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FAQ

Discrimination

Anti-discrimination laws can be complex, and sometime it is difficult to know what one’s rights are. We offer some guidance on frequently asked questions, below. However, keep in mind that this guidance is not exhaustive, and it is best to have an attorney help you understand the specifics of your situation. Beranbaum Menken has a long track record of protecting people’s rights to be free from discrimination. If you believe you have been the victim of discrimination, contact us to schedule a consultation.

What kind of workplace discrimination is illegal?

Federal, New York State and New York City laws together make the following kinds of discrimination unlawful:

  • Age discrimination against people over 40;
  • Sex & gender discrimination (including sexual harassment);
  • Pregnancy discrimination;
  • Disability discrimination (for more, visit our FAQs on Disability Discrimination);
  • Race and national origin discrimination;
  • Religious discrimination;
  • Genetic origin discrimination;
  • Discrimination against people who are unemployed;
  • Criminal history discrimination, including discrimination based on arrest records;
  • Sexual orientation discrimination;
  • Marital status discrimination; and
  • Discrimination against victims of domestic violence.

It is also unlawful for an employer to retaliate against people (employees or applicants) because they have complained about discrimination, filed a charge of discrimination or participated in an investigation or legal action concerning employment discrimination.

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What kinds of discriminatory actions are illegal?

Of course, many employers may be discriminatory in their attitudes or beliefs (consciously or unconsciously), but that isn’t enough to bring a lawsuit. Discrimination becomes unlawful when an employer takes a discriminatory action against someone which adversely affects the terms and conditions of their employment.

For example, it is unlawful for an employer to do any of the following actions based on an employee’s protected status (e.g. being woman, disabled, over 40 years old, etc.):

  • Refusing to hire them;

  • Firing them;

  • Denying them a promotion;

  • Demoting them;

  • Transferring to a lesser position;

  • Disciplining them more harshly than others;

  • Harassing them; or

  • Paying them lower wages or providing them with lesser benefits.

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What kind of retaliation is unlawful under anti-discrimination laws?

​Not all forms of retaliation are unlawful. Unfortunately, in the United States, employers can fire employees for good cause, bad cause, or no cause at all, as long as it’s not an illegal cause.That means that, say, ratting out your boss for slacking off on his duties may get you fired, and there’s probably nothing you can do about it. But if you complain about discrimination or harassment, the law affords you some protection.

Unlawful retaliation consists of three elements:

Protected Activity:

An employee who makes a good faith complaint about something they believe to be unlawfully discrimination against themselves or others is engaging in a “protected activity,” meaning that the activity protects them from retaliation. Similarly, employees who file or threaten to file a charge of discrimination with the EEOC or who request a reasonable accommodation for a disability are engaging in “protected activities.”

However, if you are retaliated against for something that is not considered a “protected activity,” the anti-discrimination laws may not help you. However, certain other laws may provide protection against retaliation.

Adverse Action:

Retaliation only becomes illegal when it rises to the level of an “adverse action” – that mans the employer did something to you that affect the terms and conditions of your employment. If your employer retaliates against you by simply disliking you, that is likely not unlawful. However, if your employer retaliates against you by firing you, demoting you, refusing to promote you, lowering your wages, or making your working conditions so unbearable that you can no longer perform your work (say, by refusing to give you any work at all for months on end while complaining about your productivity, or physically excluding you from important meetings or isolating your work station).

Causation

Of course, in order for the “adverse action” listed above to be unlawful, you have to show that the action was caused by a desire to retaliate against the employee. That means that if you complain about discrimination, and then ten years later your boss refuses to give you a raise, without any other evidence, you may have a difficult time showing causation. However, if that same boss says that “if you hadn’t been such a troublemaker, maybe you would be getting further here,” you might have an easier time proving your case.

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What kind of proof is required to show that something was discriminatory?

