New York Employment Lawyer Blog

Indiana recently made headlines when it became the 23rd Right to Work state in the country. Those states that follow the right to work philosophy essentially prohibit employers from forcing employees to become members of a union or pay union dues. For those of you that are curious, New York is not one of the 23 states that support Right to Work acts.

Here’s a look at the rationale behind right to work laws…

Those in favor of right to work argue that employees should hold the power when it comes to joining or not joining a union and note that states that do not support this freedom of association are essentially forcing workers to join a union. There is also the argument that this “forced unionization” results in workers having to pay hefty union fees and ultimately “support” ideas they don’t believe in.

There are, of course, two sides to every argument so here goes the counter. Those against the right to work movement note that non union members still benefit from the gains a union makes and because of that are essentially experiencing all the benefits of the union without having to pay the dues. A having your cake and eating it too argument if you will.

So really, the name is slightly deceiving. The issue is not about whether or not an employee can work but what role a union should play for those employees already working. Whether for or against the right to work I hope you are now a little more informed on the issue. If you have something to add to this discussion, I would love to hear from you on our Facebook page!

Age discrimination in New York can take many forms. Recognizing the uniqueness of every case, it makes sense that there are a several types of damages an individual can be awarded based on the facts of his or her case. Whether you are a victim of age discrimination or just curious about the topic, here’s a look at some of the more common damages awarded in these cases:

• Reinstatement: Whether it was a firing or a demotion, many older employees want to keep working and awarding him or her their job back or the promotion they deserve is a huge victory.

• Lost Wages & Future Earnings: One of the more common awards, lost wages and future earnings represent the income an older employee would have received had it not been for the illegal discrimination. Many older employees have worked for a long time and risen up the ranks in a company, a fact that can often translate into large awards.

• Emotional Distress: Would discrimination make you upset? You betcha. Emotional distress damages in these cases represent financial compensation for the pain and suffering associated with the discrimination.

• Punitive Damages: A high threshold to meet, some employers seem to practically do the work in proving punitive damages in these cases by their malicious and reckless behavior. Punitive damages can vary widely but if an employer’s conduct is not just illegal but something that needs to be further punished, punitive damages are likely to be awarded.

• Attorneys Fees: Legal representation is essential in this cases but it can also be costly. In most situations, an employee is awarded attorneys fees.

Some or all of these damages are available depending on the facts of the case. If you want to discuss your potential recovery in an age discrimination suit, give us a call.

NYC employment lawyers are fortunate to work in one of the most vibrant legal environments in the country. Our law firm, The Ottinger Firm, has been operating in NYC for almost 15 years now representing employees and executives. In that time, we have represented people of all kinds from high level financial executives to sanitation workers. Only NYC has a so much going on in such a small space so the situations we deal with sometimes make television seem boring.

NYC also has one of the most employee friendly laws in the country, the New York City Administrative Code. NYC employment lawyers have three powerful laws available that cover NYC employees: (1) federal law, (2) state law, and (3) the NYC Administrative Code. In my opinion, the NYC Administrative Code has more teeth than the federal and state employment laws. When we bring suits, we typically try to use this law because there are no limits on damages and it offers a wide range of protection for employees.

NYC also has some great judges. Some of the best judges our country has ever produced came from NYC such as Learned Hand and Benjamin Cardozo. NYC is a great place to practice employment law because the cases are interesting, the laws are strong and some of the best lawyers and judges in the country work here.

NYC is also home to a number of excellent employment law firms. If you are an employee in NYC with a legal problem, you are fortunate in the sense that you have a selection of very good employment lawyers and excellent laws available to help you.

New York City has its own employment law. It is called the New York City Human Rights Law and it is very good for employees. It is stronger than the federal employment laws that have been watered down by Congress and the US Supreme Court. Whenever we bring law suits, we try to use that law.

The New York City law applies to all employees who work in any of the five boroughs of NYC. It applies to any company that has four or more full-time employees. If you have an employment claim and you work in NYC, make sure your lawyer considers using this law because it can really help. One of the great things about this law is that there are no caps or limits on how much money an employlee can recover. It is also broader in its coverage of potential claims.

Recently, the New York Court Appeals (the highest court in NY) made this law even better for employees by making it harder for employers to dismiss suits brought under the law. Whenever an employee brings suit, most companies try to get the case dismissed on summary judgment. Now the bar has been raised and companies will have an uphill battle.

This new case set out a three-prong test for determining when a case can be dismissed.

First, a court must determine if the story told by the plaintiff constitutes a "prima facie case" of employment discrimination. This is a litmus test to make sure that the employee's case actually holds water.

Second, the court must determine if the defendant (the company) has a winning explanation or defense. For example, can the company prove that the employee was really fired for being drunk on the job - are there solid facts showing that the employee was drunk at work. In many cases, companies can prove that no discrimination occurred and that they had valid non-discriminatory reasons for firing the employee. These cases should be dismissed.

