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EMPLOYMENT & LABOR LAW

FREQUENTLY ASKED QUESTIONS

 

What is “employment discrimination”?

 

Discrimination occurs where employers take actions that single out and treat employees and job applicants less favorably than others similarly situated on the basis of their age, color, disability, gender, marital status, national origin, pregnancy, race, religion, sexual orientation, veteran and military status, domestic violence victim status, arrest or conviction record, and genetic characteristics. Unlawful discrimination can also occur where employment practices appear to be facially neutral, but are discriminatory because of the adverse effect they have on employees or job applicants.

 

Employers are legally required to provide reasonable accommodations to their employees who have disabilities. A reasonable accommodation is a way to allow an employee with a disability to perform the essential functions of their job. An employer’s failure to reasonably accommodate an employee’s disability is another form of employment discrimination. Depending on the circumstances, examples of a reasonable accommodation can include but not limit any of the following: allowing you to work from home; permitting you to work a modified or part-time schedule; allowing you to take an unpaid medical leave; removing marginal (non-essential) job responsibilities; changing when or how you perform certain tasks; reassigning you to another open job; providing you special equipment or devices; changing workplace policies.

 

Once you've found yourself working in a discriminatory environment you need to take immediate action to safeguard yourself. It's critical that you respond to the very first instance of discriminatory treatment in the workplace. If you feel that someone is discriminating against you, you should file a complaint to the company's management and/or human resource department. If the company has a policy manual or a handbook that explains the necessary steps, follow those steps.

 

What is a “hostile work environment”?

 

Generally, a hostile work environment ensues occurs when there is discriminatory conduct or behavior in the workplace that is unwelcome and offensive to an employee or group of employees on the basis of age, color, disability, gender, marital status, national origin, pregnancy, race, religion, sexual orientation and veteran or military status.

 

A hostile environment can result from the unwelcome conduct of supervisors, co-workers, customers, contractors, or anyone else with whom the victim interacts on the job, and the unwelcome conduct renders the workplace atmosphere intimidating, hostile, or offensive.

 

Intimidating or hostile behavior may take various forms. Examples of behaviors that may contribute to a hostile work environment can include discussing sexual activities, telling off-color offensive jokes concerning race, sex, or other protected bases, unnecessary touching, commenting on physical attributes, displaying sexually suggestive or racially insensitive pictures, using demeaning or inappropriate terms or epithets, using indecent gestures, using crude language, sabotaging the victim’s work, and engaging in hostile physical conduct.

 

Once you've found yourself working in a hostile work environment you need to take immediate action to safeguard yourself. It's critical that you respond to the very first instance of inappropriate intimidating or hostile behavior in the workplace. For example, if someone makes an offensive remark or tells an insulting joke, you should file a complaint to the company's management and/or human resource department. If the company has a policy manual or a handbook that explains the necessary steps, follow those steps.

 

What is “unlawful retaliation”?

 

Retaliation occurs when an employer punishes an employee for engaging in legally protected activity. An individual engages in legally protected activity when he or she opposes a practice he or she considers to be discriminatory, participates in an employment discrimination proceeding or engages in other protected activity which includes requests for an accommodation based on disability or religion.

 

Retaliation does not just mean firing or demoting. It can include other negative employment actions, from being denied a raise or transfer to a more desirable position to missing out on training or other employment opportunities. Retaliation can include any negative job action, as long as the employer's adverse action would deter a reasonable person in the situation from making a complaint.

 

Once you've found yourself the victim of retaliation you need to take immediate action to safeguard yourself. It's critical that you respond to the very first instance of retaliation in the workplace. If you feel that someone is retaliating against you, you should file a complaint to the company's management and/or human resource department. If the company has a policy manual or a handbook that explains the necessary steps, follow those steps.

 

What is the Equal Employment Opportunity Commission?

 

The Equal Employment Opportunity Commission (EEOC) is the federal agency that oversees equal employment in the workplace. The EEOC handles discrimination, hostile work environment and retaliation claims related to Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and other federal legislation based upon the following: age, disability, national origin, race or color, religion, gender and pregnancy.

 

In New York, all claims must be filed with the EEOC within 300 days of the alleged violation.

 

The EEOC will contact you and your employer upon your filing, followed by an investigation of your charge. Investigations take a few months to complete, depending on the complexity of the charge.

 

Generally, if the EEOC decides that your employer did in fact violate anti-discrimination laws, it will either seek a settlement with the employer or potentially take the case to court. If the agency decides not to sue, it will send you a "Notice of Right to Sue" regardless of its findings from the investigation. But you may not sue your employer in federal court without first filing charges with the EEOC.

 

You must file a lawsuit in federal court within 90 days after receiving a notice of a "Notice of Right to Sue" from EEOC.

 

The EEOC process can be complicated. The Woodworth Law Firm understands the process and can assist you through the procedures and help you achieve the best outcome. Deadlines apply and waiting too long to act can mean forfeiting your rights. Contact us today so we can help.

 

What is the New York State Division of Human Rights?

 

The New York State Division of Human Rights (DHR) is a state agency that oversees equal employment in the workplace. The DHR handles discrimination, hostile work environment and retaliation claims related to the New York State Human Rights Law which makes it illegal for an employer to discriminate on the basis of race, creed, color, national origin, sexual orientation, religion, political, affiliation or belief, genetics, military status, sex, disability, genetic predisposition and/or carrier status, age (over 18), marital status, familial status, prior arrest or conviction record and domestic victim status.

