|May 23, 2019||SO WHAT’S THE DEAL WITH OVERTIME AND WHY AREN’T I GETTING IT?||no comments|
|May 20, 2019||#MeTOO? A Guide to What Exactly Constitutes Sexual Harassment in New York||no comments|
|May 10, 2019||JUSTICE FOR CHILDHOOD VICTIMS OF SEXUAL ABUSE: WHAT YOU NEED TO KNOW NOW ABOUT NEW YORK’S 2019 CH...||no comments|
|March 11, 2019||THE WEED TRUTH: Recreational Use of Marijuana, even if legalized in New York, Can Still Get You F...||no comments|
|October 25, 2018||SAVED BY THE BELL? NOT REALLY. NEW SEXUAL HARASSMENT POLICY MUST STILL BE IN PLACE BY OCTOBER 9, ...||no comments|
|October 09, 2018||EMPLOYMENT LAW ALERT: EMPLOYER COMPLIANCE WITH NEW SEXUAL HARASSMENT LAWS COMMENCES ON OCTOBER 9,...||no comments|
Author: The Van De Water Law Firm, P.C.
Overtime Pay in New York
Many employees in New York are eligible for overtime pay if they work more than 40 hours per week. Unless an employee has a job that is specifically exempt from the overtime requirement under state and federal law, employers are required to pay employees time-and-a-half for all hours worked in excess of 40 hours per week. Time-and-a-half means an employee is entitled to 1.5 times their hourly rate for all hours worked over 40 in a given week. For example, if an employee is paid $20 hour and works 50 hours per week, that employee should be paid $20 x 40 ($800) in regular pay, and $35 x 10 ($350) for overtime hours worked, for a total of $1,150.
Determining Who Is Exempt from Overtime
A common misconception is that eligibility for overtime is determined based solely on your job title or whether you are salaried. That is simply not true. Instead, it is your employment classification that determines how your employer pays you and the benefits to which you are entitled. In New York, you can find these classifications and the legal protections associated with them in the New York State Labor Law.
Some examples of jobs that are exempt and thus not subject to receiving overtime are:
Unfortunately, employers often mis-classify employees as exempt from overtime, and many employees are unaware of their right to overtime compensation. As a result, many employees are not paid wages they are owed under the law.
Another trick employers use to avoid paying overtime is misclassifying employees. Misclassification that results in failure to pay overtime wages can occur in three ways:
3) Failing to provide an employee overtime wages because the employee is salaried. Just because you are salaried does not in itself mean you are exempt from getting overtime wages. If you are not exempt from overtime wages, your employer is responsible for calculating your hourly wage equivalent and providing you with overtime pay when you work more than 40 hours per week. Additionally, certain employees may meet the “highly paid” exemption if they are salaried; however, many salaried employees do not qualify for this exemption.
Who is Going to Pay for All This? Attorney’s Fees, Liquidated Damages, Cost and Interest
Federal and State Laws require that attorney’s fees, liquidated damages, costs and interest to be paid to an employee that prevails in an overtime claim. 29 U.S. Code § 216, otherwise known as the Fair Labor Standards Act (“FLSA”). The FLSA provides that the Court shall allow a successful employee to recover his or her reasonable attorney’s fees, as well as the costs associated with pursuing their rights in a legal action. More specifically, the Courts in New York have held that an employee who “prevails” in an FLSA action shall receive his or her “full wages plus the penalty without incurring any expense for legal fees or costs. This takes the financial burden off of an employee and places it squarely on the shoulders of their employer, allowing them to come forward and enforce their rights without paying an expensive retainer to secure the services of a highly skilled attorney who specializes in wage and hour claims, as does The Van De Water Law Firm, P.C.
Similarly, the New York Labor Law in §§ 198(1-a) strongly supports its Federal overtime counterpart by stating that “In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney’s fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.”.
We at the Van De Water Law Firm, P.C. specialize in wage and hour and overtime cases. If you believe you are the victim of overtime violations, we are always available for a free consultation and can be reached via email, cell phone: (516) 384-6223, office (631) 923-1314. More information can be found at The Van De Water Law Firm P.C.
