New York City Human Rights Law

In 2016, New York City’s Commission on Human Rights experienced a sixty percent increase in complaints relating to discrimination and harassment.

The New York City Human Rights Law is a statute that provides an individual with protections in addition to federal and state regulations. It addresses discrimination in the workplace, housing complexes, public spaces, harassment by law enforcement, and retaliation.  Furthermore, it covers employment discrimination against all New York City workers and even interns. Also, it establishes protected classes, which include:

  • Age;
  • Citizenship status;
  • Color;
  • Disability;
  • Gender;
  • Pregnancy;
  • Race;
  • Religion; and
  • Arrest or conviction record, among others.

Individuals in a protected class are afforded safeguards, which include:

  • Hiring, firing, and work assignments;
  • Salary and benefits;
  • Promotions; and
  • Performance evaluations; and
  • Reasonable accommodations for disabilities and religious observance and clothing, among others.

The New York City Human Rights Law does not hold those filing a complaint to a high burden of proof. In accordance with the law, a person must show that he or she was not treated the same as other due to being part of a protected class.  In addition, there are many protections against retaliation by an employer.

New York City does not tolerate employment discrimination and harassment. It has one of the toughest human rights laws in order to protect its employees against intolerable behaviors.  If you believe you have faced discrimination or harassment by your employer or have been wrongfully terminated, contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

 

 

Hicks v. Tuscaloosa

The Pregnancy Discrimination Act (PDA) was put in place to prevent discrimination against a woman for being pregnant. The PDA states that there can be no discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” Related medical conditions are used as an overreaching term and therefore includes the issues that come with breastfeeding, as it is intrinsically intertwined with pregnancy. Stephanie Hicks, the plaintiff in Hicks v. Tuscaloosa case, was denied accommodations because of her pregnancy-related medical condition and ultimately resigned from her position.

On September 7, 2017, the Eleventh Circuit held that breastfeeding is a covered protection under the PDA. Officer Hicks, upon return from her maternity leave, requested that she be assigned an alternative duty. Before her maternity leave, Officer Hicks’ supervisor allowed her to work different cases so that she would not have to work nights and weekends. This accommodation infuriated some other supervisors and, upon Officer Hicks’ return, she received multiple disciplinary write-ups accusing her of false infractions.

Officer Hicks also had heard that people were complaining that she took 12 weeks under the Family and Medical Leave Act (FMLA), which she was entitled to, when she was asked to only take 6 weeks of maternity leave. Officer Hicks also stated that colleagues had told her that her new supervisor was trying to “get [Hicks] out of here.” Colleagues and officers also claimed that Officer Hicks was not acting as herself and seemed changed after the birth of her baby. They claimed that she had the “baby blues” and seemed to believe that telling her this to her face made it alright.

Soon after her return, a mere eight days, Officer Hicks was placed on patrol division where she was required to wear a bulletproof vest all day. Her doctor had advised her to request a different position because wearing the vest all day could interfere with her breastfeeding, as well as possibly causing painful infections. For these reasons, Officer Hicks requested a desk assignment, instead of being in the patrol division. Her request was denied, even though other officers were often provided this accommodation for other medical conditions. The supervisors claimed that breastfeeding could not warrant special accommodation as it was not a medical condition. They further advised her that if she thought the tight-fitting vest would interfere negatively with her breastfeeding, she could wear a larger vest. Officer Hicks refused to do so as she believed wearing a larger vest with less protection could be dangerous to her life.

A jury held that Officer Hicks had been discriminated against under the PDA and that the supervisors were retaliating against her for taking FMLA leave. The Court ruled in the favor of Officer Hicks on both claims. The Court further stated that breastfeeding was, in fact, a medical condition under the PDA, as it obviously related to pregnancy.

The Court also found that the PDA does not require special accommodations, but merely requires reasonable accommodations. The supervisor’s refusal to provide the certain accommodation of letting Officer Hicks have a desk assignment when others were provided this accommodation was clear discrimination against Officer Hicks. The Court held that Officer Hicks “was not asking for a special accommodation, or more than equal treatment—she was asking to be treated the same as ‘other persons not so affected but similar in their ability or inability to work’ as required by the PDA.”