Finally, even if the company has a winning defense, can the employee show that this defense is invalid or made up? Sometimes an employee can show that the company's so called "excuse" is really a lie. For example, if the company claims that the employee was fired for being drunk on the job, the employee might have proof that they were not drunk. If there is a conflict of proof then the case cannot be dismissed. Cases can only be dismissed if it is clear that the company had a valid non-discriminatory reason for firing the employee. But if the employee can cast doubt on that excuse, then the case cannot be dismissed and a jury will need to decide who to believe. It is now harder for companies to dismiss employment cases brought under the New York City Human Rights Law.

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Job Mouse: Big news for the 20 states that borrowed money from the federal government to cover their increased unemployment insurance needs…payback deadline is at the end of this month. The back story here is that many states were financially ill-equipped to handle the huge increase in unemployment claims following the recession and had to borrow money to meet these demands. Let’s hope they fixed their accounting and are ready to start paying their debts.

• Reuters: Sheltered workshops are facilities funded by state and local agencies to provide jobs for disabled employees. The work is comprised of basic tasks and workers are typically paid less than minimum wage. Reuters reports on a recent class action lawsuit out of Portland, Oregon claiming that many of these disabled employees are being exploited and unfairly stereotyped. Look out for my blog delving into this interesting topic.

• The Bulletin: Are companies only seeking to hire employees that are currently working? The somewhat ironic question is one being discussed by The Bulletin in an article examining whether there need to be laws to protect currently unemployed workers from bias in their job hunt.

• Furley Page: And last but not least some news from our friends over in the UK. In a bid to reduce regulation and stimulate growth the government is making some big changes to employment law over there. The Furley Page does a nice job breaking down how these changes will affect employers and employees when put into effect.

Wherever you are when you are reading this I hope everyone has a great weekend. Got some great articles to add? I would love to hear from you!

Today in Bloomberg Business Week, there is a great article about three types of people who should be fired immediately. They are:

1. Victims: You know the type - the people who complain about everything and feel that life is just a struggle. They see problems everywhere and feel persecuted.

2. Nonbelievers: People who have a negative attitude and see failure at every turn.

3. Know-It-Alls: People who think they know the answer and the answer is usually no. The Bloomberg article cites people who predicted that radio and telephones had no commercial value. You know the type.

But - it is legal to fire these kinds of people. Can a company just fire them without cause or without due notice? Yes they can. An employee can be fired for no reason at all and no warning or notice is legally required. Just like an employee can quit for any reason and without notice, a company can fire it's employees at-will.
Believe it or not, employees do not normally have a legal right to their job. The best way to keep your job is to be valuable and pleasant to work with. Don't fall into one of the three categories in the Bloomberg article.

It is interesting to see how a bizarre news story can actually lead to a blog post about a general employment law issue. So here I go about a story in a state very close to many of the New York employment law issues I usually write about: Pennsylvania

A 45-year-old Pennsylvania women believes she was fired from her position with a frozen treats making company after she wore a fake penis to work. The prosthetic device was worn to help her decide whether she wanted a sex change. Her complaint alleges both gender and gender identity discrimination.

You may be asking, was the gender discrimination against her as a women or her as a man? In this scenario, it was because she was being treated differently as a female dressed as a man. Hmmm, not sure that sentence really clarified anything.

In the employment context, gender discrimination occurs when an individual is treated differently simply because of his or her sex. Although a unique set of facts, if the woman in this scenario was in fact fired simply because she was a women dressing as a man and was otherwise competent in her job, then she has a very good case.

Perhaps the best argument the women has in this case is the fact that a male coworker was undergoing a similar sex change decision and dressed as a female to work without any negative repercussions. Who knew she would be so lucky with a similar fact pattern?!

As you can see, gender discrimination takes many forms. If you feel like you may have a unique or more textbook case of gender discrimination, give us a call.

It seems so high school. You tell on someone for doing something wrong and they try to get back at you. But when the high school quad meets the New York workplace, the revenge for reporting is actually called retaliation. And it’s illegal.

Let’s start from the beginning. An employee reports a situation, an employee experiences negative repercussions that he or she believes is the result of vocalizing their concerns.

There is not one specific type of reporting that makes a retaliation situation illegal. Rather, when an employee reports to supervisors about a workplace issue and then has some sort of adverse reaction take place…that is a form of retaliation. That means that reporting any type of employment discrimination (whether against the employee or someone else), illegal pay practices, harassment or other workplace issue is something that is not only encouraged but protected. I should also point out that whether the initial complaint is true or not is completely irrelevant when it comes to retaliation in the workplace issue.

Just like there are so many types of reporting protected under state and federal retaliation laws, there are also various types of retaliation situations to look out for. Firing, demotion and reduced pay are just a few of the forms of retaliation that an employee may experience from reporting.

Reporting a company’s potentially illegal activities should be something an employee feels comfortable discussing and a company feels compelled to listen to and fix. If you are concerned that you have been retaliated against, give us a call.

Many New York bankers work hard all year for their bonuses. But some of those bankers don't get what they were expecting, and some get nothing. I recently met with a banker who was fired after working all year and the bank will not pay the bonus. Not fair for the banker, but is it illegal?

