​A recent case in New York gives some guidance on the type of evidence an employee needs to present in order to prove claims of disability discrimination and a hostile work environment under the New York State and City Human Rights Laws.

The plaintiff in the case worked for United Cerebral Palsy of New York City for about two years.  During that time, she developed a variety of physical ailments including pain in her hands, wrists, and arms.  Her physician diagnosed her with tendinitis and initially prescribed physical therapy.  As her condition worsened, plaintiff qualified for workers’ compensation and took a medical leave of absence.

Plaintiff claims that, when she returned to work, she was discriminated and retaliated against in several ways.  She was assigned to a different floor and to work with a different supervisor who, plaintiff claims, created a hostile work environment.  She contends that her supervisor criticized her accent, mocked her English, and humiliated plaintiff in front of others by criticizing her English proficiency.
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Less than three months after plaintiff returned from her leave of absence and started working for the new supervisor, she was fired.  She filed a lawsuit for disability discrimination and a hostile work environment in violation of the New York State and New York City Human Rights Laws.

In order to prove a claim of disability discrimination under the New York State Human Rights Law, the plaintiff must prove, by a preponderance of the evidence, (a) that she suffers from a disability; (b) that she was qualified to hold the position at issue; and (c) that she suffered an adverse employment action or was terminated from employment under circumstances giving rise to an inference of discrimination.  

Once the plaintiff presents evidence to prove these three facts, the burden of proof shifts to the employer to rebut the presumption of discrimination by presenting evidence that there were legitimate and nondiscriminatory reasons to support the adverse employment action or termination.  The plaintiff then must present evidence to prove that the employer’s reasons are false or pretextual.

In this case, the court found that the plaintiff presented enough evidence of discrimination to justify presenting her disability claims to a jury.  There was no dispute that the plaintiff suffered from a disability, was qualified for the position, and was terminated.  The court also found sufficient evidence that the termination of plaintiff’s employment occurred under circumstances giving rise to an inference of disability discrimination because her supervisor began to single her out after she became disabled.  Specifically, she was transferred to a different floor upon her return from leave, assigned inferior job duties, denied access to a computer, a desk and a log-in code, continuously monitored during work hours, repeatedly written up over a short period of time, and denied a cost-of-living raise awarded to all other employees. 

To the extent the employer tried to defend its actions by claiming that plaintiff’s work performance was deficient, the court found that this defense raised factual issues that had to be decided by a jury.  In the words of the court:
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“Defendants’ assertion that it did not engage in any discrimination towards plaintiff is simply a question of fact to be resolved by the fact finder.  The Court, on a motion for summary judgment, cannot credit defendants’ account.  Defendants will be able to present at trial their version of events that plaintiff was often missing from her work station and was routinely late or left work early without permission.”

In order to prove a claim for a hostile work environment, a plaintiff must show that she was subjected to inferior terms, conditions or privileges of employment because of her membership in one or more protected categories.

It is important to emphasize that the hostile work environment must be connected to discrimination.  It is not enough to show that a manager or supervisor is a mean, nasty person who makes life miserable for everyone.  An employee claiming that they were subjected to a hostile work environment must prove that they were singled out because of their race religion, disability, gender, sexual orientation or other impermissible reason.

In this case, the court found sufficient evidence that the employer engaged in discriminatory conduct that rose to the level required to support a claim of hostile work environment.  The discriminatory conduct included the supervisor mocking plaintiff's accent in the presence of her coworkers, claiming that she did could understand plaintiff, and taunting plaintiff with offers to educate her on how to speak English.  In addition, there was evidence that the supervisor engaged in excessive monitoring of plaintiff by reviewing surveillance footage to determine when plaintiff arrived at the office and when she left for to the day, including monitoring when plaintiff left her desk for a bathroom break.  
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Significantly, there was no indication that the supervisor engaged in such close tracking of any other employee under her supervision.  According to the court, the evidence was sufficient to support a hostile work environment claim because the supervisor’s conduct created a work environment in which the plaintiff was routinely subjected to harassment, intimidation, and ridicule on a weekly or even daily basis.

