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The Law Office of Lindy Korn


Apr 11, 2016, 10:02am EDT

By Michael Petro

Article appeared in Buffalo Law Journal

As a new mother, Buffalo attorney Candace Alnaji understands now more than ever the importance of spending those early months with your baby.

Through her employer, the Law Office of Lindy Korn PLLC which represents employees in workplace discrimination matters, Alnaji was allowed to take four months of paid leave. She was offered a flexible schedule upon her return to work, as well.

She worried less about the adjustments she would have to make personally because professionally she was covered. And she didn’t face the question of whether she could make ends meet financially or whether she would keep her job; she was able to focus solely on being a mom.

Alnaji and co-workers at the law firm who have gone through the same experience say they realize how fortunate they are to be part of a company considered ahead of the game. Male and females employees alike have benefited from founder Lindy Korn’s policies on paid family leave.

Alnaji said she appreciates that Korn practices what she preaches as an attorney. Everyone at the firm is a working parent, including Korn, who has grown daughters. Four of the six attorneys there have children under age 6 and three of them have toddlers. One employee is on paid family leave after having a baby recently.

Alnaji’s son just celebrated his first birthday. She works from home on Wednesdays and feels comfortable taking a day off here and there to tend to his needs.

“I feel very comfortable balancing my obligations as a mom and attorney,” Alnaji said. “I don’t have the fear that somehow I’m going to be punished or reprimanded or lose out professionally. It’s something we talk about at the firm, and we know we’re lucky because this is not the norm. It should be but unfortunately it is not.”

Expect that to change soon, at least in New York state.

The federal Family and Medical Leave Act allows for 12 weeks of leave time for employees, but it is for businesses with work forces of 50 or more and doesn’t require that the leave be paid. At this point, accrued paid time or disability must be used during the leave.

However, last week the state passed what is called the longest and most comprehensive paid family leave policy in the nation. Legislative leaders reached an agreement on the 2016-17 state budget, which includes a bill enacting 12 weeks of paid family leave.

The new policy, which would be phased in at the start of 2018, will cover those caring for an infant, a family member with a serious health condition or to relieve family pressures when someone is called to active military service. It would be funded by employee contributions.

Gov. Andrew Cuomo said this bill affects the quality of life for millions of state residents. They should be there when family needs them most, he added.

“The budget includes paid family leave, which is something I am very excited about,” he said. “You shouldn’t have to be in a position where you have to choose between a paycheck and being there for your family — and paid family leave does just that. … It’s literally a life-changer.”

The legislation may be a big step on a national level, as well Alnaji said. New York, the fourth state to enact this type of law, could set an example for other states.

“I’m excited for this legislation to pass,” she said. “I’m excited for new families down the line to have this benefit and I’m sure it will help them. Maybe people who were afraid or didn’t think they could have children before because of the financial sacrifice will decide that they can.”

Beginning in 2018, benefits would start at 50 percent of an employee’s average weekly wage, capped to 50 percent based on average weekly wage for state workers. It would be fully implemented in 2021 at 67 percent of their average weekly wage, capped to 67 percent of the statewide average weekly wage.

The program would be funded entirely through a nominal weekly payroll deduction, similar to what is done for disability. Employees are eligible to participate after working for an employer for six months.

In the state bill, eligibility for paid leave would include more people and expand to those planning to care for grandparents and grandchildren.

Attorney Christina Akers-DiCenzo had four months of paid leave from the Korn firm after her baby was born. She gradually eased her way back into the workforce. When she initially returned to work, she stayed home on Wednesdays to be with her baby. She said the time off is essential, whether it’s to take care of a baby or a sick loved one.

“It’s been nice to be back at work the last three months,” said Akers-Dicenzo, whose son is 6 months old. “People ask, ‘How are you. Was it really traumatic to come back?’ When you have a supportive partner, family, friends and employer, it’s OK. Is it hard being away from my child? Yes. But the fact that I had paid leave meant a lot for our family because we didn’t go into financial ruin and we didn’t have to worry.”

The time off allowed Alnaji to focus on her new routine, as well, and gave her confidence in her parenting abilities. By the time she returned to work, she had a close bond with her son and felt better about leaving him with a caregiver. She also felt recharged as an attorney.

“If I had to return after six or eight weeks, that would have been impossible,” she said, adding that she is able to better channel her energy in cases, especially those concerning clients who are or were pregnant and claim they were discriminated against.

“I was able to take something personal and kind of incorporate it into my professional life,” said Alnaji, who became co-chair of the Working Parents Committee for the local chapter of the Women’s Bar Association.