The law that applies to banker bonuses is pretty simple. It applies to non-bankers as well. The root of the issue goes to whether or not the parties agreed, expressly or implicitly, that the bonus would be paid. If the circumstances indicate that the banker and the bank both knew that the bonus would be paid at year end, then the banker may have the right to recover that bonus. In order to evaluate these claims, the following factors are typically considered:

- was the bonus a substantial part of the banker's total annual compensation?

- is there a pattern of paying the banker such a bonus?

- did the banker do anything that would justify non-payment of the bonus?

- did anything happen at the bank (like poor earnings) to justify non-payment?

These banker bonus disputes are handled by FINRA through arbitration. Typically a panel of arbitrators handles these matters and FINRA has a good record of treating bankers and banks fairly. If you have a question about a bonus dispute, please give us a call.

In New York, and every place else in America, it is illegal to fire an employee due to a disability. It is also illegal to fire an employee who asks for time off for a medical procedure - this conduct is prohibited by the Family Medical Leave Act. The Family Medical Leave Act applies to companies with 50 or more employees and the employee has to have been employed continuously for a year to be protected.

The disability discrimination laws and the FMLA have been around for a long time. But still companies act like these laws don't exist. Just the other day, a woman came to see us who was fired several days after she told her boss that she needed time off for an operation. This employee, lets call her Gertrude for fun (real names not used here) had a heart condition and she needed to have an operation to prevent another heart attack from happening. She told her boss about the operation on Tuesday and on Friday she was fired after 8 years with the company. No warnings.

So does Gertrude have a case? She sure does. First, Gertrude has a disability discrimination case because she had a serious heart condition and she told her boss about her condition. Since she was fired soon after telling her boss about her heart condition, it looks very much like she was fired because her boss viewed her as disabled and likely to need time off and slow things down at work. She has a disability claim under the New York City Administrative Code and possibly under the Americans with Disabilities Act. I prefer the NYC law because it is broader than the ADA.

Gertrude also has a claim under the FMLA. Under that law, an employer cannot retaliate against an employee who seeks to exercise their rights under the FMLA. The company is also prohibited from interfering with an employees right to take time off under the Family Medical Leave Act.

Gertrude most likely has viable legal claims for disability discrimination and for violations of the FMLA. We see a lot of disability discrimination cases. For some reason, companies think it is OK to fire people when they need time off for serious illnesses (their own illness or to care for a sick family member) or when they learn that an employee has a serious illness. Just last week another person hired us after her boss fired her soon after she disclosed that she had MS.

If you have been fired due to an illness or disability, give us a call. There is no charge for the first consultation and during that meeting we will try to determine if you have a viable legal claim.

A women’s place is in the kitchen. Did I catch your attention with that stereotype? Thought so. Sexual stereotyping is an employment issue in New York and other states that men and women often struggle with. Simply put, women and men must be held to the same behavioral standards at the workplace. When this does not happen, there is a name for it: sexual stereotyping.

In the employment context, sexual stereotyping can result in lost promotions and other types of unfair job limitations. Interestingly enough, the legal profession is often guilty of sexual stereotyping, especially when it comes to promotions.

So what does a sexual stereotype look like? If a woman is being told that she is too macho and needs to take a more feminine approach to her style and overall appearance before she can be promoted to partner, then she is having stereotypes illegally used against her.

Or if a man is told to stop acting in a feminine way and speak with a deeper voice at work, that is also a form of sexual stereotypes.

Everyone is different and that diversity is what makes for a great work environment. When colleagues and employers are asking an employee to better fit within their gender role, there is a sexual stereotyping issue, especially when a promotion is contingent on conforming to certain gender roles. There are legal implications for an employer that demands this type of conformity from his or her employees. The first step to stopping this stereotyping is to speak out against it. If that doesn’t work, give us a call.

Let’s talk about sex. Sexual harassment that is. When it comes to working in New York, there are a lot of questionable situations that may fall under the definition of sexual harassment. Generally speaking, any unwelcome physical or verbal conduct directed at an employee because of his or her sex can constitute sexual harassment.
The definition seems simple enough but there are a lot of caveats and misconceptions about sexual harassment that I want highlight in my blog today. Picking the above definition apart, a New York sexual harassment case does not have to be physical but it can also be words (this would include emails, text messages, etc) and it does not just apply to women but men too.
Here are some other misconceptions about sexual harassment that I want to point out:

• Same Sex Sexual Harassment: Although the majority of sexual harassment cases are between a man and a woman, that does not make it any less illegal for a man to harass another man or vice versa.

• Let’s Hear It For The Boys: Piggybacking on the above point, men can be the victims of harassment in the workplace.

• Title Doesn’t Matter: Sure, there are a lot of public instances in which a male boss is acting in an inappropriate and illegal manner towards a female employee. But the title of an employee does not matter when it comes to sexual harassment. It is not just the boss that can be on the giving end, there are many instances in which an employer is the victim.

