The purpose of this article is to give the reader a brief overview of the more significant recently adopted laws that apply to the workplace. Generally speaking, these new developments fall into two categories - the anti-discrimination statutes and mandated workplace benefits or entitlements.

Prior to the adoption of these new laws and rules, New York, and most jurisdictions in this country, followed what is commonly known as the "at will" rule. An employee "at will" is one that does not enjoy a personal services contract which guarantees the employee employment for a specific period of time predicated on satisfactory performance. Similarly, the "at will" employee is not a union member who enjoys the benefit of a collective bargaining agreement that also guarantees employment under certain circumstances. Thus, excluding the limited exceptions of those employees who are parties to an employment contract or members of a collective bargaining unit, the employer could terminate the employee's services at any time, regardless of performance, for any reason or no reason. The employee works for the employer at the employer's will, without protection from arbitrariness or retaliation on the part of the employer. Only a small number of states recognize a "right to work" principle for the benefit of employees, which afforded some limited protection prior to the adoption of recent federal and state statutes.

The principle federal anti-discrimination statute is the Civil Rights Act of 1964, commonly referred to as Title VII, which was substantially amended by the Civil Rights Act of 1991. The Clarence Thomas/Anita Hill Supreme Court hearings brought one of the more common workplace issues - sexual harassment - to the front of our consciousness. The number of discrimination charges filed with EEOC (Equal Employment Opportunity Commission), a part of the United States Labor Department, has increased dramatically since the Thomas-Hill hearings and the 1991 amendment to the Civil Rights Act. Title VII prohibits an employee from being terminated or otherwise being subjected to "an adverse employment action" based on race, age, sex, national origin, religion, or marital status. The Act is predicated on a policy that recognizes the need to specially protect members of certain classes because of the value society places on protection of those classes of individuals and because of the historic abuse of members of such classes. While being a member of one of these protected classes qualifies an individual for protection from abuse at the workplace, that protection exist only where the employee's status as a member of the protected class is reason for the adverse employment action. Thus, Title VII does not guarantee that a member of a certain religion cannot be terminated. It only guarantees that a member of a particular religion cannot be terminated because he or she is a member of that religion, unrelated to any legitimate business basis for termination. Sexual harassment is a form of sex discrimination and is prohibited by Title VII. It is of course one of the more common discrimination claims at the present time and has been the subject of countless articles itself.

New York State's counterpart to Title VII is the New York State Human Rights Law, which similarly prohibits discrimination based on membership in a similar variety of protected classes. In addition to the broad based Title VII anti-discrimination statute, there are several additional specific federal anti-discrimination statutes. These include the ADEA (Age Discrimination in Employment Act), the EPA (Equal Pay Act), the ADA (Americans with Disabilities Act), and the PDA (Pregnancy Discrimination Act). These acts specifically target discrimination based on age, sex (specifically requiring equal pay for equal work regardless of gender), disability, and pregnancy. Lawsuits based on Title VII and the ADA require that a discrimination charge be filed with the regional EEOC office and that that office issue "a right to sue letter" as a condition to commencing a lawsuit in federal or state court. The Equal Pay Act and the Pregnancy Discrimination Act do not require such a filing. Generally speaking, the remedies available under these federal statutes include "back pay" (past lost wages due to termination or demotion), "front pay" (reasonable future lost wages and diminished earning capacity), "compensatory damages" (emotional distress), "punitive damages" in extreme cases of malicious and willful conduct, and counsel fees if the employee prevails in a lawsuit. An employer, however, is not entitled to an award of attorney's fees against the employee even if successful. There are differences between the remedies available under the federal statute and the remedies available under the New York State (and New York City) statutes. For example, there is a "cap" or maximum award permitted, exclusive of attorneys fees, under Title VII and the ADA, based upon the number of employees, ranging from $50,000 to $300,000. On the other hand, New York State statute has no caps. The federal act authorizes counsel fees; the state act does not. In general, the federal courts are more accustomed to handling employment cases, while they are relatively infrequent in the state courts.

