The Warshawsky Law Firm Blog

The Warshawsky Law Firm represents William Molina, a young immigrant entrepreneur, who opened a Latin-themed restaurant/bar in downtown Poughkeepsie in 2010, but was forced out of business in 2011 by city officials who objected to his holding "hip hop" parties that attracted a predominantly black clientele.  Last year, we filed a federal civil rights lawsuit on behalf of Mr. Molina and his company in the U.S. District Court for the Southern District of New York.  The lawsuit names the City of Poughkeepsie and certain city officials as defendants.  A copy of the complaint is here.  The presiding judge on the case is District Judge Cathy Seibel.

Shortly after the complaint was filed, the defendants filed a motion to dismiss, arguing that the complaint failed to state a plausible claim upon which relief can be granted.  We opposed the motion, arguing that the defendants had violated our clients' rights to due process of law and equal protection of the law.  The parties submitted lengthy briefing to the court.

On Monday, March 4, 2013,  Judge Seibel issued her ruling from the bench (no written decision currently is available).  She granted the defendants' motion with respect to the due process claim, which involves allegations that the city building department improperly delayed approving Mr. Molina's public assembly license.  But she denied the motion with respect to the equal protection claim, which involves allegations that the city police engaged in an unjustified campaign of harassment against Mr. Molina's restaurant -- ultimately forcing him out of business -- because he started holding "hip hop" parties that attracted a predominantly black clientele.

The equal protection claim goes to the heart of the case:  The City of Poughkeepsie intentionally destroyed Mr. Molina's business because city leaders, including the corporation counsel, did not like the kind of customers he was serving.

Judge Seibel's decision to deny the defendants' motion on the equal protection claim is a tremendous victory for our client! 

The case now proceeds to discovery and Mr. Molina will have an opportunity to prove his claims in court.  We are confident that we will prevail!

If you or someone you know has been discriminated against by government officials, please contact The Warshawsky Law Firm today.

Under New York law, when a criminal prosecution against a person terminates in favor of the accused -- for example, by acquittal or dismissal, including an ACD (adjournment in contemplation of dismissal) -- "the record of such action shall be sealed" and "every photograph" and "all palmprints or fingerprints" of the person must be either destroyed or returned to the person (with certain exceptions).  See CPL 160.50.  A similar set of rules applies when a person is convicted of only a violation or traffic infraction (again, with certain exceptions).  See CPL160.55. 

These sealing statutes are intended to "protect the rights of individuals against whom criminal charges have been brought, but which did not ultimately result in a conviction."  People v. Patterson, 78 N.Y.2d 711, 715 (1991).  As the New York Court of Appeals has explained, “the over-all scheme of the enactments demonstrates that the legislative objective was to remove any ‘stigma’ flowing from an accusation of criminal conduct terminated in favor of the accused, thereby affording protection (i.e., the presumption of innocence) to such accused in the pursuit of employment, education, professional licensing and insurance opportunities.”  Id. at 716.  Accordingly, the sealing statutes establish “a general proscription against releasing sealed records and materials, subject only to a few narrow exceptions.”  In the Matter of Joseph M., 82 N.Y.2d 128, 134 (1993) (italics in original).

Perhaps not surprisingly, police departments routinely violate these sealing statutes, retaining and using materials that are supposed to be removed from a person's criminal records (e.g., booking photographs used for line-ups in other cases) and disclosing information that is supposed to be sealed (e.g., information about the alleged crime for which the person was accused but not convicted).  The reported case law is replete with cases involving such violations.  What can a person do if this happens?

Unfortunately, the sealing statutes themselves do not contain any built-in enforcement mechanisms; they do not expressly authorize persons whose sealed criminal records have been used or disclosed improperly to file lawsuits against the police.  Until recently, New York state courts have refused to allow these victims to use other legal theories to enforce their rights under the statute.  (The Warshawsky Law Firm currently represents a plaintiff who is suing the City of Peekskill and Westchester County for improperly disclosing his sealed criminal records in violation of his rights to privacy and due process under the U.S. Constitution.  The case is pending in federal district court in White Plains.)  The upshot is that for many years police violations of the sealing statutes have gone unpunished by the courts.

Late last year, however, in a breakthrough decision, the New York Appellate Division, First Department (the appeals court for New York County and the Bronx), ruled that the sealing statutes contain an implied right of action, which permits persons whose sealed criminal records have been used or disclosed improperly to bring a civil action in court "to seek enforcement of the statute."  See Lino v. City of New York, 101 A.D.3d 552, 958 N.Y.S.2d 11 (1st Dept, Dec. 20, 2012).  The Lino lawsuit was brought by the New York ACLU to challenge the NYPD's practice of including in the city's "stop-and-frisk" database information about persons whose criminal records should have been sealed.

The Lino decision is a very important civil rights ruling, which finally puts the force of law behind the protections afforded by the sealing statutes to persons who have been cleared of criminal wrongdoing.  Although the First Department's jurisdiction formally extends to New York County and the Bronx, its ruling in Lino is binding on all lower courts in the state, unless and until another appeals court issues a ruling disagreeing with the decision.

It is important to understand that the Lino decision creates a state law cause of action to redress violations of the sealing statutes.  As such, before a plaintiff can sue the NYPD (or another police department) for violating his rights under the sealing statutes, he first must file a notice of claim with the appropriate government agency and allow the agency to investigate his claim before he can file a lawsuit in court.

For claims against the NYPD, the notice of claim must be filed with the NYC Comptroller's Office. See here for instructions and forms.

The notice of claim requirements are set forth in New York General Municipal Law s. 50-e.  (See here.)  These requirements -- including that the notice of claim must be filed within 90 days after the claim arises -- must be complied with strictly, or the person's claim will be thrown out of court.  It generally is a good idea to have a qualified civil rights lawyer prepare and file the notice of claim to ensure compliance with these myriad requirements.

If you or someone you know has had his or her sealed criminal records improperly used or disclosed by the police, please contact The Warshawsky Law Firm today.