If you feel that you have been discriminated against because of your pregnancy, you may be able to take legal action. Employers do not have the right to discriminate against any employee who needs reasonable accommodations due to their pregnancy-related medical conditions. If you have concerns regarding employment law issues, contact the New York employment law attorney Steven Mitchell Sack to protect your rights. Call Steven Mitchell Sack, “The Employee’s Lawyer,” at (917) 371-8000 or email him at sms@StevenSack.com.

 

Don’t Fire An Employee Because Of A Jealous Spouse

Recently, a New York State Court of Appeals restored a gender discrimination case against a wellness clinic. Both defendants were co-owners of the establishment and were husband and wife. The husband had hired the plaintiff in the case as a massage therapist and yoga instructor.  The husband acted as the plaintiff’s supervisor and had a professional relationship during her tenure.  However, he told Plaintiff that his wife was jealous because she was “too cute.”

Sometime after, defendant’s wife and co-owner of the establishment sent plaintiff threatening text messages stating that she should stay away from her husband and was no longer welcomed to the clinic. The next day, the husband sent plaintiff an e-mail, indicating that her status as an employee was terminated. Furthermore, the email notified plaintiff that if she returned to the establishment the police would be called.

Plaintiff commenced an action against the husband and wife for gender discrimination. Under the New York State Human Rights Law and the New York City Human Rights Law, an employer is forbidden from taking action against an employee for reasons related to sex or gender.

The plaintiff initiated an appeal after the lower court dismissed her claims for gender discrimination on the ground that there was not sufficient support for her claims. Specifically, the court reasoned that the plaintiff had to show that she was part of a protected class; however, the lower court concluded that attractive women were not a protected class.

On appeal, the court found that the factor motivating the defendant’s termination of plaintiff was her sexual attractiveness, which was unlawful even if his decision to terminate plaintiff’s employment was due to his wife’s jealousy.  According to the court of appeals, other cases have permitted an individual to fire an employee due to a jealous spouse.  However, all of the existing cases involved an employee and employer having an ongoing sexual relationship.  Due to this, the employer formed a basis for termination.

Navigating the complexities of discrimination in the workplace can be difficult. It is important that individuals who have faced employment discrimination seek the guidance of an experienced employment discrimination lawyer. Steven Sack, “The Employee’s Lawyer,” has represented individuals alleging unfair employee discrimination for more than 37 years. Mr. Sack is knowledgeable in all aspects of employment law and fights zealously on behalf of his clients. For more information or to schedule a consultation, call Steven Mitchell Sack at (917) 371-8000 or email him at sms@stevensack.com.

Sexual Harassment At The Plaza

The famous Plaza Hotel, located in New York City, has had a sexual harassment lawsuit filed against it by some of its female employees.  The Plaza Hotel is an icon for its famous political figures and entertainers.  While many are shocked by the allegations, sexual harassment in the hotel industry is fairly common.  According to a recent report, 8 in 10 hotel workers have experienced being harassed on the job.

There are many federal laws, as well as many state statutes and city ordinances that govern sexual harassment in the workplace. Here, the lawsuit was filed under the New York City Human Rights Law.  According to the law, any unwelcome sexual advances, comments or actions constitute sexual harassment.  The advances may be by a co-worker, supervisor, or anyone else in a place of authority. When a person brings the sexual harassment to the attention of a superior or employer, he or she is responsible for addressing the problem and taking action. If not, an employer will be liable regardless of being directly involved in the sexual harassment.

The lawsuit commenced by the Plaza Hotel workers’ provides instances where co-workers touched them inappropriately and made vulgar comments. One victim alleges that a supervisor pushed her into a closet and unwillingly kissed her.  In addition, other allegations include co-workers making graphic remarks and gestures at the women. According to the lawsuit, plaintiffs brought this to the attention of management.  However, they failed to address the situation. Management did, however, put one Plaintiff on leave and told the others to dress conservatively in order to avoid advances from the male workers.

In addition to the news concerning the Plaza Hotel, the South Carolina owners of a Holiday Inn Express recently settled an Equal Employment Opportunity Commission (EEOC) claim for $90,000.

