My offer letter states that I am an “at will” employee. What does that mean?
In New York, as in most states, the basic rule is that an employer may fire an employee at any time, for any reason or for no reason. Likewise, an employee may quit at any time, for any reason or for no reason. This is known as the employment-at-will doctrine. In essence, this means that a worker’s continued employment is not guaranteed and that a worker may be fired without notice and without cause. The vast majority of employees are considered “at will.” Exceptions to the employment-at-will doctrine are found in employment contracts, collective bargaining agreements, and nondiscrimination laws – all of which potentially limit the right of an employer to terminate an employee.
If I am laid off, does my employer have to pay me severance?
Probably not. Currently there is no legal requirement in New York that employers pay severance to workers who are laid off. In most cases, this is a voluntary decision that the employer makes in its discretion, including how much severance to pay (e.g., one week for each year of service). However, an employee may be entitled to severance pay if he/she has an employment contract that guarantees severance pay. Or the employer may have a company policy (e.g., stated in an employee handbook) to pay severance to workers under certain circumstances. However, such policies often are not mandatory and do not give rise to a legal entitlement to severance. The bottom line is that most employees are fortunate to receive any severance pay.
I was fired without cause. Do I have a claim for wrongful termination?
It depends. The term “wrongful termination” means a termination that is in violation of an employee’s contractual or statutory rights. It does not mean a termination that merely was “without cause.” As explained above, most employees are considered “at will” and may be fired for any reason – even a reason that is mistaken or unfair. An example would be an erroneous accusation of stealing from the company, which would be a valid reason for firing an employee. However, if the company violates an employee’s contractual or statutory rights – for example, by failing to abide by the terms of an employment contract or by discriminating against the employee – then the employee may have a claim for wrongful termination.
What types of workplace discrimination are prohibited by law?
There are numerous federal, state, and local laws that prohibit workplace discrimination. However, not all unfair treatment is against the law. Rather, the law only prohibits unfair treatment that is based on one or more “protected characteristics.” The term “protected characteristics” refers to certain physical and social traits that are deemed by law to be unrelated to a worker’s occupational abilities, including age, sex/gender, race/ethnicity, religion, marital status, pregnancy, disability, sexual orientation, and others. Employers may not make employment decisions (e.g., hiring, firing, promotions, job assignments, etc.) based on an employee’s protected characteristics. Different laws prohibit discrimination based on different protected characteristics.
I am disabled. Is my employer required to accommodate me?
It depends. There are federal, state, and locals laws that protect the rights of disabled employees. The term “disabled” has different meanings under different laws. All of these laws not only prohibit businesses from making employment decisions (e.g., hiring, firing, promotions, job assignments, etc.) based on a worker’s disability, but also require businesses to make reasonable accommodations that enable a disabled worker to perform the essential functions of his/her job. Such reasonable accommodations may include altering a disabled employee’s work schedule or providing the employee with assistive devices. These laws impose an affirmative obligation on employers to accommodate disabled workers, so long as these accommodations do not cause an “undue burden” on the company (e.g., in terms of cost or workplace disruptions). However, if a disabled employee is not able to perform the essential functions of the job even with an accommodation, the worker may be fired.
What is the difference between an “independent contractor” and an “employee”?
Generally speaking, an independent contractor is a person who is in business for him/herself and is not the employee of another business. For example, an outside attorney retained by a company to provide employment law advice is an independent contractor; whereas a staff attorney who is on the company’s payroll is an employee. This distinction is important because most employment laws (e.g., minimum wage and overtime laws, nondiscrimination laws, unemployment insurance and workers’ compensation laws, income tax withholding laws) only apply to employees and do not apply to independent contractors. In making this distinction, the key issue is the degree of control exercised by the business over the worker. For example, who decides what, when, where, and how the work is performed? Who provides the facilities, equipment, and supplies? Who is responsible for pay, costs/expenses, and profit/loss? Although the distinction is not always clear, the vast majority of workers, in fact, are employees, not independent contractors. Misclassifying employees as independent contractors, whether unintentionally or on purpose, is one of the most common employment law mistakes made by businesses.
What is the statute of limitations for bringing an employment lawsuit?
It depends on the particular statute under which the employee seeks to assert a claim. Under many federal laws, for example, an employee generally must file a charge of discrimination with the U.S. Equal Employment Opportunity Commission within 180 days (sometimes 300 days) of the alleged discrimination; then, after the EEOC issues a “right to sue” notice, the employee has 90 days to file a lawsuit in court. In contrast, under the New York State Human Rights Law and the New York City Human Rights Law, an employee has 3 years from the date of the alleged discrimination to file a lawsuit in court. Other statutes (e.g., FLSA, 42 U.S.C. § 1981, FMLA, etc.) have shorter or longer limitations periods. Thus, different statutes have different limitations periods. They also have different procedural requirements. Consequently, employees should consult a qualified employment lawyer about any workplace problems as soon as they arise.
