New York Employment Attorneys Blog

Owen H. Laird, Esq.

For New Yorkers, both the Fair Labor Standards Act (FLSA) and New York Labor Law provide employees with rights to a minimum wage and, in many cases, overtime pay. However, many workers in New York still do not receive the pay to which they are entitled; for instance, employers may under-report employees’ hours, improperly withhold wages or tips, or simply pay a wage lower than the State minimum.

However, many employees choose to let these violations go because they are “minimal.” An employer might underpay an employee for by a half hour for each pay period, a loss that might only amount to a few dollars a month. The employee could hesitate to pursue those lost wages, afraid of upsetting things at work or doubtful that they can find a lawyer to pursue a smaller case. Despite these potential concerns, employees who believe they are being illegally underpaid should not be afraid.

Yarelyn Mena

Last year, on June 29, 2015, the Department of Labor and President Obama announced a proposed rule change to the Fair Labor Standards Act (“FLSA”) that would increase the number of Americans eligible for overtime pay by increasing the salary threshold for overtime from $23,660 to $47,470. On May 18, 2016, the Obama administration issued the official rule changes, which goes into effect December 1, 2016.

The FLSA requires that employers pay certain employees overtime. Specifically, employers must pay eligible employees overtime for all hours worked above forty each week, at a rate of one and a half times their normal rate. Not all employees are entitled to overtime under the FLSA; for example, employers do not need to pay overtime to administrative, executive, or professional employees. Employees who are not entitled to overtime pay under the FLSA are “exempt.” However, the FLSA also creates an exception to these exemptions: if the employee earns less than a certain salary threshold – currently set at approximately $23,660 per year—then the employee is entitled to overtime pay no matter what their job duties.

Yarelyn Mena

Employers are often hostile to employees who must leave their job for extended periods of time, sometimes even terminating employees while they are on leave or upon their return to work. Such conduct, if permissible, would significantly impact military personnel, as members of the Armed Forces—particularly members of the Active Reserve and of the National Guard— are frequently required to leave their civilian jobs for service. To assure service members that their jobs will be secure, in 1994, Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA). The USERRA prohibits discrimination against service members in all employment decisions and requires employers to reemploy service members without losing their seniority.

As Elaine Chao, former Secretary of Labor explains:

Yarelyn Mena

On January 5, 2016, New York City Mayor Bill de Blasio signed Intro. 108-A, which expands the list of protected characteristics under the New York City Human Rights Law (NYCHRL) to include “caregiver status.” The NYCHRL currently prohibits employment discrimination on the basis of a number of protected characteristics, such as age, race, creed, color, national origin, gender (including gender identity and sexual harassment), disability, marital status, partnership status, sexual orientation, alienage, and citizenship status. The amendment is aimed at protecting the City’s family caregivers, who provide an estimated $31 billion of unpaid care per year for an increasingly large population of children, the disabled and elderly people. Mayor de Blasio expressed the importance of this legislation stating, “Caregivers are our unsung heroes. They literally keep families together. It’s critical we give them the employment protection they need and deserve.” Carmelyn P. Malalis, the New York City Human Rights Commissioner agreed, saying:

No one should be discriminated against because of their status as a caregiver. Intro. 108 guarantees that every parent and family member caring for a loved one receives the same rights and opportunities in the workplace as everyone else. The Commission will vigorously enforce this much-needed protection and looks forward to working with the Mayor’s Office and the New York City Council to further advance the rights of caregivers under the law so that every New Yorker can live and work free from discrimination.

Yarelyn Mena and Edgar M. Rivera, Esq.

On April 27, 2016, the Second Circuit decided Legg et al. v. Ulster County et al., in which it reversed the Northern District of New York’s decision at summary judgment dismissing a pregnancy discrimination claim under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.  Legg arose after Ann Marie Legg, a corrections officer at the Ulster County Jail (“Ulster Jail”), requested an accommodation under Ulster Jail’s “light duty” policy.  Ulster Jail’s light duty policy allows employees suffering from medical conditions resulting from a line-of-duty injury to be reassigned to deskwork, i.e., to positions that do not include inmate contact.  Under the policy, pregnant women are not eligible for light duty; they must either continue to work “full duty,” use accrued sick or vacation time, or take leave under the Family and Medical Leave Act.

In 2008, Ms. Legg became pregnant.  Her doctor told her that her pregnancy was “high risk” and recommended that she “shouldn’t have direct contact with inmates.”  In accordance with her doctors’ recommendation, she requested that Ulster Jail allow her to work light duty and submitted a doctors’ note in support.  Although at first Ms. Legg received a denial letter in July 2008 stating that “[e]mployees are afforded light duty assignments at the Sheriff’s discretion for work-related injuries/illnesses only,” she was later informed that Ulster Jail would grant her request once she submitted a revised doctors’ note indicating that she was in fact able to work without restriction.  Ms. Legg complied and submitted the letter. For a time, Ulster Jail assigned Ms. Legg to light work; however, around August 2008, they forced her to work with inmates again.  In November 2008, Ms. Legg, now seven months pregnant, was caught in the middle of a physical fight between two inmates during which one inmate bumped into her as he ran past her.  After this incident, Ms. Legg did not return to work until after she gave birth.  Upon returning to work, Ms. Legg brought a lawsuit against Ulster Jail alleging pregnancy discrimination for denying her request for light duty.  Ulster Jail moved for summary judgment, arguing that light duty was only available for employees injured in line of duty and that all employees regardless of their gender or pregnancy status, were treated the same under that policy. The district court granted Ulster Jails’s motion and dismissed the case.

Yarelyn Mena and Edgar M. Rivera, Esq.