As this case illustrates, the key to winning your claims of disability discrimination and a hostile work environment is pulling together evidence that you were treated less favorably than other employees, and that you were treated less favorably because of discrimination.  Doing that effectively requires the assistance of an experienced employment lawyer.

To find out if you have enough evidence to prove your claims, call us at (212) 601-2728.  The consultation is free and completely confidential.  And if you have a strong case, we will represent you on a contingency fee basis.  This means that you will not owe us any legal fees unless you win.

​Individuals who have medical conditions that make them susceptible to COVID-19 complications may be entitled to protections under the Americans with Disabilities Act.  The same is true for individuals who have recovered from the virus but continue to suffer from fatigue, respiratory issues, or difficulty concentrating.
 
Your employer may be required to give you a reasonable accommodation such as changes in your work schedule or location, physical changes to your workspace, or technology solutions that allow you to work remotely.
 
Your right to an accommodation will depend on the nature of your medical condition, the nature of your work, and whether a reasonable accommodation is possible.
 
This post provides some basic information about your right to a reasonable accommodation.  If you have specific questions, call us at (212) 601-2728 to schedule a consultation.
 
The Broad Definition of Disability
 
A disability is any mental or medical condition that substantially limits your ability to perform a major life activity as compared to most people in the general population.
 
Major life activities include a functioning immune system and normal digestive, bowel, bladder, neurological, and respiratory functions.  Major life activities also include manual tasks, walking, standing, lifting, bending, speaking, breathing, concentrating, thinking, communicating, and working.
 
Individuals with weakened immune systems may require greater protection from possible COVID-19 infection than people in the general population.  Individuals who have recovered from a COVID-19 infection may still have effects such as memory loss, fatigue, fever, shortness of breath, chest pain, and severe diarrhea. 
 
These conditions may be considered disabilities that justify asking your employer for a reasonable accommodation.
 
Your Right to a Reasonable Accommodation
 
Once it is established that you have a disability, the key question becomes whether you can perform the essential functions of your job with a reasonable accommodation.  What is reasonable will depend on your specific circumstances.
 
Many different types of accommodations have been found to be reasonable.  Simple changes such as adjusting your work schedule, greater distancing between desks or work stations, and the provision of masks and hand sanitizers are almost certainly reasonable accommodations today, because most employers are taking these types of precautions for all employees.  It also may be reasonable to require an employer to modify an employee’s workspace, provide technology to allow an employee to access files and work remotely, allow an employee time for medical appointments, and re-assign marginal job functions to other employees.
 
The employer does not have to create a new position or to spend an unreasonable amount of time or money to accommodate you.  Reasonableness will be decided based on the specific type of work you do and the cost of providing an accommodation.
 
Finding a Reasonable Accommodation
 
The process of finding a reasonable accommodation begins with you, the employee.  Unless your disability and need for accommodation are obvious, you must tell your employer that you need an accommodation.  Once you do that, the law requires your employer to engage in a good faith, interactive process with you.  You and your employer must work together to determine whether a reasonable accommodation is possible.
 
You should be prepared to propose a reasonable accommodation that will allow you to perform the essential functions of job without imposing an unreasonable burden on the employer.  For this reason, we recommend that you speak with your doctor or other healthcare provider before talking to your employer.  Ask your healthcare provider to advise you on what you should and should not be doing at work – and whether you should go to an office or other workplace at all.
 
By coming prepared with a reasonable proposal, you will force your employer to accept your proposal, come up with reasonable alternatives, or justify their refusal to accommodate you.
 
Protection from Retaliation
 
An employer is not allowed to retaliate against you because you asked for an accommodation.  The law is very strict in this respect, and retaliation is fairly easy to prove.  If you asked for an accommodation and the employer took an adverse action against you shortly after that, you have a good case for compensatory and punitive damages, as well as attorneys’ fees and costs.
 