Police officers have one of the most important and difficult jobs -- maintaining law and order -- without which everything we hold dear, our freedom, our property, our safety, our prosperity, would be in jeopardy.  But this does not mean that police officers are above the laws they enforce or the people they serve.  On the contrary, in "a nation of laws, not men," police officers are required to carry out their duties with a punctilious regard for the constitutional rights of citizens, who are entitled to "life, liberty, and the pursuit of happiness" without unjustified interference by the police.

Unfortunately, in a nation (and city) as large and diverse and tumultuous as ours, police officers often overstep their authority and violate people's rights.  Sometimes they do so intentionally, even maliciously; other times, they do so mistakenly or negligently.  Either way, someone's rights have been violated.  The question is, what can be done about it?  What remedy, if any, does the legal system provide?  Civil rights lawyers, like myself, use the legal system, wherever possible, to help people whose rights have been violated by the police.

Perhaps the most common type of civil rights case involves false arrest.  Generally speaking, a "false arrest" occurs when a police officer (or sometimes a private person or business) detains or confines a person against his or her will and without proper legal authority.

A false arrest potentially violates both federal civil rights law and state common law.  Although the basic definition of false arrest is the same under federal and state law, the procedural rules governing false arrest claims under federal and state law are very different and must be complied with strictly or the person's case will be thrown out of court.  This discussion outlines these differing rules.

Anyone who believes they have been falsely arrested should consult with a qualified civil rights lawyer immediately.

Probable Cause

A false arrest claim under federal law arises from the Fourth Amendment of the United States Constitution, which provides, in relevant part:  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."  A false arrest, therefore, involves the "unreasonable" "seizure" of a "person."  This language has been interpreted over the centuries to prohibit an arrest without probable cause.  The same definition is used under state law.

Probable cause is the most important concept in false arrest cases.

What is "probable cause"?  Probable cause means "information sufficient to support a reasonable belief that an offense has been committed by the person to be arrested."  Probable cause does not mean proof beyond a reasonable doubt or proof by a preponderance of the evidence.  It does not mean the person is guilty.  It simply means that the police officer had a "reasonable belief" that the person committed a crime.

This is a very low standard, one that is usually satisfied by police officers who perform their jobs competently and in good faith.  (An even lower standard -- "reasonable suspicion" -- is required to justify a so-called investigative stop-and-frisk.)  Importantly, just because a person in fact is innocent, there still may be probable cause for his arrest.

The existence of probable cause is a complete defense to an action for false arrest, under both federal law and state law.  If the police officer had probable cause, therefore, even if the person was innocent, the police officer (or the city) will not be liable for false arrest.  This means that many claims for false arrest will be defeated in court, once the police officer shows the court the evidence he relied upon in arresting the plaintiff.

Of course, if the police officer's version of events is legitimately disputed by the plaintiff, or if the police officer is lying about what happened, or if the police officer's assessment of the situation was wrong, or if the police officer acted in bad faith, then the plaintiff may be able to show that there was no probable cause for his arrest; if so, his claim will be allowed to proceed.

Note:  If a person was indicted by a grand jury, or the criminal court ruled against him at a probable cause hearing, or he pleaded guilty, or the jury convicted him at trial, then he will not be able to sue for false arrest (unless he can prove that he was the victim of police fraud or perjury or suppression of evidence or other serious misconduct).  But accepting an ACD (adjournment in contemplation of dismissal) will not bar a person from suing for false arrest.    

Federal Law

A person who is falsely arrested by the NYPD may sue the police officer who arrested him under federal civil rights law, specifically, 42 U.S.C. s. 1983.  Other laws may apply in certain situations, but Section 1983 is the main federal law used by civil rights plaintiffs.

The statute of limitations for false arrest claims under Section 1983 in New York is three years (note: it is different in other states).  This means that a person must file his lawsuit within three years of the false arrest or his claim will be untimely and dismissed by the court.  

As a general rule, a person's false arrest claim accrues -- i.e., the statute of limitations starts running -- when he is released from custody (not necessarily the same day as the arrest).  If a person is arraigned before a judge and remanded for further detention, his false arrest claim accrues when he becomes detained pursuant to legal process.  This is a technical legal issue that the U.S. Supreme Court addressed in Wallace v. Kato, 549 U.S. 384 (2007).

For most persons, who are released from custody pending the outcome of their criminal matter (whether on bail or ROR), the statute of limitations on their false arrest claims starts running as soon as they are released.  This also is the rule under state law.

Either way, a person who has been arrested should consult with a qualified civil rights lawyer as soon as possible.

There are no administrative prerequisites for filing suit under Section 1983.  This means that a plaintiff may file his case directly in court without first filing a claim with the police department or other government agency.

Section 1983 provides a full range of potential remedies, including actual damages, compensatory damages, punitive damages (only against individual police officers, not against municipalities), and attorney's fees.

Section 1983 can be a powerful statute for plaintiffs, but it has two serious limitations.

First, individual police officers who violate a person's civil rights may escape liability if the court believes that the officers, in effect, made a "reasonable mistake."

Generally speaking, courts are reluctant to hold police officers liable for their misconduct.  Courts will impose liability on police officers only if they violate a person's "clearly established" rights and only if a "reasonable" police officer would have known he was violating the person's rights.  This is the doctrine of "qualified immunity" -- the purpose and effect of which is to excuse police misconduct except in the clearest or most egregious cases.  Unfortunately, many meritorious civil rights lawsuits are defeated on the grounds of qualified immunity.

The second limitation under Section 1983 is that there is no respondeat superior liability by which to hold municipalities vicariously liable for their police officers' civil rights violations.  "Respondeat superior" refers to the basic legal principle whereby an employer will be held vicariously (automatically) liable for the employee's wrongful acts committed within the scope of employment.  This rule does not apply under Section 1983.

