If you are an hourly employee, then you must be paid at a higher rate for overtime. In most cases, you are entitled to one and one-half times your regular rate of pay for overtime work. Some union contracts provide for an even higher rate.
For most employees, overtime begins after 40 hours in a single workweek. The rules are a little different for those who work in hospitals, nursing homes, and as domestic helpers, but the concept is the same. Once you hit the overtime threshold, your employer must pay the overtime rate.
Some employers try to get around the overtime rules by having employees work “off-the-clock” or at home after regular working hours. This is illegal. It does not matter where you work or if you punch in and out. If you are doing work that your employer requires you to perform, then you are entitled to be compensated for it, even if you do the work from home or without clocking in and out.
Other employers try to get around the overtime rules by mis-classifying employees as “exempt.” You are not “exempt” from the overtime rules just because you receive a salary or are given the title of “manager.” Your right to overtime depends on the type of work you do, not what your employer calls you or how you are paid. “Exempt” employees are limited to certain types of executive, administrative, professional, outside sales, or computer employees. If you do not fall in one of the “exempt” categories, then you are entitled to overtime compensation.
If you believe that you are entitled to overtime pay, you should consult with an experienced overtime lawyer. The consultation is free and, if you have a strong case, you will be represented on a contingency fee basis. In other words, you will not owe any attorneys’ fees unless you win.
You should give your lawyer any documents you have to support your claim. The documents may include time sheets, pay stubs and other payroll records, any employment agreements, emails or correspondence between you and your employer, and employee manuals, policies and procedures. If you do not have official time records, you should keep track of the hours you work in a diary or calendar. You should also make a list of any witnesses and any co-workers who may have similar claims.
Your lawyer will prepare a complaint against your employer for violations of the federal and state overtime laws and request an award of money damages. If you win, you may be entitled to two times the amount of overtime pay the employer owes to you. Plus, your employer may be ordered to pay your attorneys' fees and costs.
To schedule a consultation with an experienced overtime lawyer, call John Howley, Esq. at (212) 601-2728.
When faced with sexual harassment in the workplace, you should take the following steps:
Object to the Harassment: Tell the harasser to stop. Tell them clearly and firmly that their conduct is not welcome and must end immediately. Do not leave any doubt in their mind that you want them to stop. Harassment is a form of bullying. Workplace bullies act brave when they think you are weak, but they often go away if you stand up to them.
Report the Incident: Tell your supervisor and the human resources department what happened. You should use your company’s formal reporting process if they have one. If not, then report the incident in writing or by email. Be specific about what was said, who said it, when, and where. Keep a copy of your report.
Get Some Moral Support: Sexual harassment can cause severe stress no matter how strong you are. It is especially stressful if the harasser is a supervisor or a friend of a supervisor. Do not go through this alone. Talk to a close friend or family member about what happened and how it is affecting you. Having a trusted confidant will reduce stress and help you make better decisions.
Keep a Record: Keep a log of any ongoing sexual harassment. Write down dates, times, what was said or done, and who was involved. Keep this log separate from any personal journal or diary. In New York, you may use your smart phone to secretly record what the harasser says to you. That can be powerful evidence. (But you must be present when the recording is done. You cannot leave your smart phone in a room to record conversations when you are not present.)
Gather Your Work Product: Make sure you keep copies of your accomplishments at work. Keep copies of your work product, performance reviews, commendations, awards and anything else that shows you are a good, valued employee.
Do Not Quit: Quitting your job will make it very difficult, and sometimes impossible, to bring a claim against the harasser and the company. Before you quit, talk to an experienced employment lawyer. Your lawyer may be able to intervene and get the employer to stop the harassment.
Consult an Experienced Employment Lawyer: Getting advice from a lawyer early in the process is the best way to stop the harassment and, if necessary, build a strong case for damages. A good, legitimate employment lawyer will give you a free consultation. If you need to bring a lawsuit and have a strong case, your lawyer will take the case on a contingency fee basis. This means that you will not pay any legal fees unless you win.
Do Not Delay: You must act promptly for two reasons. First, acting immediately helps build your credibility. Second, there are strict time limits for filing a claim under New York City, New York State, and federal laws. Failing to act promptly may result in the loss of your claims.
To schedule a free and confidential consultation with an experienced sexual harassment lawyer, call John Howley, Esq. directly at (212) 601-2728.
Prepare Yourself for a Successful Lawsuit
Fighting back against sexual harassment requires more than evidence and a good lawyer. You need to be mentally and emotionally prepared to stand up for your rights. Here are some tips to get started.
