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Shulman Kessler LLP Blog

Unlawful v. lawful: When is a strike illegal?

McDonald's may be one of the most successful fast food chains in the nation, but lately, they are facing a long list of complaints about their failures. Employees of the restaurant in New York and across the country went on strike last week to protest the many issues they have with the company, from improper wages to the mishandling of sexual harassment claims.

This is not the first strike McDonald's employees have organized. They walked out in 2018 as well to protest the rampant sexual harassment. And we frequently see news stories covering strikes like this. However, news stories do not give you all of the information you need to know, particularly about the strike itself. So, what rights do employees have when it comes to striking?

DOL proposes increase to FLSA overtime income cap

About 1.1 million workers throughout New York and the rest of the country would qualify to receive overtime time pay if a new rule proposed by the Department of Labor is implemented. The Fair Labor Standards Act requires employers to pay workers overtime when they work more than 40 hours in a workweek, but the landmark 1938 law does not cover all employees. Managers, commissioned salespeople and workers who earn over a certain amount are not entitled to overtime under the FLSA.

The current income cap for non-management workers to qualify for overtime pay is $23,660. This figure was set in 2004. The rule proposed by the DOL would raise this cap to $35,308. An effort was made to raise the income cap to $47,476 during the Obama administration, but a federal judge blocked the change just days before it was scheduled to go into effect. Had it not been blocked, the Obama-era change would have extended overtime coverage to about 4.2 million workers.

After the #MeToo movement, retaliation claims are on the rise

Inspired by the #MeToo movement, thousands of women found the courage and strength to call out the sexual harassment they faced at work. Many of the highest profile stories made the frontpage news, and they toppled some powerful offenders. But what about all the other women who stepped forward with their complaints?Their stories largely followed a different trajectory. After they reported their harassment, they frequently found themselves demoted or fired, or if they stayed at work, they might have been ostracized or reassigned to less desirable projects, even if the reassignment did not strictly mean a demotion. They have suffered retaliation.

Understanding New York City's new hair discrimination guidelines

Employee discrimination can come in multiple forms that the general populace isn't aware about for a long time. More employers get away with their unfair business practices the longer the public doesn't know about the issue at hand. These are why lawsuits and newer laws are important as they can influence an employer's actions and make more people realize how fair workplaces should operate.

Earlier this month, the NYC Commission on Human Rights announced that the city had new guidelines regarding hair discrimination. These new regulations allow for more freedom in the workplace for employees to express themselves with their hairstyles without potentially losing their job in the process.

Study finds inaction on gender discrimination issues

In a recent Randstad study, roughly half of respondents admitted to not taking action after seeing a coworker make inappropriate comments to someone of the opposite sex at work. Just over half of the respondents said they knew a female worker who had been sexually assaulted at work. Gender discrimination at work is actionable in New York, and those who have experienced it may be entitled to recover money damages or other relief from their employers.

In the study, more than 33 percent of respondents said they'd witnessed someone in a position of authority take advantage of opposite-sex subordinates. Nearly a quarter of women who responded said they believed they had suffered career setbacks because they had refused the sexual advances of a supervisor. The report also found that people who are in a racial or ethnic minority group are more likely to experience harassment or gender discrimination at work.

Google announces an end to forced arbitration for workers

The technology giant Google announced on Feb. 21 that that would no longer prevent its employees from joining together to file class-action lawsuits against the company over workplace issues. Google workers in New York and around the country will also no longer be required to litigate discrimination and wrongful termination disputes through arbitration. The move is the latest effort by the Mountain View-based company to relax restrictions that prompted widespread worker protests in November.

About 20,000 Google workers around the world walked out of their offices after it was revealed that the company had given a former executive an exit package worth approximately $90 million. Employees reacted angrily to the news because the executive had been implicated in a sexual harassment scandal. The workers called for an end to mandatory arbitration because the sessions take place behind closed doors. This, according to the workers, leads to serious workplace issues being buried or ignored instead of confronted and resolved.

Fast-food workers fight against arbitrary firings

Workers in fast food in New York City continue to face serious problems and violations of their rights on the job. While their movement for a $15-per-hour minimum wage was victorious and sparked similar movements across the country, they continue to deal with wage theft, inappropriate firings or retaliation for reporting harassment, and other types of inappropriate conduct. One member of City Council said that he plans to introduce legislation requiring fast-food companies to show just cause before dismissing workers; fired employees could also appeal their dismissals through an arbitration procedure.

The proposal comes after a number of complaints from fast-food workers about wrongful dismissals. Workers have said that they were fired for not smiling enough, reporting harassment and other causes that could be linked to racial or gender discrimination. This comes after other reforms have hit the industry, such as the bill passed two years ago requiring city fast-food franchises to provide work schedules in advance to employees. Workers said that they could not make plans as they could always face unexpected call-ins. However, the restaurant industry has filed suit in an attempt to block the legislation.

Dealing with ageism in the workplace

Given the fact that about a third of America's working force will be above the age of 50 by 2022, the state of New York included, ageism and age discrimination in the workplace are serious matters that need to be tackled head-on. To make matters worse, age discrimination is so prevalent in today's workplace that, according to some estimates, six out of every ten employees above the age of 45 have been exposed to it in some way or form, and nine out of every ten senior employees describe ageism as a common practice in today's workplace.

That being said, age discrimination can be tricky to prove. For one thing, it tends to take many forms, such as derisive comments pertaining to someone else's appearance, derogatory remarks about an individual's declining cognitive abilities, and overlooking qualified workers when it is time to promote them. Over and above, age discrimination can be even tougher to prove when a company is hiring: After all, a company may claim that it rejected an elderly candidate for a host of other 'reasons", none of which had anything to do with their age. In fact, some companies will send subtle signals that they'd prefer to hire younger candidates, including asking for a candidate's high school graduation date and asserting that their workplace is a 'fun" and 'hip" place to work.

NYPD under fire for breast milk controversy

The mission of the City of New York Police Department is to “enforce the laws, preserve the peace, reduce fear, and provide for a safe environment.” While many officers have proven to do that time and time again in the state’s dangerous streets, some employees think that their employers and co-workers aren’t upholding that motto in their workplace.

A few weeks ago, 5 female officers of the NYPD announced that they are filing a lawsuit against their department for not providing safe conditions for pumping breast milk. The incident highlights not only a seemingly ongoing problem within the most iconic police department of the nation, but many other workplaces that aren’t aware of the current laws in place.

Surveys of black STEM workers indicate frequent discrimination

The racial background of people employed in science, technical, engineering or math fields in New York influences their perception of discrimination and diversity in the workplace. A report from the Pew Research Center found that black workers reported experiencing discrimination at work at greater rates than Hispanics, Asians or whites.

A full 62 percent of black respondents who worked in STEM occupations said their workplaces discriminated against them. Discrimination took several forms, including lower pay and subtle hostility. Hispanics and Asians only acknowledged discrimination at rates of 42 percent and 44 percent respectively. Blacks were also much more likely to link their racial identity to difficulty advancing their careers. Only about 40 percent of black workers believed that they their employers treated them fairly in regards to hiring and promotions.

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