To hold a city liable under Section 1983, a plaintiff must prove that the city itself violated his civil rights.  How?  For example, by showing that the police officer who violated his rights was acting pursuant to an official policy or pervasive custom and practice of the police department (e.g., the NYPD's stop-and-frisk program); or the police officer's actions were authorized and approved by a high-ranking official with policymaking authority; or the police department was "deliberately indifferent" to the plaintiff's civil rights by failing to properly train and supervise the abusive officer.  These are the main theories of municipal liability under Section 1983.  They derive from the seminal U.S. Supreme Court case of Monell v. Department of Social Services, 436 U.S. 658 (1978).

Unfortunately, in the typical false arrest case it is extremely difficult for the plaintiff to hold the City of New York liable under Section 1983.  This means that if the individual police officer defendant is granted qualified immunity by the court, the plaintiff loses his case.

State Law

In some ways, state law is both better and worse than federal law when it comes to civil rights lawsuits.  It is better because it provides a remedy directly against the City of New York (and other municipalities).  It is worse, however, because it has a much shorter statute of limitations and imposes strict administrative prerequisities that must be followed before a lawsuit may be filed in court.

To hold a city or city employee (including police officer) liable under state law, a person (called the "claimant") must first file a "notice of claim" with the appropriate government agency.  This is a requirement of New York General Municipal Law s. 50-e 

For false arrest claims against the NYPD, the notice of claim must be filed with the NYC Comptroller's Office.  See here for instructions and forms.

IMPORTANT:  The notice of claim must be filed within 90 days of the false arrest.  (Not three years, as under Section 1983.)

The notice of claim must include the claimant's personal information and provide a complete description of the incident, including when it occurred, where it occured, who it involved (including all information known about the police officers), what happened, and how the claimant was injured.  It must be notarized by the claimant.

It is crucial that the notice of claim be completed and filed properly, as any errors in the process can bar the claimant from suing in court under state law.  (The notice of claim requirements do not apply to, or have any effect on, a plaintiff's claims under Section 1983.)

Once the claimant submits his notice of claim, the city will investigate the claim, including taking the claimant's deposition (called a "50-h hearing") and obtaining medical and financial records pertaining to the claimant's injuries (e.g., physical injuries, psychological trauma, lost wages, property damage, etc.).  The claimant cannot file his lawsuit in court until he has complied with the city's investigation.  See N.Y. Gen. Mun. Law s. 50-h.

In any event, a lawsuit under state law against a police officer and/or the City of New York must be filed no later than one year and ninety days after the incident.  This is a strict time limit.  If the city drags its feet during the investigation process, the claimant still must abide by this deadline.  (Any legitimate disputes over the city's conduct during the investigation can be addressed in court.)  Accordingly, the sooner the claimant files his notice of claim and complies with the city's investigation, the better.

Assuming a person follows the notice of claim rules, he can assert false arrest claims under state law against both the individual police officer and the City of New York.  (Do not name the NYPD itself as a defendant, because it is considered a "non-suable" entity.)

Significantly, under state law, the doctrine of respondeat superior applies -- meaning that the City of New York will be held vicariously (automatically) liable for the police officer's misconduct -- even if the officer himself is granted qualified immunity (a version of which also applies under state law).  This is the greatest advantage of state law over federal law in civil rights cases.  Indeed, it can be the difference between winning a case and receiving compensation for a false arrest and having the case thrown out by the judge.

Remember, however, that under state law, as under federal law, the City of New York cannot be held liable for punitive damages.  State false arrest law, which derives from common law tort law, also does not provide recovery for attorneys fees.  This means that the plaintiff's attorney will be paid from the plaintiff's damages award or settlement amount (i.e., a contingency fee).

It cannot be emphasized enough how important the filing of a proper and timely notice of claim is for a successful civil rights lawsuit.  Although Section 1983 can be a powerful statute, the best strategy in these cases is to combine federal law claims and state law claims in one lawsuit.

In short, the first thing an NYPD false arrest victim should do is file a notice of claim about the incident with the NYC Comptroller's Office.  It generally is a good idea to have a qualified civil rights lawyer prepare and file the notice of claim to ensure compliance with its myriad requirements.

Important:  Do not wait to file the notice of claim until after the criminal proceedings have ended; otherwise the 90-day deadline may have passed and you may lose the right to pursue your claim under state law.

If you or someone you know has been the victim of a false arrest, please contact The Warshawsky Law Firm today.

In March 2012 the Warshawsky Law Firm filed a federal civil rights lawsuit on behalf of a retired Harlem resident whose apartment was searched in connection with a drug raid and who was wrongly accused of drug possession by the NYPD.  The lawsuit asserted claims under the Fourth Amendment of the United States Constitution and state common law, including false arrest.  The lawsuit was filed in the U.S. District Court for the Southern District of New York, in Manhattan.

After litigating the case for less than a year, before any depositions were taken, the City of New York made an "offer of judgment" to the plaintiff, pursuant to Rule 68 of the Federal Rules of Civil Procedure.  Unlike an ordinary settlement offer, which results in the dismissal of the pending lawsuit, an "offer of judgment" means that a decision (judgment) is entered in the lawsuit in favor of the plaintiff.  Although the City of New York denies liability for the incident, the legal effect of the "offer of judgment" is that the plaintiff "wins" the case.  See here for a more detailed discussion of Rule 68 offers of judgment.

Judgment officially was entered against the City of New York in this case on February 11, 2013, by order signed by District Judge Katherine B. Forrest.  The plaintiff will be paid several thousand dollars, plus attorney's fees and costs, as compensation for the incident. 

Our client's rights have been vindicated!

The Warshawsky Law Firm represents a former employee of the Federal Aviation Administration, who was denied a promotion and then wrongfully terminated after complaining about religious discrimination in the workplace.  The lawsuit, which asserts claims of retaliation under Title VII of the Civil Rights Act of 1964, is pending in the U.S. District Court for the Central District of California, in Los Angeles.

Because the plaintiff worked for the FAA in Hawaii, the agency filed a motion to transfer the case to the federal district court in Hawaii.  (The case was filed in California because that is where the FAA regional headquarters is located.)  The plaintiff and his wife now live in New Jersey, however, and litigating this lawsuit in Hawaii would have imposed a significant hardship on them and presented an almost insurmountable obstacle to the plaintiff's ability to pursue his claims and obtain justice in this case.

