge Vernon S. Broderick of the U.S. District Court for the Southern District of New York denied summary judgment in Umanzor v. New York City Police Department. The court’s decision allows the disability discrimination claims brought against the New York City Police Department (NYPD) by plaintiff Randy Umanzor, who is represented by The Harman Firm, LLP, to proceed to trial.

In May 2013, Mr. Umanzor was diagnosed with multiple sclerosis (MS) after experiencing symptoms of weakness and numbness. After his diagnosis, Mr. Umanzor began a treatment regimen, including a prescribed steroid medication and Vitamin B12 injections, but continued to experience some minor MS-related symptoms, like tingling, numbness, and fatigue. Mr. Umanzor applied to join the NYPD’s Police Cadet Corps in February 2014, after being diagnosed with and treated for MS. He passed the physical examination with flying colors.

However, after Mr. Umanzor disclosed his MS diagnosis during the application process, the NYPD placed him “on review.” Mr. Umanzor provided the NYPD with his medical records—which were unintentionally incomplete—and a note from his neurologist, confirming that Mr. Umanzor was “medically stable” to join the NYPD and that his neurological exam was “normal except for mild sensory loss in the first two fingers on the left hand.” After receiving these documents, the NYPD disqualified Mr. Umanzor based on the “brief period of time that had elapsed between his MS diagnosis and the date that he applied to the Police Cadet Corps.”

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