based on age, sex, race, pregnancy, gender, national origin, disability, sexual orientation, religion or other legally protected classifications.
Workplace Discrimination, Harassment and Retaliation
Federal and New York law entitles you to a workplace free from unlawful discrimination, harassment or retaliation. If you feel you have been subjected to such abuse, our experienced New York employment lawyer can guide you on how to get the resolution you deserve.
The federal law ("Title VII") applies to employers with 15 or more employees, and makes it unlawful for an employer to hire or discharge any individual, or to otherwise discriminate against any individual with respect to his/her compensation, terms, conditions or privileges of employment because of an individual's race, color, religion, sex, or national origin.
This covers hiring, firing, promotions and all workplace conduct.
Other federal laws such as the Equal Pay Act of 1963, the Lilly Ledbetter Act of 2009 and the Pregnancy Discrimination Act provide protection against additional forms of discrimination based on sex.
Title VII does not protect individuals employed by their parents, spouse or children, and does not protect domestic servants or independent contractors.
New York State or City Law
The New York State Human Rights Law ("NYSHRL") and New York City Human Rights Law ("NYCHRL") also protect workers from employment discrimination, workplace harassment and retaliation based on age, pregnancy, race, sex, gender, disability, national origin or other legally protected classification. Under the NYSHRL and NYCHRL, it is unlawful to discriminate against individuals when hiring for a job, while on the job, or if an employee has filed a complaint of discrimination.
The New York State and New York City laws prohibit a broader class of discrimination, harassment and retaliation than the federal law (Title VII), including protecting against discrimination and harassment based on sexual orientation, marital status, military status, and other specified classes.
The New York City law also bars workplace harassment, discrimination and retaliation based on citizenship status, physical/mental disability, arrest record, and victim status (of offenses such as domestic violence and stalking), as well as protecting against workplace abuse because of a person's association with a member of one of the legally protected classifications.
The City law also has one of the broadest anti-retaliation provisions of any law in the United States. In order to have a claim of retaliation under the New York City law, an employee must complain about workplace discrimination or harassment based on age, pregnancy, race, gender, sex, national origin, disability or other legally protected classification. The employee need have only a good faith, reasonable belief that he or she is being discriminated against; proof that such discrimination actually existed is not required.
The State and City laws apply to employers with 4 or more employees. Individual supervisors may also be sued under New York State and City law under certain circumstances. The NYC law also protects independent contractors (the New York State and federal laws do not).
The law limits the amount of time you have to pursue claims, so contact our office to speak to an experienced NYC employment attorney about your wrongful termination, workplace harassment, employment discrimination or retaliation issues.
Unpaid Wages and Overtime
Most workers are entitled to receive overtime pay, but some are not. If you feel you are entitled to, but have not received overtime, wages or other compensation, our experienced NY employment lawyer can help you get the compensation you are entitled to.
Generally, employees covered under the Fair Labor Standards Act ("FLSA") who work more than 40 hours in any given payroll week are entitled to overtime pay under New York and federal law. Regular overtime must be paid at a rate of one and one-half times a worker's regular hourly rate of pay.
For residential employees ("live-in" workers), the overtime rate applies to all time over 44 hours in a payroll week.
The overtime requirement is based on hours worked in a given payroll week. In other words, you must work at least 40 hours in a given workweek to receive overtime under New York and federal law. This means that you are not entitled to overtime (be it time and one-half, double-time, or any amount higher than the agreed rate) simply because you worked more than eight hours per day or you worked on a Saturday or Sunday.
Some workers are exempt from the Fair Labor Standards Act ("FLSA"), and thus, are not entitled to overtime pay. These workers include:
Executive, administrative, and professional employees who are paid a salary and have certain job duties;
And certain computer specialists (such as systems analysts, programmers, and software engineers) who earn at least $27.63 per hour;
Contact our office if you think you are entitled to, but have not received overtime pay and a NYC employment lawyer experienced in this area will be happy to assist you.
Most jobs in New York State and New York City are "employment-at-will". This means that employment can be terminated by an employer or an employee at any time, for any reason or no reason, with or without notice. But there are limits to an employer's ability to fire its employees.
If you live or work in New York and think you suffered a wrongful termination, our experienced NYC employment lawyer can help effectively resolve your situation so you can move on with your life.
One limit of the employment at-will rule is that an employer cannot fire a worker as a result of unlawful retaliation, or workplace discrimination or harassment under New York or federal law. Unlawful discrimination or harassment is misconduct based on a person's pregnancy, race, sex, age, disability, religion, sexual orientation, or other legally protected classification, or based on the person's association with a member of one of the legally protected classifications (also known as "association or associative discrimination" or "discrimination by association"). For more information on federal and New York laws against workplace harassment, discrimination, and retaliation click here.