On Tuesday, February 12, the plaintiff's lead counsel, Steven M. Warshawsky, appeared at a hearing in federal district court in Los Angeles and argued in opposition to the agency's motion.  The agency was represented by the Los Angeles U.S. Attorney's Office.  At the end of the hearing, the presiding judge, the Honorable Consuelo B. Marshall, denied the agency's motion and agreed to retain jurisdiction over the case.  A tremendous victory for the plaintiff!

Now the case proceeds to discovery and the plaintiff will have an opportunity to prove his claims in court.  We are confident that we will prevail!

If you or someone you know has experienced workplace discrimination, please contact The Warshawsky Law Firm today.

There are an estimated 12 million illegal immigrants in the United States, including more than 500,000 in New York City.  Many thousands of illegal immigrants participate in the labor force, frequently in the restaurant, janitorial, construction, and domestic service industries.  Are these workers protected by federal, state, and local employment laws?  Generally speaking, yes.

Minimum Wage and Overtime Laws

The federal and state governments require employers to pay minimum wages and overtime (time-and-a-half for every hour over 40 in a work week) to most workers.  The minimum wage and overtime laws are complex and require a case-by-case analysis. 

Currently the federal minimum wage for covered nonexempt employees is $7.25 per hour.  The New York minimum wage is the same.  Where federal and state minimum wages are different, the higher wage applies.  Several states, including California, mandate minimum wages above $7.25 per hour; legislation is pending in New York to raise the minimum wage in this state to $8.50 per hour.

Note:  Employees who customarily receive tips as part of their jobs may be paid a lower cash minimum wage (for example, $5.00 per hour for food service workers).  The amounts of these so-called "tip credits" are established on a state-by-state basis. 

Do these laws apply to illegal immigrants?  Yes.

The federal wage laws are set forth in the Fair Labor Standards Act (FLSA), which covers employees engaged in interstate commerce (very broadly defined) or who work for businesses with at least two employees and total sales of $500,000.  The FLSA does not contain an exception for illegal immigrants.  Neither does the New York Labor Law, which defines an employee as "any individual employed or permitted to work by an employer in any occupation" (although certain occupations are excluded from the law).  Accordingly, illegal immigrants in New York City (and elsewhere) are entitled to the same minimum wage and overtime pay as other workers.

This was the issue in two recent federal district court cases:  Solis v. Cindy's Total Care, Inc., Case No. 10-CIV-7242 (PAE), 2011 WL 6013844 (S.D.N.Y. Dec. 2, 2011), and Angamarca v. Da Ciro, Inc., Case No. 10-CIV-4792 (RLE), 2012 WL 5077480 (S.D.N.Y. Oct. 15, 2012).  In Solis, the court held that an employee's immigration status was not relevant to his or her claims for unpaid wages under the FLSA.  In Angamarca, the court adopted that holding and further ruled that the plaintiff, who had returned to his home country, would be permitted to appear remotely (via videoconference) for his deposition and for trial -- thus making it possible for him to pursue his lawsuit from outside the United States.

New York state courts similarly have held that illegal immigrants are covered by the state wage laws.  For example, in Pineda v. Kel-Tech Construction, Inc., 15 Misc.3d 176, 832 N.Y.S.2d 386 (N.Y. Sup. 2007), the court held that illegal immgrants who worked on municipal construction projects were entitled to be paid "prevailing wages" as mandated by state law.  Likewise, in Garcia v. Pasquareto, 11 Misc.3d 1, 812 N.Y.S.2d 216 (N.Y. Sup. App. Term 2004), the court held that illegal immigrants could bring an action in court for wages earned but not paid.   

In sum, illegal immigrants must be paid proper minimum wages and overtime for all work they actually perform, and they may bring actions in federal or state court to recover unpaid wages, even though they are not authorized to work in this country.

Employment Discrimination Laws

In addition to minimum wage and overtime laws, the federal and state governments (and many local governments, including New York City) prohibit employers from discriminating against employees based on race, sex, age, religion, disability, national origin, and other protected characteristics (which are different depending on the law).

Of course, under federal immigration law, employers can -- indeed must -- discriminate against employees on the basis of immigration status.  That is, employers are prohibited from hiring and employing workers who are not authorized to live and work in the United States.  Technically speaking, therefore, no illegal immigrants should be working in the country, but many do.  Just as they are protected by minimum wage and overtime laws, are they protected by employment discrimination laws?  Yes, but with certain limitations.

The various federal, state, and city anti-discrimination laws do not contain exceptions for illegal immigrants.  For example, the main federal anti-discrimination law, Title VII of the Civil Rights Act of 1964, applies to persons "employed by an employer."  The U.S. Equal Employment Opportunity Commission (EEOC) has declared it a "settled principle" that "undocumented workers are covered by the federal employment discrimination statutes and that it is as illegal for employers to discriminate against them as it is to discriminate against individuals authorized to work."  Likewise, the New York City Human Rights Law, which is one of the most protective laws, prohibits employers from discriminating against "any person."

Consequently, employers who employ illegal immigrants are not allowed to discriminate against them, any more than they are allowed to discriminate against other employees.  But this does not mean that illegal immigrants are entitled to all of the protections and remedies provided by these laws.

In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the U.S. Supreme Court held that an illegal immigrant who had been illegally terminated in retaliation for union activity was not entitled to receive back pay for the period following his termination.  Back pay is a common remedy in wrongful termination cases and refers to the amount of money that the employee would have been paid if he had not been terminated.  That is, it refers to income that the employee theoretically would have earned, not to income that the employee in fact earned. Under Hoffman, illegal immigrants are not entitled to back pay, i.e., pay for work they did not in fact perform.  The Hoffman ruling applies to federal law claims.