Confide in a Close Friend. Tell someone close to you what is happening at work. Simply telling a sympathetic listener will relieve some stress. You will be empowered by the knowledge that you are not alone, no matter what is happening at work.
A trusted friend can help you make wise decisions. You should not make important decisions such as starting a lawsuit when your judgment may be clouded by anger, stress or fear. Having the support of a close friend or family member can help you reach a state of mental and emotional confidence.
Your confidant may also become an important witness if you decide to pursue legal action. He or she may be able to corroborate your timeline of events, the emotional impact the harassment had on you at the time, and the continuing effects today.
Get Professional Counseling. Doctors are taught that they should never self-diagnose. The same advice applies to the rest of us who lack their medical education and training.
Healthcare professionals have the training and experience necessary to identify subtle effects on your psyche. While most people in this field are by nature compassionate, as professionals they are also committed to giving you objective advice. Unlike a family member or close friend who might “pull punches” because they do not want to hurt your feelings, a healthcare professional can tell it to you straight. You need that balance of professional advice and unconditional support.
These benefits alone are good enough reason to seek professional help, whether or not you ever start a lawsuit. Seeking professional counseling or therapy before you see a lawyer will also help your succeed in court. The fact that you sought professional help, on your own, may help convince a judge or jury that your emotional harm is real.
Be Confident, Strong, and Proud. You did nothing wrong. This situation is not your fault. You have no reason to be fearful, anxious, or ashamed. The only people who should have those feelings are the people who have harassed you at work, and the people who did nothing to stop it.
The harassers are cowards. They appear to be extremely confident when harassing others and getting away with it. But truly confident people do not harass or bully anyone. The need to harass and bully others comes from a deep sense of insecurity in the bully.
Your harassers are the weak ones. When you fight back from a position of emotional balance and confidence, justice will prevail.
When you are ready for the next step, call John Howley, Esq. at (212) 601-2728 to schedule a free and confidential consultation.
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.
The Pregnancy Discrimination Act and the Americans with Disabilities Act May Entitle You to Reasonable Accommodations to Allow You to Continue Working While Pregnant
As a general rule, an employee who has a pregnancy-related disability is entitled to a reasonable accommodation that will allow her to continue working through her pregnancy. An employer may not force a pregnant employee to take a leave of absence if she is able to perform her job with the reasonable accommodation.
An accommodation for a pregnant employee is reasonable if the employer provides similar accommodations for employees with other types of temporary disabilities. An accommodation may not be reasonable if it imposes an undue burden or cost on the employer.
Some examples of reasonable accommodations for pregnant employees include:
If a reasonable accommodation cannot be provided, the employer must allow a woman with limitations resulting from pregnancy to take a leave of absence on the same terms and conditions as other employees who are similar in their ability or inability to work. An employer may not impose different or greater restrictions on pregnant employees who seek medical leaves than on employees who seek medical leaves for other reasons. In other words, employers may not discriminate against pregnant women when it comes to leaves of absences.
For example, an employer:
If you have been denied an accommodation or leave of absence for your pregnancy – or if you have been fired, demoted or denied a promotion because of your pregnancy – you should consult with a pregnancy discrimination lawyer immediately to protect your rights. There are strict time deadlines and procedural requirements for filing a claim of pregnancy discrimination.
To schedule a free and confidential consultation with an experienced pregnancy discrimination lawyer, call John Howley, Esq. at (212) 601-2728.
The Pregnancy Discrimination Act provides important protections for employees who want to continue working during their pregnancy and for those who require leaves of absence to address pregnancy-related illnesses or disabilities.
The key word is discrimination. Whatever rules or policies the employer puts in place for employees who cannot work due to an illness or temporarily disability must apply in the same way to employees who cannot work due to a pregnancy-related condition.
Mandatory Pregnancy Leaves Are Prohibited
The Pregnancy Discrimination Act prohibits an employer from forcing an employee to take a leave of absence because she is pregnant, or requiring an employee to remain on leave for a period of time after giving birth. A pregnant employee who is able to perform her job cannot be forced to take a leave of absence. Pregnant employees must be treated like any other employee who is able to do their job.
In addition, if an employee is absent from work due to a pregnancy-related medical condition, and then recovers, she cannot be forced to remain on leave until childbirth. The pregnant employee who has a temporary illness or disability must be treated the same as any other employee with a temporary illness or disability.
Pregnancy Leaves Must Be Granted on the Same Terms as Any Other Medical Leave
Employers may not impose special rules or restrictions on medical leaves related to pregnancy.