Hopefully you now have a more informed definition of sexual harassment. If you feel like you are being sexually harassed at work, give us a call.

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Huffington Post: Unemployment is going to be a big issue in presidential campaigning. With a national unemployment average of 8.5% this is not a surprise but will still be interesting to see how politicians attempt to tackle the problem. One issue that the Huffington Post is currently covering in South Carolina is whether the receipt of unemployment benefits should be contingent on passing a drug test. The HuffPo reports that, in addition to drug testing, Republicans are also arguing for mandatory volunteer work for long term joblessness.

• NPR: Law schools have been getting a lot of heat in the past couple of years over their employment numbers. NPR explores the issue with the apt title, “Do Law Schools Cook Their Employment Numbers?” The article and issues surrounding it isn’t necessarily about employment law but as an attorney looking to the future of the profession, there are interesting issues being raised about the importance of a law school being up front about their graduates’ job prospects.

• Boston Herald: Big news out of Massachusetts for their roughly 33,000 transgender employees. The Boston Herald reports that Massachusetts just passed a new law that prohibits discrimination in the workplace.

• The Vancouver Sun: The Vancouver Sun covers an employment law case out of Chicago about a woman who was fired for doing extra work during her lunch break. After bringing a successful suit (representing herself I should add) she will now be receiving unemployment benefits.

Have a great weekend everyone. Got some great articles to add? I would love to hear from you!

I recently came across an entertaining article in the New York Daily News about a Manhattan school teacher that faked jury duty obligations to score free vacation days. Clever? Sure. Illegal? Of course. The way she got caught was perfectly ironic: poor spelling on the fake note from the court. Spelling basic words like trial, manager and cited wrong (trail, manger and sited respectively) was an easy clue for the school principal to catch the forgery.

Jury duty is your civic duty and as a New York employee, I found this article as a good chance to remind employees of the rights have when they actually serve on a jury. With more than half a million jurors serving in the state of New York every year, this is certainly something that will likely come up multiple times throughout the course of your professional career.

The New York court system has a great guide dedicated to employment issues relating to jury duty. Here’s some of the top frequently asked questions:

• Who Pays? In New York, the going rate if $40 per day of jury service. Additionally, employers are highly encouraged to pay an employee’s wages while reporting for service. Although this is not a requirement, the pay should not be considered sick or vacation time but an independent paid obligation.

• Do part-time or temporary employees get paid? The answer to this is basically the same as for full-time employees (see above). If you are a temporary employee then it is the temp agency and not the company you are staffed at that you would need to contact.

• Do employers have to let employees serve? The answer to this question is a resounding yes. Criminal penalties will be attached to any employer who says otherwise. Additionally, an employer cannot force an employee to make up time or work on nonscheduled days as a resulting of their jury service.

Oh and for those of you wondering, the 61-year-old teacher resigned from her position with the school and was ordered to pay $3,374.88 in salary she was paid while not serving on jury duty.

I recently did a general roundup of the most common types of workplace discrimination categories. Although unfortunate that workplace discrimination exists at all in New York (and other cities for that matter), knowing about the various types will hopefully inspire employees to take action against the illegal situation they may be in.

Not to get overly historical but America was founded with the idea of religious tolerance in mind. Religious discrimination in the workplace does not just go against state and federal laws but also against the central tenets of the Constitution.
From firing to hiring and everything in between, New York employees are protected against religious discrimination in the work place by their employers and fellow employees.

But what are some of the accommodations that must be made to facilitate religious expression? Let’s start with the more day to day activities…if an employee needs to pray during the work hours then the best approach is to let the employer know and work out a suitable arrangement around those prayer times to make sure work is getting done too. If an employee needs to wear special religious clothing to work, that too is protected under the law.

Although making accommodations is part of the law, work still needs to get done. Meeting in the middle is the best approach to ensuring that an employee feels free to practice and an employer feels like they are still running their business smoothly. One of the best ways to combat this type of discrimination before rising to the level of litigation is by communicating. If you still feel like there are issues at work, then I will be happy to communicate the legal ramifications to your employer for you. You know where to find us.

It’s finally time to catch up on anything and everything employment law, both within our own country and abroad (or in this week’s case, on the sea). Here’s a look at some articles I am reading this week:

• Thomson Reuters Legal News: WalMart v. Duke is an employment class action case that was ruled on in June by the Supreme Court. Many believed the holdings in this case would be a game changer and that certainly seems to be the case. The suit tried to certify a class of 1.5 million former and current female WalMart employees for issues with gender discrimination. The Court ruled that this class simply did not have enough in common. Since the decision, defendants in a variety of class actions have flooded courts with motions challenging the certification of large classes of plaintiffs. 260 times to be exact.

• New York Times: The NY Times talks about the big employment law decision to come from the Supreme Court this week…religious groups are exempt from employment discrimination laws. Yes, you read that right. Religious organizations, whether it is a Church or a school can discriminate. In application, this should be a very interesting attempt at separation of Church and State.