If you have been a victim of sexual harassment, contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

Changes To The Freelance Law In New York City

In the beginning of 2017, New York City adopted The Establishing Protections for Freelance Workers Act.  The law provides that a company must:

  • Provide a written contract to a freelance worker for services of $800 or more,
  • All payments to a freelancer must be paid on a timely basis and in full; and
  • Prohibits retaliatory action against a freelancer for exercising his or her right under the law.

Recently, the New York City Department of Consumer Affairs adopted new rules under the law, which provides freelancers with additional protections. According to the new rules, a company is prohibited from waiving certain rights of a freelance worker. The following is a list of waivers and limitations that are prohibited:

  • Language waiving or limiting his or her right to “participate in or receive money or any other relief from any class, collective, or representative proceeding”.
  • Contractual waivers or limits of a procedural right in an action.
  • Any limitation or waiver on his or her right to disclose the terms their agreement with the Office of Labor Standards.

In addition, the new rules clarify past ambiguities in the law, specifically regarding anti-retaliation.  Here are a few of the following clarifications that have been made:

  • Adverse action means “any action by a hiring party or agent that constitutes a threat, intimidation, discipline, harassment, denial or work opportunity, discrimination, or any other act that penalizes or is reasonably likely to deter a freelancer from exercising any rights under the law.”
  • The value of a contract for what must be included is “the reasonable value of all actual or anticipated services, costs for supplies, and any other expenses under the contract.”
  • For companies in violation of the law, a freelancer may recover the “reasonable value of all services performed and/or anticipated, and reasonable costs for supplies and any other expenses reasonably incurred by the freelance worker.”

These rules and clarifications went into effect on July 24, 2017.

If you have concerns regarding employment law issues, contact the New York employment law attorney Steven Mitchell Sack to protect your rights. With two law offices conveniently located in New York City and East Meadow, New York, Mr. Sack is available to assist New York City and Long Island residents with their employment law issues. Call Steven Mitchell Sack, “The Employee’s Lawyer,” at (917) 371-8000 or email him at sms@StevenSack.com.

Microchip In The Workplace

Recently, a company in Wisconsin will be the first in the United States to put microchip implants in its employees. According to reports, over 50 employees at Three Square Market (32M) are expected to voluntarily have microchips implanted between their thumb and forefinger. The chips are radio-frequency identification chips (RFID) that will be used to perform common office tasks by waving their hand. According to Todd Westby, the implant is the size of a grain of rice.

Mr. Westby, the CEO of 32M, indicated that the chips would be able to “make purchases in the break room, open doors, clock in and out of the office, and operate the copy machine, among others.” The chips use near-field communication, which is what is in animal microchips and credit cards.

Earlier this year, Epicenter, a Swedish Company began using similar microchips with 80 employees. These micro chips cost about $300 per chip. Companies like 32M are covering the cost of the employee’s micro chip. This process eliminates the need to carry an identification card. It also eliminates any costs associated with having to replace and deactivate the card, in the event that an employee loses or misplaces it. In addition, it helps to mitigate security risks.

However, many individuals have concerns about whether or not an employer is able to track his or her whereabouts. According to Mr. Westby, these chips do not have a GPS component and cannot be hacked because they are encrypted. According to Mr. Westby, his wife and children will be implanted with the microchips as well.

While many employees are on board with having the microchip implanted, others remain hesitant that the chip will provide an immense amount of insight into the employee’s day-to-day activity, such as how often he or she takes a break or goes to the bathroom. If an employee decides he or she no longer wants the microchip, the implant can be easily removed.

Many individuals see this as a vast improvement in technology. Others believe it poses privacy concerns.

As technology evolves and microchip implants become more popular in the workplace, there will be concerns and issues by employees and employers. If you have concerns regarding employment law issues, contact the New York employment law attorney Steven Mitchell Sack to protect your rights. Call Steven Mitchell Sack, “The Employee’s Lawyer,” at (917) 371-8000 or email him at sms@StevenSack.com.

Updates To The New York State Paid Family Leave Law

The New York State Paid Family Leave Law requires that every New York State employer provide employees with up to 12 weeks of paid leave for the following:

  • the birth, adoption, or placement of a new child
  • to care for a family member with a serious health condition, or
  • for a qualifying exigency arising from a family member’s military service.

