new york employment lawyer

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.

 

Things not to say to an employment lawyer

We’re a busy employment law firm.  We get tons of calls from potential clients.  Their claims run the gamut of employment law – discrimination to unpaid wages, severance and retaliation.  We try to help as many people as we can.  But there’s only so much that can be done.  If you are thinking about calling an employment lawyer, here are some things you might not want to say.

1.       This case is newsworthy.  Really?  OK, quickly, name one employment law case in the news right now.  How many can you recall ever being   in the news?  Chances are your case is not newsworthy either.  That “bad publicity” you think that your employer is afraid of, is not nearly as big of a concern as you think.  Very few cases make the news. 

2.       I am entitled to a significant payout.  More likely than not, you are entitled to nothing.  You are almost certainly an employee at will.  The only way you are entitled to compensation is if you have an agreement (e.g. contract, collective bargaining agreement, company policy, etc.).  Otherwise, you have to fight for a payout (let alone a “significant” payout).

3.       The company has tons of money.  Your company did not get “tons of money” by handing it out.  Just because your company can afford a generous settlement, does not mean that it will pay a generous settlement.  The richest companies are often the stingiest.

4.       Why did I get fired?  That’s for you to figure out.  To be sure, the role of employment lawyer includes doing an investigation.  But if you don’t have a rough theory of your case when you first call an employment lawyer, put down the phone and think things through.  To come up with a “theory of the case,” you need to think about your narrative – what happened to you at work, and why you think a lawyer should be helping you out.  Were you fired because of your age, disability, sexual orientation, medical leave?  Were you paid for all of your overtime?  If you don’t have a theory lined up before you call, you are not ready.

5.       It’s a long story.  No its not.  Maybe your whole story is a long one, but when you call an employment lawyer, cut to the chase.  “I was treated unfairly because … ,” “I was fired because … ,”  “I am entitled to compensation because … .”  These are not long stories.  Yes, of course, we will have to fill in the details, and details matter a lot, but when you first call – get right to it.  The rest can be filled in from there.
 

 

Required Forms for New Hires in New York

What are the required forms for new hires in New York? If you are an employer in New York, there are several forms that you should have each of your new hires fill out under New York and federal law. The following post sets forth the required forms for new hires in New York.  If you need help with these, or any additional forms (like wage statement forms, performance improvement plans, offer letters, contracts, severance agreements, personnel manuals, etc.) we can help.  Call or e-mail us.  We have attorneys standing by.

Our firm drafts custom tailored documents for businesses throughout the country, and we do it on a flat fee basis - and can usually prepare your forms within 24-hours.  For a list of some of the documents we can prepare for you as well as pricing, click here.

  1. Form I-9, Eligibility to work in the United States. This is one of the required forms for new hires in New York. You must verify that each new employee is legally eligible to work in the United States. So, have each new employee you hire fill out a Form I-9. Here is a link to Form I-9 and the Employer Instructions: http://www.uscis.gov/sites/default/files/files/form/i-9.pdf

  2. Form W-2. This is one of the required forms for new hires in New York. You are required to get each employee's name and Social Security Number (SSN) and to enter them on Form W-2. (This requirement also applies to resident and nonresident alien employees.) You should ask your employee to show you his or her social security card. You may, but are not required to, photocopy the social security card if the employee provides it. Here is a link to a sample W-2: http://www.irs.gov/pub/irs-pdf/fw2.pdf. To e-file the W-2 and verify the name/SSN of employee via Social Security Administration, please visit: http://www.socialsecurity.gov/employer/

  3. Form W-4, wage Withholding Allowance Certificate. This is one of the required forms for new hires in New York. To know how much income tax to withhold from your employee's wages, you should have a Form W-4 on file for each employee. Ask all new employees to give you a signed Form W-4 when they start work. Make the form effective with the first wage payment. A Form W-4 remains in effect until the employee gives you a new one. Ifan employee claims exemption from income tax withholding, he must give you a new Form W-4 each year. If an employee gives you a Form W-4 that replaces an existing Form W-4, begin withholding no later than the start of the first payroll period ending on, or after the 30th day, from the date you received the replacement Form W-4. Here is a link to Form W-4: http://www.irs.gov/pub/irs-pdf/fw4.pdf