Consequently, if an illegal immigrant is terminated from his employment based, for example, on religion or age or disability, under federal law (Title VII or the ADEA or the ADA) he will not be allowed to recover back pay as part of any lawsuit.  Logically, the Hoffman ruling also covers non-promotion claims, i.e., where the employee claims he should have been promoted to a higher-paying position but was not due to some form of illegal discrimination.  In those situations, the employee seeks compensation for work he did not actually perform, which is barred to illegal immigrants under Hoffman.  (As several courts have noted, Hoffman does not bar illegal immigrants from recovering wages owed to them for work they performed.  See, e.g., Flores v. Amigon, 233 F. Supp.2d 462 (E.D.N.Y. 2002).)       

Nothing in the Hoffman decision, however, appears to preclude an illegal immigrant from being compensated for mental and emotional distress caused by harassment and other forms of workplace discrimination that he or she actually suffered.

Moreover, New York courts have not applied the Hoffman ruling to state law claims.  The New York Court of Appeals has held that illegal immigrants who are injured on the job may recover lost income damages (i.e., for work they did not actually perform) as part of the compensation they receive under state labor law.  See Balbuena v. IDR Realty, LLC, 6 N.Y.3d 338 (2006); see also Janda v. Michael Rienzi Trust, 78 A.D.3d 899, 912 N.Y.S.2d 237 (2d Dept 2010) (same).  Importantly, the U.S. Court of Appeals for the Second Circuit (which covers New York) has held that federal immigration law does not preempt state labor law on this issue.  See Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219 (2d CIr. 2006).  Arguably, the Balbuena decision supports the position that illegal immigrants are entitled to back pay damages under state and city anti-discrimination laws.

The bottom line is that illegal immigrants are protected by federal, state, and local employment laws, are entitled to be paid for all hours worked (including overtime and other forms of mandatory pay), and are entitled to work in an environment free from illegal discrimination.  But they may not be entitled to the full range of remedies available under these laws, particularly under federal law.  This is a complex issue that requires careful case-by-case analysis.

Lastly, it must be emphasized that, even if illegal immigrants are covered by employment laws, this does not mean that they cannot be detained, prosecuted, and/or deported by federal immigration authorities.  This factor must be considered very seriously when deciding whether or not to file an employment lawsuit on behalf of an illegal immigrant.   

One of the most important rights afforded by federal and state employment laws is the right to overtime pay.  In this blog entry, I am going to discuss some of the basic legal rules surrounding this issue.  Please note:  This is a very complex issue and an employee's eligibility for overtime and the amount of overtime owed to the employee will depend on the circumstances of each case.  Any worker or company with questions about overtime pay should consult a qualified employment lawyer.

Generally speaking, overtime pay means the extra pay that an employee is owed for working more than 40 hours in a workweek.  In recent years, there has been an explosion of individual and class action lawsuits filed by workers who were not paid the overtime owed to them.  Unfortunately, many employers either do not know or do not follow the rules governing overtime pay.  This can result in large amounts of back pay and liquidated damages being owed to employees, which hurts both the employee (who should have been paid in a correct and timely manner) and the employer (who will have to pay significant penalties).

When is an employee entitled to overtime pay?

Assuming an employee is eligible for overtime pay (more on that below), the law normally requires the payment of overtime whenever the employee works more than 40 hours in a workweek (defined as seven consecutive 24-hour periods).  Importantly, overtime pay is not owed for working more than 8 hours in a day or for working on weekends or holidays; it only applies when the employee works more than 40 hours in a workweek.  For example, if an employee works three 12-hour shifts per workweek (36 hours total), he is not owed overtime; if he works six 7-hour shifts (42 hours total), he is.

How much overtime pay is required?

Generally speaking, if an eligible employee works more than 40 hours in a workweek, he must be paid time-and-a-half for every hour over 40.  In other words, an employee is owed a "premium" of an additional 50% pay for every overtime hour.  The overtime rate is based on the employee's "regular rate" of pay, usually his regular hourly wage.  The overtime rate is the regular rate times 1.5.  For example, assume an employee is paid $20 per hour; his overtime rate would be $30 per hour.  This is the amount he must be paid for every hour over 40.

Are all employees entitled to overtime?

No.  Many categories of workers are exempted from the overtime requirement, meaning they do not receive any extra pay for working more than 40 hours in a workweek.

The most common categories of exempt workers include:

Executive employees (who manage business operations and supervise at least two other employees);

Professional employees (who perform intellectual work requiring advanced knowledge and specialized training);

Administrative employees (who exercise responsibility and discretion related to the business operations of the company); and

Computer professionals (who perform high-level work involving computer systems and programs). 

A complete listing of exemptions may be found here.

Please note:  Whether or not an employee is exempt can be complicated and depends on the circumstances of each case.  A qualified employment lawyer can provide guidance on this issue.

If an employee is paid a salary, does that mean he is not entitled to overtime?

Not necessarily.

It is a common misconception that, so long as an employee is paid a salary, he is not entitled to overtime. This often is not the case.

It is true that many overtime exemptions include, among their various requirements, that an employee be paid a certain minimum salary.  For example, the executive, professional, and administrative exemptions require a minimum salary of $455 per week.  (However, the minimim salary requirement does not apply to teachers, lawyers, and doctors.)  Being paid a "salary" means that an employee receives a predetermined amount of compensation each pay period, which does not depend on the quantity or quality of the employee's work.  But these exemptions have additional requirements besides the salary requirement -- requirements that pertain to the nature of the employee's work and the amount of responsibility exercised by the employee. 

For example, suppose a receptionist in an office is paid a salary of $1000 per week.  If he works 50 hours per week, is he owed overtime?  Generally speaking, yes, he is owed for 10 hours of overtime, unless he falls under one of the exemptions.  But which exemption?

Companies often claim that ordinary office workers, like receptionists and secretaries and assistants, are "administrative" employees.  However, to qualify for the administrative exemption, an employee's "primary duty" must be the performance of office work "directly related to the management or general business operations" of the company and must involve "the exercise of discretion and independent judgment with respect to matters of significance."  In most cases, ordinary office workers do not perform work that meets these requirements.  Therefore, they are not exempt and are owed overtime.

