New York Employment Legal Questions

Dear Sir or Madam - Your post doesn't give nearly enough information about your matter for a New York City Wrongful Termination Attorney to determine whether you may have a viable claim against your ex-employer for wrongful termination or for anything else.  See generally my recent article entitled Do I Have A Claim For Wrongful Termination Against My Employer In Manhattan? < https://www.davidrichlaw.com/do-i-have-a-claim-for-wrongful-termination-against-my-employer-in-manhattan/ >.  Instead, today, you should call an adept New York City Wrongful Termination Lawyer to schedule an initial consultation about your matter.... Read More

Sir or Madam - Yes, depending on your particular facts and circumstances, you may have viable claims against your ex-employer for discriminatory or retaliatory termination of your employment.  See my recent article entitled "Am I Entitled To A Religious Exemption From My Employer’s Requirement That All Of Its Employees In Manhattan, NY Be Vaccinated Against COVID-19?" < https://www.davidrichlaw.com/religious-exemption-from-employer-mandated-covid-19-vaccine-requirement/> Today, you should call an adept New York City Wrongful Termination Attorney about your matter.   Sincerely, David S. Rich... Read More

The Americans with Disabilities Act and the Family Medical Leave Act are two different federal laws. Remember that state laws have protection as well but you asked about federal laws. The Family Medical Leave Act provides up to 12 weeks of UNPAID leave per year under federal law. However, there are some situations where an employee requests accommodation (remember that you must be able to do your job with or without reasonable accommodations which do not require an undue burden on your employer) which might extend that 12-week period. But there are requirements. An employer does not need to keep a job open indefinitely. It has the right to know when your doctor reasonably expects you to return to work, for example, July 5, 2024. Employees should not expect employers to guess. Neither should employees expect employers to anticipate or know what type of accommodation an employee may need. The employee usually must ask. There are some limited exceptions such as when a mental illness prevents the employee from asking and an employer reasonably knows or should know that they need to initiate the interactive process for a potential reasonable accommodation. You do not say whether you were injured on the job. If so, you need a workers compensation lawyer immediately. You also do not say whether you are the rare employee with a union contract which might give you more protection. Instead of paying private counsel to review your collective agreement you should reach out to your union since you pay union dues. Similarly if you work for the government reach out to that union. Most employees have no private contracts to enforce. If none of the above apply and you did not request accommodation your employer may have no requirement to keep your job open. Employees are injured in car accidents and sometimes have illnesses or conditions which have nothing to do with being caused by the job. In many instances, not all, the employee still needs to perform essential job functions with or without reasonable accommodations. These are complicated matters. Those of us who practice strict employment law don't handle social security disability or workers compensation. Employment lawyers usually need clients who are ready, able and willing to work and keep searching for work after some discriminatory action. Not sure if yours involves discrimination because you provided limited facts. Consider all of the above and act accordingly. If you did not qualify for unemployment benefits that's another thing we look at. Most clients collect those benefits after a discriminatory action. Although there are some types of actions like unpaid overtime or improper classification of being exempt where employees may still recover. You need to start calling some lawyers based on some of the above suggestions. An employment lawyer might not be what you really need but with the facts you gave you should act quickly or risk missing a filing deadline. And filing without legal counsel of your choosing is often not a great idea. Many claims are dismissed unless there are facts to support some plausible theory of recovery. Good luck.  ... Read More

Your employer has a duty to maintain a safe workplace. If the coworker who threatened you is truly a problem child with a history of aggressive behavior, its time to collect allies and pitch your case to management for whatever that may be: new rules, his termination, etc.  That effort is called concerted activity and it is protected under the NLRA.  If he used offensive language targeting your protected demographic (age, religion, race, etc.), that is a criminal offense and workplace harassment and presumably you've told HR already and they either yawned, or he didn't go that far. If this was a one-off spat, and both of you have clean disciplinary histories, the law is the law but there's no teeth to your claim. You're presumably a full-grown, able bodied, male. I found a such a person using your name online who maintains a profile that works in NY in the security industry. Someone has threatened you in the course of your duties. What does your training suggest. You know waht he said, I do not. Was it an imminent threat that would put a reasonable person in fear of life or limb? If yes, you kno what to do. If not, go back to work and try to patch things. Up. Everyone deserves a second chance, but not a third. Put HR on notice of his actual words and that you believe he is a danger or otherwise unstable, unfit, etc. That beahvior is almost certianly unbecoming a security officer but forcing management to act is an art, not a science, and often futile. ... Read More