• Bloomberg: We handle a lot of overtime pay cases. So naturally I found this story about Goldman Sachs paying computer technicians $993,841 in back overtime pay very interesting and it so happens that our firm handled that case. Workers based in New York and New Jersey sometimes worked 70 hours a week but were paid for 40 of them. Glad to see they ultimately got compensated for their time.

• Justia: Sailing meets employment law. Justia highlights a case in which a seaman working on a boat suffers disabling neck injuries. Ahoy!

Got some great articles to add? I would love to hear from you!

Injustice anywhere is a threat to justice everywhere.

-- Martin Luther King Jr. "Letter from Birmingham Jail," 16 April 1963
If you are reading this you are also likely enjoying a day off of work or school in celebration of Martin Luther King Jr. Day. A leader in the nonviolent civil rights movement in the U.S., King’s legacy is one that is remembered in so much of your everyday employment life.

Although often talked about as violations of state and federal law, a lot of the employment law issues discussed in my blog are about exactly what King was working for: civil rights. But what is a civil right?

Simply put, civil rights are the rights of individuals to receive equal treatment. This right to fair treatment applies to many settings including: education, employment and housing. If you are being treated unfairly at work because of something you can’t change about yourself (age, sex, race, national origin etc) then your civil rights are being violated.

In the employment law context, a civil rights violation can be subtle or glaring but the end result is always the same…it is illegal. One central point Dr. King stressed was the importance in not staying silent in the face of discrimination. Applied to many of you in the working world, I hope you feel empowered by his message to seek help if you are being discriminated against. You know where to find us.

So happy birthday Dr. King and hope everyone is enjoying their holiday.

Life happens. And sometimes life events don’t work well with your work schedule. Whether babies, injuries or something else, as a New York employee, you have rights in place that allow you to take the time you need to get back on your work track.

Enter the Family Leave Medical Act. Since 2002, the FMLA is a federal law that allows employees to take up to twelve weeks of unpaid leave as a result of an illness, child birth or to care for a sick family member. Here are some of the protections that the FMLA provides New York employees:

• Return to work: At the end of your leave, whether an employee took twelve weeks or two, the employee must be restored to the same position. But what if this is not possible you ask? Then the employee must be placed in a substantially equal position in pay, benefits and responsibility.

• Benefits: One of the benefits of working are the benefits. The redundancy was for dramatic effect. But in all seriousness, many employees have illegally experienced issues with benefits disappearing after their leave. The FMLA provides that an employees benefits continue while he or she is on leave and are reinstated when they return.

• Protection: FMLA protects employees from any type of retaliation associated with exercising their rights under the Act. Retaliation can include any of the items mentioned above or denial by an employer to take the necessary time allotted under the Act.

Whether your FMLA is an exciting time after the birth of a child or a stressful time dealing with a sick spouse or child, it is your time to take care of personal matters with the peace of mind that everything will be the same when you return to work. If you feel like your rights under FMLA are being violated, please give us a call.

Today the U.S. Supreme Court held that churches and their related organizations are exempt from employment laws in dealing with certain employees. Do you think this is a good decision? I don't.

The Constitution mandates the separation of church and state and Chief Judge Roberts relied upon this principle to exempt religious organizations from the laws that everyone else has to follow.

A church now can fire a black minister because he is black - they can send the minister a letter on church letter head saying "dear minister - you are fired because we don't want black people in our church." Now this is perfectly legal because a church did it. This free pass on employment law extends to all religious organizations like schools and hospitals so they can now fire certain employees for being black, pregnant, gay, disabled, old, female or from another country.

Employment discrimination is now legal in churches and related entities. If you happen to teach religion at a religious school, you should know that you are now in bubble zone that permits overt discrimination. If you are fired for having cancer or being gay or old, please do not bother to call our law firm because we cannot help you anymore.

There should be a separation of church and state. But does this mean that religious organizations should be exempt from the laws that protect people from discrimination? Constitutional rights are not absolute, they are tempered by the government's ability to prevent proscribed destructive behavior (crimes, civil rights etc), why are churches any different? What good can come from allowing religious organizations to act like bigots?

There is only one reason to sign a non-compete agreement and that is the desperate need for a job. But - if you have options, you should never sign one.

First, any company that makes it's employees sign these agreements is probably a rotten place to work. These agreements protect the company - but think about what they do to you. They can ruin your career. These agreements can force you out of your industry - they can bar you from doing what you do - they can ruin your career. Why work for a company willing to do that to you? Companies that make employees sign these things do not care about you - they care only about themselves no matter what it does to you. Do you want to work for a place like that? If you can, find another place to work.

There are rare occasions when a non-compete is justified, but today they are vastly overused and abused and companies now make routine employee's sign them. In my view, a non-compete is only warranted in the rare case where a high level employee truly can do a company serious harm by taking key customers or vital company knowledge. In those unusual cases, a non-compete is justified but the company should pay the executive his or her salary during any non-compete period and the period should be short - like six months.