The same rules that apply to leaves of absence to address medical conditions must apply to leaves related to pregnancy. For example, an employer may not fire a pregnant employee for absences if the absences are covered by the employer’s sick leave rules. An employer may not require a pregnant employee to exhaust her sick leave before using vacation or personal days, if the employer allows other employees to use vacation or personal days to take time off for medical reasons.
Employers may not limit pregnancy-related leaves to a shorter duration than other types of medical or short-term disability leaves. If the employer allows employees to take a leave of absence without pay because of a temporary disability, then the employer must also allow the same type and duration of unpaid leaves for employees who are temporarily disabled due to pregnancy.
Returning to Work After a Pregnancy Leave of Absence
An employer must also hold open a job for a pregnancy-related absence for the same length of time that jobs are held open for employees on sick or temporary disability leave. If the pregnant employee used leave under the Family and Medical Leave Act (FMLA), then the employer must restore the employee to her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
Pregnant employees may have additional protections under the Americans with Disabilities Act (ADA), including the right to accommodations so they can continue working.
If you believe that you have been discriminated against because you are pregnant, you should consult with an experienced pregnancy discrimination lawyer to protect your rights. You must act quickly because there are strict time limits and procedural requirements for filing a pregnancy discrimination claim.
To schedule a free and confidential consultation, call John Howley, Esq. at (212) 601-2728.
The civil rights laws protect you from illegal discrimination, harassment, and retaliation at work. One of these laws, the Pregnancy Discrimination Act of 1978 (PDA), specifically prohibits discrimination against employees because they are pregnant, intend to become pregnant, or have a pregnancy-related illness or disability.
Pregnancy Discrimination is Against the Law
An employer may not refuse to hire you, refuse to promote you, fire you, or take any other adverse action against you just because of your pregnancy. Your employer may not use your pregnancy to demote you, force you to take a leave of absence, or decrease your hours.
Your employer cannot change you job responsibilities because of your pregnancy, even if your employer believes that the change would be in your best interest. For example, your employer may not exclude you from working in a warehouse, a laboratory, or around chemicals out of concern for your health. Only you and your doctor can decide whether you should continue working in those environments.
Accommodations for Pregnant Employees
The Pregnancy Discrimination Act requires employers to accommodate pregnant women as they would any employee who is temporarily disabled. This means that a pregnant woman is entitled to be treated the same as any other employee who has a short-term disability. For example, if a man who cannot lift heavy objects due to a temporary back injury is allowed to continue working on light duty, then a pregnant woman who cannot lift heavy objects during her pregnancy is also entitled to continue working on light duty.
If you have a pregnancy-related illness or disability, you may also have rights under the Americans with Disabilities Act (ADA).
Returning to Work After a Pregnancy
Your legal protections continue after you give birth. Under the Family and Medical Leave Act (FMLA), you and your spouse are entitled to up to 12 weeks of unpaid leave to care for yourself and your child. And, once you return to work after a pregnancy, your employer must restore you to the same position or a similar one.
That said, you are not required to stay out of work for any period of time after you give birth. You are entitled to decide for yourself when you are ready to return to work.
Finding a Pregnancy Discrimination Lawyer in New York
If you have been fired or otherwise discriminated against at work because of a pregnancy, then you should consult with a pregnancy discrimination lawyer promptly to protect your rights. Do not delay. There are strict time limits and procedural requirements to assert your claims.
To schedule a free and confidential consultation with an experienced pregnancy discrimination lawyer in New York, call John Howley, Esq. at (212) 601-2728.
The federal government receives about 6,000 complaints of pregnancy discrimination every year. In addition, a large number of pregnancy discrimination cases are settled by private lawyers before any formal complaints are filed.
Some obvious examples of pregnancy discrimination in the workplace are: A woman is fired shortly after her boss learns that she is pregnant; or an employer refuses to hire a pregnant woman who is obviously qualified for the position.
The Pregnancy Discrimination Act, however, prohibits all forms of pregnancy discrimination, including discrimination in job assignments, work schedules, break time, compensation, promotions, leaves of absence, and health insurance. Employers may not discriminate against employees in any of these terms and conditions of employment based on their current pregnancy, past pregnancy, or potential pregnancy.
You may also be protected by the Americans with Disabilities Act. While a normal pregnancy is not considered a disability, some pregnancy-related medical conditions such as gestational diabetes and preeclampsia may be. Absent undue hardship, an employer must provide a reasonable accommodation to enable you to continue working with these conditions, such as modifications in work assignments, locations or schedules.
Proving pregnancy discrimination usually comes down to four facts.
The first fact is timing. Changes in your employment shortly after your boss learns that you are pregnant or plan to become pregnant raises an inference that the change was caused by your pregnancy.