Monetary Damages and Reinstatement
 
If your employer refuses to give you a reasonable accommodation for a disability, then you have the right to recover compensatory damages for lost wages and benefits, out-of-pocket expenses, and emotional distress, plus attorneys’ fees and costs.  Depending on how the employer responded to your request, you may also recover punitive damages.
 
Getting Started
 
If you need an accommodation to perform your job without jeopardizing your health, here are three steps you should take as soon as possible.

• Talk to your doctor or other healthcare provider.  Describe your workplace and the nature of your work.  Ask them what steps your employer should take to protect your health.  Having a medical expert describe the conditions that will keep you safe will give you a solid ground for requesting an accommodation.

 

• Notify your employer that you need an accommodation.  This can be done by notifying your human resources department or a supervisor or manager.  Make the request in writing or by email so you have a record.  Promptly complete and return any forms they give you to fill out.

 

• Consult with an experienced employment lawyer.  While most employers will work with you to reach a reasonable accommodation, you should get legal advice to make sure you have acted properly in case you have to bring a legal action.

 
You can schedule a consultation by calling John Howley, Esq. at (212) 601-2728.

​John Howley:  Thank you for talking to us today, Glenn.  As you’ve said, we’re in uncharted waters with the current situation.  Most of us don't want to go to a doctor’s office or anywhere else where sick people have been.  But people who have been injured don't have that luxury.  They may need treatment and they may need to create a record of treatment to prove their injuries.  So what do they do?

Glenn Slavin:  I think it's an important topic, John.  First and foremost, you have to balance safety versus the need to document and be fastidious in the treatment that you need to receive.  We've, frankly, been faced with this even before sheltering at home was required.

People were speaking up and speaking out and saying, listen, I'm age protected or I live with age protected people.  Or I live with people that have co-morbidities and I'm really frightened about going to see Dr. Smith for a workers' compensation evaluation, or for a need for treatment exam or for physical therapy for my lumbar spine, which was injured in the accident.

And I think that's all good common sense.  Frankly, I'd like to see clients defer to that common sense, especially at this time.  I don't expect that this dynamic is going to change quickly.  We'll see a lifting of some of these social restrictions, but we're never going to return, I don't think, to that which was done before.  There's going to be a lot of caution in society and that's probably a good thing.

John Howley:  How should clients think about what must be done now and what can be deferred?

Glenn Slavin:  So I think for clients, what we need to do, is we need to always be thinking in terms of what is essential versus nonessential.  They're doing that with surgery now.  Essential surgeries are those that are life threatening or deemed to be life threatening.  Non-essential surgeries are put on hold.  That's a good working definition for today's client and the appointments that they need to see.

John Howley:  My niece is a physical therapist manager and they've basically shut down.  Because while you can deteriorate if you don't get physical therapy on a regular basis, putting it off usually is not life threatening.  Whereas Covid-19 is potentially deadly, especially for the older population.

So what does a client do if they've been in an accident or had an injury on the job, and ordinarily they would go to physical therapy?  What do they do and how do you think it'll impact their case later on?

Glenn Slavin:  If it's done right, it will not have an adverse impact down the road.  But the emphasis is on doing it right.  What's right is probably different for each client, but several ideas come to mind. 

For example, I recently had a conversation with an insurance adjuster and a defense attorney.  We talked about the concept of telemedicine in a workers' compensation setting where you have injured workers who have to check in with authorized treating doctors.

John Howley:  How does that work?

Glenn Slavin:  Sometimes a telemedicine conference by phone or FaceTime or Zoom is a very valuable asset.  The doctor doesn't need to do range of motion examinations, face-to-face, live.  That can be done over video conferencing.  And I've seen great reception to this because, let's face it, doctors want to keep going.  And they can't necessarily keep going without staff, without people to transcribe their notes, without billing people to process what's going on in their office.