Where can I find additional information about federal, state, and local employment laws?
The internet is a very useful tool for learning about employment law. Try searching using your favorite search engines (e.g., Google, Yahoo, Bing, Ask, etc.).
There are several government websites that provide a wealth of information about most employment law subjects:
U.S. Equal Employment Opportunity Commission
U.S. Department of Labor/Wage and Hour Division
New York State Division of Human Rights
New York State Department of Labor
New York City Human Rights Commission
I am a business owner. How I can protect my company and myself from lawsuits brought by employees?
The contemporary American workplace is subject to numerous federal, state, and local laws that impose strict obligations on businesses (e.g., wage and hour laws, nondiscrimination laws, etc.). Many companies, especially smaller companies, do not fully understand the scope of these obligations and, as a result, frequently (albeit inadvertently) violate the law. These violations can lead to costly lawsuits, as well as civil and criminal penalties. In my experience both as a defense attorney and as a plaintiff’s lawyer, the most common employment law mistakes made by businesses are the following (in no particular order):
1. Misclassifying employees as independent contractors. In general, only workers who operate their own separate businesses are “independent contractors.” Few workers meet this test; in fact, most workers are considered “employees” under the law, which means they are entitled to the full range of workplace protections.
2. Misclassifying non-exempt employees as exempt. In general, all employees are entitled to minimum wage and overtime pay, unless they are “exempt” under federal and state law. The exemption rules (e.g., for executive, administrative, and professional employees) only apply in limited circumstances, however; as a result, many employees who are claimed by businesses to be “exempt” in fact are entitled to minimum wage and/or overtime pay.
3. Not complying with state wage payment laws. New York imposes several specific rules regarding how businesses must pay their employees. These rules include providing new employees with written notice of their rate of pay and regular pay date; prohibiting deductions from wages unless for the employee’s benefit and authorized in writing; requiring written contracts for commissioned salespersons; and providing terminated employees with written notice of their last day of work, their last day of benefits, and their right to apply for unemployment benefits.
4. Not having an employee handbook. An employee handbook is an important tool for effective employer-employee relations. It notifies employees of the company’s values, policies, and procedures; promotes compliance with labor and employment laws; and helps create an orderly, efficient, and transparent workplace.
5. Not documenting employee job performance. A well-managed company clearly communicates its employees’ duties and responsibilities (e.g., through written position descriptions), trains and supervises employees to ensure they are meeting these requirements, and provides regular, objective, consistent feedback (e.g., through written evaluations and, where necessary, disciplinary actions). A lack of accurate, complete, contemporaneous documentation can lead to liability in the event of a lawsuit by an employee.
6. Not training supervisors regarding EEO laws. Federal, state, and local equal employment opportunity (EEO) laws prohibit businesses from taking adverse actions against employees (e.g., demotion, termination) for reasons not related to an employee’s job performance, including based on an employee’s race, color, sex, age, disability, religion, national origin, sexual orientation, and marital status (to name the most common “protected characteristics”), as well as in retaliation for an employee’s good faith complaints of discrimination. It is imperative that supervisors be trained on how to manage employees without violating (or appearing to violate) these laws.
7. Not providing reasonable accommodations for disabled employees. Most EEO laws prohibit businesses from taking adverse actions against employees based on certain protected characteristics, but disability discrimination laws also impose an affirmative obligation on businesses to “reasonably accommodate” disabled employees so as to enable them to perform the essential functions of their jobs. Such accommodations may include restructuring job duties, modifying work schedules, or providing assistive devices. Businesses are required to provide a disabled employee with needed accommodations unless doing so would cause an “undue hardship” to the company (e.g., too expensive, too disruptive).
8. Not obtaining releases from terminated employees. When terminating an employee, businesses should try to obtain a release that waives the employee’s potential legal claims against the company. The best way to obtain a release is in exchange for an offer of severance (where appropriate). In general, businesses are not required to pay severance to employees (unless required by an employment contract or a collective bargaining agreement). If they decide to do so (e.g., in connection with layoffs), they should require employees to sign a release in exchange for the payment.
9. Not protecting confidential business information. Every company depends on certain vital, often confidential, information about its business operations, including trade secrets, sales and marketing practices, and customer and client lists. Access to this information should be limited to employees with a “need to know” and should be protected by appropriate nondisclosure, noncompete, and/or nonsolicitation agreements (depending on the nature of the information and the employee’s position).
