New York Labor & Employment Lawyers

Unfortunately, stereotypes surrounding pregnancy still sometimes play a role in how an employee expecting a child is treated in the workplace. A woman may find herself subjected to demeaning comments or overlooked for promotions or bonuses, simply on the basis of her pregnancy. These situations are unlawful and may form the basis of a claim. Under the Pregnancy Discrimination Act (PDA), a federal law, employees throughout the U.S. are shielded from adverse treatment based on pregnancy, and they are entitled to be accommodated in the workplace similar to other temporarily disabled employees. Although the PDA covers only employers with 15 or more employees, state laws in New York extend to smaller businesses.

Closely related to sexual harassment and pregnancy discrimination, gender discrimination arises when an employee is treated differently from their co-workers based on their sex. For example, an employee may not base promotions or pay raises on gender stereotypes or provide benefits only to female rather than male spouses of employees. The Equal Pay Act requires employers throughout the U.S. to provide equal pay to employees who are working in substantially equal jobs, regardless of their gender. This is broadly defined to include bonuses, stock options, and benefits, in addition to actual salary. As with other forms of discrimination, federal protections against gender discrimination extend not only to current employees but also to job applicants.

Title VII of the Civil Rights Act of 1964, as well as state and local laws, prohibit racial discrimination in New York City workplaces. Title VII covers all private employers, educational institutions, and state and local government organizations that employ 15 or more workers. Under Title VII, it is illegal for a covered employer to discriminate against an employee or a job applicant based on race when taking employment actions. For example, it is illegal for your employer to fail to promote you or to terminate you based on race. Similarly, an employer interviewing a job applicant cannot fail to hire that applicant merely because they are of a particular race. State and local laws also prohibit this form of discrimination.

Under the federal Americans with Disabilities Act, an employer may not discriminate against a qualified employee based on a history of disability or the employer's belief that a qualified employee has a mental or physical impairment that is not short-lived and minor. Even employees and job applicants who are not actually disabled are protected against discrimination if the employer takes an adverse employment action because it believes there is a disability. Moreover, employers are required to provide reasonable accommodations to qualified employees who request an accommodation due to the disability, unless providing that accommodation would be overly expensive or difficult.

Under the Age Discrimination in Employment Act of 1967 (ADEA), employers in the U.S. may not discriminate against workers who are over 40 years old on the basis of their age. Businesses with 20 or more employees are covered by this federal law, while New York State and City laws provide additional protections. Also, the Older Workers Benefit Protection Act of 1990 (OWBPA) governs actions by employers that are related to employee benefits. Under the OWBPA, employers may not reduce benefits based on age unless the cost of providing the reduced benefits to older employees is no greater than the cost of providing benefits to younger employees.

While federal law does not explicitly prohibit sexual orientation discrimination in most situations, the state of New York does protect employees in the private sector from this type of conduct. Even if your employer acts based on a mistaken belief about your sexual orientation, you may be entitled to assert your legal rights. Any type of unequal treatment of employees based on actual or perceived sexual orientation is prohibited in New York. This can consist of overt harassment or actions such as being denied professional advancement, and it also may arise from more subtle comments such as whether a person is not masculine or not feminine enough for a certain role or job.

Laws at the federal, state, and city levels prevent employers from treating workers differently based on their country of origin, as well as certain related traits, such as ethnicity, ancestry, or foreign accent. As with other forms of discrimination, a claim may arise whether or not the employer’s perception of the employee’s national origin is accurate. For example, a company may not refuse interviews to people who have foreign accents or place additional requirements on non-white individuals during the job application process. In some situations, a company may require that only English be spoken in the workplace, but only if it promotes the necessary operations of the business.

Employers are required to provide reasonable accommodations for the religious practices of their employees, in addition to refraining from harassing them based on their religion. Religious beliefs are broadly defined under the law, extending from a membership in a particular religion to sincere ethical or personal beliefs. Unless a religious observance would create an undue hardship for an employer or interfere with a bona fide qualification of the job, an employer must accommodate an employee’s sincere desire to engage in that observance, such as by rearranging a work schedule. An employee also may have a legal claim if their employer fails to address hostile actions by customers or clients toward the employee based on their religion.

This form of discrimination tends to arise most often in the application or hiring process. Although adverse decisions based on prior criminal convictions are not specifically prohibited by federal law, New York State has enacted laws in this area to protect its public policy interest in providing employment for citizens with criminal records. Discrimination based on a prospective employee’s criminal history is not permitted unless the job is in law enforcement, there is a direct relationship between the applicant’s conviction and the type of job, or hiring the applicant would pose an unreasonable risk to people or property. Employers that do consider prior convictions must take into account how much time has passed since the conviction, how old the applicant was when the crime was committed, and the severity of the offense.