The New York State Paid Family Leave Law becomes effective on January 1, 2018. As stated, this law will allow employees to be entitled to up to 12 weeks of paid family leave for certain qualifying reasons. The program is funded through employee payroll deductions. This program does not require employers to fund any portion of the benefits provided.

The New York Workers’ Compensation Board permits employers to collect weekly contributions for this program as of July 1, 2017. The New York Department of Financial Services along with the Superintendent of Financial Services set the maximum employee contribution to be provided by June 1, 2017 at 0.126% of an employee’s weekly wage, not to exceed the 0.126% of the weekly average wage measured statewide. The statewide average weekly wage is $1,305.92. Therefore, the capped deduction would be $1.65 per week.

In addition, the definition of “wage” has been expanded to include tips or gratuity as part of an individuals weekly pay. For instance, an individual who has an occupation that customarily has tips as part of his or her wage is entitled to include such an amount. Previously, “wage” was defined to encompass only the reasonable value of housing or a stipulated money rate from an employer. Furthermore, “family member” is defined under the new law as child, spouse, parent, grandparent, grandchild, or domestic partner. This definition is more expansive than even the Family Medical Leave Act (FMLA).

The maximum contribution amount will likely increase as of March 2018. The program is expected to be fully phased in by 2021 and will entitle eligible employees to receive up to 67% of their usual weekly wage or state average weekly wage. The program is designed to compliment the existing disability payments that a qualifying individual would be entitled to and not in place of ordinary disability payments.

If you have concerns regarding employment law issues, contact the New York employment law attorney Steven Mitchell Sack to protect your rights. Call Steven Mitchell Sack, “The Employee’s Lawyer,” at (917) 371-8000 or email him at sms@StevenSack.com.

Predictive Scheduling For Fast Food Workers In New York

On May 30, 2017, New York City Mayor Bill de Blasio signed legislation to implement predictive scheduling for non-salaried fast food employees in New York City. This law requires that employers post a worker’s schedule 14 days in advance. If a schedule is changed with less than 14 days notice, an employer must pay a premium. This creates a private right of action for employees with his or her employer. The legislation will take effect in 180 days.

What employers must understand about predictive scheduling legislation:

  • It requires that an employer provide at least 14 days notice to an employee regarding his or her scheduled shift.
  • It requires that an employer provide at least 14 days notice to an employee regarding any changes that are made to his or her schedule. This includes any shift reductions, on-call adjustments, or any other adjustments to an employee’s shift schedule for a particular workday.

Predictive scheduling benefits employees by providing them with consistency in his or her work schedule, as well as providing notice of their schedule in order to plan for future occurrences. This allows an employee to prepare ahead of time for things such as childcare or school. While predictive scheduling is very beneficial to employees, it may have an adverse effect on a businesses’ ability to remain flexible.

It is imperative that employers pay close attention to all legislation in order to remain compliant with the ever-changing rules and regulations that may be impressed upon businesses. While the new legislation does not take effect for 180 days, it is important to get a head start in order to combat some of the challenges that may arise in complying with the the new law.

If you have concerns regarding employment law issues, contact the New York employment law attorney Steven Mitchell Sack to protect your rights. Call Steven Mitchell Sack, “The Employee’s Lawyer,” at (917) 371-8000 or email him at sms@StevenSack.com.

Mayor de Blasio Passes Laws to Protect Fast Food and Retail Workers

Previously, Mayor Bill de Blasio announced that his administration plans to implement greater protections to New York City’s 65,000 hourly fast food employees. Recently, the mayor signed several bills into law that affect the fast food industry, including one that protects workers from last-minute schedule changes. Additionally, Mayor de Blasio signed a bill that prohibits on-call scheduling for retail employees.
 
Under Intro 1396, fast food chains with more than 30 locations nationwide are required to give non-salaried employees their work schedules at least two weeks in advance. If the work schedule is changed after the 14 days notice, the employer must provide the worker with additional compensation. Employers are not required to provide additional compensation when a store cannot open or continue to operate due to inclement weather that poses a risk to employee safety. However, if the employer adds a shift to an employee’s schedule to cover for or replace another employee who cannot travel safely to work, the worker who is covering the shift is entitled to premium pay according to the schedule. An employer does not have to provide compensation to employees who voluntarily trade shifts with one another.
 
