The Warshawsky Law Firm Blog
Monday, December 02, 2013
Metro-North Train Derailment: Accident Victims Must Submit "Notice Of Claim" Within 90 Days Or Lose Their Right To File Lawsuits
There was a terrible train accident this past weekend, when a Metro-North train derailed and crashed in the Bronx. According to news reports (NY Post, NY Daily News), at least four people died and 63 were injured, many seriously, as a result of the crash.
Although the crash still is being investigated by federal and state authorities, there can be little doubt that this "accident" was caused by someone's deadly negligence; perhaps that of the train engineer (who may have been driving the train too fast) or the persons responsible for the maintenance of the locomotive (who may have failed to maintain the brakes in good condition) or the persons responsible for the maintenance of the track (who may have failed to maintain the track in good condition).
Derailments and crashes like this simply do not happen unless the people responsible for operating the train failed to do their job safely.
Update: According to later news reports (NY Post), the train was traveling 82 mph as it entered a 30 mph curve. The engineer told investigators that he "zoned out" just prior to the crash, and by the time he applied the brakes it was too late.
While some people may consider it "ambulance chasing" to talk about lawsuits so soon after the accident, victims of this terrible accident must know their legal rights. If the crash was caused by someone's negligence, as it appears it must have been, then the victims (including the families of those killed) have the legal right to seek compensation for their physical injuries, medical bills, lost income, pain and suffering, and other damages caused by the accident.
Importantly, there are special rules that apply to lawsuits against government agencies like Metro-North Railroad. (For an overview provided by the New York court system, see here and here.)
Under New York law, a person who wants to sue Metro-North Railroad for personal injuries must first file a "notice of claim" with the railroad within 90 days of the accident. In most cases, failure to file a timely notice of claim will prevent the person from pursuing any legal action against the railroad. Even a timely notice of claim may be rejected by the railroad if it is not completed properly.
Quite frankly, this law is designed to shield government agencies from being held responsible for their harmful conduct, by trapping unwary accident victims who do not understand the complex requirements -- and very short statute of limitations -- for suing the government. Unfortunately, even as they are recovering from their injuries and focusing on more important personal and family matters, the law requires that accident victims move quickly to secure their legal rights.
If you or someone you know was harmed by the Metro-North train derailment, please contact a qualified personal injury lawyer immediately. The Warshawsky Law Firm offers free consultations.
Monday, October 28, 2013
The Warshawsky Law Firm Files Race Discrimination Lawsuit On Behalf Of Asian-American Employee Who Was Fired For Using Term "Nigga" In The Workplace
Earlier this month The Warshawsky Law Firm filed an employment discrimination lawsuit on behalf of an employee of the high-end fashion retailer Paul Smith who was fired for using the term "nigga" in the workplace.
The complaint alleges that the plaintiff, who is Korean-American, was fired for using the term "nigga," although her non-Asian coworkers and managers (mostly black and hispanic) used the same term without being disciplined by the company. The evidence shows that the black supervisor who initially reported the plaintiff over the incident applied a racially discriminatory double standard when she told the plaintiff that she "can't use that word" but it was okay for a black employee to use the same term "because he's a black man." The evidence further shows that the store manager who made the decision to terminate the plaintiff made racially discriminatory comments about the plaintiff's ethnic background and used the "nigga" incident as a pretext to terminate her employment.
The plaintiff's lawsuit was filed in federal district court in Manhattan. The complaint asserts claims under federal law and city law for race discrimination in employment. Steven M. Warshawsky is lead counsel on the case.
Friday, October 04, 2013
The Warshawsky Law Firm Files Federal Civil Rights Lawsuit On Behalf Of African-American Brooklyn Man Who Was Falsely Arrested And Beaten By The Police
Today The Warshawsky Law Firm filed a federal civil rights lawsuit on behalf of an African-American Brooklyn man who was falsely arrested and beaten by the police during an apparent "stop and frisk" incident in December 2012.
The lawsuit alleges that the plaintiff, while walking by himself on a public sidewalk in the middle of the day, was accosted and then assaulted by two police officers, without provocation and without any evidence of suspicious behavior or criminal activity. The plaintiff, who was jailed for more than 24 hours following his arrest, required medical treatment for his injuries. Although the police officers attempted to cover up their misconduct by charging the plaintiff with a litany of bogus crimes, including "resisting arrest," the District Attorney's Office subsequently decided not to prosecute.
The plaintiff's civil rights lawsuit was filed in federal district court in Brooklyn. The complaint asserts claims under federal and state law for false arrest, false imprisonment, excessive force, and battery. Steven M. Warshawsky is lead counsel on the case.