John Howley:  What about the actual therapy itself?

Glenn Slavin:  Home physical therapy is absolutely critical.  It is often very effective when someone either can't go to physical therapy because they're not open, or it's just not a good idea to be doing exercises or rehabilitation in an environment which could lend itself to contracting the Covid-19 virus.

Physical therapists can give, either by video or in written form or verbally over the phone, basic exercises and basic modalities that can make someone feel good and help them progress as they battle their injuries in the short run.  Now while these are not substitutes for actually laying on of hands that a physical therapist or rehabilitation specialist would do, they certainly get someone through the short run.

John Howley:  Are these things that have actually been done?

Glenn Slavin:  Ice or a heat elevation, those things are all good and they're things that people do all the time.  Getting a TENS unit from Amazon delivered to your doorstep can also provide for electronic stimulation to a body part.  All very, very important.  A lot of the physical therapy modalities are available online or could be scanned and emailed to someone for them to follow and do gentle stretching exercises in the privacy of their own home.

John Howley:  One of the big issues is what will insurance cover? I know that Medicare and Medicaid have come out with a lot of telemedicine changes in response to COVID-19.  Some private insurance companies are encouraging patients to use telemedicine.  Do you see that happening, where clients will be able to get coverage?  And where the practitioner will be able to submit their bills and be paid for telemedicine?
 
Glenn Slavin:  I see insurance companies doing a lot of things, waiving premiums, waiving copays, providing much more flexibility.  For the simple reason is, I think it's bad optics not to.  I don't think there is a judge on planet earth that is going to penalize that injured person because they didn't want to go down to the doctor's office in the midst of this COVID-19 pandemic, especially when our state and local and national officials are telling us not to.  So I think they don't have any choice but to be more flexible.

John Howley:  How about the courts?  What do you see courts doing with injury cases during this pandemic?

Glenn Slavin:  The paradigm is shifting now where things are being permitted that would not otherwise be permitted previously.  For example, the courts are approving settlements and other things telephonically without the necessity of the client's signature or the signature being done by facsimile, which was never acceptable in the past.

John Howley:  What else can someone do to help you as their lawyer in their injury case at this time?

Glenn Slavin:  Something I encourage all of my clients to do even in non-global pandemic times is to keep a diary.  I would certainly suggest that they do it now.  The diary is important for a lot of reasons.  It helps remind a person of the things that they're going through and the things that they've done.  And if months from now, they’re asked in a deposition, well, during the pandemic, you certainly didn't go to physical therapy, the person can say that's not true.  I did home physical therapy at the direction of my therapist and these are the kinds of exercises I did.  This is how often I did them, this is how long each session was.  A diary provides an excellent way to document the nature and extent of their injuries and the home treatment they did.

John Howley:  That's a great idea. Do you recommend that they keep that separate from any personal diary they may have?

Glenn Slavin:  I definitely do, John, and that's a great point.  Because obviously when things are discoverable, all things are discoverable.  You may have some private thoughts and private things in a personal diary that are unrelated to your physical injury and that you would not want shared in a litigation.

I tend to use these diaries as a refreshing tool and a study guide, much like I might have a client review his or her deposition in advance of trial.  And so to that end, I think it is a good tool to orient the person to the pain that they were experiencing, how difficult things were, and the efforts that they made to get themselves better despite a global pandemic.

The other thing that's very important is, the more a person stays in touch with their attorney and whoever else, the doctor and the insurance company, the better off that they'll be when the smoke settles and the dust clears on this global pandemic.

John Howley:  Have you changed anything in terms of working with insurance companies and defense lawyers?

Glenn Slavin:  I've been very aggressive, I guess is the right word, in sending an email to the insurance people, to the defense people, to the insurance adjusters, to nurse case managers, the doctors.  It always starts off the same.  I hope this email finds you well, safe and healthy.  As you know, I represent a client and this is what we're faced with given this time.  We seek your guidance and understanding and suggestions as to how to get through it.  It's affecting all of us.  It's not just affecting the injured person.  So we all have to kind of get in the boat and row together.  That kind of thing never hurts.  It's always very positive.