  4. Form IT-2104, Employer Allowance Certificate (NYS). This is one of the required forms for new hires in New York. This form must be completed to withhold New York State taxes, if working within New York state (depending on the employee’s withholding, IT-2104-1 or IT-2104-E must also be completed). Here is a link to Form IT-2104: http://www.tax.ny.gov/pdf/current_forms/it/it2104_fill_in.pdf. If the employee is a nonresident of New York, he needs to complete Form IT-2104-1: http://www.tax.ny.gov/pdf/current_forms/it/it2104_1_fill_in.pdf. And if the employee is claiming exemption from withholding for New York State personal income tax, he must complete Form IT-2104-E: http://www.tax.ny.gov/pdf/current_forms/it/it2104e_fill_in.pdf.

  5. IRS Form 940. You must file IRS Form 940 to report your federal unemployment tax for any year in which you paid wages of $1,500 or more in any quarter or for any year in which an employee worked for you in any 20 or more different weeks of the year.

  6. Report each new hire to state new hire reporting agency. General Information about new hire reporting: http://www.tax.ny.gov/bus/wt/newhire.htm. You can either report the new hire online (https://www.nynewhire.com/index.jsp) or mail in Form IT-2104 (online reporting or hard copy mailing info set forth at general info website above).

  7. Forms required by New York Labor Laws. There are other forms mandated by the New York Department of Labor. To see which forms are applicable to your business and employees, please visit: https://labor.ny.gov/formsdocs/wp/LS53.pdf

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Should I Sue My Employer?

Should I sue my employer?  Maybe. Speaking in very general terms, there are three major categories of laws protecting employees. These categories are: (1) discrimination law, (2) leave law, and (3) wage payment law. Below is a very brief discussion of each:

  1. Discrimination: Discrimination against individuals on the basis of their membership in a protected class is illegal. Protected classes include: gender, race, disability, age, national origin, religion and others. It is unlawful for an employer to discriminate against an employee based on their protected status. The discrimination can be failure to hire, decisions related to pay, discipline and decisions to terminate employment. The principle is that you cannot be treated differently than similarly situated employees on the basis of your protected status.
  2. Leave: Certain employees are entitled to leave by state and/or federal law. If you are entitled to leave, it is illegal for your employer to interfere with your leave, or retaliate against you for taking leave.
  3. Wages: There are also many wage payment laws which govern how your employer must pay your wages. These laws relate to payment of overtime lawful deductions from wages, and what constitutes “work” such that you have to be compensated.

If you are having issues with your employer, you should speak to an employment lawyer. You may have a viable lawsuit against your employer, and a good employment lawyer can help guide you in reviewing your situation.

should I sue my employer?
should I sue my employer?

How do Employment Discrimination Lawsuits Work?

This post is probably more for the lawyers out there who are curious about employment discrimination lawsuits, but below is a (relatively) simple breakdown of how these cases are analyzed.  Most employment discrimination cases are analyzed by what is called a McDonnell Douglas burden shifting framework. Under this burden shifting framework, there are 3 burdens, which shift between Plaintiff/Employee) and Defendant/Employer).First Burden: Plaintiff/Employee has a burden of production with respect to a prima facie case of discrimination.

