For more information about the New York Nursing Mothers Law, see the recent posting on our Articles page, reprinted from the New York Women’s Bar Association March 2009 newsletter.

• Be truthful on resumes and job applications.

• An employer can require you to sign a non-competition or non-solicitation agreement as a condition of employment.

• Breach of an agreement not to compete or solicit can take you to court, and cost you money.

• Revealing trade secrets can get you in legal hot water, even if you don’t have an agreement.

• Disclose the existence of non-competition, non-solicitation and confidentiality agreements to a prospective employer up front.

• There may be room for negotiation if a severance agreement is offered, but you are not entitled to any benefit unless it is spelled out in the final agreement.

• Learn to recognize interview questions you don’t have to answer.

• If resignation is an option, evaluate the pros and cons.

• The principle of employment at will generally applies in New York.

New York employers should take note of the February 2009 amendments to the Correction Law and the new responsibilities it imposes upon them. All New York employers must now post a copy of Article 23-A in a visually conspicuous manner in an accessible location in the workplace. They also must provide a copy of Article 23-A to individuals subject to background checks. A copy of Article 23-A may be downloaded from the New York State Department of Labor Website.

Surprisingly lost in the discussion about whether age limits are appropriate for the NBA draft is the fact that many state laws prohibit employment discrimination against individuals who are eighteen or over.  As playing in the NBA is employment — albeit a dream job — eighteen year olds are deprived of their potential employment and are thus victims of age discrimination.  In New York, for example, the New York State Human Rights Law prohibits employers from refusing to hire or employ an “individual eighteen years of age or older… because of such individual’s age.”  The NBA, and its players’ union, are subject to compliance with all New York employment laws, as well as other state laws which prohibit discrimination based on age.

Given that LeBron James and Kobe Bryant entered the draft straight out of high school, at age eighteen, it would be difficult for the NBA to justify its age requirement as a bona fide occupational qualification.  The NBA apparently contends that it set the age nineteen limit so that players have the opportunity to mature and further hone their skills.  Lebron and Kobe sink that theory, however, as their performances as eighteen year olds in the league were masterful.  There are compelling policy arguments both for and against the age and college requirements, but as an employment law issue, these eighteen year olds are faced with a flat out ban on their employment regardless of whether they are the next Kobe or a disappointment.

Age discrimination against individuals who are “too young” is a viable legal claim.  In Oregon, a court found discrimination where a beauty shop refused to hire a thirty-year-old woman because she was “too young” to deal with clientele in their 70s and 80s.  Similarly, the termination of a Michigan account executive because the clients wanted an older account executive and her voice “sounded too young on the phone,” presented a claim of age discrimination.  And when a twenty-five year old bank vice president was fired and replaced with someone older after he revealed his age to his employer, a New Jersey court found that individual had presented a viable age discrimination claim.

The 2004 case of Clarett v. National Football League, does not give the NBA any solace vis a vis the age discrimination issue.  The Clarett litigation approached the National Football League’s age requirement that a player must be out of high school for three full football seasons before entering the draft as an antitrust challenge, rather than as an age discrimination case.  The Second Circuit found that the NFL, as a multi-employer bargaining unit, could act jointly in setting the terms and conditions of players’ employment and rules of the sport without risking antitrust liability.  But the labor exception which carried the day in the Clarett antitrust case is not a shield when it comes to a union and employer agreeing on an unlawful ban to employment based on age.  Indeed, in the discrimination law context, it is well settled that unions will be held jointly liable with employers under the federal discrimination statutes for discriminatory terms contained in a collective bargaining agreement.

In sum, it is only a matter of time until the next promising eighteen year old challenges the NBA’s age requirement on the basis of age discrimination.  The case could be a slam dunk.

A 1905 U.S. Supreme Court decision, Jacobson v. Massachusetts, 197 U.S. 11 (1905), remains viable today for the proposition that personal liberty guaranteed by the 14th Amendment is not infringed by state law authorizing compulsory vaccination deemed necessary for public health or safety. In 1905, the threat was smallpox. Today it is a wide and quick-spreading strain of the flu which the New York State Department of Health is attempting to contain through vaccination. Thus, health care employees who object to the Department of Health mandate may have to choose between keeping their job and taking a shot of vaccine they believe is risky — or looking for work in a state other than New York.