I'd like to know whether you're actually an indie contractor or if this Major News Organization is taking liberties to avoid the full weight of NY labor law they undoubtedly support in their hot takes. To be sure, professional writing and editing have all the trappings of exempt FLSA status, but if you're not really independent, then you're still an employee even if you are exempt from OT. The easiest test for independence is whether you have other clients and a written contract for your services. If the answer to both is "Yes," it still may be a good idea to shake the tree in a consult, but if the answer to one of those most basic quetions is "No," Do Not Pass Go or collect your $200 until you get a consult.... Read More

You first need to familiarize yourself with your obligations as a NY employer. Start here: Sexual Harassment Prevention Model Policy and Training (ny.gov) You need to execute (and implement prospectively) the minimum standards, such as making a model complaint for available and adopting the minimum standard policy. For the incident at play, review your obligations about conducting a confidential investigation. That should include interviewing the reporting party, the purported victim, and the alleged offending employee.  Running a business anywhere is not easy and at this moment, NY is not making it any easier. You should have a viable relationship with a business and employment attorney (meaning, not necessarily someone on retainer but accessible communications to sort the wheat from the chaff from in the first instance). The internet is not the best place to have to turn in your time of legal need. There is no menu or list of outcomes explaining how to conclude your investigation or what to do once done. That is left for you, but you have to document your process and maintain confidentiality of the sensitive data collected.... Read More

The question whether certain vacation pay and other discretionary pay benefits are owed to you upon separation depends on the employer's policies, which may be contained in a handbook or otherwise. Vacation benefits are not mandatory under New York law. Therefore, the employer can implement policies determining that benefits will not be paid under specified conditions.  Your employer cannot withhold your wages in exchange for your signature on a claims waiver, but depending on the company policy, it likely can withhold your vacation pay in exchange for that waiver, provided that the employer complies with all notice and other requirements under federal and state laws with respect to the waiver form. If you believe your employer has unlawfully discriminated against you or has failed to pay you wages or overtime pay that are required under NY law, you should consult an attorney to protect your rights before signing a waiver.  ... Read More

Hi Barry, New York has very favorable anti-discrimination and hostile work environment laws. You need to start with a consultation, or rather your son does. He's an adult, so if he doesn't want to pursue it, you cannot force it. Likewise, he will be the client and needs privileged conversations with counsel to be in the driver's seat.  The prevailing legal burden in NY for hostile work environment is to prove the the employee was treated differently than other similarly situated employees because of a protected classification. NYS law also has lower disability thresholds than the ADA and protects virtually every diagnosible medical conditino or impairment. ... Read More

Maybe. Our at will employment system doesn't require an employer to reveal the reasons for a terminatino or lay off, but they must comply with Union Collective Bargaining Agreements and statutory law. If you're not in a Union, that means the only protects you have are those the Legislature created under the WARN Act, anti-discrimination laws. and the Whistleblower protection laws. If you were the only person laid off, the WARN Act does not apply. That only applies to reductions in force that trigger the statute. If you did not engage in protected conduct, such as objecting to or complaining unsafe or illegal operations, payroll practices, harassment, or discrimination, there is not retaliation protection. That leaves protected classifications like race, age, disability, religion, sex/orientation/identity, uniform service status, marital status and things of that nature. If membership in a protected class partially motivated your lay-off, or a complaint to HR, or a dispute about illegal operations with your supervisor, preceded your lay-off, get a consult. If business is down and you've no basis to quesiont the motive, the law provides no recourse for legitimate operational decisions. ... Read More