For a claimant to qualify for unemployment insurance benefits, the claimant, among other things, must have lost their job through no fault of their own. This generally means if the claimant was terminated, it must not have been for misconduct. Usually, whether the reason for termination rises to misconduct is simple: stealing, harassment, or fighting is misconduct while forgetfulness, occasional lateness, or being unable to do the job is not. The following two cases are examples of uncertainty; uncertainty in whether the behavior amounts to misconduct and uncertainty as to what actually happened.

In the first case, claimant Shawn Roy appealed his disqualification from receiving unemployment insurance benefits on the grounds that there was no misconduct. The Appellate Division found substantial evidence that supported the Unemployment Insurance Board’s determination that Mr. Roy was discharged as a food service worker due to disqualifying conduct, specifically, he created “violent and sexually explicit videos using LEGO characters, including characters depicting the executive director of the nursing home, claimant’s department head and two female coworkers, and posted the videos online.” The Board was convinced that Mr. Roy was obligated “even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him… ” As such, the Board decided that the videos constituted misconduct and, as a result, he was disqualified for collecting unemployment insurance benefits. This case is a lesson in that at least in some circumstances, legal conduct outside of work can constitute misconduct.

Yarelyn Mena and Edgar M. Rivera, Esq.

Courts in the United States generally recognize that marijuana use is a legitimate reason to terminate an employee. However, with an increasing number of states now legitimizing both recreational and medical marijuana use, employers and employees alike are left with uncertainty as to the potential repercussions of marijuana use with respect to employment.

Twenty-three states and the District of Columbia have legalized medical marijuana. In addition, in some states, including Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada and New York, an employer cannot take an adverse action against an employee simply because of his or her participation in a recognized medical marijuana program. Medical marijuana use also implicates federal and state disability laws. Additionally, a medical marijuana user may be considered disabled if he or she has a disability under the Americans with Disabilities Act (ADA) or similar state statutes. While the ADA itself does not require an accommodation based on marijuana use, it does require other accommodations related to a covered disability. As such, if an employee tests positive for marijuana, the employer should ask the worker to verify that he or she is a participant in a recognized medical marijuana program.

Yarelyn Mena and Edgar M. Rivera, Esq.

Several state investigations have found that the retail practice of “on-call scheduling” – where workers must call their employers to check if they are needed for scheduled shifts and are not paid if their shifts are cancelled – is so prevalent that several state attorney generals are demanding that major retailers respond to questions regarding their scheduling practices and answer requests for documentation.

On April 12, 2016, the attorney general of eight states and Washington D.C. sent letters to fifteen retailers, including Aeropostale, Payless and Coach, asking whether they use on-call scheduling and, if so, how they implement it. The retailers must provide answers by April 25, 2016. The officials are concerned about workers’ well-being because on-call scheduling leads to erratic schedules, making it difficult to plan child care, work a second job, or take classes.  Essentially, workers must make themselves available but are not guaranteed work while employers receive the benefits of always having workers available if the store becomes busy without having to pay workers.  On-call scheduling can also lead to unexpectedly low pay because employers often send employees home on slow days without proper compensation.  Additionally, low income workers often do not have the financial flexibility to allow for this type of uncertainty in their pay. In sum, on-call scheduling lets employers quickly staff their stores on busy days, and send employees home early on slow days, thus, saving money on payroll at the expense of their employee convenience.

Yarelyn Mena  and Edgar M. Rivera, Esq.

On March 23, 2016, North Carolina Governor Pat McCrory signed in to law the Public Facilities Privacy of Security Act (or H.B. 2), which bans transgender people from using the public bathroom that corresponds to their gender identity, overturns Charlotte, North Carolina’s anti-LGBT discrimination law, prevents other localities from passing anti-discrimination laws, and prevents cities from raising their minimum wages higher than that of the state. H.B. 2 was passed days before Transgender Day of Visibility, a day that recognizes the accomplishments of the transgender community. Although there were many recent victories for the LGBT community, H.B. 2 is an important reminder that there is still a lot of work to be done before LGBT individuals have the same rights everyone enjoys.

On February 22, 2016, the city of Charlotte, North Carolina passed a law prohibiting discrimination against gay, lesbian, bisexual and transgender people in the workplace. The most controversial part of the law was that it would allow transgendered people to use the bathroom that corresponds with their gender identity. Opponents of the bill nicknamed it the “bathroom bill” and argue that it made bathrooms unsafe for women and children. University of North Carolina at Greensboro, Payton McGarry, a transgender student, is one of the Plaintiff’s in a lawsuit challenging H.B. 2, who has been assaulted and ridiculed for using the bathroom that comports with his gender identity at his university, experiences which will only grow worse with H.B. 2 in place. H.B. 2 abrogated that law.

Edgar M. Rivera, Esq.

On March 17, 2016, in Graziadio v. Culinary Institute of America, the Second Circuit articulated the test for an employee-employer relationship with respect to Family and Medical Leave Act (“FMLA”) claims and clarified the standards for establishing prima facie cases in FMLA interference claims, FMLA retaliation claims, and association-disability claims under the Americans with Disabilities Act (“ADA”).

Cathleen Graziadio worked as a Payroll Administrator at the Culinary Institute of America (the “Institute”). On June 6, 2012, she took a leave under the FMLA to care for one of her sons who suffers from diabetes and took additional leave on June 27 when her other son broke his leg. The Institute took issue with the paperwork supporting her second FMLA leave and refused to allow her to return to work until she provided new documentation. Soon after, communication between Ms. Graziadio, Shaynan Garrioch—the Institure’s Director of HR—and Loreen Gardella—Ms. Graziadio’s supervisor—broke down, resulting in the Institute terminating Ms. Graziadio’s employment for abandoning her job.