Minimum wage, overtime, and rest requirements in New York are set by several laws, including the Fair Labor Standards Act (FLSA). Under the FLSA, an employee can be classified as either exempt or nonexempt. Exempt workers are typically salaried professionals. Most workers are nonexempt, however. Nonexempt workers are entitled to minimum wage, overtime pay, and meal and rest breaks. In New York, for example, Labor Law Section 162 specifies the required meal periods for employees.

Most anti-discrimination laws include provisions that prohibit retaliation for engaging in protected activities, such as assisting with a discrimination investigation, filing a charge with the EEOC, or suing your employer for harassment. Although most employment relationships are "at will," employers cannot fire or terminate employees in order to retaliate against them. When an employee is fired for engaging in a protected activity or for some other reason that violates public policy, they may have grounds to bring a wrongful termination lawsuit.

A wrongful termination claim may exist in a limited range of circumstances. Employers cannot terminate an employee when doing so would violate public policy as set forth in federal, state, or local laws. For example, an employer is not permitted to lay off only its elderly workers. These workers would have a wrongful termination claim. Similarly, they cannot fire you because of your race — you would have cause to bring a wrongful termination claim. In some cases, an employment contract may require that your employer only fire you for good cause.

Central to the enforcement of federal discrimination laws, the EEOC investigates complaints brought by employees related to alleged violations of Title VII and similar laws. You must file a charge of discrimination with this agency within 180 days of the conduct on which your complaint is based. The EEOC first will try to resolve the dispute through an informal process known as conciliation. It also offers a mediation program that the employer and employee can use as an alternative to litigation if both agree to it. If conciliation and mediation prove unsuccessful, the EEOC can either bring a claim against the employer or provide the employee with notice of its decision not to pursue the case further and the employee’s right to sue. Often, the EEOC will not pursue a meritorious case because critical evidence has not yet been discovered. You should be aware that you still may have a strong case even if the agency did not sue your employer itself.

Other areas in which the attorneys at Phillips & Associates, Attorneys at Law can assist you include representation before the New York Division of Human Rights, an agency similar to the EEOC, but at the state level.

Arbitration is a form of alternative dispute resolution, like mediation. Each side presents evidence and cross-examines witnesses, but an arbitrator, rather than a judge, will issue a ruling. Employers often include arbitration clauses in employment agreements. These clauses require employees to engage in the arbitration process prior to taking an employer to court. This process tends to favor the employer, and it may be wise to consult an attorney if you are concerned about this type of clause in your employment agreement.

The New York State Human Rights Law is an anti-discrimination law that has a broader scope and covers more people than federal anti-discrimination laws do. It covers employees who work for employers with at least four employees. Unlike federal law, the state law is enforced by New York's Division of Human Rights. To sue under the state law, you need to file a complaint with the Division of Human Rights, which will review your claim and investigate it. The Division will decide whether there is probable cause to find that discrimination occurred. If it finds probable cause, there will be a hearing before an administrative judge. If it finds no probable cause, the complaint is dismissed but can be appealed.

The federal Fair Labor Standards Act (FLSA) provides rules that an employer must follow with regard to overtime and wages. In New York, workers covered by overtime laws need to be paid one-and-a-half times their regular rate of pay for all of the hours that they work over 40 hours in a work week. A work week is a consecutive seven-day period. Many employers do not pay their workers the overtime pay that is owed to them, and others misclassify job titles, claiming the employee is exempt from overtime laws when they are not. You may want to consult with an attorney to understand your rights.

When managers, supervisors, or coworkers make discriminatory remarks or bully you based on a protected characteristic, it can create a hostile work environment. Characteristics protected under federal, state, or local laws include race, sex, gender, religion, disability, older age, sexual orientation, and national origin. In order to sue for a hostile work environment under federal law, the conduct must be severe or pervasive. Unless it is very severe, one instance of harassment is usually not enough to be considered sufficient to create a hostile work environment. However, the New York City Human Rights Law (NYCHRL) provides broader protection to its employees. Any actions above a petty slight or trivial inconvenience may be actionable. It’s important to discuss the hostile work environment you are experiencing with an attorney to see if you have a claim. You do not have to be fired in order to have a claim for a hostile work environment. Sexual harassment, including sexual comments, requests for sexual favors, and unwanted touching and grouping are all examples of a hostile work environment. Additionally, racist comments, cartoons, and symbols can lead to a hostile work environment. Most of the time, the harassment comes from a person in power. This scares the employee even more, and many times, the victim is afraid to complain, for fear of retaliation.

Often, employers try to protect themselves when terminating an employee by presenting them with a severance or separation agreement. The agreement will usually include a provision that prevents the employee from bringing claims for discrimination, harassment, retaliation, or wrongful termination. In some cases, employees do not understand that they have a choice about whether to sign the agreement. Sometimes, no severance is offered, and in some cases, the severance that is offered is a nominal sum that is not sufficient to compensate you for damages you may have suffered as a result of the employer's improper or discriminatory conduct. You should consult an attorney before signing an agreement.

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