Ok so you’ve been called into the boss’ office and Human Resources is sitting in. It is only natural that your hands get a little shaky and your blood pressure skyrockets. You feel the panic rising. You’re definitely not thinking straight. When they deliver the bad news, your mind goes blank. What do you do?

First and foremost… don’t panic. Here’s a quick reference of things to do — or not — to help you think clearly when you get the unfortunate news that you’ve been fired or laid off.

DO’S

Do work as long as you can.

• If they are giving you the option to work for a few more weeks or months, do say yes. It’s way easier to get a job when you have a job. Take that time to send out resumes and pound the pavement. Just make sure you still do your job while you’re there, and don’t start copying trade secrets or confidential information. That will just get you into trouble.

Do ask about getting your personal items.

• Many people leave their belongings behind. Security or HR might have to accompany you but do get your stuff. They aren’t allowed to keep your belongings. On the other hand, if it’s in your work computer, your company phone, a company notebook, or something else they own, it’s theirs. They don’t have to let you print or copy anything that’s in their property.
• If it’s important, keep it in your briefcase, your purse, or at home so that this doesn’t happen. If you’ve, for instance, been keeping a log of every sexually harassing comment that was made, you may lose it now. That’s why you never keep it on your work computer.

Do ask about your insurance.

• Are they cutting off your insurance that day, at the end of the month, or later? If you have an upcoming doctor’s appointment or surgery, you need to know ahead of time whether or not you’ll be listed as covered.
• If coverage is getting cut off, it will be reinstated retroactively once you elect COBRA and make your payment. If you paid your share of insurance through the end of the month, remind them. They may extend your insurance at least through the time you’ve paid or refund you the difference.

If no severance is offered, do ask about it.

• They may offer it if you ask. Don’t agree to or ask for any amount on the spot (you’re not thinking straight, remember?) You might want to talk to an attorney to see if you have potential claims against them before you decide on an amount. If they do offer severance, ask them to put it in writing. Get legal advice before you agree to anything you don’t understand.

Do ask if the company has a severance plan or policy.

• You’d be surprised how many have written severance plans that don’t require a release, yet they try to get you to sign one anyhow. Or they try to throw in a noncompete agreement that’s not required.
• If you’re already entitled to severance without signing anything, then maybe you can negotiate more in exchange for a release or noncompete agreement.

Do ask when you’ll get your final check.

• Some states have deadlines for employers to pay, some do not. Don’t assume you’ll be paid in the next pay period.
• Also, if you’re owed commissions, find out if they intend to pay them. If there are deals you’ve made that are in the pipeline, they may owe you money once they close.

Do ask why you’re being terminated.

• In many states they don’t have to give a reason. However, if they refuse to give you a reason, or give you a different reason than they give to unemployment or the EEOC, that may help you with your legal claims down the road.

If they claim you signed a non-compete or confidentiality agreement, do ask for a copy.

• You need to understand what you signed. Many employers don’t provide copies when you sign these agreements at the beginning of your employment. But if they want you to comply, they have to give you a copy so you understand your restrictions.
• If they won’t give a copy, or if you think your agreement might not be enforceable, contact an attorney.

Do ask what co-workers and potential employers will be told.

• It’s important to know what to say to potential employers. It’s also important to make sure the company rumor mill isn’t fed with misinformation. Get on the same page with them if you can.

If they ask you to resign, say no.

• Unless you’re being offered substantial dollars in exchange for a forced resignation, what’s your upside? You’ll probably be disqualified from getting unemployment. You may accidentally give up some discrimination, whistleblower or other claims.
• Some people think it looks better to potential employers to say you resigned, but really, who do you think you’re fooling? In this economy, almost nobody resigns without having another job lined up. They’ll know something bad happened, so why make it easier on the former employer by quitting?

If you do have access to your computer and documents, here’s what you do want to collect before you go:

• documentation of anything they owe you (commissions, bonuses, contracts, etc.)
• proof of any deals still in the pipeline you think you may be entitled to be paid on after you leave
• any evidence of age, sex, race, national origin, religious, disability, or other discrimination or harassment
• copies of all employment agreements, confidentiality agreements and noncompete agreements you signed
• your performance reviews, evaluations, commendations, awards, write-ups, disciplines, recommendation letters — anything you can get about your performance, bad or good
• anything else you think might be useful to a lawyer or to unemployment

DON’TS

Don’t sign anything.

