New York Employment Lawyer Blog

How can older workers prove age discrimination when they are part of a reduction in force? The best way to prove any kind of employment discrimination is to focus hard on the explanations provided by the company. This is even more important when an employee is part of a group termination. By focusing on the details, it sometimes becomes clear that the explanations are not logical and this can expose the real motive for the firing.

In EEOC v. Tin, for example, the plaintiff did a good job of questioning the explanation provided by the company. In Tin, an Arizona plant manager was fired and replaced by someone 15 years younger. The company said the younger manager was more qualified because the younger person used to manage a very profitable plant. But by focusing on the details of a plant managers job, it became apparent that a plant's profitability was not impacted by the plant manager. Instead, plant profitability was driven by other factors that were outside of the manager's control.

The Court ruled that plant profitability was not an indication that the younger manager was more qualified. In rejecting the companies argument, the Court allowed the age discrimination claim to advance to trial and denied the companies motion for summary judgment. The details won the day in that case and prevented the company from getting the case dismissed.

I am here in Capetown, South Africa with my 12 year old son Jack for the World Cup. The soccer games are amazing and Capetown is an incredibly beautiful seaside city that is full of life. As South Africa hosts the World Cup it is also trying to create a new world image. A new soccer stadium was built in Capetown for the World Cup and it is beautiful. The stadium is just a few miles from Robben Island Prison where Nelson Mandela and other anti-apartheid activists were punished.

Apartheid was legalized race discrimination and it takes on new meaning when you visit South Africa. You see its impact and feel the racism that still exists here. During apartheid, non-whites were only allowed to live in certain areas called townships. These townships still exist and are even more crowded and impovershed. Basic food and medical care is lacking and people suffer. Today we are going to visit a township called Gugulethu.

Jack and I are here in Capetown with a U.S. based charity called Open Arms that helps poor South Africans. Open Arms work in South Africa is focused on Gugulethu and they really help people with serious problems and they need support.

Yesterday we visited the District 6 museum in Capetown which starkly portrays organized government backed racism. District 6 was once a neighborhood in Capetown that was occupied by non-whites. The government forced the residents to leave their homes and tore down the neighborhood. Families were broken up and sent to encampments based on race. If a husband and wife were of slightly different races or even colors they would be sent to different locations and forced to live apart because of their race. Many former residents of District 6 are still living in those townships and they cannot afford to eat much less attend a World Cup soccer game.

The sexual harassment law in New York City is different than the federal and New York State laws. This was explained in the post below. The New York City law is excellent and a credit to the City law makers because it provides genuine protection against sexual harassment. The federal and New York State laws, however, are ineffective in preventing sexual harassment because they give companies an easy out. There is one major difference between the New York City law and the Federal and State law.

The New York City law recognizes that sexual harassment victims generally do not report the harassment. If a woman is sexually harassed by a supervisor at work, she knows that reporting the harassment is unlikely to stop the harassment and reporting it will probably ruin her career. The only real option for a sexual harassment victim today is to leave the company. The New York City law recognizes this and there is no obligation to report sexual harassment by a supervisor to the company. Not so under the federal and New York State law.

Under the federal and state law, a woman who is sexually harassed by her supervisor is required to report the harassment to the company. This is an absurd requirement and it proves that federal and state law makers are out of touch with reality. These laws force a woman to commit career suicide just because she is sexually harassed by a supervisor. It almost appears that these laws were created by a bunch of old men who are clueless. Actually, the federal law was created by the US Supreme Court, which until recently was overwhelming male. Now there are two females on the court and maybe they will sway the old men out of their arm chairs and into reality. A more balanced court is needed to create realistic laws. The federal sexual harassment law is a good example of a law that might have good intentions but actually weakens the rights of those it was designed to protect.

Sexual harassment cases in New York City just got easier to win. The highest court in New York ruled that one of the key defenses used by companies in defending sexual harassment cases is no longer available.

New York City has its own sexual harassment and anti-discrimination law. This NYC law is stronger than the federal and New York State employee rights and sexual harassment laws. The federal and New York State laws contain built in defenses that make it easier for companies. Under these federal and state laws, a company can avoid liability for sexual harassment if the victim fails to report the sexual harassment to the company. This loop hole was a real problem because many sexual harassment victims do not report the harassment and this ultimately lets the company off the hook.

But now, under this new law, sexual harassment victims in New York City who are harassed by a supervisor, do not need to report the harassment to the company. New York City employers are now strictly liable for the sexual harassment of supervisors. The case is called Zakrzewska v. The New School and it is a real boost for employee rights in New York City.

The FMLA permits employers to require employees to use their accrued paid vacation leave and their sick leave for some or all of their FMLA leave. According to the FMLA regulations, an employer can require paid sick leave to run concurrent with FMLA leave. However, under no circumstances can an employer penalize an employee for taking FMLA qualifying leave as sick leave. One very common abuse is the establishment of point-based policies which penalize employees for each unexcused absence, whether the absence is FMLA qualifying or not. These policies clearly violate the law. Recently, we successfully litigated a case against a multinational corporation with a policy which allowed for the accrual of points even for excused, FMLA qualifying absences. The company narrowly avoided a class action and was forced to pay the employee three times her yearly salary for this costly mistake. If you think your employer has violated the FMLA, contact us for a free screening to discuss your rights.