“I am your legal protector”
As brought to light during the course of the #MeToo movement, it is illegal to harass an employee or even a job applicant in New York State due to that person’s sex or gender. However, some of the recent cases of sexual harassment in the press raise more questions than they answer as to what kind and manner of conduct is illegal. In other words, sexual harassment at times is difficult to define and quantify and does not always need to be purely of a sexual nature. So how do we sort it all out? To begin with, harassment does not need to include physical or sexual actions. It is considered prohibited sexual harassment to make offensive remarks about women, but these remarks must be severe or pervasive to be actionable, meaning that a single comment is usually not sufficient. Romantic overtures, rather than purely sexual ones, such as repeatedly asking a coworker on a date, may also be considered sexual harassment. The actions that are considered to be harassment may be directed toward a man or woman and may be committed by men or women. The victim and the harasser may be of the same sex or gender.
Sexual harassment claims fall into two distinct categories: 1) quid pro quo, and 2) hostile work environment.
Quid Pro Quo Sexual Harassment
A claim for quid pro quo sexual harassment may arise when your employer offers, either expressly or by implication, to trade job benefits such as a promotion, pay raise or other job benefit, in return for sexual favors. Typically, quid pro quo sexual harassment is committed by a direct supervisor or manager that is in a position of sufficient power to grant the promised benefit. Given the direct and often immediate impact on the employee, quid pro quo sexual harassment is often extreme and has lasting emotional and psychological effects on the targeted victim.
Here are a few examples of conduct that may be considered quid pro quo sexual harassment:
Hostile Work Environment Sexual Harassment
A claim for hostile work environment sexual harassment arises when the actions that constitute the underlying harassment are “severe”, “frequent” or “pervasive”. This type of harassment may be committed by co-workers as well as supervisors, managers, and even clients or customers. This type of harassment may include sexual or romantic advances, sexually discriminatory remarks, derogatory statements, words, pranks, jokes, signs, physical violence, intimidation, or any sort of conduct or action of a sexual nature taken due to the victim’s sex. Actions or conduct that constitute hostile work environment sexual harassment must cause the person hearing or seeing them discomfort, humiliation, or a significant loss of productivity at work.
Here are a few examples of conduct that may be considered hostile work environment sexual harassment:
Generally, the New York State Human Rights Law applies to employers with four or more employees, while Title VII applies to employers with 15 or more employees. However, the Human Rights Law applies to all employers, regardless of how many people they employ, as of 2015. Even domestic workers like a nanny or maid are protected from sexual harassment. Those individuals employed in New York City (Brooklyn, Bronx, Manhattan, Queens or Staten Island) are more advantageous. New York City Human Rights Law offers more extensive protection than state and federal laws. Incidents that would not be considered severe according to federal or state criteria may be valid within the City of New York.
An employer faces strict liability if the employee has been harassed by an owner or high-level manager. Employers may only be held strictly liable for harassment by lower-level managers and supervisors if they have enough control over an employee’s working conditions. This means that an employee may hold an employer responsible for the harassment, even if the owner did not know that it was happening. However, an employee should report the harassment to the employer and take advantage of any grievance system that the employer has put in place before taking other formal steps.
We at the Van De Water Law Firm, P.C. stand ready to protect your rights and are available for a free consultation at 631-923-1314 or email us if you feel that you have been a victim of sexual harassment. Don’t hesitate to protect your rights.
Author: The Van De Water Law Firm
On Thursday, February 14, 2019, New York Governor Andrew Cuomo signed into law one of the most important pieces of Civil Rights legislation in years, the Child Victims Act, ensuring that child abusers are held accountable in a civil court of law. Finally, those survivors who have endured unimaginable pain and abuse have a path not only to justice, but perhaps also healing and closure. As Governor Cuomo himself succinctly stated on that date: “This bill brings justice to people who were abused, and rights the wrongs that went unacknowledged and unpunished for too long. By signing this bill, we are saying nobody is above the law, that the cloak of authority is not impenetrable, and that if you violate the law, we will find out and you will be punished and justice will be done”. In short, the Child Victims Act provides long-awaited relief to child victims of sexual abuse by amending New York State’s antiquated laws to ensure that perpetrators of sexual abuse offenses on children are held accountable for their actions, regardless of when the crime occurred. Under the former law, victims of sexual abuse as children had to bring a lawsuit within three year’s of the victim’s 18th birthday, an injustice that led to many victims finding the strength to come forward only learning too late that they were time barred from bringing a civil action against the heinous perpetrators of these crimes. No more says the New York legislature! A one-time window has opened for victims to file civil lawsuits for the immense emotional fallout associated with cases involving the sexual abuse of a child.