• You aren’t thinking straight. When they shove a severance agreement, disciplinary report or other paperwork in front of you, take a deep breath, and ask for a copy to review. Take a look at it once you’ve had a chance to calm down.
• If there’s anything you don’t understand, take it to a lawyer to have it reviewed before you sign. You may be giving up rights you shouldn’t, or maybe you have some leverage to negotiate for more money.
• You especially don’t want to accidentally sign a noncompete agreement that limits your ability to work for a year or two, unless you understand it and are getting some substantial dollars for it.

Don’t yell, curse or make a scene.

• You don’t want to burn bridges. You still need these people, as much as you hate them right now. They will be on your resume for many years. They’ll have to give references on you.
• Plus, if you tick them off they’re more likely to challenge your unemployment. They can make your life even more miserable right now, believe it or not. I’ve known many employees who were fired or laid off and who ended up getting rehired down the road.

If you believe they got it wrong, don’t argue or beg.

• If they got the wrong person or there’s something you can prove is incorrect, you can tell them calmly. However, very few employers will change their minds at this point.
• If your proof is at home or is something you need to provide in writing, then wait until you’ve cooled off, put together your information in a business-like fashion, and send it later.
• They may have an appeals or grievance process. Follow it.

Don’t admit to a crime or wrongdoing.

• Sometimes, the employer will lock you in a room with Loss Prevention and say you can’t leave unless you sign something admitting that you stole inventory or did something wrong. Don’t do it. You’re already going to be fired — don’t let them fool you. “Just sign and you’ll still have your job,” they might say. They’re lying. The only question is whether you’ll also end up in jail or with a big judgment against you.
• If they say you can’t leave, open the door and go anyhow. If they block the way, pull out your cell phone or pick up the phone in the room and call 911. If you don’t have a phone and they block your way, demand to be allowed out. If they still won’t let you go, scream at the top of your lungs for help. That’s the one time I recommend making a scene. (Don’t touch anyone though). Eventually you will be allowed out of the room. Call 911 the second you leave the premises and tell the police what happened. Then call an employment attorney (or criminal defense attorney if you need one) and get advice.

But whatever you do, don’t sign something admitting to a crime. Ever.

Don’t demand to say goodbye.

• You don’t have the right to have a big farewell scene with co-workers. You’re upset and will probably embarrass yourself. If co-workers approach you right after you’ve been fired, stay calm. Don’t badmouth the company or the boss. Leave with class and you may keep the doors open to come back someday.
• While being fired is right up there with a death in the family as one of the most stressful things that can happen to you, with lots of self-control and a little preparation, you may help ease your transition a bit. If you do have any potential claims against the company, you hopefully won’t have done anything to damage your case. More importantly, you won’t have burned any bridges.

The Van De Water Law Firm, P.C. specializes in protecting your rights during the difficult process of job termination. We are here to counsel you through the process in the event that your employer unlawfully terminated you or you were the victim of discrimination or sexual harassment.  We are conveniently located in both Nassau and Suffolk Counties and can be reached at 516-400-4142 or 631-923-1314.  You can also find us on the web at Chrisvandewater.com.

As of October 9, 2019, Employees are more protected from discrimination in New York than ever before, and Employers are subjected to new standards of which they must be familiar to protect themselves from the flood of litigation that will surely follow. How so? Thanks to a number of broadly protective legislative changes, anti-harassment laws in New York State now encompass all protected classes under the New York Human Rights Law, not only sexual harassment cases. These protected classes include discrimination based on an employee’s age, race, color, sex, sexual orientation, national origin, marital status, criminal record, amongst others.

The Burden of Proof for a Hostile Work Environment Has Changed, and it is Decidedly Pro-Employee

I.                   The Old Standard – Severe and Pervasive

In the past, to succeed in a claim based upon a hostile work environment, an employee suing an employer for discrimination had to prove that harassment was “severe and pervasive.”  Under any stretch of the imagination, this was a touch standard to satisfy in a Court of law.  An unwanted sexual attack or repeated discriminatory comments made over a period of months to an employee based on their protected class would be obvious examples of severe acts sufficient to satisfy this old standard.  In this regard, the key to the Court’s initial inquiry was the pervasive nature of the harassment, such as continually making lewd comments or frequently touching the employee in a sexual way over a period of time. More specifically, comments in the workplace had to rise to a certain level of severity rather than consist of occasional teasing, jokes or isolated discriminatory comments. Unless employees could provide supportable evidence that rose to that relatively high level of proof, their claim would be dismissed early on in the litigation process.