In the example of the receptionist, he is owed for 10 hours of overtime.  How much is he owed?  His overtime rate is 1.5 times his "regular rate" of pay.  Because he is paid by salary, his "regular rate" is determined by dividing his salary by the total number of hours worked in that workweek, i.e., $1000 divided by 50 hours = $20 per hour.  His overtime rate, therefore, is $30 per hour.  However, this does not mean he is owed an additional $300.  Why not?  Because he already was paid $20 for each hour of overtime.  Rather, he is owed the overtime premium that he did not get paid, i.e., the extra $10 per hour.  In sum, he is owed $100.

Of course, in some cases, companies actually refuse to pay employees for hours worked over 40.  For example, some businesses have a "policy" that hourly employees will be paid only for 40 hours each week, even if they work more than 40 hours.  Some businesses instruct their employees to work "off the clock" once they have reached 40 hours in a workweek.  These types of policies are blatantly illegal.  In those cases, the employees are owed full overtime pay (1.5 times their hourly wage) for every hour over 40.

What if an employer fails or refuses to pay overtime?

Both federal and state laws provide powerful legal remedies for employees who are not paid the overtime they are owed.  These remedies include back pay (compensation for the amount of overtime owed) and liquidated damages (double damages), as well as attorney's fees and costs.  Moreover, overtime laws intentionally favor employees, making it easier for them to prevail in these cases.  The statute of limitations for bringing an overtime claim under federal law is two years (three years for willful violations) and six years under state law.  Although these sound like long periods of time, if an employee believes he or she is owed overtime, it is very important to contact an attorney right away.  Likewise, companies should not wait to correct overtime problems, as the potential damages and penalties quickly add up to very large amounts.

Additional information about federal and state overtime laws can be found here (US DOL website) and here (NY DOL website). 

The Warshawsky Law Firm represents employees and employers in overtime pay cases. 

The quick answer is yes, provided that the person does not improperly interfere with police work.  But let me explore this important issue in somewhat more detail.

In recent years there have been numerous stories in the news and on the internet about private citizens who are arrested by the police for recording them on cell phones or hand-held videocameras.  Perhaps the most notorious incident occurred in May of last year, when homeowner Emily Good was arrested by Rochester police while standing in her yard and videotaping police officers who were performing a traffic stop in front of her house.  A self-described activist, Good was concerned that the police officers were racially profiling the driver of the vehicle.   When one of the officers asked Good what she was doing, Good replied, “I’m just recording what you’re doing; it’s my right.”  The officer then told Good that “we don’t feel safe with you standing right behind us while we’re doing a traffic stop” and ordered her to go inside her house.  When Good insisted on her right to stand in her yard, the officer “warned” her, “you’re going to be under arrest.”  When Good did not move, the obviously exasperated officer stated, “you know what, you’re going to go to jail.”  Good was arrested, handcuffed, and led away in tears.  She was charged with the crime of obstructing governmental administration (more on this below).  After the video of the incident was posted on YouTube, the charge against her was dismissed.

Was it legal for Good to videotape the police officers while standing in her own front yard?  Unquestionably, yes.

The first step in analyzing this issue is examining the state's wiretapping statute.  Wiretapping statutes don't apply only to "wiretapping" per se (surreptitiously recording a telephone conversation), but generally govern when one person may make a voice (audio) recording of another person without that other person's consent.  Most states, including New York, only require that one party to a conversation consent to the recording.  In other words, if Joe is having a conversation with Jane (whether in person, by telephone, etc.) and he decides to record the conversation without Jane knowing, that is legal in New York and most other states.  In Emily Good's situation, therefore, she was not violating New York's wiretapping statute when she videotaped the police officers (including recording their voices) outside her house.

However, some states have so-called "dual consent" wiretapping laws, which require both parties to a conversation to agree to the recording.  In those states (which include, at last count, California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington), if Joe recorded his conversation with Jane without her knowing (i.e., without her consent), he would be committing a crime.

But even in states with dual consent laws, it still is (or should be) legal for a private citizen to videotape police officers going about their official duties.  This conduct is protected by the First Amendment.

This was the question presented in an important decision issued last August by the U.S. Court of Appeals for the First Circuit, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), a civil rights lawsuit brought under 42 U.S.C. § 1983.  The plaintiff in Glik had been arrested and charged with violating the Massachusetts wiretapping statute “for using his cell phone’s digital video camera to film several police officers arresting a young man on the Boston Common.”  He contended, inter alia, that his arrest violated his rights under the First Amendment.  The First Circuit agreed, finding “unambiguously” that there is “a constitutionally protected right to videotape police carrying out their duties in public."  This ruling effectively immunizes such conduct not only in Massachusetts, but also in Maine, New Hampshire, Rhode Island, and Puerto Rico (the extent of the First Circuit's jurisdiction).

More recently, the U.S. Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) ruled in ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012), that the Illinois wiretapping statute "likely violates the First Amendment's free-speech and free-press guarantees" when applied to private citizens who videotape police officers performing their duties in public.  The U.S. Court of Appeals for the Eleventh Circuit (which covers Alabama, Florida, and Georgia) likewise has declared, in Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), that there is "a First Amendment right, subject to reasonable time, manner, and place restrictions, to photograph or videotape police conduct."

Although not every jurisdiction is covered by one of these rulings, in my opinion the clear weight of judicial authority holds -- quite properly -- that the First Amendment protects a person's right to videotape the police.

Of course, when police officers arrest someone for videotaping them, they usually don't give that as the reason.  Instead, they charge the person with some other crime, most commonly obstructing governmental administration (as in Emily Good's case) or disorderly conduct.

In New York, the offense of obstructing governmental administration (P.L. § 195.05) provides:

A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act . . . .

To be guilty of obstructing governmental administration, therefore, a person must physically interfere with police activity; videotaping police officers in an unobtrusive manner does not violate the statute.  Emily Good, obviously, was not guilty of this offense.  She was wrongly, indeed maliciously, arrested by the police for videotaping them.  I assume she received some kind of civil settlement.

