FAQ – Westchester New York Labor & Employment Lawyer

FAQ

I was part a part time employee and signed up to win a full time Quality Control Position. I won the bid. My supervisor changed my position to full time trainee. I continued to do my same job duties except I was full time. After a few months I asked when would I be moving into my new position. I was informed there wasn’t enough funding to place me in the position and that I could not be moved up until a replacement was found. It has been 6 months now and I am still not Quality Control. After speaking with my supervisors and HR he informed me that they had forgotten that they opened a bid for the position and now only have a part time Quality Control position available. Supposedly now the only positions available is the full time trainee position or the part time Quality Control Position.

A: Jordan’s answer: You use the terminology “bidding”, which usually applies in unionized workplaces. If you were coveted by a union contract, you can file a grievance if the union contract was violated. If there was no contract, you have no recourse. You can contact IBEW local Union 1430 to find out more about joining a union to have more voice at work. Http://www.ibew1430.com. (914) 948-3771.

A few months ago I interviewed with a retail store while I was still employed by another retail store. They offered me an asst. manager position for a new location they were opening that had a 1 year lease and after that time was up it is possible they would close the store if it wasn’t doing well but they are also opening a new location downtown that I could be moved to. I ended up taking the asst. manager job and left my previous job, and i’ve been with them for 4 months and now am being told they will close this month and I will be out of a job. I feel like I was duped and this was really a temporary job not a full-time position but they wanted a higher quality employee for this popup shop. Two other employees went through the same chain of events.

A: Jordan’s answer: As the other posts state, without an employment agreement you have no recourse.

I’ve had a chronic medical problem which qualifies for “disability” as defined by the American Disabilities Act (ADA), and I’ve informed my manager and HR of this disability.

Under the FMLA standard, an employee who has completed more than 1,250 hours of employment needs to also work for the employer for at least 12 months prior to become eligible for FMLA. Does the 12 months rule kick in from the date I apply for the leave, or from the date when my medical leave begins?

For example, assume if I complete 12 months of employment on January 1st, can I apply for FMLA on December 20 for a medical leave that begins on January 1st when I satisfy the 12 months rule? Can my employer force me to take medical leave BEFORE my requested date of the leave?

A: Jordan’s answer: Your post has a number of questions embedded in it. To answer the primary question, no, your employer cannot force you to take short term disability IF you can perform the essential functions of the job with or without a reasonable accommodation and you are also qualified to perform the essential functions of the position.

So before exploring FMLA, you should explore requesting a reasonable accommodation. If your employer refuses and all of the elements are met, then your employer is generally discriminating against you.

This assumes you work for an employer that is covered by either the Americans with disabilities act or state discrimination statute; facts that were not provided.

Suing Your Employer

Lawsuits can take years. There are three ways a lawsuit can end: (1) You win, (2) you lose, or (3) you settle. Settling a lawsuit means that you and your employer agree that you will get some compensation in exchange for dropping the lawsuit. Most cases settle around 9 months into the lawsuit. However, some lawsuits can carry on for more than 5 years. It really depends on your objectives and your flexibility. If you want to settle a case and you are not seeking a large amount of money, then you will most likely resolve the lawsuit faster than someone looking to win maximum damages.

 

If you look at Part 4 of this report, you will get a better sense of the lawsuit timeline.

Generally, yes. When you file a lawsuit, it is a public record. So it can come up on background checks and a general internet search.

This is not a legal question but a question that I am asked all the time. The decision to file a lawsuit is a personal decision, not a legal decision. I tell my clients that if they feel strongly about what happened and are suffering, then they should seek to address their claims. But, if going through the process of a lawsuit would cause more emotional damage than it helps, I would discourage them from bringing the lawsuit. Once you file a lawsuit, you have a legal obligation to pursue the claim.

If you are bringing a discrimination lawsuit you, or your attorney, will generally file a claim with the Equal Employment Opportunity Commission and the New York State Division of Human Rights. You can also file a private lawsuit just in New York State Court without going to an agency, but there are issues in doing this.

 

If you file in one of these agencies, after the claim is filed, these agencies will perform an investigation to determine if there is probable cause that discrimination occurred. If they find probable cause, then you can puruse the claim in the agency or file a lawsuit in Federal Court. The process is somewhat complex and the decision of where to file is a strategic decision, which is something that should be discussed with an attorney. You can learn about the filing of these lawsuits and claims here:

https://www.eeoc.gov/employees/charge.cfm, here https://www.eeoc.gov/employees/lawsuit.cfm, and https://dhr.ny.gov/complaint.

There are two ways that you can sue an employer for not paying wages. First, you can bring a private lawsuit to recover the wages. Second, you can generally file a claim with the United States or the applicable State department of labor that enforces these claims.

This question cannot be answered by any lawyer or any person. If you win a lawsuit, its possible that the employer files for bankruptcy and you cannot collect any money, even if you won a trial. On the other hand you can win and collect the full amount of damages provided under the law.