II.                The New Standard – Petty Slights and Trivial Inconveniences

Now that the new anti-harassment laws are in effect, the burden of proof has changed from this old standard of “severe and pervasive” discriminatory conduct to the new standard of “rising above petty slights and trivial inconveniences.” An affirmative defense for an employer is to prove that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”  This is a huge change in the burden of proof that will invariably open the floodgates of litigation in cases that were historically brought under the Federal anti-discrimination statute, Title VII. Now, employees will be empowered to bring their claims under the new laws in New York State without the necessity of first exhausting their administrative remedies with the Equal Employment Opportunity Commission, a prerequisite to commencing an action in Federal Court.

Of equal importance is the that under the previous legislation and corresponding standard of proof, an employer could potentially argue that the claim was not actionable because the employee failed to file a complaint of discrimination or otherwise take advantage of the employer’s investigation process, most frequently accomplished through a complaint to the employee’s direct supervisor or Human Resources department. However, under the new law and corresponding standard, any purported failure by an employee to take advantage of the employer’s complaint process no longer results in a good faith defense on behalf of the employer. 

Thus, employers must be aware of these sweeping changes to the anti-harassment laws in New York State, and train their employees accordingly.

As always, we at The Van De Water Law Firm is your local resource for all your legal needs, including prosecuting and defending claims of discrimination and sexual harassment in the workplace.  Call now for a free evaluation and consultation at (631) 923-1314, or email us at Chris@VDWLawFirm.com.  You can also visit us on the web at https://chrisvandewater.com/

As I previously blogged on the topic, the New York State Senate and Assembly passed an omnibus bill that completely overhauls New York State’s dated and out of touch anti-discrimination laws, and in the process uprooted deeply engrained precedent upon which employers have relied for decades in defending harassment claims.  This is good news for employees seeking to hold their employers liable for acts of harassment that take place in the work environment, but bad news for employers who will be defending those same claims.

More specifically, Governor Andrew Cuomo signed the bill into law on August 12, 2019, and the various amendments to the New York State Human Rights Law (NYSHRL), the General Obligations Law, the Civil Practice Law and Rules (CPLR), and the New York Labor Law (NYLL) will take effect as follows.

As always, we at The Van De Water Law Firm is your local resource for all your legal needs, including prosecuting and defending claims of discrimination and sexual harassment in the workplace.  Call now for a free evaluation and consultation at (631) 923-1314, or email us at Chris@VDWLawFirm.com.  You can also visit us on the web .

WOODBURY, N.Y., September 11, 2019 (Newswire.com) - The Van De Water Law Firm, P.C. is pleased to announce its new office location at:

185 Froehlich Farm Blvd., Woodbury, New York

The firm serves clients in Nassau and Suffolk counties and throughout the New York City area. Find out more about the firm at https://chrisvandewater.com/.

August 23, 2019 UPDATE

Governor Cuomo, on August 12, 2019, signed into law Assembly Bill A8421, which significantly expands New York State sexual harassment and discrimination laws.  These changes are in addition to the significant legislation that New York enacted in 2018 that were originally reported by The Van De Water Law Firm. This article details the revised and most timely deadlines and requirements under New York State and New York City sexual harassment training laws. 

New York Sexual Harassment Training Deadline of October 9, 2019

By October 9, 2019, employers must provide sexual harassment training to all employees located in New York State. Thereafter and upon an ongoing basis, all employers must provide sexual harassment training to all employees each year. Both court decisions and numerous regulations in New York State have made it clear for years that all employers should provide harassment prevention training.  Now it’s the law!

The New York State law:

·         Applies to all employers, regardless of their size, who employ anyone in the state of New York.

·         Applies to all employees, not just supervisors.

·         Requires that the training is provided annually.

·         Applies to all contractors who bid on New York State contracts.

The NYC law, entitled the “Stop Sexual Harassment in NYC Act,” applies to all employers with 15 or more employees, and requires annual sexual harassment training for all employees.  Mandatory compliance with that law began on April 1, 2019.