Yes, of course. I'm working on a Third Department vaccine appeal presently. I dont follow your post, however. April 233 to perfect  your appeal? There's not notice of claim to the Appellate Division. The general timeline goes initial determination, request a hearing within 30 days, ALJ hearing, agency appeal within 30 days, Board Appeal, Notice of Appeal (Third Dept) within 30 days, then you perfect the appeal by filing your brief. The Notice of Appeal tells the Appellate Division what you are appealing and why. The brief expalins why the court should grant the appeal described in the Notice of Appeal. If you left something out of the Notice, you're generally screwed. I'm not sure where you are on that timeline or what you have told the Appellate Division.  There is a huge differnce between arguing against the application of a vaccine mandate and arguing the ALJ made a mistake by believing an employer who was, according to you, lying. All of that needs to be sorted. ... Read More

Provided the employer is front loading your minimum mandatory sick leave under NYC and State law as of January 1, this will likely be legal. If they're not going to replenish your minimum sick leave, they can't force you to use it.  Unless the employees have a contract or union collective bargaining agreement, I'm not aware of any law that forces a small employer to conduct business.  If the employer has at least 50 employees, the reduction in force laws (New York State Worker Adjustment and Retraining Notification or WARN Act) notices may apply to mass layoffs.... Read More

Yes, you have a case. That's wage theft. It's completely illegal. You're entitled to the wages worked and liquidated damages, meaning the employer will probably have to pay double. Lawyer up and educate yourself. The NYS Department of Labor has resources available including agency complaints. https://dol.ny.gov/unpaidwithheld-wages-and-wage-supplements... Read More

Not legal advice but Unclean Hands Doctrine applies to most employment matters. If an employee has done something unlawful, for example taking property / money which does not belong to them, misrepresented material facts on an employment application (i.e. including relevant training, education or experience which the employee knows to be false but represents as true), or committing some other relevant and material act which calls into question whether the employee is trustworthy with essential job duties which include collecting money it's often a problem. There are exceptions, such as being paid below minimum wage, but those are very limited and require a careful analysis of the specific facts of each situation. In your case, you admit that you were not entitled to the money and no other allegations point to wrongdoing or unlawful pay practices by that employer. New York has many unique to New York Labor Laws. The food industry includes many practices which may rise to being unlawful. Reaching out to a labor and employment lawyer might be a good idea. They will need to collect more information about the details of how you were paid, your pay history, the agreement you and your employer made, and the actual hours you regularly worked. If other pay laws were not followed by the employer a demand letter might be an option but your "stealing" admission will not disappear. If everyone on the interstate was driving 90 mph but you were the only one pulled over by the state police would your carelessness be excused? Probably not right?... Read More

Yes. Employees diagnosed with such conditions can still request (and are entitled to) reasonable accomodations. Employers in NY State must engage in an good-faith dialogue to provide a reasonable accomodation and can only reject accomodation when it creates an undue hardship. Work with your physician to assess what types of accomodations may be appropriate. A word of caution, the brief information you shared sounds more like a ruse than good-faith business necessity. Such a dramatic change in the personnel managment can correleate to age discrimination. The more senior an employee, generally the more they are earning, the more benefits, etc. By increasing the pressure and driving them out for performance, they can be replaced with cheaper and younger cogs. So get a consultation as well with an emploment attorney. Know your rights and work with your physician to discuss how to continue in what may be a hostile work environment. ... Read More

Depending the status of your position (at-will free market, union, civil service), managment can generally change your shift, subject to whatever contractual or union protections rights you may have to a particular shift (non-union at-will positions generally have none).  But under no circumstances can the employer dock your earned pay for not picking up extra shift or declining voluntary work.... Read More

There's not nearly enough information in your post. Believe it or not, not all harassment is actually illegal. It's generally illegal when one is targeting protected classifications (race, age, sex, orientation, disability, religion, etc.) or conduct (whistleblower complaints, discrimination reports, wage & hour complaints, safety or work conditions complaints, union activity, etc.).  Get a consutlation to assess your rights. ... Read More