When employees are trying to answer this question, we do an analysis on their current situation. Each employee is entitled to a different amount of a recovery. It is possible to determine the potential recovery and what you believe you should receive if you win a lawsuit. If you did have a valid lawsuit, we would be able to estimate the amount of damages specific to you and create a strategy to support the claim.

It depends on your objectives. Recently studies show that it is better to settle a lawsuit than going to a trial. See here. https://www.nytimes.com/2008/08/08/business/08law.html. However, until you have a settlement offer in front of you and you can assess the strengths and weaknesses of the case, you won’t be able to answer this question.

Losing Your Job and Discipline

The term “at-will” employment is a legal contract term. It means that the contractual (working) relationship between you and your company can be ended at any time by either you or the company. This also means that the terms of work can be terminated or changed at moments notice by the company. You have very few rights over the conditions of work as an at-will employee.

In the United States, you are either (1) an “at-will” employee or (2) protected by an individual contract of employment or a union contract. For the regular working person, the only real option available is forming a union to avoid being “at-will”, which is discussed below.

If you are an “at-will” employee, then your employer can fire you for any reason as long as it is not motivated by either discrimination or retaliation. When I receive a phone call from someone claiming to be wrongfully terminated, I ask two questions: (1) did you recently complain about some violation of the law to your employer or anyone else, and (2) is the reason you are being fired because of some personal characteristic, like skin color. If the answer to these questions is “no”, then your termination may have not been fair, but it was most likely legal.

If you are protected by a union contract, then your boss generally must be able to prove it had “just cause” to discipline you. This is the greatest job protection available to a working person, and it is much more difficult to lose your job.

You are not an “at-will” employee if your boss offered you work for a defined period of time. This does not have to be in writing. If your boss offers you a job for a specified period of time, then that eliminates the “at-will” employment status. However, being an open ended period of time is not enough. For example, if your boss told you that you had a job as long as you performed well, or as long as the company is around, that would not be a defined enough period of time.

Wrongful termination means that your employer fired you for discriminatory or retaliatory reasons. Or in violation of a mass-layoff law. Wrongful termination does not mean that you were fired for unfair reasons. For example, if you come in 5 minutes late repeatedly and that’s because you take public transportation and the early bus drops you off to work an hour early, then your boss can fire you for being late. It might not be fair, but it is not unlawful. You can read more about this at our website here:

https://www.elhaglaw.com/practice-areas/wrongful-termination/

Yes. Generally, your boss can fire you if you are an “at-will” employee who was wrongly accused. This is because your boss doesn’t need a reason to fire you at all when you are an “at-will” employee. There are some exceptions to this, at times if your employer or coworkers wrongly accused you and then told 3rd parties that you committed the acts, you might be able to sue for defamation.

Constructive discharge is a form of termination. Sometimes employers play a game where they try to make you quit so you cannot claim they fired you. If you want to prove constructive discharge, you have to show that the workplace was so unbearable that a reasonable person would not be able to keep the job. It is a very high standard.

The Worker Adjustment and Retraining Notification Act of 1988 (the “WARN Act”) which protects employees, their families, and communities by requiring most employers with 100 or more employees to provide 60 calendar-day advance notification of plant closings and mass layoffs of employees, as defined in the Act. You can learn more about it here. https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act_of_1988

Some states, like New York, have similar statutes that provide notice requirements before a large layoff occurs. It isn’t illegal for the company to close, but in some instances, notice is required. Here is a link to  more information on mass layoff laws for New York workers.
https://labor.ny.gov/workforcenypartners/warn/warnportal.shtm.

Your Pay and Benefits

If your boss did not provide you with your last paycheck, you should contact us or a lawyer of your choice for a free wage evaluation because many times it turns out you were not paid correctly for a long period of time. Your boss cannot retain any money that you earned and must pay you within a certain period of time. Here is more information on the frequency of payment laws in New York.
https://www.labor.ny.gov/legal/counsel/pdf/frequency-of-pay-frequently-asked-questions.pdf

It depends on the agreement between you and your employer. If your employer does not have a policy that states that you lose your paid time off at the end of your employment, then yes you are generally entitled to your pay. You can learn more here:
https://www.labor.ny.gov/workerprotection/laborstandards/faq.shtm#11

It depends, but in most circumstances, yes. Overtime is required under Federal and State law. The Federal Law is called the Fair Labor Standards Act, which you can learn more about here: https://www.dol.gov/whd/regs/compliance/hrg.htm. Under the New York State Law, there are minimum wage Orders that you can learn more about here:

 

 

(2) here https://www.labor.ny.gov/formsdocs/wp/CR146.pdf, and

 

(3) https://labor.ny.gov/formsdocs/wp/CR141.pdf.

Overtime is computed on a weekly basis when you work over 40 hours in a workweek. It is not paid daily. Some people believe that if they work more than 8 hours in a workday that they are entitled to overtime, this is not true. Also, many people who are paid bi-weekly believe that they are entitled to overtime based on the two week pay period, which is also not true. If you are a non-exempt employee, you are entitled to overtime computed each workweek.