John Howley:  Glenn, these are really helpful tips.  I appreciate you taking the time to give clients comfort that they do have things they can do at this time to protect their health and their legal claims, even though they can't do everything they want to do.

Glenn Slavin:  My pleasure, John.

John Howley:  A final word to our readers.  If you have been injured and need a lawyer in New Jersey, you can contact attorney Glenn Slavin at (732) 726-3307.  He is working through this crisis to make sure you get the representation you need.  You can also visit his law firm's web site at http://www.slavin-morse.com/

Your employer must protect you from COVID-19 exposure in the workplace.  An employer that does not take all feasible steps to protect you from this deadly virus is acting illegally and irresponsibly.

Depending on the type of work you do, your employer may be required to provide you with a modified workplace, Personal Protective Equipment (PPE), training on how to use it properly, instructions on what to do when it is worn or damaged, and proper methods for decontaminating PPE that is re-used.

The Occupational Safety and Health Act contains a “General Duty Clause” that requires employers to protect employees from any recognized hazards that are causing or likely to cause death or serious physical harm.  The text of this clause is broad and covers a wide range of hazards in the workplace:
 
"Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

COVID-19 easily meets the definition of a recognized workplace hazard that is causing or is likely to cause death or serious physical harm.  The question for most workers is:  What is a feasible method to protect employees from this deadly hazard?

In this article, we describe some of the protections that should be adopted.  If you have questions about specific protections that may be required in your workplace, call us at (212) 601-2728 to schedule a consultation.

Minimum Health and Safety Protections

The precautions an employer must take depend on the type of work and the risk of transmission.

Healthcare workers and first responders are in the high- and very high-risk categories.  Retail jobs where there is frequent interaction between people, but no known cases of infection, are in the medium risk category.  Jobs where there is little or no contact with co-workers and members of the public are considered low-risk jobs.

Every employer should take some basic steps to protect all employees from COVID-19 exposure.  This may require work space changes to allow for social distancing, whether by rearranging the work space, using physical barriers, or allowing employees to work from home.  It may also require frequent use if disinfectants to clean the workplace, closing common areas such as break rooms, or limiting access to one person at a time in restrooms.

Personal Protective Equipment Requirements

When social distancing cannot be maintained, your employer should provide PPE that is safe and effective.  This means not only providing the PPE itself, but also providing instructions on how to use it, instructions on what to do when it becomes worn or damaged, and proper methods for decontaminating PPE that is re-used.

The type of PPE required will depend on the nature of your work, the risk of infection, and the type of equipment that is feasible under the circumstances.  OSHA's PPE standards require using gloves, eye and face protection, and respiratory protection when job hazards warrant it.

When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program.  For example, healthcare workers who have direct contact with potentially infected patients should be given a filtering facepiece respirator (FFR).  The employer must train employees on the procedures for the sequence of donning and doffing the respirator to prevent self-contamination.  The employer must also ensure that employees perform a user seal check every time they don the FFR.  If the employee cannot perform a successful user seal check, then the employer should not allow the respirator to be used.

OSHA allows FFRs to be reused, but only when no acceptable alternatives exist and only with proper decontamination.  FFRs may be decontaminated with vaporous hydrogen peroxide, ultraviolet germicidal irradiation, and/or moist heat such as an oven.  Microwave-generated steam or liquid hydrogen peroxide may be used only if no other methods are available.  The employer must visually inspect, or ensure that employees visually inspect, the FFRs to determine if the structural and functional integrity of the respirator has been compromised by the decontamination process.

Reporting Health and Safety Violations

When it comes to health and safety risks in the workplace, COVID-19 is as serious as it gets.  If your employer is not providing a safe workplace, then you should not hesitate to raise your concerns.