As a matter of course, both the New York State and New York City laws detail specific content that must be addressed in the training. While New York State training content requirements are similar to content requirements in other states, New York City’s law goes beyond the training content that previously has been required in other jurisdictions. For example, the training provided to employees in New York City must:

·         Address bystander intervention

·         Describe the complaint process available through the NYC Commission on Human Rights, the New York State Division of Human Rights, and the United States Equal Employment Opportunity Commission, and provide employees with those agencies’ contact information

The two tables below detail the obligations and the differences between the New York State and New York City laws regarding:

1.      Training Requirements (Table 1)

2.      Training Content (Table 2)

Read More

As a breastfeeding mother, the last thing on your mind during this joyous time should be how and when you are permitted to pump breast milk at work.  However, the cold reality is that many employers don’t have a policy in place to permit pumping, and even worse, some employers discourage new mothers from pumping activities during working hours.  This is illegal and has no place in today’s evolving society norms. As an employer, you have an obligation to create a breastfeeding policy and accommodate your employees.

As of 2010, Section 7 of the Fair Labor Standards Act (FLSA), a Federal statute that protects employees in their workplace, was amended to require employers to provide basic accommodations, such as time, space and other accommodations, for breastfeeding mothers at work. Learn more about what employers are required to provide.

What time accommodation does an employer have to provide nursing employees?

“Reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision

Employers covered under FLSA must provide a reasonable break time to express milk. The law recognizes that each woman will have different needs for milk expression breaks (often called pumping breaks). Most women use their standard breaks and meal period to pump or express milk.

However, even in work environments that require a more rigid employee schedule, reasonable time can be accommodated. Women can schedule breaks ahead of time, if needed. Some companies, such as manufacturing plants and schools, often provide floaters for coverage when employees are taking breaks. Sometimes a supervisor fills in.

What space accommodations does an employer have to provide nursing employees?

“A place other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision.

Employers covered under FLSA must provide a private space for lactation that is not a bathroom. “Private” means that other people cannot see an employee while she is pumping breastmilk. Often this means putting a lock on the door, but some companies use mobile screens or tall cubicle areas. The space does not have to be a permanent, dedicated lactation room. This section shows many solutions for providing permanent, flexible, or temporary spaces and even mobile options that can be used in virtually every type of industry. Learn more about providing appropriate locations for nursing moms to express milk.

Why do employees who are breastfeeding need time and space for lactation at work?

Health benefits. Breastfeeding is so important for the health of mothers and babies that major medical organizations, such as the American Academy of Pediatrics (AAP), recommend that babies receive nothing but breast milk during the first 6 months of life and continue receiving breast milk for at least their first year. More than 80% of new mothers now begin breastfeeding immediately after birth.1 Breastfed babies are healthier and have lower health care costs. Giving breast milk, rather than formula, helps prevent sudden infant death syndrome (SIDS), asthma, ear infections, type 2 diabetes, and many other illnesses.2 And the longer a mother feeds her child breast milk, the more health benefits there are for both mother and child.2

Biological needs. Breastfeeding is a normal biological process. Breastfeeding employees need breaks throughout the workday to pump because milk production is a constant, ongoing biological process. A breastfeeding mother needs to feed her baby or pump milk about every 3 hours. Otherwise, her body will stop making breast milk. When a nursing mother cannot pump or breastfeed, the milk builds up in her breasts, causing pain and sometimes infection. Removing milk from the breast is a biological need, similar to the need to eat or sleep.

Comfort. A lactation space is necessary because in order to begin the flow of milk, mothers must be able to sit down and be relaxed and not stressed. Mothers who are in an open or uncomfortable space may not be able to pump milk or may not be able to pump milk as quickly.

Privacy. A private space is necessary because pumping or expressing milk is a very different experience from breastfeeding a baby in person. Most moms can breastfeed a baby very discreetly, and many moms breastfeed in public with no concerns. However, pumping breast milk is different. In order to apply the pump equipment, a woman will usually need to remove part of her clothing, and many pumps make a distinctive sound during pumping that may cause embarrassment or discomfort. Pumping equipment also needs to be cleaned after use, and breast milk must be stored properly. There are more steps required in pumping breast milk compared to breastfeeding a baby in person.

