New York City has amended its Administrative Code to create a new protected class of workers. Beginning in June 2013, the New York City Administrative Code will prohibit discrimination based on an individual’s unemployment status. Read More
Lisa Lupion, an associate in Orrick's New York office, is a member of the Employment Law Group. Ms. Lupion's practice focuses on general employment law matters.
Ms. Lupion’s practice focuses on employment litigation and counseling. She has experience litigating a broad range of employment issues, including discrimination, harassment and compensation claims before federal and state courts, AAA, JAMS and FINRA and in administrative proceedings. Ms. Lupion regularly advises clients on a variety of employment-related issues, including counseling and conducting audits concerning wage-and-hour issues, human resources policies and procedures, offer letters, severance agreements, employee termination and conducting internal investigations.
Prior to joining Orrick, Ms. Lupion served as a law clerk to the Hon. Peter Leisure in the United States District Court for the Southern District of New York, and she was an associate at Proskauer Rose LLP in New York.
Effective February 28, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) rescinded two 2006 guidance documents concerning how the OFCCP and federal contractors analyze potential pay discrimination. This change came as a response to President Obama’s Equal Pay Task Force, which brought together the federal agencies charged with addressing pay discrimination.
The OFCCP, which is charged with ensuring federal contractors and subcontractors provide equal employment opportunity, concluded that the previous guidance was too rigid and undermining the agency’s efforts to combat discrimination. Several aspects of the now-rescinded guidance fell into disfavor with the OFCCP in its efforts to carry out President Obama’s mandate to step up investigation of systemic compensation discrimination. First, it was required to compare “similarly situated workers,” defined narrowly to include only employees with the same position. Second, it was required to use multiple regression analysis to test for pay disparities, failing to address situations where analysis of a smaller sample size might be more appropriate. Finally, it required anecdotal evidence to establish a systemic compensation violation in addition to statistical evidence. Reasoning that “employment discrimination comes in many forms,” OFCCP found that this specific method of analyzing compensation would not allow OFCCP to detect all forms of pay discrimination. Read More
Hurricane Sandy and its aftermath has created enormous difficulties for employers on the East Coast. Between the devastation caused by the storm itself, power outages, and transportation shutdowns, employers were forced to close business or operate on a significantly reduced basis for days, and, in some cases, weeks. Nevertheless, companies must still satisfy certain obligations as employers. While situations vary considerably from employer to employer, here is a summary of key issues and employer obligations post Sandy: Read More
On September 7, 2012, Governor Cuomo signed a law that will relax some of the stringent prohibitions against wage deductions under New York Law. Beginning on November 6, 2012, the law will now permit employers, with voluntary employee consent, to take wage deductions for certain employee benefits such as health club membership dues and cafeteria purchases. (See Amendment to New York’s Labor Law Expands the Universe of Permissible Wage Deductions) Significantly, Section 193 of the New York Labor Law will now allow employers to take wage deductions to recoup overpayments of wages due to mathematical or clerical errors. However, the New York Department of Labor is expected to issue regulations on how these overpayments will be allowed to be deducted. The amendment also imposes heightened requirements on the type of notice and authorizations that employers must obtain from their employees before taking any of the newly authorized deductions, and employers will be expected to keep those authorizations for their employees’ entire career and for six years after the end of employment. Even with these hurdles, employers will welcome this reprieve from New York’s restrictive wage deduction laws. Click here to read the full alert.
Consistent with the mandate under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Treasury Department issued a proposed rule that would require contractors doing business with the agency to confirm their commitment to equal opportunity in employment and contracting. The rule would amend the Department of the Treasury Acquisition Regulation to require any entity entering a contract with the agency to insert a statement in each contract that it has made affirmative efforts to include women and minorities in its workforce. If the contractor in turn enters into a subcontractor arrangement to carry out the government contract, the contractor must include the same provision in any such subcontract that has a monetary value of more than $150,000.
In addition to the specific contractual provisions, the proposed rule would provide the Treasury Department with an opportunity to request information from the contractor to demonstrate that the contractor has made a “good faith effort” to satisfy its commitment to diversity. The proposed regulation explains that the documentation that may be requested to demonstrate this “good faith effort” can include: (1) an EEO-1 report of the contractor’s employees, detailing the number of employees and the number of minority and women employees; (2) a list of subcontract awards under the contract at issue, including the dollar amount of such subcontract award, the date of the award, and the subcontractor’s race, ethnicity and gender; (3) EEO-1 data for subcontractors performing work under the contract; and (4) the contractor’s plan to ensure that minorities and women “have appropriate opportunities to enter and advance within its workforce, including outreach efforts.” Failing to comply with these obligations can result in loss of the contract. Read More
The case of Ryan v. Kellogg Partners Institutional Services, presents a scenario familiar to many employers – a former employee claims that he is entitled to bonus compensation based upon oral assurances he was given by senior management, while his employer responds that the employee has no right to any bonus because bonuses are discretionary. Despite upholding the employee’s claim for a bonus, the New York Court of Appeals in Ryan actually reaffirmed the well-established New York principle that employees have no legal right to unvested, discretionary bonuses. Significantly, the Court of Appeals confirmed that properly drafted discretionary bonus policies could vitiate a bonus claim, but that the at-will statements in the employment application and handbook that Kellogg was relying upon simply did not meet the standard. The Ryan Court also restated its previous holding in Truelove v. Northeast Capital & Advisory, explaining that discretionary bonuses linked to an employer’s financial success do not constitute “wages” under the New York Labor Law, and that a bonus does not vest and become earned until the conditions of the employer’s bonus plan are met, which may include the requirement that the employee be employed by the employer at the time the bonus is paid.
California’s highest court held that a party who prevails on a claim for an alleged failure to provide meal or rest breaks is not entitled to attorney’s fees under either Section 1194 or Section 218.5 of the California Labor Code. Kirby v. Immoos Fire Protection, Inc., Cal. Sup. Ct. S185827 (April 30, 2012). Section 1194 is a “one-way fee-shifting statute” that authorizes an award for attorney’s fees only to employees who prevail on minimum wage or overtime claims. By contrast, Section 218.5 is a “two-way fee-shifting statute” that authorizes either an employee or an employer to recover attorney’s fees as a prevailing party in an action brought for the nonpayment of wages.
The court concluded that neither of those sections is applicable to claims for unpaid meal or rest breaks as such claims do not fit under the terms “minimum wage” or “overtime” specified in Section 1194, or the terms “nonpayment of wages” used in Section 218.5. Thus, employers cannot recover attorney’s fees for failed meal and rest break actions. On the other hand, neither can employees. Reading this decision in the context of the California Supreme Court’s April 12, 2012 Brinker decision, plaintiffs’ lawyers may be more cautious as to which meal and rest break claims they pursue as they will not be entitled to recover attorney’s fees as a result of those in which they prevail.
In a decision issued April 23, 2012, the EEOC held that gender-identity discrimination-or discrimination against transgender individuals because they are transgender-constitutes sex discrimination under Title VII. This decision builds on the Supreme Court’s decision in Price Waterhouse v. Hopkins in 1989, which held that the prohibition against sex discrimination includes protection for people who do not conform to gender stereotypes. The EEOC also held that, even if stereotyping was not involved, an employment decision made on the basis of the fact that an employee had a change of sex would be considered sex discrimination under the law. Since transgender employees report facing workplace discrimination at high levels, this decision, coupled with an increasing number of states that now include sexual identity as a protected category under their anti-discrimination statutes, may spark an increase in claims brought on this basis.