Usually there is no one piece of evidence needed to prove your case. Courts long ago realized that it is rare for there to be a “smoking gun” showing discrimination. Employers rarely tell their employees that they won’t be promoted because they are female or that black workers will face more sever scrutiny at work. That’s why proving discrimination often requires piecing together evidence which, as a whole, shows that the employer treated you differently because of your protected status (say, as a woman or a minority or a person with disabilities). Here are some examples of evidence that can support a claim of discrimination:

Negative comments about your protected status, or remarks showing that your supervisor or employer judges you based on your protected status.

     Here are some examples:

  • “You’re an old man, you’ve been doing this a long time”

  • “She needs to go back to the ghetto where she came from”

  • “How are you going to come back to work and leave your baby?”

  • “You’re so beautiful it’s hard for me to concentrate.”

  • “Aren’t Asians supposed to be good at math?”

Unequal treatment between members of a protected group and other, similarly situated employees.

     This can take the form of:

  • Unequal wages paid to a man and woman for the same or similar work (there is a separate federal law that explicitly forbids this practice,called the Equal Pay Act);

  • A minority member being disciplined more harshly than a non-minority for the same or similar kind of infraction;

  • A younger worker receiving a promotion over an older worker who had is equally or more qualified;

  • A job applicant with an arrest record being denied a job given to someone with the same qualifications who does not have an arrest record.

Stereotyping employees based on their protected status.

 

  • Assuming women will no longer be committed or productive workers once they have children;

  • Assuming older workers are less adaptable or flexible than younger workers, or that they cannot understand new technologies;

  • Assuming black employees cannot act “professionally” enough for high-ranking executive careers;

  • Assuming that minorities make mistakes because of personality flaws, but excusing those same mistakes when made by non-minority employees.

Pretext: 

Sometimes the employer will give an excuse for its poor treatment of an employee. Often they will point to something in the employee’s performance record to justify a termination or a demotion. 

Where these reasons don’t add up or look phony, courts and juries can infer that the reason the employer gave is just a pretext for discrimination. 

For example, if an employer says it’s firing someone, not because they are old, but because of a financially-required layoff, the employee can show that the reason is pretext, because other employees were being hired at the same time. Or if the employer says someone did something wrong, or lacks a certain skill, and the employee can prove that this is simply untrue, a court or jury can infer that the reason is just an excuse for what was actually discrimination.

Violating procedures:

If the employer, in taking action against an employee, is not following its own procedures, courts and juries may infer that something fishy is going on. 

For instance, if an employer requires annual performance evaluations and gives them to everyone except an employee in a protected class, that may be a heads up that something isn’t right, especially if the employer then says that the employee had “bad” performance. 

Similarly, if an employer usually uses “progressive discipline” when disciplining employees – say, by giving a verbal warning for the first infraction, a written warning for the second, and suspension for the third – but fails to follow this procedure when disciplining an employee in the protected class, that may also be evidence that something isn’t right, that maybe the discipline was unduly harsh.

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Where should I go if I think I have been discriminated or retaliated against?

You can contact an attorney experienced in discrimination law, like the attorneys at Beranbaum Menken LLP.  You can also take action on your own, without an attorney, by making an appointment with one of the following governmental agencies responsible for enforcing equal employment opportunity laws:

U.S. Equal Employment Opportunity Commission (EEOC), 800-669-4000 (federal law)

N.Y. State Division of Human Rights, 212-961-8650. New York state law, unlike federal law, protects people from discrimination based on sexual orientation, marital status or status as a victim of domestic violence.

N.Y. City Commission on Human Rights, 212-306-7500. The NYC Human Rights Law, unlike federal and New York State law, protects employees from discrimination because of perceived age, partnership status, citizenship status, and unemployment status.

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How much time do I have to file a claim with a governmental agency or a court?

​If the discrimination or retaliation occurred within the State of New York, you have 300 days from when you first learned of the discrimination to file a charge of discrimination with the EEOC. If you have suffered multiple acts of discrimination, or the discrimination has been on-going, you have 300 days from the most recent act of discrimination to file your charge.

You have one year (360 days) from the time you learned of the discrimination or retaliation to file a complaint with either the New York State Division of Human Rights of the New York City Commission on Human Rights.