Akers-Dicenzo added: “The paid leave law is really meaningful for me because of the work the firm does. To help advocate for these people, these rights that are coming down the road are really going to be huge. It’s going to change people’s lives.”

Cuomo has said the policy will not cost businesses anything, but Harter Secrest & Emery attorney Amy Hemenway warns there may be an additional obligation on employers to figure out how to cover a worker’s job responsibilities over 12 weeks. Many employers are used to this because of the federal law, but before it was in an unpaid manner, she said. It may cost employers to bring in someone on a temporary basis.

Employers with fewer than 50 employees that hadn’t before been covered by the federal law may feel the biggest impact, according to Hemenway, a partner in the firm’s labor and employment practice.

“Those are the employers that will find it difficult to fill the gap for that extended period of time because they may only have one or two people who perform a particular function. And it could be a critical function to the organization,” she said.

It’s difficult to determine the impact of the provisions just yet, she said. California, Rhode Island, New Jersey and Washington are the only other states with a similar policy in place.

She wouldn’t be surprised to see guidance provided to help employers comply.

“This is the most expansive paid leave scheme in the nation,” she said. “There are only four others states that have any type of family leave in place and they have not had those provisions in place for any extended period of time, so it is difficult to say what the impact might be over the long term. … It’s something that we’ll just have to see how it plays out for the next few years.”

While some businesses have given employees paid leave ahead of the new law, like Korn, many still have to address the issue, according to Alnaji.

“Hopefully with the state taking notice and normalizing this a bit, maybe the trend will change,” she said. “But right now I feel very lucky to be at the place where I work. I feel a true loyalty to my employer because she’s fantastic and makes this possible. … It works. We get our work done and we do well for our clients. And business still moves.”

While every employer must take into consideration what works best for them, in the long run, she said, the new law can help with retention, save on the cost of retraining and rehiring employees and promote loyalty and satisfaction.

“It’s really a win-win,” she said. “Even at our firm, which is a small firm, Lindy has found a way to make it work.”

Akers-Dicenzo said her father was a small-business owner so she can relate to the concern about paid family leave, but the benefits should outweigh the costs.

“Both Candace and I just enjoyed this leave in the past year and a half and nothing bad happened to the firm. It is still here,” she said.

Article appeared in Sports Litigation Alert

Jaclyn Salzwedel, a former softball coach at Clarke University, has filed a suit against her former employer claiming she was wrongfully fired after she rejected its efforts to make her more feminine.

Salzwedel began working for the university in August 2010 and says she would normally wear long cargo shorts and a polo or T-shirt to work, fixed her hair in a ponytail and avoided wearing makeup. She claims that by 2012, Vice President for Student Life Kate Zanger began encouraging her to wear makeup and more feminine clothing.

Salzwedel says she was given a new hairstyle and lessons on how to put on makeup. She also claims another female coach was selected to be her mentor to help work on her professional image and that she was asked to wear slimming undergarments and high-heeled shoes.

According to the suit, Salzwedel told Athletic Director Curt Long she was uncomfortable with the changes they had asked her to make. In May 2013, Salzwedel said she was fired “just hours after the softball season ended” and was not given a reason for her termination.

The suit was filed against Clarke University, Long and Zanger. University officials have declined to comment.

Experts Weigh In

While hesitant to comment until she could see the complaint, Donna Lopiano, a former athletic director and president of Sports Management Resources, offered the following:

“If they did not have a dress code for both male and female employees and required only women or this one woman to conform to a dress/appearance code, it would be sex discrimination, at least under Title VII, and possibly under Title IX.”

Attorney Lindy Korn, who has litigated her fair share of discrimination cases, noted that “since sexual orientation is not covered by federal law, sexual stereotyping is the only way to bring these claims in Federal Court. Thus, such claims are on the rise.”

She added that it is the responsibility of human resources professionals to train ADs on “issues of discrimination, including sexual stereotyping and the tension between religion and gay rights.”

Korn pointed to the following case as instructive:http://harvardlawreview.org/wp-content/uploads/pdfs/prowel_v_wise_business_forms.pdf

By Lindy Korn
Article appeared in Artvoice

Love contracts: prenuptials to workplace romance

A love contract policy establishes workplace guidance for dating or romantically involved co-workers. The purpose of the policy is to limit the liability of an organization or private employer in the event the romantic relationship turns sour, and one party claims sexual harassment.

Increasingly, co-workers are litigating over the differential treatment an employee in a romantic relationship received from a manager or supervisor. Conversely, if that relationship sours, claims of a hostile work environment and sexual harassment often ensue.