Here is what you need to know NOW about this important legislation and how it affects a victim’s exercise of their rights in a court of law. The Child Victims Act:
The one-time one-year look back period opens during the summer of 2019, so it is very important for victims of child abuse to consult with a knowledgeable attorney as soon as possible to discuss their rights and develop a plan for your vigorous representation. Stay tuned for more from the Courts on the promised procedural rules and regulations, which will be integral in successfully litigating these cases and will likely be tailored toward early resolution and settlement.
Governor Andres Cuomo’s proposal for the legalization of recreational marijuana use essentially condenses into the following agenda:
Nevertheless, the debate rages on about how far reaching the effects will be within the school environment, impaired driving and ultimately, the workplace.
Along that vein, it is important for all New Yorkers to be aware of the risks of showing up to work under the influence of marijuana. As you know, if you show up to work under the influence of alcohol, and your employer has a substance abuse policy in their handbook, then you risk a disciplinary write-up at best, and termination at worst. The same rules apply to employee’s use of recreational marijuana. If you show up to work high, or light up outside your employer’s premises, employees run the same risks as with alcohol use. Certainly, it is a fine line to tread as there are no uniformly established THC levels that your employer can test to determine an employee’s level of impairment. Employers would therefore be given free license to make subjective judgments as to an employee’s level of impairment based upon smell, speech patterns, eye movement and dilation, delayed reactions, emotional state, short-term memory problems, among other physical symptomology.
It is a slippery slope at best, but an employer is within their rights to terminate employees with substance abuse violations. This is especially so in occupations involving physical labor and the use of a motor vehicle including drivers, delivery companies, waiters, warehouse workers, trades and any employees in the service industry.
The Van De Water Law Firm stands ready to serve you with respect to any employment issue, and our initial consultation is always free.
WHAT YOU NEED TO KNOW TO COMPLY WITH THE FINAL CHANGES TO NEW YORK STATE’S SEXUAL HARASSMENT TRAINING LAWS
Ok, so October 9, 2018 came and went, and the Department of Labor hasn’t knocked down your door with notices that you are non-compliant with New York’s State’s new sexual harassment laws. Time to breath easy, right? Wrong! While the State has continually vacillated in their typical fashion, finally extending the full training compliance deadline to October 9, 2019. However, effective October 9, 2018, all New York State employers were still required to adopt written sexual harassment prevention policies and institute annual anti-harassment training for employees. Confusing right? After issuing draft documents in August, the State has now issued final model policy and training documents, as well as FAQs and additional guidance on the new laws. More information can also be found on the State’s website.
The State has also issued an “Employer Toolkit” which provides an overview of the final policy and training materials and practical guidance for employers, which can be found here.
In order for your business to be fully compliant, it is required to adopt and distribute to employees written sexual harassment prevention policies that are compliant with the new law by October 9, 2018. To satisfy this obligation, employers may (1) adopt the State’s model sexual harassment policy and complaint form, or (2) implement their own policy and complaint form that equals or exceeds the minimum standards provided under the statute consistent with guidance issued by the State.
In response to a number of comments submitted on the draft policy and FAQs issued in August, the State made the following notable changes to the final documents issued on October 1:
The final changes also state that if an employer has already established investigative procedures that are similar to those provided in the State model (in that they provide for a timely and confidential investigation of complaints in a matter that ensures due process for all parties), the employer need not expressly adopt the investigative procedure set forth in the State model. That said, employers must nevertheless outline their investigative procedures in their policy document.
With regard to distribution of the policy, the FAQs state that a signed acknowledgment of receipt is not required, but that employers are “encouraged” to obtain one from employees. Employers must provide employees with a copy of the policy in writing or electronically, and if made available electronically, employees must be able to print a copy for their records.
We at The Van De Water Law Firm, P.C. are ready to help you navigate these murky waters to make certain your business stands in full compliance with the ever-changing sexual harassment training policy and training requirements. Call us for a free consultation on this, and any other legal issue affecting your business.