Wednesday, September 25, 2013
Unpaid Internships Are Illegal In Most Employment Situations
Unpaid internships are considered by many to be a “rite of passage” for young persons starting their careers. College students and recent graduates alike often find that the only entry-level positions open to them are unpaid internships. Such positions are common in media, publishing, art, fashion, entertainment, politics, and other industries with a creative or intellectual bent, but they are found throughout the business world.
Young persons supposedly gain valuable job experience and “make connections” through unpaid internships, but more often they work long hours doing menial work for disinterested bosses who take them for granted. Indeed, unpaid internships have become a way for many employers to obtain free labor, to avoid paying taxes, and to artificially lower the cost of doing business. Even when unpaid internships provide worthwhile experience, only persons with other means of support (from parents, spouse, savings, etc.) are able to enjoy their benefits.
Unpaid internships are unfair to young persons.
They also are illegal in most employment situations.
The general rule, under federal and state law, is that private, for-profit employers must pay their employees at least minimum wage (currently $7.25 per hour; the minimum wage in New York will rise to $8.00 per hour on December 31, 2013), plus overtime (time-and-a-half) for any hours over 40 in a workweek.
There are several exceptions to this rule, of course, including an exception for “interns." However, these exceptions are narrowly construed and only apply in specific, limited circumstances.
Regarding unpaid internships, the U.S. Department of Labor explains “[t]here are some circumstances under which individuals who participate in ‘for profit’ private sector internships or training programs may do so without compensation.” The DOL applies six criteria in determining whether or not an unpaid internship is lawful (see DOL Fact Sheet #71):
1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
The New York Department of Labor applies a similar set of factors.
Only if each of these factors is satisfied is it lawful not to pay interns for their work.
If these factors are not met, then the interns must be paid the required wages.
In recent years, several lawsuits have been filed on behalf of interns seeking compensation for unpaid wages. In June of this year, a federal district judge in Manhattan ruled that unpaid interns working for Fox Searchlight Pictures were “employees” protected by federal and state minimum wage laws. In his decision, the judge applied the six factors listed above, observing as follows:
Regarding factor #1: “While classroom training is not a prerequisite, internships must provide something beyond on-the-job training that employees receive.”
Regarding factor #2: “Resume listings and job references result from any work relationship, paid or unpaid, and are not the academic or vocational training benefits envisioned by this factor.”
Regarding factor #3: The interns “performed routine tasks that would otherwise have been performed by regular employees”; if the interns “had not performed these tasks for free, a paid employee would have been needed.”
Regarding factor #4: “Searchlight does not dispute that it obtained an immediate advantage from [the interns’] work. They performed tasks that would have required paid employees. . . . The fact they were beginners is irrelevant.”
Regarding factor #5: “There is no evidence [the interns] were entitled to jobs at the end of their internships.”
Regarding factor #6: Although the interns “understood they would not be paid . . . this factor adds little, because the FLSA does not allow employees to waive their entitlement to wages.”
The judge concluded, the interns were “were classified improperly as unpaid interns and are ‘employees’ covered by the FLSA and NYLL. They worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training. The benefits they may have received – such as knowledge of how a production or accounting office functions or references for future jobs – are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer. They received nothing approximating the education they would receive in an academic setting or vocational school.”
If you or someone you know is owed wages for work performed during an unpaid internship, please contact The Warshawsky Law Firm today.
Tuesday, September 17, 2013
Can I Be Fired For Being Pregnant?
Being fired when expecting a child is one of the most difficult, upsetting, and unfair experiences that an employee can face. Unfortunately, pregnancy discrimination occurs every day, at all levels of the economy, affecting blue collar and white collar workers – and their families – alike.
For employees who are the victims of pregnancy discrimination, there are federal, state, and city laws that protect their rights and may allow them to get their jobs back and receive just compensation for the mistreatment they have suffered.
Pregnancy discrimination is a complex topic. Anyone who believes she has been the victim of pregnancy discrimination should consult with a qualified employment lawyer immediately.
The U.S. Equal Employment Opportunity Commission (EEOC) defines pregnancy discrimination as “treating a woman (applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.”
The main federal law protecting the rights of pregnant workers is the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964 to clarify that unlawful sex discrimination includes discrimination based on “pregnancy, childbirth, or related medical conditions.” This law applies to private employers with 15 or more employees, federal, state, and local governments, labor unions, and employment agencies that supply workers to covered employers. As the EEOC explains, the law “forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.”
The New York State Human Rights Law provides similar protection to pregnant employees who work for businesses in New York with 4 or more employees. The New York City Human Rights Law likewise protects pregnant employees who work for businesses in New York City with 4 or more employees.
As a general rule, a covered employer must treat a pregnant employee in the same manner – no better and no worse – than other employees with similar abilities and limitations.
This does not mean that pregnancy can be used as an excuse for poor attendance or poor performance or workplace misconduct. An employer is permitted to discipline or fire a pregnant employee for legitimate reasons unrelated to her condition.
What may an employer not do?
An employer may not refuse to hire a job applicant who is pregnant or who plans to become pregnant. Employers should not inquire about a job applicant’s pregnancy status or childbearing plans.
An employer may not fire an employee who is pregnant or who plans to become pregnant. Employers may not base any employment decisions on the employee’s pregnancy status or childbearing plans.
An employer may not single-out pregnant employees for special conditions or procedures not required of other employees. For example, sick leave policies must be applied the same to pregnant employees as non-pregnant employees.
An employer may not require pregnant employees to take maternity leave. Pregnant employees must be permitted to work so long as they are able to perform their jobs.
An employer may not refuse to cover pregnancy-related conditions as part of a company’s health insurance plan.
An employer may not condition the receipt of maternity leave, health insurance benefits, or other privileges of employment on a pregnant employee’s marital status.
Is an employer required to provide “reasonable accommodations” for pregnant employees?
No, unless the pregnant employee is considered “disabled” within the meaning of federal, state, or city law. Generally, a “normal” pregnancy does not qualify as a disabling condition. However, if the employer provides workplace accommodations for other employees with health-related conditions, then pregnant employees must be afforded the same consideration.
Is an employer required to allow pregnant employees to take maternity leave?
No, unless the employer is covered by the Family and Medical Leave Act (FMLA), which is a federal law that applies to businesses with 50 or more employees, federal, state, and local governments, and public and private elementary and secondary schools. Under the FMLA, a pregnant employee who has worked the requisite number of hours is entitled to up to 12 weeks of job-protected leave for the birth of a child or to care for a newborn. Currently there are no New York state or city laws comparable to the FMLA. However, regardless of the FMLA, if the employer provides temporary or short-term disability leave, then pregnancy-related conditions must be treated the same as non-pregnancy-related conditions.
Do nursing mothers have the right to express breast milk at work?
Yes. Under New York State Labor Law § 206-c:
An employer shall provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following child birth. The employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy. No employer shall discriminate in any way against an employee who chooses to express breast milk in the workplace.
This law applies to all public and private employers in the state, regardless of the size or nature of their business.
Under federal law, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207, was recently amended to add subsection r:
Reasonable break time for nursing mothers
(1) An employer shall provide –
(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and
(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.
The FLSA applies to almost every employer in the country, including federal, state, and local governments, schools and universities, hospitals and institutions, and private businesses with annual sales or revenues of $500,000 or more.
If you or someone you know has been the victim of pregnancy discrimination, please contact The Warshawsky Law Firm today.
Thursday, March 07, 2013
The Warshawsky Law Firm Successfully Opposes Motion To Dismiss In Civil Rights Lawsuit Against The City Of Poughkeepsie
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.
Thursday, February 21, 2013
New York Appellate Division, First Department, Declares Private Right Of Action Under Criminal Records Sealing Statutes, CPL 160.50 and CPL 160.55.
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.
Sunday, February 17, 2013
How Can I Sue The NYPD For False Arrest?
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.
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.
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.
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.
Thursday, February 14, 2013
The Warshawsky Law Firm Obtains Judgment Against City of New York For Victim Of False Arrest
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!
Wednesday, February 13, 2013
The Warshawsky Law Firm Successfully Opposes Motion To Transfer Venue In Retaliation Case Against Federal Aviation Administration
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.
Monday, February 04, 2013
Are Illegal Immigrants Protected By Labor And Employment Laws?
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.
DISCLAIMER: Attorney advertising. Prior results do not guarantee a similar outcome. This website is offered for general informational purposes only and does not constitute legal advice. No attorney-client relationship is created by this website. No warranties are made with respect to this website.
The Warshawsky Law Firm represents clients in employment law, civil rights law, and litigation in the New York City metropolitan area, which includes Manhattan, Bronx, Brooklyn, Queens, and Staten Island, as well as Nassau, Suffolk, Westchester, Rockland, Duchess, Putnam, Orange, and Sullivan Counties.