  1. Burden of Production: This means you have to “show,” but not prove.
  2. “Prima Facie Case of Discrimination” “Prima facie” is Latin for first impression. So you have to show (burden of production) a first impression case (prima facie) of discrimination. To do this, Courts require Plaintiff/Employee to show (not prove) four elements:
    • Plaintiff/Employee belongs to a “protected class”
      • “Protected class” is a characteristic of a person which cannot be targeted for discrimination. This includes: race, gender, religion, national origin, age, pregnancy, disability, sexual orientation, and more.
    • Plaintiff/Employee suffered an “adverse employment action”
      • “Adverse employment action” means something bad happening at work. This includes: termination of employment, harassment (but it has to be pretty bad), demotion, suspension, etc.
    • Plaintiff/Employee is “qualified for the position”
      • Typically this is only relevant for failure to hire cases, as opposed to “wrongful termination” cases. If Plaintiff/Employee worked at a job and was subsequently terminated, they are almost always “qualified for the position.”
    • Adverse employment action occurred under circumstances “giving rise to an inference of discrimination”
      • “Giving rise to an inference of discrimination” means something which makes it plausible that the action taken against the employee was related to his or her protected class. Evidence can include being replaced by a person outside the protected class, timing, comments by supervisors and/or decision-makers.

If Plaintiff can meet this burden of production, the burden then shifts to Employer/Defendant Second Burden: Defendant/Employer has a burden of production to produce a legitimate, non-discriminatory justification for the adverse employment action.

  1. Legitimate, non-discriminatory justification. This means the employer has an obligation to come up with a reason for the termination, demotion, etc., other than the protected class.

Third/Final Burden: Plaintiff/Employee has a burden of proof by a preponderance of the evidence that Defendant/Employer’s stated reason is pretext for discrimination.

  1. Preponderance of the evidence. This means more likely than not. 51%.
  2. Pretext. This means that the reason put forth by Defendant/Employer is bs, and the real reason for the adverse employment action was discrimination. This is where discrimination cases are won and lost.

At the end of the day, the burden is on Plaintiff/Employee to show that, irrespective of the reason, discrimination was the real reason (or at least a big part of the real reason) for Defendant/Employer’s decision to terminate the employee. If you have any questions, feel free to contact us. We welcome calls from potential clients as well as fellow attorneys in need of guidance.

 

 

Have I Been Unlawfully Terminated?

Wrongful Termination
Wrongful Termination

We get this question frequently. Fortunately, there is a simple answer: there is no such thing as wrongful termination. However, under some circumstances, the decision to terminate an employee may be unlawful.

Below are the two most common examples of what most people refer to as “Wrongful Termination”

  1. Discrimination. When someone’s employment is terminated because they belong to a protected class (like age, race, gender, disability, etc.), the decision may be unlawful.
  2. Retaliation. Generally speaking, it is illegal for an employer to retaliate against an employee for engaging in a protected activity. Protected activity includes making an internal complaint of discrimination (it doesn’t have to be about you), or some other illegal activity going on in the workplace. Even if the complaint is incorrect, it is illegal to retaliate for making the complaint.

It’s never easy to prove discrimination or retaliation. You are never going to see a memo that says “let’s fire all the old people.”  Instead, these cases are typically won and lost on circumstantial evidence. This evidence often includes a comparison between how a protected (e.g., older) employee was treated as compared to a similarly situated employee outside of the protected class (i.e., how a younger employee was treated).

If you think you are being treated differently than employees who are outside of your protected class, you should consult with an attorney. While an employer does not have to be fair, it is illegal to make decisions which are influenced by discrimination or retaliation. A New York wrongful termination lawyer can help you understand your rights and fight back.

Contact us today for a free consultation and protect your rights.

Is Workplace Dating a Good Idea?

Office Romance
Office Romance

In today’s economy, working longer hours are a way of life for those who want to get ahead or simply stay employed.  For many, these increased demands preclude the ability or desire to spend time dating.  As a result, many employees turn to the workplace to find their romantic partners.   Many single employees wonder whether dating in the workplace is a sensible option. It is no surprise that relationships blossom within the workplace when one considers that many rising stars in the business world are young and single.  Combine that with the close proximity and long hours employees spend together, and it is no wonder that coworkers start to develop romantic relationships.  In some cases, workplace romances have proven to be more successful than those outside of the office – a recent CareerBuilder survey shows that 31% of office romances even progressed into marriages.