Why can’t employees pump milk in the bathroom?

Bathrooms are a place to eliminate waste from the body and to wash hands afterward in order to prevent the spread of germs and disease. Breast milk is food and should be handled in the same way other food is handled. No one would be willing to prepare food in a bathroom, and that includes breast milk. Bathrooms are not a sanitary place to prepare and handle food of any kind.

In the past, mothers were forced to use bathrooms to pump because there was no other private space available when it was time for a mother to express milk. Pumping is not something that all moms can do discreetly under a cover, in the way a baby can be breastfed discreetly in public. Breastfeeding mothers need space that is not a bathroom to express milk in a clean and private environment.

Are employers required to pay employees for pumping breaks?

“An employer shall not be required to compensate an employee receiving reasonable break time to express milk for any work time spent for such purpose.” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision

Therefore, employers are not required to pay employees for milk expression breaks, although some companies choose to do so. If an employer already provides paid breaks, however, an employee who uses that break time to pump must be compensated in the same way other employees are compensated for break time. If extra time is needed because a mother is pumping or expressing milk, that extra time can be unpaid.

Other options, though not required by law, are to allow women to work a more flexible schedule and make up extra time needed by coming to work earlier, staying later, or taking a shorter meal break. Some companies do not track extra break time taken as long as an employee completes her job duties in a timely manner. Learn more about providing break time to nursing moms.

Does my employer have to create a lactation policy?

Creating a policy helps ensure that all employees have access to the same level of support, no matter what type of workplace they have. A policy helps the company be sure it is complying with federal regulations and also shows support for the health of employees and their families. A policy clearly defines the roles and responsibilities of both supervisors and employees, potentially helping them avoid embarrassment about discussing a personal topic. Having a policy in place means that managers will know exactly how to support an employee who is returning from maternity leave and wants to continue breastfeeding. And having a policy means that before maternity leave, employees will know what type of breastfeeding support they will receive at work. A lactation policy can help a mother decide whether to return to work after maternity leave.

A lactation policy or lactation support program also helps managers and supervisors communicate the importance of lactation breaks and private lactation space to all staff, not just the nursing mother. Employers can use a formal policy to educate all staff about the importance of respecting a coworker’s privacy while pumping and about providing coverage during lactation breaks. A clearly communicated policy can help prevent harassment and other negative workplace behavior.

What about New York State laws that protect breastfeeding mothers?

The following summaries the protections available to breastfeeding mothers under New York State Statutes:

• N.Y. Civil Rights Law § 79-e (1994) permits a mother to breastfeed her child in any public or private location. (SB 3999)
• N.Y. Labor Law § 206-c (2007) states that employers must allow breastfeeding mothers reasonable, unpaid break times to express milk and make a reasonable attempt to provide a private location for her to do so.  Prohibits discrimination against breastfeeding mothers.
• N.Y. Public Health Law § 2505 provides that the Maternal and Child Health commissioner has the power to adopt regulations and guidelines including, but not limited to donor standards, methods of collection, and standards for storage and distribution of human breast milk.
• N.Y. Public Health Law § 2505-a creates the Breastfeeding Mothers Bill of Rights and requires it to be posted in a public place in each maternal health care facility. The commissioner must also make the Breastfeeding Mothers Bill of Rights available on the health department’s website so that health care facilities and providers may include such rights in a maternity information leaflet. (2009 N.Y. Laws, Chap. 292; AB 789)

We at the Van De Water Law Firm, P.C. specialize in wage and hour and overtime cases. If you believe you are the victim of overtime violations, we are always available for a free consultation and can be reached via email: Chris@vdwlawfirm.com, cell phone: (516) 384-6223, office (631) 923-1314.  More information can be found at the website.

“Discrimination in the present culture shouldn’t be tolerated under any circumstances, especially in the context of a woman’s pregnancy.” Attorney Chris Van de Water

By Jack Newsham, New York Law Journal, August 08,2019

The New York County Lawyers Association has been sued by a former employee who claims she was taunted in the workplace, had to pump breast milk in the bathroom and was ultimately fired because of her two pregnancies.

Heidi Leibowitz, a fee dispute program administrator, said she worked for the prominent New York bar association starting in 2005 and began facing discrimination once she became pregnant in 2013. The suit, filed Wednesday in Brooklyn Supreme Court, alleges violations of city and state human rights laws and seeks unspecified damages.

