Recently in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., No. SJC-11901, 2015 WL 10937776 (Mass. May 31, 2016), the Supreme Judicial Court of Massachusetts held, as a matter of first impression, that self-help discovery “may in certain circumstances constitute protected activity” under the state anti-retaliation statute, provided that, “the employee’s actions are reasonable in the totality of the circumstances.”
Jill L. Rosenberg
Jill Rosenberg, a New York employment law partner, is a nationally recognized employment litigator and counselor. Ms. Rosenberg has significant experience defending and advising employers in discrimination, sexual harassment, whistleblowing, wrongful discharge, affirmative action, wage-and-hour and traditional labor matters. She handles complex individual cases, as well as class actions and systemic government investigations. She represents a broad range of companies, including employers in the securities industry, banks and financial institutions, accounting firms, law firms, and employers in the food service and publishing industries. Ms. Rosenberg also has particular expertise in the representation of nonprofit entities, including colleges, universities, hospitals, foundations and cultural institutions.
Ms. Rosenberg’s notable engagements include:
- Employment Arbitrations for Securities Industry Employers. Ms. Rosenberg has tried to decision more than 30 employment arbitrations before FINRA (formerly NASD and NYSE), JAMS and AAA involving claims for bonuses and other forms of compensation, wrongful termination, sexual harassment, discrimination and whistleblowing/retaliation. She has also litigated important issues in the field of arbitration, including the permissibility of mandatory arbitration, the scope of judicial review of arbitration awards and the availability of certain remedies.
- Higher Education Litigation. Ms. Rosenberg was lead trial counsel representing a university in a federal court jury trial involving allegations of gender discrimination arising out of a denial of tenure. This two-week trial resulted in a defense verdict for our client, which was upheld on appeal by the Second Circuit. Ms. Rosenberg also counsels and litigates on behalf of higher education clients with regard to Title IX athletics compliance, student discipline, sexual harassment, disabilities issues and other issues unique to higher education settings.
- Whistleblower Defense. Ms. Rosenberg frequently defends employers against Sarbanes-Oxley and other whistleblower and retaliation claims. She is also retained by employers to conduct internal investigations and advise on whistleblowing and retaliation issues.
She designs and conducts training programs for clients and frequently speaks on employment law issues for employer and bar association groups such as National Employment Law Institute, Practising Law Institute, National Association of College and University Attorneys and the New York State Bar Association.
Ms. Rosenberg is the firmwide Partner-in-Charge of Pro Bono Programs, and serves on the firm’s Personnel Development, Risk Management, and Diversity Committees.
Before joining the firm, Ms. Rosenberg was an associate at Baer Marks & Upham in New York from 1986 to 1991.
In 2015, the Department of Labor (“DOL”) proposed substantial changes to the minimum salary level requirements, sought input on whether bonuses and incentives should be included in meeting the salary level test and considered changing the duties test to establish overtime eligibility. Taken together, these proposed changes would have had a drastic effect on the obligation of employers to pay overtime. On May 18, 2016, DOL issued its Final Rules and employers have until December 1, 2016 to comply. Overall, the changes strike a middle ground as DOL declined to adopt the more restrictive California 50% duties test. However, doubling the salary level threshold and other changes present significant economic and compliance challenges for employers. Below is a summary of key takeaways and steps employers should consider to address these changes and ensure compliance.
After agreeing last week on a 2016-17 Executive Budget that includes several key labor and employment provisions, New York State Independent Democratic Caucus Leader Jeffrey Klein declared that “[t]his truly is the Year of the Worker.” The ground breaking bills include an increase of the New York State minimum wage over the next few years to $15 per hour and paid family leave for employees for up to 12 weeks when caring for an infant, family member with a serious health condition or to relieve family pressures when someone is called to active military service. The New York City Council was also busy on the employment front last week, passing several changes to the New York City Human Rights Law that impact New York City employers. These recent State and City legislative developments are summarized below.
Earlier this month, the EEOC filed its first lawsuits against employers alleging sexual orientation discrimination under Title VII, arguing that Title VII’s protections extend to sexual orientation as a form of gender bias. In the lawsuit against Scott Medical Health Center filed in the U.S. District Court for the Western District of Pennsylvania, the EEOC alleges that a gay male employee was subjected to harassment, including anti-gay epithets, because of his sexual orientation. In the suit against Pallet Companies d/b/a/ IFCO Systems filed in the U.S. District Court for the District of Maryland, the EEOC alleges that a supervisor harassed a lesbian employee because of her sexual orientation, including making numerous comments about her sexual orientation and appearance. The EEOC alleges that the employers violated Title VII, which extends protection to workers who are discriminated against on the basis of their sexual orientation. In both cases, the EEOC takes the position that sexual orientation discrimination necessarily entails treating employees less favorably because of their sex, thus triggering Title VII’s protections.
The President released his 2017 budget this week. Budgets are aspirational documents that Congress rarely implements in full. The current acrimony between Congress and the Administration ensures that the President’s 2017 budget will likely remain aspirational. However, Presidential budgets and their accompanying justifications can shed light on an agency’s priorities.
On January 5, 2016, New York City Mayor Bill de Blasio signed a bill that added “caregiver” to the list of protected classifications under the New York City Human Rights Law. The law, which takes effect on May 4, 2016, seeks to protect employees and applicants from discrimination because of their status or perceived status as a caregiver. Carmelyn Malais, the Commissioner of the New York City Commission on Human Rights vowed that “the Commission will vigorously enforce this much-needed protection” for “every parent and family member caring for a loved one.”
On December 21, 2015, the New York City Commission on Human Rights (Commission) issued Legal Enforcement Guidance (Guidance) clarifying New York City’s prohibitions against discrimination on the basis of gender identity and gender expression. Discrimination based on gender identity and expression in employment, housing and public accommodations has been illegal under the New York City Human Rights Law (NYCHRL) since 2002. According to the accompanying press release, the Guidance is intended to make clear, through specific examples, what the Commission considers gender identity and gender expression discrimination under the City law and to offer best practices to employers and other stakeholders on how to comply with the law. The Guidance also solidifies New York City’s place as having one of the most protective laws in the country for transgender and other gender non-conforming individuals.
In the latest in a series of laws directed at New York City employers, effective January 1, 2016 non-governmental employers with 20 or more full-time non-union employees in New York City are obligated to provide full-time employees with the opportunity to use pre-tax income to purchase qualified transportation benefits. The law will be enforced by the Department of Consumer Affairs (“DCA”), which is the same agency responsible for enforcing the New York City Paid Sick Leave Law. The DCA’s published Frequently Asked Questions on the Commuter Benefits Law are available here.
On June 29, 2015, New York City Mayor Bill de Blasio signed into law the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of certain job applicants in the initial stages of the employment application process. You can read more about the Act here. The New York City Commission on Human Rights (the “Commission”), the agency charged with enforcement of the Act, recently issued “Legal Enforcement Guidance” (the “Guidance”) regarding the Act. As summarized below, the Guidance provides clarity regarding various aspects of the Act, including definitions of key terms, per se violations and exemptions from the Act.
On October 21, 2015, New York State Governor Andrew Cuomo signed a group of eight bills, referred to as the Women’s Equality Agenda, which expand protections for women in the workplace and elsewhere in New York State. The changes that will affect New York employers include an expansion of the existing State equal pay law, the addition of familial status as a protected category and the express requirement that employers reasonably accommodate pregnancy-related conditions.