New York companies claim non-compete agreements are necessary to survive. But this is a fallacy. In California, they are illegal and totally unenforceable and California has some of the most innovative and successful companies in the country. Since so many great companies like Apple, Facebook, Hewlett Packard, Ebay and many others are able to do fine without them, why are they used at all? The answer is that they are not really needed at all, instead they are abused and used by many companies to trap employees. If a company cannot earn employee loyalty, they enforce it with a non-compete agreement.

These agreements are enforceable in New York. Many people choose to brush over them and sign them without realizing what they are doing. If you sign one, you need to know that you could wind up being forced to change your career just because you signed that agreement. It happens all of the time. Courts in New York do enforce them and they can have a devastating impact on your life. It could happen to you. Do you like what you do? Have you invested a lot in building expertise in a field or building a reputation in an industry? Well that could all be wiped out by a non-compete agreement.

We get calls from people who have signed non-compete agreements and changed jobs only to get a letter telling them they are violating a non-compete agreement. They are often stunned when we tell them that it is enforceable and that they need to change careers or risk getting sued.

Full-time, part-time, contract, job share…the list for different types of employees is as exhaustive as the work itself. With that in mind, I thought I would take a chance to go over a brief description of three common types.

1. Full-time Employee: Working about 40 hours per week, a full-time employee is typically one with a stable title that enjoys the benefits of working for a company (vacation, health care, 401K, etc).

2. Contractor: A popular form of temporary employment used by companies to save money and finish task-based assignments, a contractor is usually employed by a temporary service business and staffed at the company for a certain period of time. In most cases, a contractor does not enjoy any of the benefits of being an employee for a company such as sick leave, vacation time and health benefits. However, if flexibility is what you are looking for then working as a contractor can be a perfect fit.

3. Job Share Employee: This arrangement is basically when two or more employees work to complete the job of one full-time employee. The benefits are typically prorated based on the amount of time worked and studies have shown this to be a great way to retain workers and increase job satisfaction.

It is nice to know that more and more companies are recognizing the utility of different work arrangements. Different classifications as an employee carry different benefits and obligations. However, just because an employee is a contractor versus a full-time does not relinquish an employer of their basic legal obligations against discrimination, fair pay, etc. If you feel like you have been treated unfairly, give us a call.

The class action had been an important tool in protecting the rights of New York employees. Class actions allow groups of people with relatively low value claims to join together and assert their rights.

But last April, in the AT&T Mobility case, the U.S. Supreme Court weakened the class action by holding companies can enforce class action waivers which would bar future class actions. Companies all over the country began issuing class action waivers and many worried that the class action was heading towards extinction.

Last Friday, however, the National Labor Relations Board tried to resurrect the class action in the employment context. In a written opinion, the NLRB held that "Clearly, an individual who files a class or collective action regarding wages, hours, or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group action and is engaged in conduct protected by Section 7" of the National Labor Relations Act. "Such conduct is not peripheral but central to the act's purposes." See Law.com for more on the NLRB opinion.

The NLRB held that the AT&T Mobility case did not impact employment law class actions because that case was limited to consumer cases as that case involved cell phone contracts and did not have any connection to any employment claims.
The NLRB ruling, however, is subject to judicial review and the courts may strike this ruling down - or they may not.

But the NLRB ruling shows that efforts are afoot to revive the class action in the employment context. The class action is a vital tool that is needed to protect work place rights. Often small cases are ignored because it does not make economic sense to bring modest single claims. The class action solves this problem. Unfortunately, class actions have been abused and they now have a bad reputation as get rich quick schemes for lawyers who earn huge fees and obtain token benefits for their clients. In employment class actions, the benefits are typically substantial and far more meaningful than in other contexts.

We recently posted about when a New York employer can deduct money from your wages. But never fear, the New York courts have often decided that many employer deductions were unlawful. Here’s your handy cheat sheet of recent case New York law on inappropriate wage deductions:

• Charging a server for a customers’ unpaid check – Just because the customer was a jerk doesn’t mean you have to pay for it.

• Credit card tips – New York employers cannot take your tips away, whether if it was given through cash or a credit card.

• Required tools – Unlike clothing and transportation costs, you are not required to pay for tools you are required to use.

• Legal fines incurred for messing up on the job – A waitress was not required to pay fines her employer received because she sold alcohol to an underage patron.

• Loss of profits for poor performance – Unfortunately for your employer, it can’t take its frustrations of bad business out on you or the quality of your performance.

• Damages to a leased company vehicle - Even if the damage may have allegedly been caused by you, your employer cannot deduct the damage from your wages. But it can deduct the fees associated with the vehicle.

• Travel expenses outside of your normal commute.

These are just a handful of situations in which employers were not allowed to deduct costs from their employees’ wages or require the employee to pay for the costs themselves. If you are concerned that your wages may have been deducted unfairly by your New York employer, contact The Ottinger Firm for more information about ilegal wage deductions. We can help answer any questions you may have regarding wages or any other New York employment law topics. You can also visit our website for more information on New York employment laws.