In New York, the offense of disorderly conduct (P.L. 240.20) provides:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a  risk thereof:  (1) He engages in fighting or in violent, tumultuous or threatening behavior; or (2) He makes unreasonable noise; or (3) In a public place, he uses abusive or obscene language, or makes an obscene gesture; or (4) Without lawful authority, he disturbs any lawful assembly or meeting of persons; or (5) He obstructs vehicular or pedestrian traffic; or (6) He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or (7) He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

Although police officers dish out "dis con" charges like they're candy, the statute itself is fairly narrow.  It requires showing both "intent" to cause "public inconvenience, annoyance or alarm" and also a specific form of prohibited disruptive conduct -- none of which applies to unobtrusively videotaping police officers performing their duties in public.

In sum, videotaping police officers in New York is legal, constitutionally protected conduct.  A person who is arrested for engaging in this conduct may have a claim for false arrest and should consult a civil rights attorney immediately.

The Warshawsky Law Firm represents the plaintiffs, Edwin and Elizabeth Fernandez, in a civil rights lawsuit against four NYPD police officers who illegally entered and searched their Staten Island home in December 2009.  The lawsuit is pending in the U.S. District Court for the Eastern District of New York (located in Brooklyn), Case No. 10-CV-1624, before Hon. Edward R. Korman.  (For a copy of the complaint, see here.)

The lawsuit presents a very important issue concerning the limits on police authority when responding to 911 calls about alleged "arguments" inside a person's house, even when the evidence on the scene shows that no argument is taking place and no person is injured or in danger.  The basic rule is that police officers may not enter and search a private residence unless they have (i) the consent of the occupants or (ii) a valid warrant or (iii) are confronted with an emergency situation requiring prompt action (referred to as "exigent circumstances").  This case tests the meaning and application of the "exigent circumstances" doctrine.  The City of New York argued, essentially, that any time police officers receive a 911 call, they have legal authority under the exigent circumstances doctrine to enter and search a person's house.  As we argued in our opposition brief, the city "is seeking an extraordinary and unjustified expansion of police authority to enter and search a private residence without a warrant."  (For a copy of our brief, see here.)

Significantly, in a decision issued today, Judge Korman denied the city's motion for summary judgment, including denying the police officers' motion for qualified immunity.  (For a copy of the decision, see here.)  Based on the undisputed evidence, viewed in the light most favorable to the plaintiffs, the court found that, despite a 911 call made by a neighbor about an alleged "dispute" inside the plaintiffs' home (which multiple witnesses denied), "the observations of the police officers were not sufficient to raise any concerns about the safety of persons inside the Fernandez home" and "there was no immediate need for an exigent-circumstances entry."

The case is scheduled for a jury trial beginning March 11, 2013.  Steven M. Warshawsky, Esq., is lead counsel for the plaintiffs.

As an employment lawyer, I regularly am consulted by people who believe they have been discriminated against at work.  After describing the facts to me, they always ask, first, "do I have a case?" and, second, "how much is my case worth?"  In this blog entry, I am going to discuss the second question.  In short, how do employment lawyers assess the "value" of a potential discrimination case?

The answer to this question begins with the statutory framework that applies to a person's case.

There are many statutes, federal, state, and local, that prohibit various forms of workplace discrimination.  The most frequently litigated anti-discrimination laws in New York courts are Title VII of the Civil Rights Act of 1964 (Title VII) (which prohibits discrimination based on race, color, religion, sex, and national origin), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), 42 U.S.C. § 1981 (which prohibits discrimination based on race), the New York State Human Rights Law (NYSHRL) (which prohibits a wide variety of discrimination), and the New York City Human Rights Law (NYCHRL) (which also prohibits a wide variety of discrimination).  Importantly, these different statutes provide different remedies.  That is, they entitle an employee whose rights are violated to different kinds of relief.

For example, an employee who proves his or her rights were violated under Title VII may recover monetary damages, including lost income and benefits, reimbursement for out of pocket expenses, compensatory damages for mental and emotional pain and suffering, and punitive damages (except against a government defendant).  The employee also may be entitled to "equitable" relief, including hiring, promotion, and reinstatement, depending on the circumstances.  A prevailing plaintiff (or his or her attorney) also is entitled to receive reasonable attorney's fees and costs.  The purpose of these remedies is to make the plaintiff "whole" -- that is, to restore the plaintiff to the same position he or she would have been in, assuming the discrimination never had happened.  However, under Title VII compensatory and punitive damages are capped, depending on the size of the employer.  The maximum combined compensatory and punitive damages is $300,000 (for employers with more than 500 employees).  The same scheme applies to the ADA. 

Both Section 1981 and the New York City Human Rights Law provide the same array of relief as Title VII, but there are no caps under these statutes.

Under the ADEA, no compensatory or punitive damages are available.  The ADEA only provides for the recovery of lost income damages, plus an equal amount in "liquidated damages" (intended as a substitute for compensatory damages), as well as attorney's fees and costs. 

The New York State Human Rights Law, like the ADEA, provides more limited remedies, including lost income damages and compensatory damages (without a cap), but no punitive damages or attorney's fees.

In short, evaluating how much a case is worth depends on which statute applies to the person's claim.  A claim covered only by the New York State Human Rights Law, for example, may be "worth" less than a claim covered by the New York City Human Rights Law.  For purposes of this discussion, I will assume that the New York City Human Rights Law -- which provides the broadest relief available to employees -- applies to a hypothetical claim for wrongful termination based on age discrimination.

The first step is to determine (estimate is a better word) a person's lost income damages.  Lost income damages are the most "objective" and "proveable" form of a plaintiff's damages.  Technically, lost income includes back pay and front pay.

"Back pay" refers to the amount of money that a person lost from the time of the adverse employment action (e.g., termination) to the time he or she obtains a court judgment (or to the present moment).  "Front pay" refers to the amount of money that the person will lose in the future, usually for some period of time after he or she obtains a court judgment.  Front pay is awarded when reinstatement is not a viable option.  Front pay can be more complicated and more speculative, and is less likely to be awarded in a lawsuit.  But the basic analysis for both back pay and front pay is the same:  How much was the person earning when fired?  How much would the person have earned in the future if still on the job?  Now subtract from that number the amount of money earned at another job or in the form of government benefits.  The difference is lost income damages.