A BRIEF BY COMPREHENSIVE OVERVIEW OF WHAT YOU NEED TO KNOW TO COMPLY WITH THE NEWLY ENACTED NEW YORK STATE AND NEW YORK CITY SEXUAL HARASSMENT TRAINING LAWS
Author: CHRISTOPHER L. VAN DE WATER, ESQ. MANAGING PARTNER
In 2018, both New York State and New York City have enacted the strictest harassment training laws in the Nation as a clear outgrowth of the #MeToo movement that swept the country following the Harvey Weinstein scandal. All Employers must begin compliance with the New York State Law commencing on October 1, 2019, and the New York City Law on April 1, 2019.
I. 2018 New York State Budget Sexual Harassment Training Provisions Contained within Part KK of S7507-C
On April 12, 2018 New York Governor Andrew Cuomo signed into law several bills that were included in the 2018-2019 New York State budget. The bills address workplace sexual harassment. Part KK of S7507-C 0g the new law requires New York employers to adopt and distribute a sexual harassment policy and training program.
The new requirements take effect October 9, 2018.
A. Content Requirements of the New York State Sexual Harassment Policy:
More specifically, the new law requires employers adopt a sexual harassment prevention policy which:
This sexual harassment policy must then be provided to all of your employees in writing. It would be advisable to include this policy in your orientation package. You should should informally and formally routinely remind employees of this policy.
You can read the New York State’s sexual harassment laws in their entirety (Part KK of S7507-C) by clicking here
B. Training Requirements of the New York State Sexual Harassment Policy:
The New York State Law also mandates that employers provide interactive training to their employees that includes the following:
1) an explanation of sexual harassment;
2) examples of sexual harassment;
3) information concerning the federal and state laws concerning sexualharassment and remedies available to victims; and
4) information concerning employees’ rights of redress and forums forcomplaints.
Although there is no record keeping requirement under the law, I strongly advise your company to formally track, in a signed form, your employees’ attendance at the training. This type of evidence is helpful in defending against potential allegations of sexual harassment, and will serve to mitigate your risk against frivilous lawsuits.
C. Model Sexual Harassment Policy and Training Program
The law also requires the New York State Department of Labor (DOL) and the New York State Division of Human Rights (DHR) to develop a model policy and training program for employers.
II. The Stop Sexual Harassment in New York City Act
The Stop Sexual Harassment in New York City Act was signed into law by Mayor Bill de Blasio on May 9, 2018 and expands the reach of the New York City Human Rights Law in cases involving gender-based harassment.
A. The Stop Sexual Harassment in NYC Law Amends New York City Human Rights Law by:
1) applying provisions related to gender-based discrimination to ALL employers, regardless of the number of employeess;
2) increasing the statute of limitations from one-year to three-years for filing a claim of gender-based discrimination with the NYC Commission on Human Rights;
3) mandating employers with 15 or more employees to conduct annual anti- sexual harassment training to all employees, including managers and supervisors.
4) for new employees who work more than 80 hours in a year, such training much be provided within 90 days of their initial hire. This requirement is effective April 1, 2019.B. Training Requirements of the New York City Act:
The New York City Stop Sexual Harassment Act requires that every employer’s sexual harassment training must:
1) provide an explanation and example of sexual harassment as a form of unlawful discrimination under NYC law;
2) state sexual harassment is unlawful under both Federal and New York State laws;
3) provide a detailed description of what sexual harassment is;
4) identify the employer’s internal complaint process;
5) state the complaint process that is available through the NYC Commissionon Human Rights, the NYS Division of Human Rights and the EEOC,including all relevant contact information;
6) explain the prohibition against retaliation against an employee by anemployer;
7) provide information concerning bystander intervention (i.e., such as suggestions about how to confront a harasser); and
8) identify the specific responsibilities that supervisors and managerial employees have in the prevention of sexual harassment and retaliation.
9) keep employee’s training acknowledgment forms for three years.
The New York City training requirements begin on April 1, 2019. The training must be provided annually and, in the case of a new employee hire, within 90 days thereof.
Starting September 6, 2018, all New York City employers are required to post a sexual harassment poster and distribute a sexual harassment fact sheet to all new employees.
Additionally, under the New York City Law, employers are required to keep training acknowledgment forms for 3 years.
DIFFERENCES BETWEEN THE NYC AND NEW YORK STATE NEW SEXUAL HARASSMENT LAWS
The two tables below detail the obligations and the differences between the New York State and New York City laws regarding: