Do You Receive Equal Pay Compared With Your Co-Workers?

Do You Receive Equal Pay Compared With Your Co-Workers?

Just last week, a new equal pay law went into effect in New York State.  In the past, equal pay laws were limited to pay disparities between men and women for “equal work.”  Although unequal pay across many protected categories could always be deemed prohibited by and be addressed under general discrimination laws, New York State law now specifically requires equal pay across a variety of protected classes (such as race, color, national origin, etc.) for “substantially similar” work.  This means that titles are not as important as what employees actually do in their jobs.  If two employees are responsible for stocking shelves, just because one employee is called a clerk, and the other an assistant manager, it may not be appropriate for their pay to be different.  Or, if one employee is called an Assistant Vice President versus an Associate Vice President, but they have the same job responsibilities, their pay may need to be the same.  Employers can still justify pay differences based on a seniority system, a merit system, on quantity or quality of production, or a job-related factor such as education, training, or experience.

If You Are a Manual Worker in New York - You Must Be Paid Weekly

How Often Should I Be Paid if I Perform Manual Work?

Unless your employer has authorization from the New York Commissioner of Labor (and, among other things, employs at least 1,000 workers in New York) or is a non-profitmaking organization, employees who perform manual work need to be paid weekly within seven days of the work performed.[1]  This means that a lot of manual workers in New York State should be paid weekly.  Even if the exception applies, manual workers cannot be paid any less than twice a month.[2]

If you are a manual worker, and are being paid less often than every week, you may be entitled to considerable damages.

Who is a Manual Worker?

A manual worker can perform a variety of tasks.  For example, courts have found that janitors, cooks, carpenters, and supermarket employees fit the bill and may be entitled to payment on a weekly basis.[3]

What if My Employer Paid All of My Wages Biweekly Instead of Weekly?

You still may be entitled to recovery since an accompanying statue provides that certain violations of the New York Labor Law render employees eligible for damages in the sum of 100% of the delayed wages, attorneys’ fees, and interest on the sum of the delayed wages.[4]  More than one court recently determined that the damages are necessary to remedy the delayed payments.  Otherwise, an employer could ignore the weekly payment requirement—and the law—and avoid a penalty just by paying the employee when the employer felt like it.[5] 


What if My Employer Knew It Was Supposed to Pay Me Weekly, But Decided Not to?

An employer who knows about the obligation to pay manual workers weekly, but actively decides not to do so, could be liable for triple the sum of the delayed wages.[6] As you can imagine, that sum could really add up—especially when you take New York’s 6-year statute of limitations applicable to such claims into consideration!

If you would like to discuss your situation with us, please feel free to call or email us at any time. You will be on the phone with an attorney within 24 hours.

 


[1] NYLL §191(1)(a).

[2] NYLL §191(1)(a).

[3] Scott v. Whole Foods Mkt. Grp., Inc., 18 CV 0086 (SJF)(AKT), 2019 U.S. Dist. LEXIS 61726 *8, 2019 WL 1559424 (E.D.N.Y. Apr. 9, 2019)(collecting cases).

[4] NYLL §198(1-a); Scott, 2019 U.S. Dist. LEXIS 61726 *10-11.

[5] Scott, 2019 U.S. Dist. LEXIS 61726 *10-11; see also Vega v. CM & Assoc.Constr.Mgt., LLC, 9733, 23559/16E, 2019 N.Y. App.Div. LEXIS 6464*, 2019 N.Y. Slip Op 06459, 2019 WL 4264384 (1st Dept. Sep. 10, 2019)

[6] NYLL §198(1-a).

FMLA Leave for School Visits and Child Care

Can I Use FMLA Time to Visit My Child’s School?

Yes, if your child has a qualifying “serious medical condition.”  The U.S. Department of Labor (“DOL”) recently issued guidance providing that the FMLA (the Family and Medical Leave Act, the Federal law providing for such leave) can be used by parents who need to visit a child’s school in order to attend a Committee on Special Education (CSE) meeting to discuss an Individualized Education Program (IEP).[1]  Your employer can require that you provide a copy of a certification issued by a health care provider and meeting certain criteria to support the leave request.[2]  The decision is very new (dating from August 2019), so it is not yet clear if the same approach will be taken under New York State’s Paid Family Leave program.

What if I Only Want to Use a Couple of Hours of FMLA Time So That I Can Attend A Meeting at School?

You can do that!  FMLA leave can be taken in increments of hours (or even less) depending on your employer’s policies about leave[3] and up to the maximum sum of leave for which you are eligible.  New York Paid Family Leave must be taken in full-day increments,[4] so this could limit its use for the purpose of attending a meeting at your child’s school if just a couple of hours is needed.

Is FMLA Leave Time Paid?

Under Federal law, it is not required that it be paid, just that it be available.  An employer may, however, require you to use some or all paid leave during the FMLA period.[5]  In New York State, however, most employees now contribute through wage deductions to obtain Paid Family Leave insurance through their employers.  As of 2019, employees may be eligible for up to ten (10) weeks of such leave (which will gradually increase to twelve (12) weeks in succeeding years).  However, the maximum weekly benefit is limited to 55% of the Statewide Average Weekly wage, so the 2019 maximum weekly benefit is capped at $746.41, depending on your salary.[6]

How Do I Let My Employer Know That I Want to Use FMLA Leave?

Under both Federal law and New York State law, you should let your employer know at least 30 days in advance.  Or, if you have less notice than that, including if an emergency arises, you should let your employer know as soon as possible.  Ideally, the same day you find out you need to use FMLA leave.

How Do I Know If I Am Eligible for Leave Under the FMLA or New York State law?

To be eligible for FMLA leave, you must work for a “covered employer” (including private sector employers with at least 50 employees, public agencies, and schools), you must have worked for that employer for at least 12 months, you must have at least 1,250 hours of service for the employer during the 12-month period immediately before seeking leave, and you must work at a location where the employer has at least 50 employees within 75 miles.[7]  Under New York State law, as long as you have worked long enough, most employees who work for private employers are eligible since employers with just one employee participate in New York Paid Family Leave program.[8]

What Else Should I Know About FMLA Leave?

There are a lot of steps you need to follow to comply with FMLA leave requirements, so you should work with your employer to make sure you do all the things you need to do to be eligible and retain your eligibility for FMLA leave.  In addition, the requirements can vary depending on whether you are covered by federal FMLA leave or New York State Paid Family Leave program.

If you would like to discuss your situation with us, please feel free to call or email us at any time. You will be on the phone with an attorney within 24 hours.

 


[1] https://www.dol.gov/whd/opinion/FMLA/2019/2019_08_08_2A_FMLA.pdf

[2] https://www.dol.gov/whd/opinion/FMLA/2019/2019_08_08_2A_FMLA.pdf

[3] https://www.dol.gov/whd/regs/compliance/whdfs28i.htm

[4] https://paidfamilyleave.ny.gov/paid-family-leave-family-care

[5] https://www.dol.gov/whd/fmla/fmla-faqs.htm

[6] https://paidfamilyleave.ny.gov/2019

[7] https://www.dol.gov/whd/regs/compliance/whdfs28.pdf

[8] https://paidfamilyleave.ny.gov/eligibility

Can My Employer Require Me to Remove or Alter Religious Attire, Clothing, or Facial Hair?

Can My Employer Require Me to Remove or Alter Religious Attire, Clothing, or Facial Hair?

Generally, the answer is no.  Effective October 8, 2019, employers in New York State (akin to employers in New York City) will not be permitted to require employees to change garments and or facial grooming if to do so would violate an employee’s religion.  The new legislation was signed by Governor Cuomo in August 2019 and alters the New York State Human Rights Law to prohibit discrimination based on “the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion. . . .”  However, the law does not alter an employer’s right to prohibit such religious expression if after a bona fide (or real) effort it is “unable to reasonably accommodate the employee’s or prospective employee’s sincerely held religious observance or practice without undue hardship on the conduct of the employer’s business.”

Does the Law Protect Me Against Discrimination in Employment Based on My LGBTQ Status?

Does the Law Protect Me Against Discrimination in Employment Based on My LGBTQ Status?

Does Everyone Agree With You That Existing Legal Protections Against Discrimination Based on “Sex” Extend to LGBTQ Individuals? Unfortunately, the answer to this question remains “no.”Despite the EEOC taking a protective position and Title VII’s status as a nationwide law, not all federal courts enforcing Title VII have clearly expressed this position.

Deadline For Mandatory Sexual Harassment Training - October 9, 2019

New York requires employers to conduct sexual harassment training for its employees. Do not miss this deadline. We offer flat fee sexual harassment training. Avoid the fines, educate your workforce, and be smart! We have no nonsense transparent pricing - we will conduct a comprehensive, legally compliant training session, and follow up with certificates of completion for your company. We charge a flat fee of $1,000 (plus, if outside of Manhattan, travel costs), nothing more. No hidden fees, no bs. Just legally compliant training and a transparent no-nonsense price.

What If I Don’t Train My Employees By October 9, 2019?

Consider yourself a gambler since you could be subject to a misdemeanor and a $100 per employee penalty for the failure to comply with training.  Depending on the number of employees you have, this can add up quickly.  If you have multiple violations or other types of violations, the cost can go up as high as $500 per employee.  In the most extreme situations, an employer may even be subject to additional fines and imprisonment.[1]

But $100-$500 Per Employee Is Not the Only Cost . . .

If you fail to train your employees regarding sexual harassment, you leave yourself very vulnerable should you be sued for sexual harassment.  By failing to provide sexual harassment training, you make defending such an action much more difficult because you have disregarded an easy part of the law—helping your employees understand what sexual harassment is.  Plus, depending on the applicable law, you may lose certain defenses otherwise available to you. In a worst-case scenario, depending on the insurance you carry, your insurance carrier could challenge coverage to you since you did not comply with the law.  PLUS, all of this precedes whether or not there is actually an underlying violation of the sexual harassment law where damages may include an employee’s lost salary, compensation for emotional distress, punitive damage awards, and attorneys’ fees.

So, What Does This Training Need To Do?

The training must:

  • be interactive

  • include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights

  • include examples of conduct that would constitute unlawful sexual harassment

  • include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment

  • include information concerning employees’ rights of redress and all available forums for adjudicating complaints

  • include information addressing conduct by supervisors and any additional responsibilities for such supervisors

How Can I Get Help From Your Firm?

If you would like to discuss your situation with us, please feel free to call or email us at any time. You will be on the phone with an attorney within 24 hours.

 

[1] See New York Labor Law § 213.

Sexual Harassment Settlements in New York and Privacy

Will Settlement of My Sexual Harassment Law Claim in New York Be A Secret?

The answer is it can be, but only if you want it to be. 

It is very common for employers to want the resolution of a sexual harassment law issue in New York to be kept confidential through a provision in a settlement document called a “non-disclosure agreement,” often abbreviated to “NDA.”  Employers especially like NDAs because it is a way for them to make sure that other employees and the general public are unaware that a sexual harassment claim was made by an employee.  One problem with this type of secrecy is that if the employer chooses to, it can protect a misbehaving boss or supervisor it deems valuable to the employer many times and render another employee a new potential victim.  The 2018 amendments to sexual harassment law in New York added this protection for employees and prohibited the inclusion of an NDA in the sexual harassment context if the employee did not want and agree to it.

What do the 2019 Changes to the Law Do?

The 2019 amendments expand the limitations on an NDA to a wider scope of protected categories, including those alleging harassment based on age, race, creed, color, national origin, sexual orientation, and gender identity (to name a few).  This means that any employee who enters into a settlement agreement with an employer based on defined unlawful discrimination can choose whether they want to keep the settlement confidential or not. 

Are There Circumstances in Which it may Benefit Me to Keep a Settlement of a Harassment Law Claim in New York Confidential?

Yes, there are such situations.  An employee may prefer to put the incident behind and move on or there may be other personal reasons to prefer to keep the settlement confidential.  If you would like to discuss your situation with us, please feel free to call or email us at any time. You will be on the phone with an attorney within 24 hours.

 

2019 Sexual Harassment Law in New York Expands Rights for Many Workers

2019 Sexual Harassment Law in New York Expands Rights for Many Workers

As you may know, Governor Cuomo recently signed a sexual harassment law in New York creating additional protections for employees.  What you may not know is that this same law also helps many other categories of workers who may have experienced harassment in the workplace.

What Additional Groups Are Protected?

The soon-to-be-effective law makes it easier for not just those subject to sexual harassment to recover, but also specifically makes it an unlawful discriminatory practice to subject an individual to harassment because of:

·       Age

·       Race

·       Creed

·       Color

·       National Origin

·       Sexual Orientation

·       Gender Identity or Expression

·       Military Status

·       Disability

·       Predisposing Genetic Characteristics

·       Familial Status

·       Marital Status

·       Domestic Violence Victim Status

Along with discrimination based on sex, the above categories are called “protected categories.”