But there are just as many pitfalls from office romance as there are benefits.  If you involved in a workplace romance, you consider these questions first.

Does My Company Have a Policy on Workplace Dating?

Some businesses gave policies which strictly forbid dating amongst coworkers.   These polices are typically created to reduce the business’s exposure in the event something goes wrong.  If your company policy states that employees may not have romantic relationships with other employees, then you put yourselves at risk if you continue to pursue the relationship.  You may also forgo rights to file a lawsuit for hostile work environment, sexual harassment, or other claims that may relate to your romantic relationship.   Lawsuits like these cost businesses money, so they build in protections that may limit your options if you choose to ignore them.

Do I Need to Declare My Relationship?

Other businesses might allow romantic relationships, but only if both employees bring the relationship to the attention of the company.  Again, this is usually so the employer can inform you of your rights and responsibilities, but may also require you both to sign a document that you are both consensually entering into the relationship and will not hold your employer accountable should anything go wrong.

Should I Avoid a Relationship with My Boss?

Think carefully before entering into a relationship with either your superior or someone who reports directly to you.  Not only could a relationship like that lead to gossip and discomfort among other coworkers, but there are legal ramifications there, too.  If projects or promotions are awarded within your relationship, others may claim favoritism.  If the relationship ends, there could be animosity or questions about punishment or retaliation.  If the relationship is your priority, consider requesting a transfer into another department so those issues will not cloud your judgment.

While more and more companies are enacting policies on dating in the workplace, it is increasingly important to know your rights and options.  If you are a business owner, enacting such a policy may help to protect you and your employees.  If you are an employee, make sure you know the rules before going forward with a workplace romance.

If you have questions about workplace relationships, the experienced employment lawyers at Granovsky & Sundaresh PLLC can help you.  Contact us today for a free initial consultation at 646.524.6001.

Using the 'N' Word Illegal At Work

Jury Agrees Use of N-Word by Black Employer Creates Hostile Work Environment for Black Employee.

Alex Granovsky appears on Dealin’ Straight Radio Show

Brandi Johnson, a 38 year old black woman from New York, was recently awarded a $280,000 verdict in her hostile work environment claim which was heard in a Manhattan federal court. Johnson was awarded $30,000 in punitive damages and $250,000 in compensatory damages after the jury agreed with Plaintiff that her boss’ use of the N-word in a workplace tirade was hostile and discriminatory in nature. Johnson’s complaint comes after the founder of East Harlem STRIVE, Rob Carmona, a black male, repeatedly disparaged her with the use of the N-word and other harsh statements during a 4-minute long berating.

Carmona, the founder of STRIVE, defended his actions, testifying that his verbiage was merely tough love with no discriminatory intent. In fact, Carmona referenced “multiple contexts” in his defense, stating the black and Latino communities use the N-word in affectionate contexts.

Johnson testified during the trial that Carmona’s tirade left her feeling offended, hurt and degraded. Johnson she cried for 45 minutes following Carmona’s rant, feeling embarrassed and disrespected. To Johnson’s benefit, she recorded the March 2012 tirade, in which Carmona repeatedly used the N-word. Johnson’s attorney, Marjorie M. Sharpe, played the recording during the trial, allowing the jury to hear for themselves the language used by Carmona to Johnson and to determine whether or not Carmona’s actions were discriminatory and hostile in nature.

Carmona reiterated his sentiment in regards to his intentions of the use of the N-word, stating, "I come from a different time," where “tough love” and “tough words,” including the N-word, were accepted as motivators.

Believing that Carmona used the N-word and create a hostile work environment, jurors awarded Johnson with a favorable verdict. Although some will argue that the N-word is acceptable in certain contexts, the jury verdict reiterates the very offensive nature of using the N-word, especially in a working and professional environment.

If you feel you have been the victim of harassment or discrimination in New York, contact our New York employment law office today.