 

For claims of discrimination under the New York State Human Rights Law you can file a claim with the DHR within 1 year of the date on which the discriminatory act took place.  Moreover, without first filing with the DHR, you may instead initiate a lawsuit in the New York State Supreme Court. An employee has 3 years from the act of discrimination complained of to file such a lawsuit.

 

For federal claims, for instance under Title VII, an employee must first file with the Equal Employment Opportunity Commission (EEOC) within 300 days of the act of discrimination.  Filing with the EEOC is a mandatory requirement before filing a lawsuit in federal court.  You must receive a “Notice of Right to Sue” from the EEOC before you can file in federal court.

 

The DHR process is complex and can be confusing. The Woodworth Law Firm understands the procedures required and can help you act to preserve your legal claims. Strict statutes of limitations apply, so contact us today.

Am I entitled to overtime pay?

 

Under both federal and state wage and hour laws, most employees are entitled to be paid time-and-a-half when they work more than 40 hours in a particular week. Many employees believe they are not entitled to overtime pay simply     because they are paid a salary instead of by the hour. However, that is not necessarily true. Many salaried employees are entitled to receive overtime pay. Regardless of how you are paid, you are entitled to be paid time-and-a-half for your overtime hours each week in which you work more than 40 hours unless you fall into an exempt category. The three primary exemptions from the overtime requirements are for executive, administrative and professional employees.

 

Am I required to be paid the same salary as my co-workers?

 

One form of discrimination is for a company to pay comparable employees different salaries for substantially similar work. The most common form of pay discrimination is based on gender. Historically, women have been paid less than men who perform the           same work. While that disparity has narrowed over time, the average woman still is paid less than her male counterpart with the same level of education, training and experience. This is a form of unlawful gender discrimination. It is legal however for an employer to offer different salaries based on job qualifications, experience, prior salary history, or even for no particular reason.

What is the “Family and Medical Leave Act”?

 

The Family and Medical Leave Act (FMLA) is a federal law that provides for the job security of employees who need to take leave for the birth and care of the newborn child of the employee, for placement with the employee of a son or daughter for adoption or foster care, to care for an immediate family member (spouse, child, or parent) with a serious health condition, or to take medical leave when the employee is unable to work because of a serious health condition.

 

The FMLA requires an employer upon return of the employee from leave, with some exceptions, to either restore the employee to the position of employment held by the employee when leave began or restore the employee to an equivalent position with equivalent benefits, pay, and other terms and conditions.

 

Violations of the FMLA generally occur when employers retaliate or interfere with a person's rights under the FMLA. Therefore, it is generally unlawful for an employer, for example, to terminate an employee for taking leave under the FMLA or to consider FMLA leave in any employment action. In addition, it is generally unlawful for an employer to discriminate against an employee for standing up for his or her FMLA rights.

 

What is a “whistleblower”?

 

New York State has its own state law that protects “whistleblowers,” or persons who report the fraudulent or illegal conduct of an employer. These laws protect both public and private employees from retaliation by their employer for providing information regarding their employee’s illegal actions.

 

For example, retaliation may include discharge, suspension, demotion or other adverse employment actions that are taken against an employee as a result of providing information regarding their employee’s illegal actions.

 

State and federal laws protecting whistleblowers frequently contain “qui tam” provisions as well, which permit a whistleblower to file an action to enforce the “New York False Claims Act.” Such lawsuits have resulted in some of the largest recoveries to date under this Act.

 

What is the “New York False Claims Act”?

 

The New York False Claims Act creates the right of an individual to sue on behalf of the state or any “local government” which has been defrauded. Examples of false claim violations can include Medicare billing fraud by providers of healthcare services to senior citizens and disabled persons or a financial scheme that defrauds a state pension plan.

 

I’m facing a layoff and have been offered a severance package, how do I know if it’s fair?

 

When offered a severance package, it is important for an employee to understand the employer's motivations, the potential repercussions and the benefits before signing the agreement. Often, these are offered to high-ranking employees so the employer can avoid being the target of a lawsuit over some wrongdoing.

 

The first step is to review the circumstances to determine if there may be some other claim that the employee does not want to waive the right to by signing the severance agreement. If there is, and the potential benefits of that claim exceed those offered in the agreement, we can assist in filing the lawsuit and taking action against the employer.

 

The next step is to conduct a severance review, analyzing the agreement. We understand the language used in these agreements, and can identify anything that is unclear or could open the door to potential repercussions. Handling these agreements with frequency means we understand the benefits that you should be offered based on your industry, the company and your position within the company.

 

If we determine that the agreement as written does not meet your needs, we will conduct a severance negotiation to help you get all you are entitled to. Ultimately, our goal is to make certain that you are adequately protected and compensated as you transition out of your position and begin to look for a position elsewhere.

Contact the THE WOODWORTH LAW FIRM  today at:

                                    

16 West Main Street , Suite 730

Rochester, New York 14614                

 

Tel:  585-310-2563

Fax: 585-486-6017

Email: ryan@woodworthlawfirm.com 

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