If you have not filed a complaint with either the NYS Division of Human Rights or the New York City Commission on Human Rights, you still have three years from the time you learn of the discrimination or retaliation to file a lawsuit alleging violations of state or city (but not federal) law with the New York Supreme Court (New York’s trial court).

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What if I don’t file within these deadlines?

If you don’t file your complaint or lawsuit by the deadlines listed below, your legal action will be dismissed and you will have no further legal recourse. That is why it is so important to act promptly if you believe you have been discriminated or retaliated against. Anti-discrimination laws are complicated, and it can be very difficult to know your rights. While we hope the information above is useful, it is not exhaustive. That is why it’s important to consult a knowledgeable lawyer to determine what your rights are and how best to protect them. Beranbaum Menken has a long history and track record of advocating for victims of unlawful harassment. If you believe you may have been the victim of unlawful harassment, contact us to schedule a consultation.

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Disability Rights

Disability discrimination is one form of unlawful discrimination, and many of the questions people have about disability discrimination may also be answered in our general Frequently Asked Questions about Discrimination. Anti-discrimination laws can be complex, and sometime it is difficult to know what one’s rights are. We offer some guidance on frequently asked questions, below. However, keep in mind that this guidance is not exhaustive, and it is best to have an attorney help you understand the specifics of your situation. Beranbaum Menken has a long track record of protecting people’s rights to be free from disability discrimination. If you believe you have been the victim of disability discrimination, contact us to schedule a consultation.

What laws protect people with disabilities from discrimination?

Federal, New York State and New York City laws all protect people with disabilities from discrimination in the workplace.

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Who is considered “disabled” under disability discrimination laws?

Federal and local laws define “disability” differently. Federal law defines “disability” as a physical or mental impairment that “substantially limits” a “major life activity.” A “major life activity” can include the ability to care for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. If someone has a condition that would “substantially limit” a major life activity, but doesn’t because of medication or other ameliorative measures, they are still considered “disabled” within the meaning of the law. 

New York City law and State law both have more expansive definitions of “disability.” If you believe you have been discriminated against or require an accommodation due to a condition, but are unsure of whether your condition qualifies as a disability, contact us to schedule a consultation.

Federal, New York State and New York City laws also protect people “regard as” or “perceived as” disabled. For example, an employee may have a condition which does not substantially limit any major life function, but that their employer erroneously believes does. The most common example might be a condition that is severely misunderstood by the general population as being more severe than they truly are.

Federal law also prohibits discrimination against people who are “associated” with someone with a disability. For example, people may have severe prejudices against people with certain mental impairments, and may discriminate against their relatives or friends. Some employers might terminate people who are related to or in a relationship with someone with HIV/AIDS, because the employer has misguided stereotypes about the kinds of people who contract such diseases.

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What protections do these laws give people with disabilities?

Disability discrimination laws prohibit multiple kinds of discrimination, including, for example, the following:

  • Failing to provide a qualified employee with a reasonable accommodation or refusing to engage the employee in the interactive process (below);
  • Refusing to hire a qualified employee with disability who can perform the essential functions of the job;
  • Terminating or demoting a qualified employee due to a real or perceived disability or an association with a disabled person;
  • Failing to promote or demoting an qualified employee due to a real or perceived disability or an association with a disabled person;
  • Harassing an employee due to a real or perceived disability or an association with a disabled person.

For more information on discrimination generally, visit our Frequently Asked Questions about Discrimination or our Frequently Asked Questions about Harassment.

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You mention “qualified employee” with a disability, what does that mean?

Disability discrimination laws generally protect people who can perform the essential functions of their job, with or without a reasonable accommodation. That means that not all people with all disabilities are entitled to accommodations for every job. It does mean that people who, with or without an accommodation, who can perform the essential functions of their job are entitled to any reasonable accommodations they need and are protected from being discriminatorily fired or not hired due to their disability.

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What is a “reasonable accommodation?”

reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. 