The second fact is unequal treatment. For example, if men with temporary disabilities that prevent them from lifting heavy objects are given light duty, but women who cannot lift heavy objects temporarily because of their pregnancy are denied light duty, there is an inference of pregnancy discrimination.
The third fact is statements by your employer. Obviously, if you have a statement from your employer that you are being denied a promotion because you are pregnant, that is very good evidence of pregnancy discrimination. Other pregnancy-related comments may also be considered evidence that your employer acted because of your pregnancy and not some other reason.
The fourth fact is your job performance before the adverse employment action was taken. Employers often try to explain away pregnancy discrimination by pointing to an employee’s job performance or attendance record as the reason for an adverse employment action. If you have consistently received excellent performance evaluations, you should get copies of those evaluations and keep them at home. They may be important evidence if the employer tries to blame your performance or attendance as the reason for an adverse employment action.
The Pregnancy Discrimination Act and the Americans with Disabilities Act provide strong protections against pregnancy discrimination. But you must act promptly if you believe that your rights have been violated. Both statutes have strict limits on how and when you can bring your claim.
To schedule a free and confidential consultation with an experienced pregnancy discrimination lawyer, call John Howley, Esq. at (212) 601-2728.
Government Alleged Female Director Was Paid Less Than Male Counterparts in Violation of the Equal Pay Act and Title VII
Two logistics and warehouse companies have agreed to pay $45,000 to settle claims that they paid a female director less than her male counterparts.
According to the EEOC, a female director of intermodal operations for the companies was paid less than three male directors. The woman learned that she was being paid less than the men when she came across a pay stub of a male counterpart after he was fired and she took over his position.
The Equal Pay Act prohibits companies from paying women less than men for work requiring equal skill, effort and responsibility that is performed under the same or similar working conditions. Pay discrimination also violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex.
The $45,000 settlement will be paid to the victim to compensate her for the discriminatory pay differential. The companies also agreed to provide anti-discrimination training and post an equal employment opportunity notice at the workplace.
If you have been discriminated against in terms of compensation, promotions, or job assignments, you should consult with an experienced employment lawyer to protect your rights. You may be entitled to compensation for back pay, future pay and other damages.
To schedule a free and confidential consultation, call John Howey, Esq. at (212) 601-2728.
Government Charges that Gay and Lesbian Employees Were Subjected to Hostile Work Environments Because of Their Sexual Orientation
The U.S. Equal Employment Opportunity Commission (EEOC) has filed two lawsuits alleging that gay and lesbian employees were subjected to sexual harassment and a hostile work environment. These are the first sexual orientation discrimination lawsuits brought by the government under Title VII of the Civil Rights Act.
In one lawsuit against Scott Medical Health Center, the EEOC alleges that a gay male employee was subjected to a hostile work environment because of his sexual orientation. The complaint alleges that the employee’s manager referred to him using anti-gay epithets and made other highly offensive comments about his sexuality and sex life. The company allegedly failed to take any action after the employee complained. Ultimately, the employee quit to avoid further harassment.
In the other lawsuit against IFCO Systems, the EEOC alleges that a lesbian employee was subjected to a hostile work environment because of her sexual orientation. Her supervisor allegedly made comments about her appearance and sexual orientation, such as "I want to turn you back into a woman" and "You would look good in a dress." The employee was fired shortly after she called an employee hotline to complain.
Title VII of the Civil Rights Act prohibits harassment in the workplace based on a person’s sex. Until now, the government has only pursued lawsuits for harassment based on an employee’s gender. It has not pursued discrimination or sexual harassment lawsuits based on an employee’s sexual orientation.
Last year, however, the EEOC determined that sexual orientation discrimination is, by its very nature, discrimination based on sex. That was an administrative proceeding involving a government employee. The new lawsuits have been filed in courts against private employers.
The EEOC explained three rationales for finding that sexual orientation discrimination constitutes sex discrimination under Title VII. First, sexual orientation discrimination is necessarily based on an employee’s sex, because sexual orientation as a concept cannot be understood without reference to sex. Second, sexual orientation discrimination is based on the employee’s perceived non-compliance with sex stereotypes and gender norms, and employment decisions based on such stereotypes and norms have long been prohibited under Title VII. Third, sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.
The new lawsuits are significant because the EEOC is challenging the conduct of private employers in court. The EEOC hopes that by bringing these lawsuits, courts will recognize that sexual orientation discrimination is a form of sex discrimination.
If you have faced harassment in the workplace because of your sex, sexual orientation or gender identity, you should consult with an experienced employment lawyer to understand and protect your rights. To schedule a free and confidential consultation, call John Howley, Esq. at (212) 601-2728.
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