For example, suppose a person was making $50,000 when fired and is out of work for one year, but receives $15,000 in unemployment benefits.  The estimated lost income damages is $35,000.  Repeat the analysis, as necessary, for as long as the person suffers lost pay as a result of the discriminatory termination.

Note:  If a person has not suffered any lost income as a result of the employer's discrimination -- for example, in cases involving only workplace harassment or where a fired employee quickly finds a better paying job -- then this component of the plaintiff's damages will be zero. 

Next, are there any actual damages, e.g., unpaid bills for needed psychological counseling?  If so, how much?

This brings us to compensatory damages, which are more difficult to estimate.  For "garden variety" cases, where the plaintiff does not suffer from any diagnosed mental health problems, they can range from $1000 (or less) to $50,000 (or more).  However, amounts greater than $50K rarely are awarded for "garden variety" cases (and courts often will limit such awards to no more than $100,000).  Of course, plaintiffs who experience more severe forms of mental and emotional pain and suffering may be able to recover larger amounts of compensatory damages.  But these cases almost always require supporting testimony by a mental health professional as well as relatives and friends.  As a general rule, when evaluating the "worth" of an employment discrimination case, I think it is prudent to assume an amount of compensatory damages on the low end of the possible range.

Like compensatory damages, punitive damages are very difficult to estimate.  Punitive damages are awarded to punish a defendant for maliciously mistreating an employee, but are not automatically awarded whenever a plaintiff wins a discrimination case.  Assuming such damages are awarded, they can range anywhere from a token amount, say $100, to many tens of thousands of dollars (or more).  Nevertheless, when evaluating the "worth" of a case, I think it is prudent to assume zero punitive damages, except in egregious circumstances.

Lastly, attorney's fees and costs, while recoverable, are not really part of the "worth" of the case, but simply reimburse the plaintiff (or his or her attorney) for the expenses of bringing a lawsuit against the employer.  Accordingly, I do not think that attorney's fees and costs should be factored into the "worth" of the case, insofar as this is an estimate of the monetary payment that the plaintiff might receive in the case.

In sum, lost income damages are the single most important component in assessing the "value" of a typical employment discrimination case.  Compensatory damages -- conservatively estimated -- are the second most important component.  Actual damages, if any, also should be considered.  In my opinion, punitive damages should not be considered for the typical case.  Neither should attorney's fees and costs.  Of course, estimating the "worth" of a case in this manner will result in a lower number.  But I think this is appropriate when balancing the overall costs and benefits of pursuing litigation against an employer. 

Unfortunately, estimating the "worth" of an employment discrimination case is difficult and imprecise.  Unlike personal injury cases, which have a fairly well-defined range of monetary values for different kinds of physical injuries (mainly determined by insurance companies), the recoveries in employment discrimination cases vary quite widely.  This is why I believe that employment lawyers and their clients should take a cautious, conservative approach to estimating the value of their cases. 

As an employment lawyer, I frequently receive calls or emails from potential clients telling me that their boss is "always harassing" them at work and asking me if they "have a case for hostile work environment"?

Sometimes they do.  Unfortunately, more often they do not.  Why not?  Two main reasons:  First, because the kind of harassment they are experiencing is not prohibited by federal, state, or city employment laws.  Second, because the amount of harassment they are experiencing is not sufficiently serious to be actionable in court.

Regarding the first reason, workplace harassment is not illegal unless it is based on an employee's "protected characteristic."  The term “protected characteristic” refers to certain physical and social traits that are deemed by the law to be unrelated to a worker’s occupational abilities, including age, sex/gender, race/ethnicity, religion, marital status, pregnancy, disability, and sexual orientation.

Federal, state, and city employment laws only protect workers from discrimination, including workplace harassment, based on their protected characteristics.  These laws do not protect workers from "unfair" treatment generally, nor do they impose a "general civility code" on the workplace.  (Of course, any harassment that becomes physically threatening may be illegal under state tort law.) 

Thus, as a general rule, it is not illegal for a boss to criticize workers harshly, to call them insulting names, or to use profanity.  On the other hand, if the harassment is directed at an employee's sex or race or disability or other protected characteristic, then it is illegal.  Indeed, the hallmark of an unlawful hostile work environment is the use of discriminatory epithets about a person.

The use of a few epithets, however, usually is not enough to create an unlawful hostile work environment.  Although the use of any epithets may upset the employee, to be actionable in court the workplace harassment must be sufficiently severe or pervasive that a reasonable person in the employee's position would find the overall work environment to be hostile or abusive.

In making this determination, courts examine the totality of the evidence, including the frequency and severity of the incidents, whether they were physically threatening or humiliating, whether they interfered with the plaintiff’s job performance, and whether they affected the plaintiff psychologically.  As a general rule, incidents must be more than isolated or episodic; they must be sufficiently continuous and concerted to be deemed pervasive.  However, there is no fixed number of incidents that a plaintiff must endure to establish a hostile work environment.  Even a single incident can create a hostile work environment if it is sufficiently severe.  On the other hand, petty slights, minor annoyances, and simple lack of good manners are not enough to create a hostile work environment.

In other words, the law imposes a threshold level for harassing conduct in the workplace.  If the alleged harassment falls below this level, it is not actionable in court, i.e., the employee does not have a case.  If the alleged harassment exceeds this level, however, then the employee does have a case.  Importantly, federal, state, and city laws do not impose the same threshold level.  The New York City Human Rights Law imposes a significantly lower level than federal and state law, which means that employees in the five boroughs enjoy greater legal protection from workplace harassment.    

Although there is no mathematical test for determining when the amount of harassment is "enough," a knowledgeable and experienced employment lawyer is able to evaluate a person's situation in light of existing case law and assess the likelihood of success in court.