Reasonable accommodations might include, for example:

  • making the workplace accessible for wheelchair users;

  • changing the employee’s work schedule to allow for medical appointments; 

  • eliminating a non-essential (or marginal) job function that the employee cannot perform because of a disability;

  • working from home; and

  • possibly re-assigning a long-time employee who has become disabled to a vacant job within the company that the employee can perform

reasonable accommodation must be provided under the law unless doing so would cause significant difficulty or expense for the employer.

Keep in mind that which accommodations are “reasonable” in a given situation depends on the specific circumstances, which is why it is important for people to consult an attorney if they feel they have been denied an accommodation they believe is reasonable.

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Do I have to request the reasonable accommodation in order to be protected?

Yes, generally the employee must request the reasonable accommodation. Sometimes, when it is clear that an employee has a disability and is struggling in the job due to the lack of a reasonable accommodation, the employer is expected to raise the possibility of a reasonable accommodation.

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What happens after I request a reasonable accommodation from my employer?

Once a disabled employee requests a reasonable accommodation, the employer must engage in an “interactive process” with the employee, to explore the feasibility of the requested accommodation and whether other accommodations might be available that are more suitable for both parties.

More generally, the employer must work with the employee to determine his or her functional limitations due to the disability and how those limitations can best be overcome with a reasonable accommodation.

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What do I do if my reasonable accommodation has been refused, or I’ve suffered other forms of disabi

You can contact an attorney experienced in disability discrimination law, like the attorneys at Beranbaum Menken LLP.  You can also take action on your own, without an attorney, by making an appointment with one of the following governmental agencies responsible for enforcing equal employment opportunity laws:

U.S. Equal Employment Opportunity Commission (EEOC), 800-669-4000 (federal law)

N.Y. State Division of Human Rights, 212-961-8650. New York state law, unlike federal law, protects people from discrimination based on sexual orientation, marital status or status as a victim of domestic violence.

N.Y. City Commission on Human Rights, 212-306-7500. The NYC Human Rights Law, unlike federal and New York State law, protects employees from discrimination because of perceived age, partnership status, citizenship status, and unemployment status.

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How much time do I have to file a claim with a governmental agency or a court?

If the discrimination or retaliation occurred within the State of New York, you have 300 days from when you first learned of the discrimination to file a charge of discrimination with the EEOC. If you have suffered multiple acts of discrimination, or the discrimination has been on-going, you have 300 days from the most recent act of discrimination to file your charge.

You have one year (360 days) from the time you learned of the discrimination or retaliation to file a complaint with either the New York State Division of Human Rights of the New York City Commission on Human Rights. 

If you have not filed a complaint with either the NYS Division of Human Rights or the New York City Commission on Human Rights, you still have three years from the time you learn of the discrimination or retaliation to file a lawsuit alleging violations of state or city (but not federal) law with the New York Supreme Court (New York’s trial court).

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What if I don’t file within these deadlines?

If you don’t file your complaint or lawsuit by the deadlines listed below, your legal action will be dismissed and you will have no further legal recourse. That is why it is so important to act promptly if you believe you have been discriminated or retaliated against.  

Beranbaum Menken LLP has a long history of advocating for victims of disability discrimination. If you believe you may have been the victim of disability discrimination or need help advocating for a reasonable accommodation, contact us to schedule a consultation.

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Executive Contracts

The laws concerning employment contracts and executive compensation are often quite complicated, and it can be difficult to understand your rights. Below, we offer some guidance on frequently asked questions. However, keep in mind that this guidance is not exhaustive, and it is best to have an attorney help you understand your rights given your particular situation. Beranbaum Menken has a long track record of representing employees in executive compensation agreements and other contracts. Contact us to schedule a consultation.

Please keep in mind that different states and some cities have different wage & hour laws. These guidelines are based on the laws applicable in New York State. There are also many exceptions to the guidelines below, with some employees earning greater or les protection.

What constitutes a valid employment contract in New York?

In order to be valid in New York, an employment contract must contain most of the material terms agreed to by the employer and employee and be for a certain period of time (i.e., one year).

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I have an offer letter, is that a contract?