Are Non-Employees Also Protected?

Yes, they are!  After first expanding protection to non-employees against just sexual harassment (in prior amendments to the law), with the 2019 amendments to sexual harassment law in New York, the law also seeks to safeguard non-employees from harassment based on any of the above-referenced protected categories.  This means non-employees (such as a contractor, subcontractor, vendor, consultant, or other person providing services pursuant to a contract in the workplace) are better shielded from harassment in a workplace.

Are There Other Ways Individuals in Protected Categories are Helped by the 2019 Sexual Harassment Law in New York?

Yes, there is more—in addition to individuals who experience sexual harassment, individuals in protected categories who enter into settlement agreements are not required to also enter into a non-disclosure agreement (sometimes referred to as an “NDA”) about the harassment at issue—unless it is what the employee prefers.  This means that it may be harder for employers to just sweep such claims “under the carpet” and leave other employees unaware of what is happening to others at their job.   With the same idea of getting the word out about a discriminatory workplace, soon employers will not be permitted to require employees to arbitrate these types of claims instead of going to Court.  Stay tuned . . . there is more to follow on these topics! 

If you would like to discuss your situation with us, please feel free to call or email us at any time. You will be on the phone with an attorney within 24 hours.

 

 

 

Does the 2019 Sexual Harassment Law in New York State Better Protect Me?

Does the 2019 Sexual Harassment Law In New York State Better Protect Me?

Likely yes!  And this is especially true if you work outside of New York City.    

New York State recently passed a law with additional protections for employees that will soon make it easier for you to prove sexual harassment and harassment based on other protected categories including (but not limited to) age, race, creed, color, and national origin.   New York City employees have enjoyed broader protections over recent years and now the rest of New York State will be better protected, too.

A “hostile environment” is one type of sexual harassment. You may find yourself in this situation if you are subject to words, signs, jokes, pranks, unwelcome sexual advances, intimidation, or physical violence directed at you because of your gender, for example. 

New York State Law Now More Like New York City Law

Until now, New York State relied on the same strict standard as federal law to prove that a hostile environment existed at work.  This meant that employees like you had to demonstrate sexual harassment was “severe and pervasive” and only the most extreme isolated incidents (such as direct contact with an intimate body part) were enough for a sexual harassment claim to arise.  Instead, (and more like New York City law) you now need only show the relevant behavior was something more than a petty slight or trivial inconvenience.  The resulting standard applies to all of New York State and makes it unlawful to subject you to worse terms, conditions, or privileges of employment just because you are a woman (or man), an older person, or a member of a minority group.

Courts May Now Let Employees Pursue Additional Claims

So how does this help you?  Based on these changes to sexual harassment law in New York State, Courts may now let additional sexual harassment cases go forward.  For example, a man who endured a more grueling interview process than female employees did and whose supervisor on numerous occasions said she would like to have an all-female staff found his claim dismissed under the “severe and pervasive” hostile work environment standard, but his case went forward under New York City law.[1]  Similarly, a financial industry executive whose claim did not meet the “severe and pervasive” standard previously applicable to New York State cases was able to rely on evidence of unwanted gender-based conduct and widespread institutionalized gender discrimination to state a hostile work environment claim under New York City law.[2]  These cases only survived because the employees worked in New York City.  Now all employees experiencing sexual harassment (including a hostile work environment) in New York State are more broadly protected.

Sexual Harassment is Illegal and Wrong - Fight Back!

If you would like to discuss your situation with us, please feel free to call or email us at any time. You will be on the phone with an attorney within 24 hours.


[1] Lenart v. Coach, Inc., 131 F.Supp.3d 61, 68-69 (S.D.N.Y. 2015).

[2] Osborne v. Moody’s Investors Serv., 1:17-cv-01859 (ALC), 2018 U.S. Dist. Lexis 47558, *14-16 (S.D.N.Y. 2018).

Should I Negotiate for Money or Benefits in My Severance?

Should I Negotiate for Money or Benefits in My Severance?

Benefits, especially medical benefits, are incredibly important.  But just because benefits are very important, that does not mean that you should focus on them when you negotiate your severance.  Instead, you should focus on money.  The reason for this is simple – benefits are something that you can purchase with the money that you negotiate for.