Notify your employer of your concerns immediately.  Make a formal complaint, in writing or by email so you have a record.  Your employer is required to investigate and take corrective action.  They are also prohibited from retaliating against you.  If you are a union member, also notify your union representative.

File a complaint with OSHA.  The agency has made clear that it will act quickly and with vigilance to investigate COVID-19 related health and safety violations, especially those involving healthcare and emergency response employers.  For more information on OSHA requirements and how to file a complaint, go to https://www.osha.gov/SLTC/covid-19/standards.html

The New York State Department of Labor may also be able to help you with other types of COVID-19 workplace concerns.  You may file a complaint in New York for any of the following reasons:

• You are being forced to work at a non-essential business
• You know about a business that is non-essential and is operating
• You are being forced to work for an essential business, however:
• You do not perform an essential function
• Your employer is making you report to a worksite when your job could be performed from home
• Your employer is not following health and safety mandates
• You are particularly frightened because you are over 70 and/or you have an underlying illness.
• Your employer has failed to pay you wages owed for hours worked, earned sick pay or paid time off
• Your employer has threatened or fired you for reasons related to COVID-19
• You qualify for COVID-19 paid sick leave and your employer refuses to pay it
• Your employer is forcing you to work when you are sick

Questions?  Call us at (212) 601-2728 to schedule a consultation.

Employees in New York State now have the right to paid and unpaid sick leave when they are unable to work due to a “mandatory or precautionary order of quarantine or isolation" related to COVID-19.  This new right to sick leave applies to an order issued by a government entity such as the state of New York, the department of health, or a local board of health.

Unable to work means that you are unable to work in the office or remotely.

This right to COVID-19 sick leave is in addition to any sick leave your employer already provides.  This is very important.  If you need to take sick leave related to a COVID-19 order, then your employer must give you both any regular sick leave you have already earned and the additional sick leave under New York’s COVID-19 sick leave law.

The amount of COVID-19 sick leave that must be provided, and whether it is paid or unpaid, depends on the size of the employer, both in terms of the number of employees and the amount of net revenues.

• Employers with 10 or fewer employees and net income of $1 million or less must provide employees with unpaid sick leave until the end of the quarantine or isolation order;
• Employers with 10 or fewer employees and net income of more than $1 million must provide employees with five paid sick leave days and then unpaid sick leave until the end of the quarantine or isolation order;
• Employers with between 11 and 99 employees must provide employees with five paid sick leave days and then unpaid sick leave until the end of the quarantine or isolation order;
• Employers with 100 or more employees must provide employees with 14 days of paid sick leave and then unpaid sick leave until the end of the quarantine or isolation order.

Paid sick leave must be paid at your regular rate of pay.

You may also be entitled to paid sick leave under a new federal law called the Families First Coronavirus Response Act.  Ask your employer to provide any New York paid sick leave first, and then ask for the maximum amount of paid leave available under the federal law when your paid leave under the New York law ends.

If you are being denied sick leave, call us at (212) 601-2728.  We are here to help.

John Howley, Esq.
(212) 601-2728

New York is making it easier to apply for unemployment benefits during the Coronavirus (COVID-19) crisis.  You may also be entitled to paid sick leave or disability benefits if you are unable to work.

Here are steps you can take now to help you and your family make it through the crisis.

Unemployment Insurance Benefits in New York State

If you have been aid off or furloughed, then you should apply for unemployment insurance benefits immediately.

Your benefit will depend on your earnings. The maximum benefit is $504.00 per week. 

New York has waived the seven-day waiting period for Unemployment Insurance benefits for individuals who are out of work due to Coronavirus closures or quarantines.  This means that your benefits will begin on the Monday of the week when you first apply.

You can file online or by phone.  There is no need to go to a government office.  You do not have to show proof that your unemployment is related to the Coronavirus.

Online:  Click here to file a claim for unemployment benefits online.   