You work hard for your money, so hearing that New York employers can take your money away for various reasons may not be something you want to hear. Luckily, we have a handy cheat sheet of recent case law on appropriate deductions New York employers can take from your wages:

• Improper Determinations of Tardiness – You may have been on time to work and were unfairly accused of being late, but the wage deduction won’t be considered improper.

• Severance Pay – Regardless of whether you signed a waiver or not.

• Fees Associated with Vehicle Leases – If you agreed to the deduction and the use of the vehicle was necessary for employment, your employer can deduct the fees.

• Franchise fee payments.

• Clothes or Transportation Required for the Job – Work for Abercrombie or the Gap, and you’ll have to wear their clothes on your own dime. You also can’t get reimbursed for the money you spend on the Subway or for a New York taxi to get to and from work.

The following two items won’t even be considered deductions at all:

• Money Entrusted to You that You Lost – It was entrusted to you to keep, and it’ll come out of your pocket if you lose it.

• Mortgage Payments to your Employer Bank – If your employer, a bank, demands early repayment on a mortgage it gave you, it is “clearly” not considered a wage deduction.

If your wages have been deducted and you are concerned that it was done unfairly, contact The Ottinger Firm for more information about appropriate wage deductions. We can help answer any questions you may have regarding wages or any employment law topics you may have questions about.

It’s finally Friday and time to catch up on anything and everything employment law, both within our own country and abroad. Here’s a look at some articles I am reading this week:

• Central Valley Business Times: The article presents a somewhat shocking figure: 45% of U.S. employees observed a violation of the law or ethics standard at their place of employment in the last year. The figure comes from a recent survey conducted by the Ethics Resource Center, a nonprofit. I find this figure entirely too high and agree with the author, creating an ethical workplace culture begins at the top.

• Chicago Tribune: A teacher writes a memoir and then gets fired. That is the boiled down version of a recent article from Chicago. The Chicago Public School teacher wrote a memoir about his life and is now suing the school district for $300,000 for discrimination and violation of his free speech rights.

• Los Angeles Times: The LA Times article talks about how Indiana is the new Wisconsin…when it comes to labor law media attention, that is. With the new year, Indiana has turned into a battleground between conservative Republicans and labor unions over a highly controversial right-to-work bill. If passed, the bill would the first state in the Midwest’s manufacturing region to limit union power in this way. Should be an interesting development to follow.

• The Times Leader: And some interesting employment law news from all the way in Saudi Arabia. Against the disapproval of the country’s top cleric, Saudi Arabia will begin enforcing a law that allows only females to work in women’s lingerie stores. The law will not only allow more employment opportunities for women but also allow for greater modesty in the shopping experience. Living in the United States, I sometimes forget how different employment law issues manifest themselves in other countries.

Have a great weekend everyone. Got some great articles to add? I would love to hear from you!

Bonus disputes in New York always arise soon after the new year. Most New York banks and financial firms start announcing bonuses this quarter. At our firm we always prepare for the calls from New York financial and wall street executives. This season we expect it to be worse than normal because the banks are predicting a cut back of 30% or more in bonus pay outs.

As I have written before, the first question to ask in a bonus dispute is whether the executive has a right to the bonus in the first place. In order to have a right to the bonus, the bonus must make up a substantial part of the compensation. For example, if a banker has a salary of 300K, but has received a bonus of 800K for the past four years, then that bonus is a substantial part of the bankers compensation. That is the first test - is the bonus a big part of the compensation package. If it is, then you might have a right to the bonus - otherwise you generally don't have a right to the bonus.

Next, if the bonus is a substantial part of the compensation package, then the inquiry moves to the payment history. Has this kind of bonus been paid in the past such that it is a reasonable expectation? In our example above, the 800K bonus was paid for the past four years - in that case the executive has a stronger claim than someone who only received such a bonus for one year.

Assuming that the bonus is a substantial part of the compensation and there is a history of such payments, then the case begins to look stronger. Then you move to the facts to see why the bonus was not paid this time - is there a reasonable and fair explanation for companies decision to withhold the bonus? Most companies have a fair amount of discretion but that discretion cannot be abused - fairness is required.
If the company abused its discretion, then an aggrieved executive may have the right to the bonus.

Bonus dispute cases in the financial industry are resolved via arbitration before FINRA. These matters can move along quickly and FINRA has a good reputation for treating parties fairly and there is a solid history of financial executives obtaining large recoveries in bonus dispute cases. We have handled many of these and if you have a question about your bonus, please give us a call for a free consultation.

Congrats! You got the job! In the frenzy of excitement that often accompanies a new job, many New York employees may overlook the importance of the employment contract they are about to sign before starting their new position.

Depending on the position and the company, an employment contract can read like a novel and a thorough review of the contract should be part of your job preparedness. When it comes to executives and professionals, employment contracts discuss such things as: compensation, position, expectations, grounds for termination, severance and benefits. That’s right, you are not only negotiating the terms of your new job but also the benefits you may receive when your employment ends.