The first time she became pregnant, Leibowitz alleged, she was assigned arduous tasks that she wasn’t assigned before, such as retrieving boxes from a basement. After giving birth, she said, she could initially only pump breast milk in the bathroom and was only given 15 minutes to do so. After complaining, she was given access to a conference room, but it was rarely available for use, she said.

“Both defendants’ managing director and director repeatedly [asked] plaintiff whether she planned on having any more kids and ‘how many babies do you people have!,’ among numerous other snide and degrading remarks,” her suit claims.

The suit also names Sophia Gianacoplos, the group’s executive director, and Lois Davis, a director, as defendants. The suit claims Gianacoplos threatened to fire Leibowitz for using sick days and claims Davis made remarks such as “pregnancy doesn’t make you special.”

After she became pregnant again in 2015, Leibowitz said, a co-worker asked her if she was pregnant and told her that her bosses would be “furious.” Her complaint claims her supervisors told her not to take so many bathroom breaks, “despite the fact that plaintiff’s pregnancy caused her to repeatedly vomit in the bathroom,” remarked that she was “walking funny” and pressured her to disclose her pregnancy earlier than she had planned.

Leibowitz said she gave birth in May 2016. While on leave, she said, she was cut to part time and was fired on Aug. 9, 2016.

Christopher Van De Water of the Van De Water Law Firm, who represents Leibowitz, said, “Discrimination in the present culture shouldn’t be tolerated under any circumstances, especially in the context of a woman’s pregnancy.”

Representatives for the NYCLA didn’t immediately respond to comment requests.  Davis, who no longer appears on NYCLA’s staff list online, could not be reached for comment.

Author: The Van De Water Law Firm, P.C.

Overtime Pay in New York

Many employees in New York are eligible for overtime pay if they work more than 40 hours per week. Unless an employee has a job that is specifically exempt from the overtime requirement under state and federal law, employers are required to pay employees time-and-a-half for all hours worked in excess of 40 hours per week.  Time-and-a-half means an employee is entitled to 1.5 times their hourly rate for all hours worked over 40 in a given week.  For example, if an employee is paid $20 hour and works 50 hours per week, that employee should be paid $20 x 40 ($800) in regular pay, and $35 x 10 ($350) for overtime hours worked, for a total of $1,150.

Determining Who Is Exempt from Overtime

A common misconception is that eligibility for overtime is determined based solely on your job title or whether you are salaried. That is simply not true.  Instead, it is your employment classification that determines how your employer pays you and the benefits to which you are entitled. In New York, you can find these classifications and the legal protections associated with them in the New York State Labor Law.

Some examples of jobs that are exempt and thus not subject to receiving overtime are:

• Executive Employees
• Administrative Employees
• Professional Employees
• Outside Salespeople
• Individuals Working for a Federal, State, or Municipal Government
• Farm Laborers
• Certain Volunteers, Interns and Apprentices
• Taxicab drivers
• Members of Religious Ordersl
• Certain Individuals Working for Religious or Charitable institutions
• Camp Counselors
• Individuals Working for a Fraternity, Sorority, Student or Faculty Association
• Part-time Baby Sitters

Unfortunately, employers often mis-classify employees as exempt from overtime, and many employees are unaware of their right to overtime compensation. As a result, many employees are not paid wages they are owed under the law.

Common Misclassifications 

Another trick employers use to avoid paying overtime is misclassifying employees. Misclassification that results in failure to pay overtime wages can occur in three ways: 

• Incorrectly labeling an employee as an independent contractor. Independent contractors are not eligible for overtime wages, since they are not on the business’ payroll. However, independent contractors must have a certain amount of independence to be correctly classified as an independent contractor. For example, does the business set your work hours? Are you required to be in the office? Is there a uniform you must wear or a standard set of procedures you must follow, which are set by the business? Does your income come from one business? If the answer is yes to any of these questions, you may not be an independent contractor, and if you work more than 40 hours per week, you may be entitled to overtime wages.
• Providing job titles that do not match day-to-day work duties. Determining whether you are exempt or not is highly dependent on your job duties, not just your job title. For example, at first glance an administrative assistant may seem to meet the “administration exemption” criteria under the Fair Labor Standards Act. However, just because “administrative” is in the job title does not mean the work involves making administrative decisions on matters of significance for the business, which is a requirement to meet this exemption.