Many employees mistakenly believe they have entered into a valid employment contract or agreement with their employer but instead have entered into what is typically referred to as an “Offer Letter.” An “Offer Letter” is a short letter delivered by an employer to a prospective employee reflecting the employer’s offer to employ the employee and includes a few terms like salary, general job duties, job location and start date. An “Offer Letter” usually explicitly states that the intended employment relationship will be “at-will”and become effective when the employee accepts or signs it.  The offer letter is generally not a binding employment contract because it does not specify a beginning and ending date or time period.

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What does “at will” employment mean?

​An “at will” employee is not bound by a valid contract and who can resign from his or her job at anytime and for any reason. “At will” employees can also be terminated by the employer at any time and for any reason, except unlawful reasons (like discrimination or retaliation). Most employees are “at-will.”

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What can I do to protect myself if I am an employee “at-will?”

An employee “at-will” can attempt to negotiate terms in the “Offer Letter” that would require the employer to provide him or her with a certain amount of notice prior to termination or to pay an amount of salary after notice and before termination. Of course, if you are very marketable and the prospective employer has a strong interest in hiring you, you can insist that you will only work under a mutually agreeable contract.

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If I get terminated before I receive my bonus, and I have no contract and am “at will,” is there any

​Many executives and professionals in the financial industry are confronted with this situation. Frequently, you can argue that the bonus sought was an essential part of your compensation and an agreement to pay the bonus can be inferred from the conduct of you and your employer and the surrounding circumstances. This is not an express contract, rather it is called an “implied contract.”

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I have a contract that includes a bonus provision, but now my employer says they don’t have to pay

Your employer may be trying to withhold your bonus because your contract includes a “discretionary” rather than “mandatory” bonus. Or, if you have been terminated, your employment contract might only allow you to receive a bonus if you’re still on the payroll when bonuses are announced (often in January of the following year) or paid (often in March of the following year).

Although this predicament presents a challenge, we can still help you obtain some or all of your bonus based on principles of equity and “quasi contract.” If you are being denied a bonus to which you believe you’re entitled, contact us to schedule a consultation.

One way to avoid this kind of problem in advance is to negotiate a sign-on bonus and/or make a strong effort to negotiate a contract in advance where payment of a year-end bonus is mandatory or based on a clear, non-discretionary formula. If you are in a position to negotiate your employment contract in advance, contact us for a consultation.

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What terms should be included in my employment contract?

Critical terms that should be included in your employment contract are:

  • the length of the contract;
  • job duties;
  • compensation (including bonus, stock options, and commissions);
  • benefits;
  • basis for and financial consequences of termination;
  • definition of what constitutes “cause” for termination;
  • clear information concerning any non-compete and non-solicit agreements;
  • and clear information about what happens if the contract is breached (i.e., whether you can go to court or must arbitrate).

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What is a non-compete agreement and are they enforceable in New York?

A non-compete agreement, often contained in an executive employment contract, prohibits the executive from competing with his or her former employer for a reasonable time and within a reasonable geographical area after leaving employment. Non-compete agreements are generally disfavored by courts but will be enforced where the employer has a protected interest, such as confidential trade secrets or where the employee’s services are “special, unique or extraordinary.”

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What is a non-solicit agreement and are they enforceable in New York?

​Like non-compete agreements, non-solicit agreements are also often contained in executive employment contracts. Non-compete agreements prohibit former executives from soliciting or contacting the customers of their former employer and are enforceable if reasonable as to time and geography. However, non-solicit agreements that prohibit former employees from soliciting customers in the public domain or those customer relationships that were cultivated at a prior job are often found not enforceable.

The laws concerning employment contracts and executive compensation are often quite complicated, and it can be difficult to understand your rights. We hope the guidance above is informative, but it is not exhaustive, and it is best to have an attorney help you understand and protect your rights. Beranbaum Menken has a long track record of representing employees in executive compensation agreements and other contracts. Contact us to schedule a consultation.

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My contract includes a bonus provision, but now my employer says they don’t have to pay it. Why?

​Your employer may be trying to withhold your bonus because your contract includes a “discretionary” rather than “mandatory” bonus. Or, if you have been terminated, your employment contract might only allow you to receive a bonus if you’re still on the payroll when bonuses are announced (often in January of the following year) or paid (often in March of the following year).