Did this person touch or harm you physically? If yes, did you retain and/or consult with a workers compensation lawyer if those physical injuries resulted in some type of permanent scarring whether emotional or physical or both? Assault and battery is also criminal if the employee had the state of mind to harm you or place you in a position where physical injury was imminent or physical injuries were likely to result and foreseeably cause you emotional distress. Did you report this to the police? What is your goal? It looks like the employer took action. The employer is now much more likely to be personally liable should this employee harm anyone else in the future since the employer is on notice that the employee has a history with you. Are you seeking an apology? Either a workers compensation lawyer or an assistant district attorney can provide you with better suggestions. Most of us do not sue individuals because collecting damages could be a process even if you secure a judgment on paper. Workers compensation claims are the exclusive remedy for physical injuries which occur within the course and scope of employment in the majority of scenarios and emotional distress alone is usually insufficient in most scenarios, barring exceptional circumstances. Of course you made no reference to discrimination associated with any of the above which might be a complaint for filing with New York State's Division of Human Rights but only if the last discriminatory act (causing an adverse employment action - often with termination or denied pay raises, promotions or inferior terms and conditions of employment) occurred within the past 12 months. Go to the police if the person retaliates against you and/or places you in reasonable fear for your safety. Not legal advice and no lawyer client relationship. Good luck.... Read More

Unpaid wages are taken very seriously in New York. There may be DOL notice violations also. You may be entitled to liquidated damages, often double the amount you are owed, and your own attorney's fees and the costs of filing can be court-ordered for payment by that employer. Plus the individual business owner should be personally on the hook for unpaid wages in most cases, if your lawsuit names them individually, so liquidation or bankruptcy of the owner does not leave you high and dry. However, the amount in controversy appears small. You may not have sufficient revenues by the business to file in federal court. And even a federal court may be reluctant to award the amount of attorney's fees which may be necessary for collection. Remember that litigation takes time and effort regardless of the amount pursued. And the restaurant could fight payment requiring you to retain a collections lawyer in the end. Overall your best option might be filing in small claims court in the county where that restaurant does or has a business operation. A small claims court judge will review your documentation and hear from both sides, assuming the restaurant responds. If it doesn't even show up you could have a default judgement entered in your favor and then collecting on it will be a separate matter. It's a process and if you wish to learn about the legal system yours may be an excellent one in which to do so. Gather your documentation and good luck!... Read More

Possibly but I'm not sure you have monetary damage to recover. The denial of the club probably isn't what we call an "adverse employment action," such as a demotion, pay reduction, termination, denial of raise, or forfeiting benefits. (It didn't cause you any monetary loss.) A court may consider injunctive relief to compel the employer to allow a social club, but the employer would have the opportunity to explain itself and defend its position. Absent monetary damage, getting an attorney to sue on contingency is unlikely unless you have identified several (no specific number but more than a handful) coworkers who are interested in the club to bring a class action under state law.... Read More

Does DC 37 have an own occupation policy?  I'm not even sure what type of policy this refers to but you'll need to get a copy of your Collective Bargaining Agreement to find the answer.  Am I allowed to work in another field while collecting dc 37 short-term disability? No. The Union has advised you to take FMLA and STD. STD is a statutory benefit available to all New York employees. When you take STD leave, you are certifying to the insurer that you are unable to work. Absent a separate Union benefit that would provide for paid leave pending a dispute (which probably doesn't exist given the advice you received), your only other option would be to take an unpaid leave of absence while working in another field.  ... Read More

Correct. Once you have complained of some type of "employment discrimination" which might include sexual harassment or racial harassment or national origin harassment then that might be a hostile work environment. That is much different from being harassed because you are not performing your job duties exactly in the manner your supervisor wishes. Harassment because of discrimination is not ok. Harassment because you are not following exactly what is being asked of you and others who do similar work is just a conflict with a supervisor which is often best resolved by moving to some new position like a transfer or new job. HR will investigate unlawful discrimination and the employee does not conduct their own investigation which could be insubordination which can result in termination. HR does not investigate just complaints about a supervisor which have no reason to believe discrimination is being alleged or just sour grapes. The latter usually resolves itself with the employee's new job voluntarily or involuntarily. So yes you may not violate instructions from HR. But if you did not say words which usually include discrimination because of .... don't expect much to happen. Start looking for other positions if the hostility is not discriminatory. Hostile does not mean generally not nice or not civil. At work it means discriminatory or it's probably nothing the law is designed to protect. That's the reality check for employment law.... Read More