By Phone:  To file for unemployment benefits by phone, call (888) 209-8124 from 8 a.m. to 5 p.m. Monday through Friday

Make sure you have all the information you need to file a claim.  The information you will need is:

• Your Social Security number
• Your driver’s license or Motor Vehicle ID card number (if you have either one)
• Your complete mailing address and zip code
• A phone number where the Department of Labor can reach you from 8:00 a.m. to 5:00 p.m. weekdays
• Your Alien Registration card number if you are not a U.S. citizen
• The names and addresses of all your employers for the last 18 months
• The Employer Registration number or Federal Employer Identification Number (FEIN) of your most recent employer (you can find this on your W-2 or 1099 form)

Also have a pen and paper or some other way to take down the information they will give you. 

Paid Sick Leave Benefits

New York has some of the best paid sick leave laws in the country.  Your benefits will depend on where you work.

For information on paid sick live in New York City, click here.

For information on paid sick leave in Westchester County, click here.

Potential Employer Benefits

If you are sick, have been diagnosed with COVID-19, or are symptomatic and cannot come to work, or if you're suffering severe mental health consequences because of coronavirus, then you should apply for disability coverage while you are still employed.  Ask your human resources department how to apply.

If you are let go, ask your employer to continue your health insurance coverage.  Some employers will agree to continue health insurance benefits for a month and sometimes longer in an emergency such as this.  Other employers will provide a severance payment and money to pay for COBRA coverage for one to three months.  You should ask. 

Also check your employment contract or employee handbook to see if your employer provides any severance benefits.  Many employers have a severance plan in place that can include monetary assistance and continued health insurance coverage when employees are laid off.

Excessive “Buy Out” Clauses Turn Foreign Nurses into Indentured Servants

Many of the foreign nurses and physical therapists in New York City were recruited by staffing agencies with the promise of good pay and working visas.  In return, the foreign workers signed employment contracts requiring them to work for a certain number of years. If they leave before the end of the contract term, they must pay a “buy-out” fee or "liquidated damages" to the recruiter.

These types of fees are enforceable as “liquidated damages” if the amounts are reasonably related to the actual costs incurred by the recruiters.  The reasonable costs may include money spent on visa applications, travel and lodging for the foreign worker.

A problem arises when the “buy out” fees are much higher than the recruiters’ actual costs. Excessive “buy out” fees are not only unenforceable penalties.  Courts have held that they may create illegal contracts of indentured servitude if they unduly coerce the employee to continue working for the recruiter.

We have brought several lawsuits challenging the enforceability of “buy out” fees ranging from $20,000 to $30,000.  In each case, federal judges in New York agreed that the fees were unenforceable penalties because they were not reasonably related to the actual costs incurred by the recruiter to bring the nurse or physical therapist to this country.  In some cases, the nurses and physical therapists had paid for most of the costs themselves, including their own visa processing, airfare and lodging. 

We have also brought claims for damages and injunctive relief against recruiters who abused foreign workers and used the “buy out” fees to deter them from leaving.  The abuses included not paying the agreed upon wages, not paying overtime, refusing to process the appropriate visa applications, and filing fraudulent visa applications. 

In one case, Judge William F. Pauley III held that our complaint stated a claim for violations of both the Trafficking Victims Protection Act and the Racketeering Influenced and Corrupt Organizations Act (RICO).  See Javier v. Beck, No. 13-CV-2926 (WHP), 2014 WL 3058456 (S.D.N.Y. July 3, 2014).

In another case, Judge Jesse M. Furman entered judgment against a foreign labor recruiter for violations of the Trafficking Victims Protection Act and common law fraud.  See Macolor v. Libiran, 14-CV-4555 (JMF) (S.D.N.Y. Apr. 13, 2016).

Foreign workers who have been abused and threatened by their employers should know that the U.S. justice system will protect them.  Do not simply acquiesce to your employer’s threats.  Get legal advice and stand up for your rights.

To schedule a free and confidential consultation, call John Howley, Esq. at (212) 601-2728.