10. Not consulting a qualified employment law attorney. Perhaps the single most important point to take away from this discussion is that businesses need to consult a qualified employment lawyer to ensure they are in compliance with the increasingly numerous and complex laws that carpet the workplace like a minefield. Large companies usually have attorneys and human resources professionals on staff to assist them in this area. Small- and medium-size companies often do not. Their biggest mistake is trying to navigate this minefield on their own.
How much is my employment discrimination case worth?
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. Commonly 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).
Different damages remedies are available under different laws. The ADA follows the same scheme as Title VII. 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, compensatory and punitive damages are not 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 has been amended recently to broaden the damages remedies available under the statute.
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 ADEA, 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 earns $15,000 from occasional consulting work. 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 $10,000 (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, 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 (and they cannot be awarded against a government employer). Assuming such damages are awarded, they can range anywhere from a symbolic amount, say $1000, to many tens of thousands of dollars (or more). Nevertheless, when evaluating the “worth” of a case, it is prudent to assume zero punitive damages, except in the most 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. Nevertheless, the availability of attorney’s fees provides an incentive for attorneys to handle cases that may be “worth” relatively little money and also provides an inventive for defendants to settle cases before the plaintiff incurs large amounts of attorney’s fees that the defendant will have to reimburse if it loses the case.
In sum, lost income damages generally are the 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 (with the caveat mentioned above). Of course, estimating the “worth” of a case in this manner will result in a lower number than the plaintiff may want to hear. 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, and the recoveries in employment discrimination cases vary quite widely. Moreover, research has shown that plaintiffs in employment discrimination cases frequently are awarded smaller amounts of money than otherwise might be expected given the facts of the case. This is why I believe that employment lawyers and their clients should take a cautious, conservative approach to estimating the value of their cases.
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, but other leave laws may apply. 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.
Is workplace bullying illegal?
Workplace bullying is a too common experience for too many employees, whether blue collar or white collar, hourly or salaried, administrative, technical, or professional. As an employment lawyer, I frequently am called and emailed by people who have been bullied at work by coworkers, supervisors, and/or managers and who want to know their rights. Unfortunately, unless the bullying was motivated by the victim’s membership in a protected class, the victim essentially has no “rights” under existing federal, state, and city employment laws.
This important issue – one that most people are not aware of – was highlighted in a recent decision by the U.S. District Court for the Southern District of New York (SDNY) in the case of Alfred Johnson v. City University of New York, No. 14-CV-587 (Hon. Valerie Caproni). The plaintiff in Johnson was a lecturer in the music department of CUNY’s Medgar Evers College. He alleged that, for more than three years, he had been “bullied” and “harassed” by his department chairman. After complaining about the bullying, first to the college and then to the U.S. Equal Employment Opportunity Commission (EEOC), his appointment was not renewed, which he alleged was retaliation for his complaints.
The plaintiff then filed a lawsuit against CUNY, representing himself (pro se), in which he charged the college with wrongful discharge, failure to hire, failure to promote, and retaliation. However, he did not allege that this mistreatment was based on his race, sex, age, national origin, religion, disability, or any other protected characteristic. At a court conference, the plaintiff confirmed to the judge that “he was not alleging that his Chair’s hostility was motivated by his race, sex, age, or national origin.” Consequently, the judge granted CUNY’s motion to dismiss the lawsuit. The judge explained the basis of her ruling in the opening paragraph of her decision:
“Bullying and harassment have no place in the workplace, but unless they are motivated by the victim’s membership in a protected class, they do not provide the basis for an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2 (Title VII), and any complaint to the Equal Employment Opportunity Commission (EEOC) based on them does not constitute ‘protected activity’ under Title VII. Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.”
The key point is that Title VII and other employment discrimination laws – including, for example, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the New York State Human Rights Law, and the New York City Human Rights Law – only protect employees from mistreatment that is motivated by one or more of their protected characteristics. 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/color, national origin, religion, marital status, pregnancy, disability, and sexual orientation. Importantly, different laws protect different characteristics. A qualified employment lawyer will know which laws potentially apply in each particular situation.
The bottom line is that, for a victim of workplace bullying to be able to sue in court, the bullying must have been motivated by the employee’s protected characteristic(s). This is because the employment discrimination laws only protect against certain kinds of mistreatment, specifically defined in each law. These laws do not protect against bullying, harassment, hostility, meanness, and unfairness in general. Unfortunately for the plaintiff in the Johnson case, this means that his lawsuit against CUNY was doomed from the start. Judge Caproni had no choice but to dismiss the case.