Love contracts are used as an attempt to manage workplace relationships. It is a required document signed by the two employees in a consensual dating relationship that declares that the relationship is by consent and welcomed. The love contract also provides that should the relationship sour, disputes will be handled through a dispute resolution process, such as mediation, outside the court system.

Obviously, a love contract wouldn’t exist when one employee uses his/her position to force a relationship with another employee. That situation usually creates a sexually hostile environment in which the harassed employee ends up resigning to get away from the stress and shame their supervisor has caused them. Due to privacy issues and mental health considerations, these claims can be mediated to obtain a prompt and thoughtful resolution. Litigation exposes both the employer and employee to public risks. When an employer turns a deaf ear to complaints of sexual harassment or issues of sexual favoritism in the workplace, litigation will result.

Consider the following example:

Between 1985 and 1990, while attending college, Beth worked part time and during the summers as an ocean lifeguard for the City of Boca Raton. During this period, Beth’s immediate supervisors were Bill, David, and Robert. In 1992, Beth brought a lawsuit against Bill and David because they created a sexually hostile atmosphere by:

  • making lewd remarks to female lifeguards;
  • subjecting female lifeguards to unwanted touching;
  • Bill once said he would never promote a woman to the rank of lieutenant;
  • David told Beth, “Date me or clean toilets for a year”;
  • during a job interview with a woman lifeguard, Bill said that female lifeguards had sex with their male counterparts and asked if she would do the same.

Two months before Beth resigned, a former lifeguard wrote to the city’s personnel director, complaining that Bill and David had harassed her and other female lifeguards. After an investigation, Bill and David were reprimanded.

The City of Boca Raton had failed to disseminate a copy of its sexual harassment policy, and so Beth never received it. Beth did not know how to complain and stop unwanted sexually inappropriate behavior, or how to put the city on notice that some male supervisors at work demanded sex. Certainly, knowing of the sexual harassment policy would have provided Beth a clear means for complaining.

It is interesting that the person who complained to the City of Boca Raton was a former lifeguard! Did sexual harassment force her to quit?

The example of Beth is not about a consensual relationship; it’s plain sexual harassment. There’s nothing wrong with romance, and if a romantic relationship exists, a love contract may be a helpful in recording that the relationship is welcomed, and it will provide an avenue for a resolution process if it turns sour.

To avoid a sexually hostile environment an employer should provide several avenues for complaints to be made, and policies for internal investigations resulting in appropriate action.

By Lindy Korn
Article appeared in The Daily Record

“You need to pick up all the garbage bags for this street, including the hazardous waste from the hospital,” the sanitary district supervisor said.

“You’re still after me because of what my dad told the investigators aren’t you?”(Puglisi v. Town of Hempstead Sanitary Dist. No. 2, 2013, EDNY No. 2:11-cv-00445, 11/15/13).

The plaintiff, a white man, began working for a local sanitary district in 1995. He claimed that his father, who is also white, became involved in an April 2007 investigation after co-workers said they found  “hangman’s noose” in a garage area where district workers often gathered.

Several district employees filed discrimination complaints related to the incident with the New York State Division of Human Rights, according to the court. The plaintiff’s father later told the DHR investigators during an interview that his superiors didn’t take appropriate action in response to internal complaints about the noose. He said he believed that the sanitary district has retaliated against at least one worker for filing a DHR complaint.

The plaintiff claimed that he faced a wide range of retaliation based on his father’s statements to the investigators. For example, the plaintiff said he was assigned to collect large amounts of debris in excess of limits set by local ordinance and that he was instructed to collect potentially dangerous chemicals. The plaintiff also alleged that the sanitary district refused to pay some of his medical bills that should have been covered, denied his request for leave in order to take his pregnant wife to a doctor’s appointment and issued him at least one paycheck that wasn’t signed during this time.

Since the harassment started during the DHR investigation, temporal proximity nexus exists between the father’s participation in the investigation and the beginning of the materially adverse employment actions.  “Plaintiff also offered evidence demonstrating that he was subjected to a series of employment actions that were at least, inconvenient and annoying, and at worst potentially dangerous,” the court said.

The U.S. District Court for the Eastern District of New York found that the plaintiff showed that retaliation may have been the “but for” cause of the alleged mistreatment on the job, and denied reconsideration of an earlier decision under the more lenient standard of proof recently overturned by the U.S. Supreme Court.

The district court found that the mistreatment alleged by the plaintiff constituted an adverse action because it “might reasonably dissuade a reasonable person from supporting a charge of discrimination.” In particular the judge said the plaintiff had presented evidence showing that the other workers were permitted to take leave under similar circumstances, as well as testimony from two sanitary district officials acknowledging that they weren’t aware of any other instance in which a paycheck had been issued unsigned.