3)    Failing to provide an employee overtime wages because the employee is salaried. Just because you are salaried does not in itself mean you are exempt from getting overtime wages. If you are not exempt from overtime wages, your employer is responsible for calculating your hourly wage equivalent and providing you with overtime pay when you work more than 40 hours per week. Additionally, certain employees may meet the “highly paid” exemption if they are salaried; however, many salaried employees do not qualify for this exemption.

Who is Going to Pay for All This? Attorney’s Fees, Liquidated Damages, Cost and Interest

Federal and State Laws require that attorney’s fees, liquidated damages, costs and interest to be paid to an employee that prevails in an overtime claim. 29 U.S. Code § 216, otherwise known as the Fair Labor Standards Act (“FLSA”).  The FLSA provides that the Court shall allow a successful employee to recover his or her reasonable attorney’s fees, as well as the costs associated with pursuing their rights in a legal action.  More specifically, the Courts in New York have held that an employee who “prevails” in an FLSA action shall receive his or her “full wages plus the penalty without incurring any expense for legal fees or costs. This takes the financial burden off of an employee and places it squarely on the shoulders of their employer, allowing them to come forward and enforce their rights without paying an expensive retainer to secure the services of a highly skilled attorney who specializes in wage and hour claims, as does The Van De Water Law Firm, P.C.

Similarly, the New York Labor Law in §§ 198(1-a) strongly supports its Federal overtime counterpart by stating that “In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney’s fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.”.

We at the Van De Water Law Firm, P.C. specialize in wage and hour and overtime cases. If you believe you are the victim of overtime violations, we are always available for a free consultation and can be reached via email, cell phone: (516) 384-6223, office (631) 923-1314.  More information can be found at The Van De Water Law Firm P.C.

“I am your legal protector”

As brought to light during the course of the #MeToo movement, it is illegal to harass an employee or even a job applicant in New York State due to that person’s sex or gender.  However, some of the recent cases of sexual harassment in the press raise more questions than they answer as to what kind and manner of conduct is illegal.  In other words, sexual harassment at times is difficult to define and quantify and does not always need to be purely of a sexual nature. So how do we sort it all out?  To begin with, harassment does not need to include physical or sexual actions. It is considered prohibited sexual harassment to make offensive remarks about women, but these remarks must be severe or pervasive to be actionable, meaning that a single comment is usually not sufficient. Romantic overtures, rather than purely sexual ones, such as repeatedly asking a coworker on a date, may also be considered sexual harassment. The actions that are considered to be harassment may be directed toward a man or woman and may be committed by men or women. The victim and the harasser may be of the same sex or gender.

Sexual harassment claims fall into two distinct categories: 1) quid pro quo, and 2) hostile work environment.

Quid Pro Quo Sexual Harassment

A claim for quid pro quo sexual harassment may arise when your employer offers, either expressly or by implication, to trade job benefits such as a promotion, pay raise or other job benefit, in return for sexual favors.  Typically, quid pro quo sexual harassment is committed by a direct supervisor or manager that is in a position of sufficient power to grant the promised benefit.  Given the direct and often immediate impact on the employee, quid pro quo sexual harassment is often extreme and has lasting emotional and psychological effects on the targeted victim.

Here are a few examples of conduct that may be considered quid pro quo sexual harassment:

• Text messages from the hiring contact at a potential job offering the position in return for sexual favors;
• E-mails from a supervisor promising a promotion if the employee will go out with him for drinks and do what it takes to earn it;
• Verbal communications with the boss where an employee’s submission to sexual favors is made a term or condition of continued employment;
• Another employee who submits to sexual favors is given the promotion that an employee has earned or deserves;
• Late night texts or e-mails of a sexual nature demanding that an employee communicate in kind and implying that their job depends on it.

Hostile Work Environment Sexual Harassment

A claim for hostile work environment sexual harassment arises when the actions that constitute the underlying harassment are “severe”, “frequent” or “pervasive”.  This type of harassment may be committed by co-workers as well as supervisors, managers, and even clients or customers. This type of harassment may include sexual or romantic advances, sexually discriminatory remarks, derogatory statements, words, pranks, jokes, signs, physical violence, intimidation, or any sort of conduct or action of a sexual nature taken due to the victim’s sex.  Actions or conduct that constitute hostile work environment sexual harassment must cause the person hearing or seeing them discomfort, humiliation, or a significant loss of productivity at work.