Sparks is self-described as “the Fort Knox of fine aged beef.”  It has been recognized by Zagat as the “apex” of New York steak houses and by Fodor’s as the “classic New York steak house.”  There were 200 present and former waiters of Sparks involved in the lawsuit.

The basis of the claims against Sparks was the diversion of waiters’ tips to individuals such as kitchen expediters, the banquet manager, and a dessert chef who were alleged to have been improperly included in the tip pool.  Sparks denied the claims and the case was litigated for three years before settlement was reached.

At the Fairness Hearing on the settlement, United States District Court Judge Paul A. Crotty recognized the “professionalism” of the parties in the way in which they had resolved the case.  Judge Crotty found that “the settlement in all its respects is fair and reasonable and adequate.  It addresses mistakes that were made over time and corrects them, puts the defendant on a better course to follow in the future, one that will hopefully eliminate any further disputes.” (Click here to view transcript of the Fairness Hearing).  The settlement also was recognized by Norman Bromberg, former District Director of the U.S. Department of Labor’s Wage and Hour Division, New York District Office, as “fully and fairly reimbursing” the Sparks waiters.

Berke-Weiss & Pechman LLP has been active in wage and hour litigation within the restaurant industry.  The Firm currently has cases pending against Bobby Van’s Steak House, the Old Homestead Steak House, Estiatorio Milos, and other New York City restaurants.  In addition, Berke-Weiss & Pechman LLP has been conducting preventative counseling and litigation defense for restaurants who want to ensure they are in compliance with the law.

Certified public accountants generally meet the duties requirements for the learned professional exemption.  In addition, many other accountants who are not certified public accountants but perform similar job duties may qualify as exempt learned professionals.  However, accounting clerks, bookkeepers and other employees who normally perform a great deal of routine work generally will not qualify as exempt professionals.

Regardless of the title used, determination of whether an accountant is exempt from the FLSA is made by the courts by analyzing actual job duties.  If the job does not require a CPA license and the accounting employees are not given independent discretion in decision-making, junior accountants or associate accountants could be entitled to overtime pay for hours they work over 40 in a given week.  The key inquiry is whether work done is routine or that of a learned professional.  The question is worth examining because misclassification of a non-CPA accountant as “exempt” from the FLSA can be costly, subjecting an employer to back pay liability for overtime, as well as liquidated damages,  leading to a substantial monetary recovery by the employee.

Recently, accounting firms and financial services companies have been subject to lawsuits, some of which are class actions, brought by junior accountants and associate accountants claiming they were misclassified as nonexempt, and seeking to recover unpaid overtime.  In one case, decided in December 2009, a federal judge in Connecticut declined to dismiss a wage and hour case brought by JP Morgan Chase accountants who worked in their hedge fund services business.  The accountants claimed they were merely “internet age bookkeepers” whose positions did not require knowledge of accounting, thus making them eligible for paid overtime.  The court determined that the nature of their primary duties was a question of fact to be determined at trial.  A jury now will decide whether these accountants were or were not exempt.

It Is Illegal For a Restaurant or Hotel to Keep Gratuities or Tips Meant For Its Waiters

The lawsuit seeks to recover misappropriated service charges and special banquet gratuities for banquet waiters which The Waldorf led customers to believe were gratuities or tips to be paid in their entirety to their service staff, but were actually kept by the house. This practice was held by the New York Court of Appeals to be unlawful in the case of Samiento v. World Yacht Inc. In that case, the Court of Appeals concluded that a mandatory service charge may be a “charge purported to be a gratuity” within the meaning of the New York Labor Law.

The Samiento case relied on Section 196 New York Labor Law, which requires that:

No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.

Country Clubs and Catering Halls Have Also Been Sued

The practice used by The Waldorf is not uncommon. Indeed, many catering halls, country clubs, and restaurants add a service charge or gratuity to the bill but do not pass on these gratuities or tips to their waitstaff.  Given the pervasiveness of this unlawful practice, we believe that disputes over banquet service charges will be the next lawsuit du jour in the New York hospitality industry.