Wrongful termination under New York and federal law may also occur if an employer fires a worker in a manner that breaches an established contract that restricts termination (such as a collective bargaining agreement ("CBA"), employment offer letter, or provision in an established employee manual), or in a manner that otherwise violates New York and federal law. For example, an employer should not fire a worker for taking a sick day or an unpaid leave under the Family and Medical Leave Act. For more information on the Family and Medical Leave Act click here. A worker also should not be fired for reporting illegal activities at work such as health and safety violations or acts of discrimination, harassment or retaliation.
Other exceptions to the employment-at-will doctrine exist under sections of the New York State Labor Law. Section § 201-d of the Labor Law prohibits an employer from firing a worker for engaging in political or recreational activities outside of the workplace, for legal use of consumable products outside of work, or for membership in a union. Section § 215 of the Labor Law prohibits employers from penalizing workers for making a complaint to the employer, to the Commissioner of Labor, or to the Commissioner's representative about any provision of the Labor Law.
If you have been fired or believe that you may be fired, keep a written record of everything that happens at work that you believe may be important. Also keep copies of all your relevant employment documents, such as any performance evaluations that you received, any notes or comments from your employer, supervisors and/or employees related to your performance or to any conflicts, discrimination or harassment that you may have experienced, and get a copy of your employee handbook and possibly your personnel file.
The law limits the amount of time you have to pursue your claims, so contact our office as soon as possible to speak to an experienced New York employment attorney about wrongful termination or other workplace issues.
The Family and Medical Leave Act ("FMLA") under federal law offers a 12-week period of unpaid leave to qualified employees who need to take time off for certain health conditions of their own or of close family members. The FMLA also provides leave for family members of those serving in the military under certain circumstances.
Employees are not entitled to paid family leave under New York law at this time, although legislation has been proposed that would mandate paid medical leave.
Contact our office to speak to an experienced NYC employment lawyer regarding the Family and Medical Leave Act.
Negotiations in New York
When employment is terminated, a worker may receive an employment separation or severance agreement. These contracts offer compensation in exchange for the worker agreeing to waive his or her right to pursue legal action against the employer for violations of federal or New York law, including wrongful termination, workplace harassment, employment discrimination or retaliation, or breach of an employment contract. Our experienced NYC employment lawyer can negotiate your separation or severance contract and help get you the compensation you deserve.
In some situations, you may have suffered a wrongful termination, or discrimination, harassment or other unlawful employment action against your disability, race, pregnancy, age, sexual orientation, gender or other legally protected classification, and it may not be in your best interest to sign a separation or severance agreement that waives your right to pursue a legal claim.
The employment severance or separation agreement may also impose other post-employment restrictions, such as limiting your ability to compete with the employer (also known as a "non-competition" agreement or contract, or "non-compete"), or may restrict your ability to work with or solicit the employer's clients (also known as a "non-solicitation" agreement or contract). Even if an employer is within its legal rights to terminate employment, it often does not have the right to bind you to post-employment restrictions listed in severance or separation contracts, unless you agree to these restrictions.
Or, you may be over 40 years of age, which provides you additional considerations with regards to severance and separation agreements. Some of these considerations include the Older Workers Benefit Protection Act ("OWBPA"), which gives you additional rights with respect to terms and conditions contained in employment severance and separation contracts.
If you received an employment separation or severance agreement, our experienced New York employment lawyer can help you negotiate the agreement and ease your burden during this difficult time. In many situations, separation and severance agreements are fully negotiable, and we can assist you either privately, behind the scenes or upfront to get the compensation and benefits you deserve. For details on contacting our office click here.
Independent Contractor Agreements
An independent contractor agreement is a contract between a company and an independent contractor (not an employee) that provides the terms and conditions by which the independent contractor will provide services to the company. The independent contractor agreement serves several benefits, including clarifying the terms and parameters of a project upfront to avoid confusion between the parties, clarifying the terms and method of payment for services rendered, and affirming the expectations of the parties. If you are an independent contractor, or are considering becoming one, speak to our experienced employment lawyer in New York to help negotiate your independent contractor agreement. For details on contacting our office click here.
Our office assists employers in establishing, developing and implementing effective employment policies and practices that help enhance employee relations and minimize the risk of costly lawsuits. If a lawsuit has already occurred, we also advise employers on how best to proceed during the litigation process.
For more information on our employment counseling practice, contact our office to speak to a New York employment lawyer experienced in counseling clients on employment law matters.