Although this predicament presents a challenge, we can still help you obtain some or all of your bonus based on principles of equity and “quasi contract.” If you are being denied a bonus to which you believe you’re entitled, contact us to schedule a consultation. One way to avoid this kind of problem in advance is to negotiate a sign-on bonus and/or make a strong effort to negotiate a contract in advance where payment of a year-end bonus is mandatory or based on a clear, non-discretionary formula. If you are in a position to negotiate your employment contract in advance, contact us for a consultation.

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Harassment

Most anti-discrimination laws protect people against unlawful harassment that’s based on a protected category (like gender, age, or disability). For more information about anti-discrimination laws more generally, read our Frequently Asked Questions about Discrimination.

Anti-discrimination laws can be complex, and sometime it is difficult to know what one’s rights are. We offer some guidance on frequently asked questions, below. However, keep in mind that this guidance is not exhaustive, and it is best to have an attorney help you understand the specifics of your situation. Beranbaum Menken has a long track record of protecting people’s rights to be free from unlawful harassment. If you believe you have been the victim of unlawful harassment, contact us to schedule a consultation.

What is workplace harassment?

Workplace harassment, also known as a hostile work environment, exists where an employee is subject to repeated or severe slurs, insults, jokes, intimidation or demeaning conduct. A physical or sexual assault can also create a hostile work environment.

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Is all workplace harassment illegal?

Unfortunately, no. Workplace harassment and hostile work environments are only unlawful if the harassment is directed at someone because of their membership in a protected class – for example, because of the employee’s gender, race, age, disability, or religion. Therefore, a worker over 40 who is consistently humiliated or relegated to demeaning work because of his age is the victim of age-based harassment, just as someone who is continually insulted because of his race is the victim of racial harassment. Similarly, women who are subjected to a hostile work environment are the victims of sexual harassment. For more information about protected classes, visit our Frequently Asked Questions about Discrimination.

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Is conduct only considered “sexual harassment” if it’s sexually charged?

No. While sexual harassment has received a lot of media attention, people often get the impression that “sexual harassment” only exists if someone is, say, being hit on by their boss at work or required to date their boss in order to keep their job. The law defines “sexual harassment” more broadly – it constitutes harassment suffered by an employee because of her sex. Therefore, any severe or repeated conduct directed at female employees because they are female are harassing, including belittling, humiliating or demeaning conduct that, say, indicates a belief that women are weak or frivolous. Consistently refusing to give a woman important work, relegating her to traditionally “female” tasks not assigned to male employees in the same position, like making her answer the phone, can also constitute sexual harassment if the employer is penalizing the woman because she is a woman.

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If I am the victim of unlawful harassment, do I need to complain about it internally?

This is a complicated legal question, but the short answer is, yes. The law generally requires people to make internal complaints about harassment (say, to the supervisor or the human resources department) to give the employer a chance to stop the harassment. There are certain exceptions to this, but many cases are thrown out of court because a victim of harassment failed to make an internal complaint.

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But what if the person that I am supposed to complain to is the person who is harassing me?

Employer ought to inform their employees of an internal procedure for reporting harassment, and that procedure should include mechanisms for making complaints to someone other than the harasser. If in doubt, you should complain to the Human Resources Department, or in a smaller workplace, to the owner. If your employer has no mechanisms in place to process harassment complaints or it is the owner of the business himself who is harassing you, you should consider contacting an attorney to assess the best course of action.

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Can the employer or the supervisor get back at me for making a complaint of harassment?

​The law forbids an employer from retaliating against an employee for making a complaint or reporting unlawful harassment. This is not to say that employers and supervisors do not retaliate. But they do so at their peril, and can be sued for retaliating against a person who complains of unlawful harassment or discrimination.

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What should I do if I am the victim of unlawful harassment?