This case is significant because the court has analyzed retaliation under the stricter “but for” causation requirement in University of Texas Southwestern Medical Center v. Nassar, (133 S. Ct. 2517, 6/25/13).

By Lindy Korn
Article appeared in The Daily Record

The Court of Appeals has reversed summary judgment in a Title VII retaliation case, interpreting for the first time the Supreme Court’s “but for” reasoning in retaliation cases, Kwan v. The Andalex Group, LLC, 12-2493-cv, decided Dec. 16.

Kwan worked as vice president of acquisitions for a family-owned real estate management firm. One of her early supervisors said that plaintiff’s performance was “very good.” A subsequent supervisor complimented plaintiff’s work, and she received a performance-based bonus.

Nine months after the plaintiff got that bonus, she was fired, a day after she left work early. The plaintiff said she had permission to do so; management said she did not. The plaintiff’s termination took place three weeks after she told one member of management that she was being discriminated against in respect to salary and bonuses. Another corporate officer fired the plaintiff.

The Court of Appeals reversed summary judgment on the retaliation claim and provided guidance on the new “but for” causation standard that is best suited for a jury.

Firstly, the court held that the fact that the plaintiff complained about discrimination to a corporate officer is enough to show that the company knew about her protected activity. The Second Circuit explained:

“This case is a good illustration of why corporate knowledge is sufficient for purposes of a prima facie case of retaliation. If that were not true, a simple denial by a corporate officer that the officer ever communicated the plaintiff’s complaint, no matter how reasonable the inference of communication, would prevent the plaintiff from satisfying her prima facie case, despite the fact that the prima facie case requires only a de minimis showing.”

Secondly, The Second Circuit closely scrutinized management’s reasons for termination. The shifting explanations from the CEO stating that the business focus had changed, while another person in management testified that the “plaintiff’s termination was the culmination of her poor performance …” The problem is that only one reason was cited in the defendant’s EEOC position statement. The Court of Appeals held that shifting explanations support a finding of pretext, which could get you a trial in a retaliation case.

Thus, this case tells us that management has to get the story straight when the plaintiff sues your client for discrimination or retaliation. Shifting explanations does not look good to the court or the jury, and they suggest the employer is dissembling in order to avoid liability.

The majority reiterates that “A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, non retaliatory reasons for its actions. From such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason.” In other words, pretext alone can get you a trial in a retaliation case.

By Lindy Korn
Article appeared in The Daily Record

Passed in 1978, the Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to make clear that the prohibition on sex discrimination in employment includes discrimination on the basis of pregnancy, childbirth and related conditions.

Thirty-five years after the PDA, pregnant workers need workplace accommodations in order to continue safely working, such as avoiding heavy lifting, being able to sit during long shifts or staying off high ladders, and these are all too often accommodations that are denied.

Women who bring in doctor’s notes with restrictions are being forced out on unpaid leave, even though other employees are being accommodated based on their disabilities and on-the-job injuries.

A Better Balance and the National Woman’s Law Center  released a report entitled: “It Shouldn’t Be a Heavy Lift: Fair Treatment for Pregnant Workers,” which explores the changing nature of our workforce and how pregnant workers contribute substantially both to our national economy and their families’ financial security.

The report includes two stories from New York — from Yvette in New York City, and Hilda Guzzman from Long Island. Yvette had to risk her health and the health of her baby when she was pregnant a few years ago. She asked for a reprieve from heavy lifting and her manager responded by giving her more heavy lifting to do. During a later pregnancy, when she brought in a doctor’s note indicating a lifting restriction, she was pushed out of the workplace and onto disability leave. One month before she gave birth the disability payments ran dry and she had to go on unpaid leave—at seven months pregnant she was stuck without health insurance and without any income.

Another woman, Hilda Guzzman, was denied a stool to sit on when she worked the cash register at a retail store. Even when she developed pregnancy complications and landed in the emergency room every few days, her manager wouldn’t let her sit on a stool. Her doctor eventually had to put her on bed rest to get her off her feet.

Pregnant women that I have helped were not allowed bathroom breaks, nor were given requested adjustments to their workday — allowing them to start later in the day.

In October 2013, the New York City Council unanimously passed the Pregnant Workers Fairness Act, a bill, which ensures current protections from employer discrimination against pregnant workers. City employers must now provide reasonable accommodations for the need of a worker related to pregnancy, childbirth or a related medical condition. Some of those accommodations include rest breaks, assistance with manual breaks and a period of recovery from childbirth.

Upstate NY should follow the NYC lead!

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