July 2009

• Out-of-State Employee May Sue NY Employer for Discrimination Under State and City Human Rights Laws
• Arbitration Fairness Act Addressed in Congress
• Federal Bill To Mandate Paid Employee Sick Leave Introduced
• Social Security Administration to Open 24-7 Telephonic Employee SSN Verification System

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Out-of-State Employee May Sue NY Employer for Discrimination Under State and City Human Rights Laws

The New York Appellate Division, First Department held on May 7, 2009, that New York courts have subject matter jurisdiction over discrimination claims filed under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL), where the act of discrimination occurred within New York, even if the effects of the alleged discrimination are felt mainly outside the state.
(Hoffman v. Parade Publ'n, 2009 NY Slip Op 3678 (N.Y. App. Div. May 7, 2009))

The plaintiff, Howard Hoffman was employed by Parade Magazine as a managing director for the newspaper relations group and described himself a "traveling salesman" who resided in Atlanta, Georgia and was almost exclusively based in Parade Magazine's Atlanta office. He reported to management in New York and occasionally travelled to New York for meetings. He was notified in Atlanta of the Company's decision to close the Atlanta office and terminate his employment effective January 1, 2008. He sued in New York state court under the NYSHRL and NYCHR, alleging age discrimination and further claimed that the "economic rationale given for his termination was pretextual, and. . .that his former responsibilities were transferred to an employee in [Parade Magazine's] New York office who, at the age of 56, was 'considerably younger' than [Hoffman]."

Parade Magazine moved to dismiss the action on the grounds that the New York court lacked subject matter jurisdiction over the action because the employer's alleged misconduct did not occur either inside New York State or New York City. The courts disagreed on the argument, and ultimately, the Appellate Division chose to follow the reasoning of a federal district case decision focusing on whether the alleged discriminatory act took place within New York. The court found that "[a]pplication of logic and common sense alone would dictate that if an employer located in New York made discriminatory hiring and firing decisions, those decisions would be properly viewed as discriminatory acts occurring within the boundaries of New York." In addition, the court determined that it would be improper for courts of other jurisdictions to handle acts of discrimination that occurred in New York based on the stated purposes of both the NYSHRL and the NYCHRL.

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Arbitration Fairness Act Addressed in Congress

The Arbitration Fairness Act (H.R. 1020 and S. 931) was introduced on February 12, 2009, in direct response to the U.S. Supreme Court's ruling in the case of 14 Penn Plaza LLC v. Pyett that mandatory arbitration clauses with respect to claims under the Age Discrimination in Employment Act (ADEA) are enforceable. Congress has begun an attempt to overturn 14 Penn Plaza and other precedent favoring arbitration and would amend the federal Arbitration Act so that mandatory arbitration clauses in employment, consumer and franchise agreements are unenforceable. The Arbitration Fairness Act is designed to make pre-dispute mandatory arbitration provisions contained in employment, consumer and franchise agreements unenforceable. However, mandatory arbitration clauses in employment agreements entered into before enactment of the Arbitration Fairness Act would still be enforceable. Enactment of this legislation would alter the employment landscape drastically, as employers would no longer be allowed to include arbitration clauses in employment agreements. Instead, if an employer prefers the arbitral forum, it would have to wait until after a dispute arises and then seek an agreement with the employee to resolve the matter in arbitration.

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Federal Bill To Mandate Paid Employee Sick Leave Introduced

On May 18, 2009, Rep. Rosa DeLauro, D-Conn., introduced the Healthy Families Act (H.R. 2460). The legislation as introduced by DeLauro would require employers with 15 or more employees to provide up to seven days of paid sick leave. The new bill differs from the 2007 legislation by guaranteeing workers one hour of paid leave for each 30 hours worked. The proposal would allow employees to accrue up to 56 hours of leave or seven paid sick days per year. Workers would able to take the sick days when they or immediate family members became ill. Other differences from last year's version include a new provision that would allow victims of domestic violence to use paid leave for reasons such as court appearances and counseling. The legislation states that employees would not be entitled to "reimbursement" for unused paid sick leave when ending their employment.

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Social Security Administration to Open 24-7 Telephonic Employee SSN Verification System

Employers and third parties acting on behalf of employers can now verify employee Social Security numbers (SSNs) over the telephone 24 hours a day, 7 days a week by using the Social Security Administration's automated "Telephone Number Employer Verification" (TNEV) service. Beginning this fall 2009, the Social Security Administration's telephone agents will no longer verify SSNs for employers. Employers and third parties acting on behalf of employers must now use TNEV or the online Social Security Number Verification Service (SSNVS). Any Employer that verifies Social Security Numbers must be a registered SSNVS user to access these services. Both TNEV (telephone service) and SSNVS (online service) provide the same service of verifying SSNs. Register at http://www.ssa.gov/bso/bsowelcome.htm. The website provides access to a fact sheet with more information about TNEV.

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Editor's Note: The items presented above contain only selected employment law cases and do not represent a comprehensive listing of all employment law settlements, awards and decisions in the United States. This information has been abridged from many different sources, and Diversity Central and EPS make no claims to any original copyrighted works. Diversity Central and EPS do not guarantee the accurateness of excerpts, articles, or information contained in this list.

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