You can contact an attorney experienced in discrimination law, like the attorneys at Beranbaum Menken LLP. You can also take action on your own, without an attorney, by making an appointment with one of the following governmental agencies responsible for enforcing equal employment opportunity laws:

U.S. Equal Employment Opportunity Commission (EEOC), 800-669-4000 (federal law) 

N.Y. State Division of Human Rights, 212-961-8650. New York state law, unlike federal law, protects people from discrimination based on sexual orientation, marital status or status as a victim of domestic violence.

N.Y. City Commission on Human Rights, 212-306-7500. The NYC Human Rights Law, unlike federal and New York State law, protects employees from discrimination because of perceived age, partnership status, citizenship status, and unemployment status.

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How much time do I have to file a claim with a governmental agency or a court?

If the discrimination or retaliation occurred within the State of New York, you have 300 days from the most recent incident of unlawful harassment to file a charge of discrimination with the EEOC.You have one year (360 days) from the most recent incident of unlawful harassment to file a complaint with either the New York State Division of Human Rights of the New York City Commission on Human Rights.If you have not filed a complaint with either the NYS Division of Human Rights or the New York City Commission on Human Rights, you still have three years from the time you learn of the discrimination or retaliation to file a lawsuit alleging violations of state or city (but not federal) law with the New York Supreme Court (New York’s trial court).

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What if I don’t file within these deadlines?

If you don’t file your complaint or lawsuit by the deadlines listed below, your legal action will be dismissed and you will have no further legal recourse. That is why it is so important to act promptly if you believe you have been discriminated or retaliated against. Anti-discrimination laws are complicated, and it can be very difficult to know your rights. While we hope the information above is useful, it is not exhaustive. That is why it’s important to consult a knowledgeable lawyer to determine what your rights are and how best to protect them. Beranbaum Menken has a long history and track record of advocating for victims of discrimination. If you believe you may have been the victim of discrimination, contact us to schedule a consultation.

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Wage and Hour Laws

The laws that protect people against wage theft and other wage & hour violations are often quite complicated, and it can be difficult to understand your rights. Below, we offer some guidance on frequently asked questions. However, keep in mind that this guidance is not exhaustive, and it is best to have an attorney help you understand your rights given your particular situation. Beranbaum Menken has a long track record of protecting people’s rights under federal and local wage theft laws. If you believe you are owed wages or your rights have been violated, contact us to schedule a consultation.

Please keep in mind that different states and some cities have different wage & hour laws. These guidelines are based on the laws applicable in New York State. There are also many exceptions to the guidelines below, with some employees earning greater or less protection.

What is the minimum wage?

As of July 24, 2009, the minimum wage in New York State is $7.25 per hour. Employers are required to pay most workers in New York State at least the minimum wage, although there are exceptions for full time students, youth under age 20, agricultural workers, and employees who earn tipsNew York law makes no exceptions to the minimum wage requirements for undocumented workers, workers paid in cash, or workers working “off the books.” New York’s minimum wage rules are explained in this poster which all employers are required to post conspicuously at the job site. Some workers are entitled to more than the minimum wage, such as those workers protected by New York’s prevailing wage law, New York City living wage law, or a collective bargaining agreement or other binding contract.

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What is the minimum wage for tipped employees?

Employees earning tips are still entitled to earn the minimum wage. However, employers are allowed to take a “tip credit” from your wages, meaning that the employer doesn’t need to pay you the full minimum wage. However, employers can only take this “tip credit” so long as they tell you they are taking this credit and they pay you at least $5.00 an hour in the food services industry and $5.56 in other service industries. If your tips plus your $5/hour wages don’t add up to $7.25/hour, your employer must make up the difference. Here is the full text of the New York minimum wage order for the hospitality industry. Tipped employees are also entitled to earn overtime at the employee’s regular rate of pay.

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What are the rules for overtime?