Here are a few examples of conduct that may be considered hostile work environment sexual harassment:

• Inappropriate touching, massaging or fondling without the employee’s consent;
• Suggestive, offensive or sexually explicit language;
• Comments about an employee’s body parts;
• Exposing an employee to sexually suggestive and offensive images;
• Sending or forwarding emails, texts or other messages with sexual overtones;
• Co-workers making repeated sexual jokes in the employee’s presence.

Generally, the New York State Human Rights Law applies to employers with four or more employees, while Title VII applies to employers with 15 or more employees. However, the Human Rights Law applies to all employers, regardless of how many people they employ, as of 2015. Even domestic workers like a nanny or maid are protected from sexual harassment.  Those individuals employed in New York City (Brooklyn, Bronx, Manhattan, Queens or Staten Island) are more advantageous. New York City Human Rights Law offers more extensive protection than state and federal laws. Incidents that would not be considered severe according to federal or state criteria may be valid within the City of New York.

An employer faces strict liability if the employee has been harassed by an owner or high-level manager. Employers may only be held strictly liable for harassment by lower-level managers and supervisors if they have enough control over an employee’s working conditions. This means that an employee may hold an employer responsible for the harassment, even if the owner did not know that it was happening. However, an employee should report the harassment to the employer and take advantage of any grievance system that the employer has put in place before taking other formal steps.

We at the Van De Water Law Firm, P.C. stand ready to protect your rights and are available for a free consultation at 631-923-1314 or email us  if you feel that you have been a victim of sexual harassment.  Don’t hesitate to protect your rights.

Author: The Van De Water Law Firm

On Thursday, February 14, 2019, New York Governor Andrew Cuomo signed into law one of the most important pieces of Civil Rights legislation in years, the Child Victims Act, ensuring that child abusers are held accountable in a civil court of law.  Finally, those survivors who have endured unimaginable pain and abuse have a path not only to justice, but perhaps also healing and closure.  As Governor Cuomo himself succinctly stated on that date: “This bill brings justice to people who were abused, and rights the wrongs that went unacknowledged and unpunished for too long.  By signing this bill, we are saying nobody is above the law, that the cloak of authority is not impenetrable, and that if you violate the law, we will find out and you will be punished and justice will be done”.  In short, the Child Victims Act provides long-awaited relief to child victims of sexual abuse by amending New York State’s antiquated laws to ensure that perpetrators of sexual abuse offenses on children are held accountable for their actions, regardless of when the crime occurred.   Under the former law, victims of sexual abuse as children had to bring a lawsuit within three year’s of the victim’s 18^th birthday, an injustice that led to many victims finding the strength to come forward only learning too late that they were time barred from bringing a civil action against the heinous perpetrators of these crimes.  No more says the New York legislature!  A one-time window has opened for victims to file civil lawsuits for the immense emotional fallout associated with cases involving the sexual abuse of a child.

Here is what you need to know NOW about this important legislation and how it affects a victim’s exercise of their rights in a court of law. The Child Victims Act:

• Allows victims of these crimes to commence a civil lawsuit any time before they reach 55 years of age;
• Provides victims whose claims have been time-barred with a new opportunity for their day in Court by opening a one-time one-year window for them to finally commence a lawsuit;
• Increases the amount of time during which perpetrators of these crimes may be held criminally accountable by extending New York’s statue of limitations to allow for criminal charges to be filed until a victim turns 28;
• Eliminates the need to file a Notice of Claim for sexual offenses committed against a minor;
• Requires judicial training with respect to crimes involving the sexual abuse of minors; and
• Authorizes the Office of Court Administration to promulgate rules and regulations for the timely adjudication of these revived actions in a Court of Law.

The one-time one-year look back period opens during the summer of 2019, so it is very important for victims of child abuse to consult with a knowledgeable attorney as soon as possible to discuss their rights and develop a plan for your vigorous representation.  Stay tuned for more from the Courts on the promised procedural rules and regulations, which will be integral in successfully litigating these cases and will likely be tailored toward early resolution and settlement.