Many people who are paid on a salary basis believe that they are not entitled to overtime pay. We get calls all the time from workers who assume that overtime pay is not an option since they are on a salary. Salaried employees, however, are presumed to be entitled to overtime pay.

A salaried employee must be paid overtime unless they meet the test for an exempt employee under the Fair Labor Standards Act. The Fair Labor Standards Act is probably one of the most confusing and poorly drafted laws on the books. However, over the years, the courts have courts have carved out certain exemptions. The exemptions exclude certain kinds of jobs from overtime pay. The broad idea is that certain higher level positions are not entitled to overtime pay. Here are the main exemptions:

1. Executive - a person who is employed as an executive is exempt from overtime pay. An executive is generally any person who manages the business or part of the business and who also manages two or more employees, has the power to hire and fire employees and who regularly exercises independent judgment.

2. Administrative - a person who is employed in a higher level administrative position is exempt from overtime pay. This is one of the more challenging exemptions as the definition is vague and tends to change over time. In any event, an administrator is someone who helps run the operation of a business such as an accountant or a human resources director. They have to help keep the business running and they also have to regularly exercise independent judgment and not operate under close supervision or engage in clearly defined tasks or work.

3. Professionals - highly educated types with fancy degrees are exempt from overtime pay. This includes doctors, lawyers, scientists, researchers and the like. They are not entitled to overtime pay.

4. Outside Sales - Salespeople who spend the majority of their time outside of the office visiting clients are exempt from overtime pay.

5. Union Employees - employees who are covered by a valid collective bargaining agreement are exempt from overtime pay.

These are the more common exemptions from overtime pay. Many people who are paid on a salary do not fall into any of the above exemptions and are therefore entitled to overtime pay. If you think that you are entitled to overtime pay, you should call an experienced employment law firm. We would be happy to help. We answer these kinds of questions for free as do many other firms.

In New York, it is assumed that all employees are entitled to overtime pay, even if the employee is paid a salary. It does not matter how a person is paid. There are exceptions, but it is the employers burden to prove that an employee is exempt from overtime pay. In New York, an employee is entitled to overtime pay for each hour worked over 40 in a workweek. An employee must be paid "time and a half" for each hour of overtime worked. "Time and a half" means a 50% increase in pay. For example, if an employee's normal pay rate is $50 an hour, her overtime rate will be $75 an hour. This is a steep increase in pay and this is why many companies try to avoid paying their employees overtime pay.

As mentioned above, some employees are "exempt" from overtime pay. This means they don't get paid an increased rate for overtime. Here is a general summary of the common overtime pay exemptions:

1. Highly Compensated Employees - if an employee earns more than $100,000 a year, then they may be exempt.

2. Managers - employees who manage more than two full time employees and spend most of their time managing these people may be exempt.

3. Professionals - employees with advanced degrees such as doctors, lawyers, and scientists are exempt from overtime pay.

4. Administrators - employees who exercise independent judgment and discretion regarding matters of substantial importance to the employer are exempt. To fit within this exemption, the employee's work must involve running the companies business and not involve producing the goods or services provided by the company. Also, support functions are not exempt. In addition, the employee's work must be free from close supervision, not routine, repetitive, or governed by established procedures.

There are a number of other more specific exemptions, but the four listed above are the more common exemptions. Remember, it does not matter how an employee is paid. The fact that an employee is paid a salary is irrelevant. A person is presumed to be entitled to overtime pay unless their position fits within an exemption.

We get a regular stream of calls from unhappy employees relating stories of unfairness, abuse and misery. People want to know what they can do about their abusive and unfair bosses. Employee rights are limited and only prohibit employment discrimination, sexual harassment and the like. Unless you are subject to discrimination or racial or sexual harassment, your best recourse may be quitting your job.

In New York, there is no legal code of conduct that regulates the work place. Only the most horrible and despicable conduct is illegal. Everyday abuse and unfairness is not illegal. A boss can be rude, obnoxious, and grossly unfair and it is all legal. You cannot force a company or a boss to be fair and professional. Unless the company is willing to change, your only option is to find another job. This is a misunderstood concept. There is a misconception out there that employees have a right to fairness or the right to be treated with respect. No such right exists.

Just as there is no law that prohibits rude and unfair conduct at work, there is no law that requires a person to put up with it. Employees are free to leave at any time and for any reason. No notice is required.

The reality is that most employees feel trapped by economic pressure. They need the pay check so they put up with abuse and unfairness. Even if a paycheck is needed, your best bet is often to focus your efforts on finding a new job.

Our law firm, The Ottinger Firm, recently filed a class action suit against Goldman Sachs for overtime pay violations. The law suit alleges that Goldman Sachs improperly classified certain IT employees as independent contractors and then failed to provide them with overtime pay. The misclassification of employees as independent contractors is a common corporate scheme to lower costs. By classifying employees as independent contractors, a company avoids overtime pay, health benefits, workers compensation insurance and even certain tax obligations. In this case, the IT employees did not fall into the category of independent contractors because they were treated like Goldman Sachs employees - they were not actually independent contractors. The case was filed in federal court in New York City.