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NY Agrees to Pay $98M to Settle FDNY Class Action

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On March 18, 2014 the U.S. Department of Justice (“DOJ”) announced that New York City agreed to pay $98 million to settle a workplace class action originally brought by the DOJ in 2007 alleging that certain civil service tests administered by the FDNY were discriminatory against African-American and Hispanic applicants. In addition to this large monetary sum, the settlement also provides for systemic relief meant to transform the way in which the FDNY recruits firefighters going forward.

The settlement is the largest employment discrimination class action settlement for 2014 thus far.

Background Of The Case

As we previously blogged here and here, the United States originally filed this lawsuit against the City in 2007, alleging that the City’s entry-level firefighter exams and applicant ranking had an unlawful disparate impact on African-American and Hispanic applicants. The Vulcan Society and several individuals intervened in the lawsuit alleging similar claims of disparate impact and also alleging disparate treatment on behalf of a putative class of African-American, entry firefighter candidates. The Court agreed with Plaintiffs, finding that the City’s procedures for screening and selecting entry-level firefighters violated Title VII, the Equal Protection Clause, and the Civil Rights Act of 1866, along with New York state and local law. Consequently, the Court issued an order requiring the City to develop a non-discriminatory test for entry-level firefighter applicants. In 2013 the Second Circuit vacated the grant of summary judgment for disparate treatment liability, but upheld the injunctive relief order.

Settlement Terms

As set forth in the DOJ press release, New York City will pay a total of approximately $98 million to resolve allegations that the FDNY engaged in a pattern or practice of employment discrimination against African-American and Hispanic applicants for the entry-level firefighter position by using two discriminatory written tests in 1999 and 2002. The parties have yet to agree on the method in which the settlement fund will be distributed among class members; however, according to the DOJ “the parties have committed to streamline the claims process and to expedite the distribution of monetary relief to eligible claimants.”

In addition to the money that the City has agreed to pay, the Court has already ordered several changes to remedy the city’s discriminatory hiring practices included among them the use of an entry-level firefighter exam jointly developed by the parties as well as the appointment of a court monitor to oversee the FDNY’s hiring reforms.

Implications For Employers

Although it appears that the approval of the consent decree (which is still subject to a fairness hearing) is a formality, anything is possible given the number of twists and turns this case has taken over the years. Either way, cases such as this serve as a reminder that multi-million dollar settlements in class action cases such as this are not unusual and that whether it is the Department of Justice or the EEOC, the government is focused on forcing employers to make systemic changes to the way in which they do business as well as seeking monetary relief for class members.

This blog was previously published by Seyfarth Shaw LLP.

 

Who’s Committing Economic Crime?

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According to a recent survey from PricewaterhouseCoopers, economic crime is on the rise, particularly in the United States. Of organizations in the U.S., 45% suffered from some type of fraud in the past two years, compared to the global average of 37%. Further, 23% of companies that reported economic crime experienced accounting fraud, up from 16% in 2011.

So who is committing these crimes?

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External perpetrators are on the rise, closing the gap with internal perpetrators — it’s now 45% versus 50%, respectively. But the profile of these internal actors has changed since the last survey in 2011.

Now, most internal frauds are perpetrated by middle management (54%, compared to 45% in 2011), and fraud by junior staff has dropped by almost half, now totaling 31%.

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The typical internal fraudster is now a white male in middle management, age 31-40, who has been with the company for six years or more.

Internal Fraudster Profile

In good news, PwC also found that awareness of risk is higher among U.S. companies, for example, seven out of 10 American respondents perceived an increased risk of cybercrime in the last two years, compared to just under half globally. The C-suite is also increasingly getting the message about the risk of economic crime:

C-Suite and Economic Crime

For more details on the 2014 Global Economic Crime Survey, check out the report from PwC here.

Marine Losses Continue Downward Trend

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The marine industry continued to see a steady decline in the number of large ships losses globally since 2002, with 94 ships lost in 2013, down 20% from 117 reported in 2012, according to a study by Allianz.

The “Safety and Shipping Review 2014” by Allianz Global Corporate & Specialty found that of ships lost, the largest number, 32, were cargo vessels; 14 were fishing vessels; and 12 were bulk shipments. Only six passenger ships were lost, the survey found. The most common cause of losses in 2013, and over  the last 12 years, was foundering (sinking or submerging). The demise of 69 ships accounted for nearly three-quarters of all losses—with bad weather a significant driver.

Worldwide there were 1,673 losses from Jan. 1, 2002-Dec. 31, 2013, with an average of 139 per year. The top geographic area for losses has been South China, Indo China, Indonesia and Philippines. The area including British Isles, North Sea, English Channel and Bay of Biscay is still ranked fourth, despite improvement. With 45 losses overall, the U.S. eastern seaboard improved in 2013, dropping out of the top 10 regions.

According to the study, January is the worst month for all casualties in the Northern Hemisphere. There were 23% more losses in January compared with the quietest month, June. In the Southern Hemisphere July sees 41% more losses than April.

The majority of losses are caused by machinery damage, the reason for most losses in marine insurance. Statistics from the International Union of Marine Insurance (IUMI) report that 40% of hull claims are machinery damage and account for 20% of costs.

The review found that while piracy is still a threat, it has also subsided. Piracy at sea reached its lowest levels in six years, with 264 attacks recorded worldwide in 2013, a 40% drop since Somali piracy peaked in 2011. Fifteen incidents were reported off Somalia in 2013, including Gulf of Aden and Red Sea incidents, down from 75 in 2012, and 237 in 2011 (including attacks attributed to Somali pirates in Gulf of Aden, Red Sea and Oman).

According to the study: “The very real threat of piracy for ships operating in the Gulf of Aden reached the general public last year as the Hollywood Oscar-nominated blockbuster Captain Phillips was released. Tom Hanks played the lead as the master of the pirated Mærsk Alabama, broadcasting the piracy problem to a much wider audience and raising awareness of its consequences. The steps that the international maritime community has taken to reduce the threat of piracy in the Gulf of Aden have been extremely successful with the number of ships seized and hostages taken in 2013 significantly down on 2012.”

Lower losses overall were attributed to a number of factors including increased regulation, which has helped the maritime industry improve its safety record. Because the quality of operations varies in different regions, however, there is a big need for universal regulations on ship safety to reduce the risk of casualties and loss of life, the survey concluded.

 

New Study Shows Scope of Workplace Bullying

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In a new study, the Workplace Bullying Institute found that 27% of Americans have suffered abusive conduct at work and another 21% have witnessed it. Overall, 72% are aware that workplace bullying happens.

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Bullying was defined as either repeated mistreatment or “abusive conduct.” Only 4% of workers responded that they did not believe workplace bullying occurred.

The study found that 69% of the bullies were men and they targeted women 57% of the time. The 31% of bullies who are female, however, overwhelmingly bullied other women—68% compared to 32% who mistreated men in the workplace. Identifying the perpetrators also shed light on how corporate power dynamics play a role in abusive workplace behavior. The majority of bullying came from the top (56%), while only a third came from other coworkers.

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“Sadly, what stops bullying the most is requiring the target to lose her or his job,” said Gary Namie, director of the Workplace Bullying Institute. According to the survey, in 61% of cases, the bullying only stops when the target quits, is fired or forced out.

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Employer reactions are failing employees—and may open many companies to costs from turnover or even legal liability:

Workplace bullying employer responses

Check out the infographic below for more insight into workplace bullying:

Workplace Bullying Survey