No, your boss cannot pay you less than the minimum wage. It doesn’t matter if you even agreed to work for less than the minimum wage. If your boss is paying you less than the minimum wage, then you can bring a lawsuit against them to recover the unpaid wages.

Generally, you are entitled to twice what you were not paid. There are some exceptions, but generally twice the unpaid wages, plus costs and attorney fees. Download our maximize your pay book here, https://www.elhaglaw.com/e-book/, or visit our webpage on unpaid wages here to learn more. https://www.elhaglaw.com/unpaid-wages-overtime-lawsuits/.

Discrimination

Discrimination means that you are being treated differently than others in the workplace. An employer is not allowed to treat people differently than others if the reason is motivated by you belonging to a protected class of persons. An employer is also not allowed to implement policies that have a negative impact on a certain group of individuals. For example, an employer generally cannot implement a policy that says it won’t hire any person that has every been convicted of a crime, unless the crime has a reasonable relationship to the job.

For more comprehensive reading visit our site, https://www.elhaglaw.com/practice-areas/wrongful-termination/, get our free E-Book https://www.elhaglaw.com/e-book/, or visit the EEOC site here:
https://www.eeoc.gov/.

When answering this question, lawyers look to see if the following elements are present:

  1. Do you work at a company with 4 or more employees?
  2. Did something bad happen to you at work?
  • Are you a member of a protected class?
  1. Were you qualified to perform the job at issue?
  2. Does it seem likely that the discrimination occurred because you are a member of a protected class?
  3. Is your employer’s reason for taking the adverse action a lie (“Pretext”)?

If the answer to each of these questions is yes, then more likely than not, your boss is discriminating against you. Check out the website to learn more.

Yes, but only if the pay difference is due to non-discriminatory factors. If the employer has objectively reasonable business reasons for paying employees differently, then this is a permissible action.

Whether you not you have a case depends on if you have enough evidence to prove the case. Many times an employer breaks the law, but you cannot prove it. When you

Hostile work environment is a form of workplace harassment. It generally occurs when the workplace is so unpleasant that a person cannot continue working there. We get many calls about hostile working environments, but usually these calls involve situations where it is only one or two off hand inappropriate comments, which is not enough to violate the law. The conduct must be ongoing, unwelcome and pervasive. You can learn more about it here.
https://www.eeoc.gov/laws/types/harassment.cfm

There are no specific laws about workplace bullying. Many of these laws would fall into the hostile work environment category. But many times people are unhappy about the working environment because of conflicts with coworkers, but generally there are no laws specifically designed to address this situation.

Under certain laws such as the Americans with Disabilities Act, if you suffer from a disability, you are entitled to receive a reasonable accommodation to help you perform the work. For example, if you work at a cash register and have a disability that prevents you from standing for long periods of time, your employer might have to provide you with a chair to allow you to perform the job.

However, if the accommodation you request poses a undue hardship then the employer does not have to provide the accommodation. For example, if the chair you asked for was a lazy-boy reclining chair that cost $1,000, then they most likely would not have to provide that type of chair.

Paid Time off and Leave

In New York City, employees are entitled to paid time off. Working outside of New York City, employees are not entitled to any paid time off from work. Your employer is not required to provide you with vacation time, holidays or personal time.

If you do not have a medical condition that qualifies as a disability under the Federal or State disability laws, or if your health condition is not a serious health condition under the Family and Medical Leave Act, then your employer can fire you for taking too much sick time.

This situation is covered by the Family and Medical Leave Act and the NY Paid Family Leave Act. Under these laws you can find protection to care for certain family members who are suffering from a serious illness. See here for the Department of Labor employee guide to FMLA leave:
https://www.dol.gov/whd/fmla/employeeguide.htm.

Under the Family and Medical Leave Act, https://www.dol.gov/whd/fmla/, an employer cannot fire you if you have a serious health condition and you are taking leave protected by the Family and Medical Leave Act. You can learn the details here: https://www.elhaglaw.com/practice-areas/family-medical-leave-act/

Additionally, if you have a disability, then a reasonable accommodation could be that the employer provide you with extra time off to enable you to deal with your medical condition. You can learn more about disability discrimination here. https://www.eeoc.gov/laws/types/disability.cfm

Improving working conditions and forming a union.

A union is when you and your coworkers decide to work together to collectively improve the conditions at your job. This is called concerted activity. When employees engage in concerted activity at work, they are protected under the National Labor Relations Act. You can learn about that here: https://www.nlrb.gov/.  There are professional unions out there that can provide you with professional representation as well.

All you have to do is speak with your coworkers and decide that you want to make changes at work, and then take action. If you and your coworkers approach your boss and tell them you want anything changed, then it is protected activity. But most times working by yourselves won’t work.

You can employ the services of a lawyer to help your group, or you can reach out to a professional union to assist you in the process. Generally, you can get professional help without having to pay until you obtain the desired changes at work. You can contact us to learn more.

No. The only obligation any employer has is to pay you the minimum wage and overtime if you are not exempt.

Westchester New York Labor & Employment Lawyer