Most employees in New York are entitled to be paid one and one half times their regular “straight-time” wage for all hours worked over 40 in one work week. For example, if you work 50 hours in a week, and you normally receive $10 per hour, you should calculate how much you are owed that week as follows:

40 hours x $10 = $400 straight time pay

10 hours of overtime x 1.5 x $10 = $150 overtime pay

TOTAL:    $550   

That means the higher your regular straight-pay rate, the higher your overtime rate. There are exceptions to New York and federal overtime laws. For example, people who are exempt from federal overtime laws are also generally exempt from New York’s overtime laws. A list of federal overtime exemptions can be found here. The laws on exemptions can be quite confusing. If you are unsure of whether your employer has properly classified you as exempt from overtime laws, contact us to schedule a consultation.

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Am I an employee or an independent contractor?

It is not unusual for employers to misclassify employees as independent contractors. After all, doing so allows them to pay lower taxes and benefits, avoid paying the minimum wage and overtime, avoid paying workers compensation, unemployment insurance, or to provide many other workplace protections.

Luckily, the employer does not simply get to decide based on its own preferences who is or is not an independent contractor. The question is determined by a set of factors laid out by the IRS here.

Essentially, if your employer controls when, where and how you work, you are an employee, not an independent contractor, and that means that you are entitled to all the same wage & hour protections as other employees, regardless of what kind of tax form your employer issues you.

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How many hours can an employer ask an employee to work?

There are no limits on the number of work hours per day and employer can require.

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Does my employer have to pay me for my travel time?

If your employer makes you travel after arriving at work, you should be paid for that travel time. However, employers generally do not need to pay an employee for the time spent getting to and from the workplace.

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Does my employer have to pay me for time spent waiting at the job?

Some jobs require people to stand around and, essentially, wait. For example, some jobs require people to undergo extensive searches before they are allowed to leave the premises, or requires them to arrive at work at 9:30, say, but does not allow the employee to actually begin working until a supervisor has come by and checked them in. Even though employees are not performing any work during these times, the employer is still required to pay them for this time so long as the employer is the one requiring them to be at the workplace during this time and does not allow them to leave.

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What can an employer lawfully deduct from my pay?

An employer in New York cannot withhold your wages (make deductions from them) unless a court ordered your employer to make deductions (for child support, for example) or unless you give your employer an authorization in writing to make deductions for a lawful purpose (like contributions to a 401(k)). Your employer cannot make deductions form your pay to cover damage you might have caused at work or to cover a slowdown in business (unless you are receiving a bona fide pay cut, which cannot fall below the minimum wage).

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Am I entitled to meal periods or “breaks”?

Most people are. Employees in New York who work shifts of more than 6 hours, starting before 11:00 am and continuing until 2:00 pm must have an uninterrupted lunch period of at least 30 minutes. Meal periods do not count as work time, so employers do not have to pay wages for that time.

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Does my employer have to pay me for holidays, sick time and/or vacations?

Most workers are not presently entitled by law to paid sick leave or holiday leave unless the employer has established a policy promising such pay. A new law, slated to take effect on April 1, 2014, would require some employers in New York City to provide some paid sick leave for employees with a serious medial condition.

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If I complain about a violation of wage & hour laws, can I be fired?

New York law protects employees from retaliation for making complaints or inquiries concerning their rights under wage & hour laws, or for filing a legal action based on wage violations.

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What should I do if I think I am being improperly paid?

You can consult an attorney or make a complaint to the New York State Department of Labor.

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How long do I have to bring an action in court for unpaid wages?

You have six years under New York law to bring an action for unpaid wages, and two or three years (depending on whether the wage violation was “willful”) under federal law. Keep in mind that the clock is ticking – if you were unpaid from 2000-2010, then as of 2013 you are only entitled to your unpaid wages from 2007-2010 under New York law, because you are entitled only to back wages that are owed to you within the past six years. 

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What happens if I win an action for unpaid wages in court?

You will be awarded your back wages (including overtime or unlawful deductions or tip credits taken) and attorneys fees. You may also be awarded “liquidated damages,” meaning you may end up with twice your actual wages owed. Wage and hour laws can be confusing, and there are exceptions to many of the guidelines mentioned above. Beranbaum Menken has a long track record of vindicating people’s rights to be paid fairly under the law, in both individual cases and large class actions. If you think you are owed back wages or that your employer is violating your rights, contact Beranbaum Menken to schedule a consultation.

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