Turning to the second category of recent employment laws, the benefits or entitlement laws, these are principally three, the FMLA (Family and Medical Leave Act), the ADA and the PDA the last two of which fall into both categories. Not only does the ADA prohibit termination or other adverse employment action based upon disability or perceived disability, but the act also obligates the employer to make affirmative "reasonable accommodations" at the workplace to facilitate employment of a person with a disability. While the ADA has a fairly general definition of a disability, the range or degree of protected disabilities is relatively narrow. This is so because the person with a disability is entitled to a "reasonable accommodation" so long as that person can still perform "the essential job functions" with or without a reasonable accommodation and then only if such an accommodation does not result in an "undue hardship" on the employer. Statistically, disability discrimination cases have met with the least degree of success in the courts; less than 10% of disability discrimination have been successful. The Pregnancy Discrimination Act obligates the employer to treat pregnancy in the same manner as the employer treats short-term disabilities, by policy or practice. If an employer grants some combination of paid and unpaid leave to an employee with a short term disability, that employee must extend the same benefits to a pregnant woman. In addition to the PDA, Title VII may also be the basis for a discrimination action against an employer who treats pregnant woman differently than disabled men, since presumably that is an adverse employment action "based on sex."

The FMLA was the first act signed into law by President Clinton. It only applies to employers who employ 50 or more persons, including all locations if there are several. Eligible employee must have worked a minimum number of 1250 hours within the preceding 12 months in which the employee seeks benefits under the Act. The basic entitlement under the Act is 12 weeks of unpaid leave (broken up or continuous) in the event of the birth or adoption of a child or a serious illness on the part of the employee or a family member of the employee. In such an event, the employee is entitled to be restored to his or her original position, or a comparable position, without loss of pay or benefits. Unlike the ADA, which involves a balancing of the employee's entitlement to a reasonable accommodation with the condition that the employer not suffer an undue hardship, the FMLA benefits constitute absolute entitlement regardless of consequence to the employer.

Title VII and the ADA only apply to employers who employee 15 or more employees. The New York State Human Rights Act applies to employers with at least 4 employees.

There are, in addition, a variety of other miscellaneous New York State statutes that affect the work place. Of course, the most common and long standing of these being worker's compensation which provides some level of protection for the employee injured at the work place regardless of fault or blame. A section of New York's Labor Law protects an employee for "whistleblowing" where the employee complains regarding a workplace practice that threatens public "health, welfare or safety." Other provisions of the New York State Labor Law prohibit an employer from terminating an employee because the employee has sought or is about to seek worker's compensation or disability benefits. This provision also allows the employee reasonable attorney's fees if successful. Another relatively obscure provision of the New York State Labor Law prohibits an employer from terminating an employee because of the employee's off-the-job recreational activities. In fact, in an effort to expand the scope of "recreational activities" protected by this provision, a lawsuit was recently brought in the Southern District of New York, White Plains, on behalf of an employee terminated because he violated a policy prohibiting co-workers from dating. It was conceded that the relationship had no apparent effect on either workers' job performance and did not extend into the work place. Regardless, the District Court, following precedent, held that dating does not constitute a recreational activity contemplated by the Labor Law. In a sympathetic and unusually humorous concurring opinion, Judge McLaughlin, former Dean of Fordham Law School, stated in the federal appeals decision which upheld the lower decision:
Sister Mary Lauretta, a Roman Catholic nun, once counseled: To be successful, the first thing to do is fall in love with your work. She should, of course, now have to add: Just don't fall in love AT work.

Recent events have sensitized our society to these issues, resulting in a heightened awareness and a dramatic increase in employment litigation. The employer and its management would be foolish not to have a working knowledge of these principles and establish appropriate policies and practices. Similarly, employees should be knowledgeable and protective of their rights and obligations. These observations are only broad strokes intended to generally familiarize the reader with the issues. Professional advice should always be sought before taking any action in these matters.