Under Intro 1388, fast food businesses will be prohibited from making their employees work “clopenings,” closing the business the night before and opening the next day, with less than 11 hours between shifts. Employees who volunteer to cover these shifts will be compensated with an additional $100. Under Intro 1995, fast food restaurants must also offer the additional work hours to current employees before they can hire new employees or subtractors (including temporary staffing agencies) to cover the shifts. When shifts become available, employers must post the number and nature of all shifts being offered and assign additional shifts to the employees who want them. All available work hours must be offered until interested employees would be required to receive overtime pay, or until all employees have refused to work the available hours, depending on which comes first.
 
Intro 1387 was also signed into law and prohibits on-call scheduling for workers in the retail industry. Under the law, employers are banned from scheduling a retail worker for any on-call hours (which includes requiring the employee to be available to work, to contact the employer, or wait to be contacted by the employer) before determining whether he or she must go into work. According to Mayor de Blasio, these laws will help to guarantee predictable schedules and compensation and will help workers plan for childcare, weekly budgets, and evening classes. All bills passed will take effect 180 days after Mayor de Blasio signed them into law.
 
If you have concerns regarding employment law issues, contact the experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack, “The Employee’s Lawyer,” at (917) 371-8000 or email him at sms@StevenSack.com.
 

Employees May Receive Paid Time Off in Lieu of Overtime Pay

Recently, the U.S. House of Representatives passed a law that allows private-sector employers to allow employees to earn Paid Time Off (PTO) instead of overtime pay. H.R. 1180, the Working Families Flexibility Act of 2017, amends the Fair Labor Standards Act of 1938. Under the act, an employee may receive “compensatory time off at a rate not less than one and one-half hours” for each hour of work that overtime pay is required. This means that, instead of receiving overtime pay in their next paycheck, an employee may earn PTO that they may use at a later date that is approved by the employer.
 
An employer may provide compensatory time in accordance with applicable provisions of a collective bargaining agreement between the employer and the labor organization that is recognized as the representative of the employees. If an employee is not represented by a labor union, he or she may establish a written or otherwise recorded agreement with their employer before they work over 40 hours in that pay period. The agreement can be established if the employer offers the employee the option to receive PTO instead of overtime pay and if the employee knowingly and voluntarily agrees to the terms and not as a condition of employment. Employees may be eligible for this agreement only if he or she worked at least 1,000 hours for their employer on a consistent basis during a 12-month employment period before the date of agreement or receipt of compensatory time.
 
An employee may only accrue up to 160 hours of PTO in lieu of overtime pay. The employee has until January 31 of the calendar year to use their compensatory time. If, at that time, the employee does not use their compensatory time, their employer must provide compensation at their overtime rate for any leftover accrued time. An employer may designate a 12-month period other than the calendar year, but he or she must communicate to the employee when that period starts and ends. In this case, compensation will need to be provided to the employee no later than 31 days after the end of that 12-month period. For employers who adopt the policy, they may choose to discontinue it after they give their workers a 30-day notice.
 
Under the act, employers are forbidden from directly or indirectly intimidating, threatening, or coercing their employees for the purpose of requiring them to use their compensatory time or to interfere with their rights to request or not request PTO instead of overtime pay. Employees cannot be turned down for a job or terminated if he or she refuses to participate in the adopted policy. Employees may opt out of the policy at any time, as it is not a condition of employment.
 
If an employee is voluntarily or involuntarily terminated, the employer must pay the employee for any unused compensatory time at the overtime rate that he or she earned when time was accrued or at the time he or she received payment of such compensation, depending on which is higher. Employers who violate the terms of the act may be held liable for the amount of the rate of compensation for each hour of compensatory time accrued and “in an additional equal amount as liquidated damages reduced by the amount of such rate of compensation for each hour of compensatory time used by such employee.”
 
Navigating the complexities of employment law can be difficult. For this reason, it is important that those facing an employment financial dispute seek the guidance of an experienced attorney. Steven Mitchell Sack, “The Employee’s Lawyer,” has considerable experience representing clients in New York employment financial disputes, including employee wage and hour matters. With two law offices conveniently located in New York City and East Meadow, New York, the Mr. Sack is available to assist New York City and Long Island residents with their employment law issues. For more information or to schedule a consultation, contact Steven Sack at (917) 371-8000.