Paralegal Sues Bankruptcy Firm Over Wrongful Termination

It happens. Sometimes you end up working through lunch. Your boss is pressed for time on a deadline and needs you to lend a hand. When this happens, though, you should be compensated appropriately for your time. Unfortunately, that was not the case according to Carla Muskrath. After more than four years working as a paralegal for California bankruptcy law firm, Simon Resnik & Hayes LLP, Plaintiff was fired and has filed a wrongful termination lawsuit as a result. According to Ms. Muskrath’s allegations, her employer forced her to work through her lunch break and did not compensate her by paying her overtime. In accordance with the Fair Labor Standards Act, employers are required to pay one and a half times an employee’s hourly wage if he/she works more than 40 hours in a week. Ms. Muskrath claimed that during her time at Simon Resnik & Hayes LLP, she was entitled to overtime pay for her work during lunch. When she finally decided to stand up to her employer and begin taking her scheduled 30-minute lunch, she was retaliated against. Plaintiff was promptly fired.

In response, Ms. Muskrath filed a wrongful termination law suit in the Los Angeles County California Superior Court. In her claim, Ms. Muskrath indicates that in addition to not compensating her for overtime, the employer did not keep records of all of the hours that she worked.

It is unfortunate, but these situations occur frequently. Retaliation and wrongful termination can lead to financial and emotional stress. If you feel that you have been wrongfully terminated, contact the experienced NY employment law firm of Granovsky & Sundaresh. You may be entitled to monetary compensation, medical benefits, attorney fees, and more.

Reasonable Accommodation Under the ADA

The Americans with Disabilities Act (ADA)  requires employers to engage in an interactive process with a disabled employee to determine whether the employer can provide a reasonable accommodation under the ADA to the disabled employee. A reasonable accommodation under the ADA requires that the employee be able to perform essential functions of a position.  Recently, the 2d U.S. Circuit Court of Appeal recently reversed summary judgment in favor of an employer, and returned the case to the lower court for additional factual analysis to determine whether an individual whose medication kept him from coming to work on time could be disciplined for attendance violations based upon that lateness. McMillan v. City of New York, 2d Cir., No. 11-3932, March 4, 2013.

Rodney McMillan has schizophrenia and has been employed by the City of New York, for ten years. McMillan’s agency has a flex-time policy, and approves tardiness under certain circumstances.  McMillan’s medication can make him sluggish, which resulted in his late arrival to work several times.  The tardiness is a function of the treatment for his condition.

Prior to 2008, McMillan’s tardiness was never a problem.  Then, in 2008, his supervisors refused to approve any more late arrivals.  McMillan requested a later start time, but was told that this was not possible because McMillan would then have to work after 6:00 p.m., after which no supervisors were present.  McMillan also stated that he would be willing to work through his lunch hour, but that suggestion also was rejected.

In 2009, McMillan was fined eight days’ pay for late arrivals and was ultimately suspended for 30 days without pay for his “long history of tardiness.”

McMillan sued the City, alleging violation of the ADA. In support of his claim, McMillan argued that his requested accommodations were reasonable, as he often worked past 7:00 p.m., so he could arrive late and still work the required 35 hours a week.

The district court granted summary judgment for the City, holding that the court was “required to give considerable deference to the employer’s judgment” as to whether timely arrival at work was an essential function of a particular job.  On appeal, the Second Circuit reversed, finding that while a “timely arrival is normally an essential function,” the lower court “appears to have simply assumed that McMillan’s job required at least seven hours of work each day and that the work could not be successfully performed by banking time on some days to cover tardiness on others.”

The Second Circuit pointed out the facts that McMillan’s lateness had been allowed for years without discipline, and that the City allows flex time hours and regularly permits employees to “bank” time to cover certain late arrivals, all of which undermine the City’s assertion that it would have been an undue hardship to grant McMillan’s request for modified work hours.

The take-away  is that a Reasonable Accommodation under the ADA may require an employer to allow for flexible working time for its employees, where such a reasonable accommodation would still enable that employee to perform the essential functions of his or her position.