In many situations, an employment contract can and should be negotiated to better reflect your interests as an employee. Since lawyers likely drafted the employer end of the agreement, it is always a good idea to have lawyers help draft your demands that should be reflected in the employment contract.

Many of the more complicated employment contracts also include provisions that limit an employee’s ability to compete with the company for a certain period of time after he or she leaves and has stipulations about work product. If you are about to start a new position, give us a call before you sign on the dotted line and we can help you negotiate an employment contract that will protect your interests long after you leave. Oh, and congrats on the new gig.

Imagine if every day you went to work you felt like you were being unfairly treated because of something you couldn’t change about yourself. For many New York employees, this is their sad workplace reality. Workplace discrimination is illegal but can often be hard to come forward with the situation for fear of losing a job.
I thought I would take a moment in today’s blog and just point out some of the more common New York employment discrimination areas and what they entail. Here we go:

1. Age Discrimination: This occurs when an employer takes an adverse action against an employee because of his or her age. In New York, there are state laws that ensure that any worker over 40 cannot be discriminated against on the basis of their age.

2. Disability Discrimination: Whatever the disability may be, if an employee is fired, not hired or denied career opportunities because of it, there is a legal issue. Also covered under disability discrimination is when an employee is denied reasonable accommodations at work.

3. Race Discrimination: Perhaps one of the more publicized types of discrimination because of its storied history, race discrimination occurs when equal employment opportunities are denied to an individual because of his or her race.

4. Religious Discrimination: Not only can employers not discriminate against an employee on account of their religion but they must also allow for reasonable accommodations for the practice of religion. Amen.

5. Sexual Discrimination: Whether actual or perceived, an employer simply cannot discriminate against an employee because of his or her sexual orientation. If an employer disagrees with their employee’s personal preferences…too bad.

6. Pregnancy Discrimination: Pregnancy discrimination can manifest itself in many forms. If a pregnant woman no longer has her job after maternity leave, there is a legal cause of action. If a woman is denied a promotion because of her pregnancy, there is a legal cause of action. I could keep going, but you get my point.

As you can see, these various types of discrimination have a wide range for abuse depending on the individual and employment situation. One thing they all have in common is their illegal nature.

Here at the Ottinger Law Firm we don’t only represent employees in these various types of workplace discrimination cases, we win. If you feel like you fit into any of these categories, please give us a call.

The excitement and nervousness associated with landing a job interview can often cause a New York employee to forget that he or she has rights, even in the interview process. In fact, did you know you have legal rights in place to protect you even if you don’t get the job?

Like most employment laws, there are New York city and New York state and federal laws in place mainly to ensure that an applicant does not experience unfair discrimination in the interview process. These safeguards begin as soon as a job is advertised and stay in effect throughout the entire hiring process.

Although some of these may seem obvious to you or I, here are some topics that should not be asked during a job interview:

1. Planning to have kids sometime soon? Although the interviewer may be looking for a future play date for their child, asking an applicant whether she is pregnant or planning to get pregnant is off limits. The potential for pregnancy discrimination is very real and an individual cannot be disregarded as a potential hire because of this decision.

2. Still liking to party like it’s 1999? Certainly a clever attempt (if I may say so myself) at inquiring whether an applicant uses drugs or alcohol. One important thing to remember that asking about drug or alcohol is likely illegal, requiring a drug test is not.

3. Boyfriend or girlfriend or both? The sexual orientation of an applicant holds no bearing on his or her ability to do a good job. When this question is broached, an applicant does not have to answer…simple as that.

4. Will I be seeing you at Church on Sunday? Again, a clever but illegal attempt at finding out an applicant’s religion is another question that employers should know better not to ask.

Many interviewers reach a nice rapport with job applicants and the meeting is less of an interrogation and more of a conversation. Should an applicant choose to reveal certain personal facts, is his or her choice but at no point should they feel compelled to answer private questions.

So you’ve had a great couple holidays and now it is time to get back to work. After Thanksgiving, Christmas and New Years a lot of companies are kicking it into overdrive at the beginning of 2012. With the additional workload, I thought this would be a good time to go over some basic issues dealing with overtime pay in New York.

When it comes to overtime in New York and every other state, there are state and Federal laws in place providing protections for workers that put in more than 40 hours in a given week. The good news is that you get paid time and a half (sometimes more) for your hours worked over 40. The bad news is that if you fall under one of the exemptions, you will work more for the same pay.

Exemptions to overtime pay include: individuals who manage multiple employees, outside sales representatives and professionals such as doctors and lawyers. For those non-exempt employees that do qualify for overtime, it is imperative that you keep track of your time in order to ensure that you are not being cheated out of the money that is owed to you. Some illegal overtime pay situations to look out for include:

• Having to work off the clock: If you are at work and working, then it is always on the clock. Whether this takes the form of reporting less hours than you actually worked or your employer is not giving you your legally mandated meal breaks, there is an issue.

• Improper classification: There are many instances in which an employer will misclassify an employee so that he or she is not eligible for overtime pay. However unless you fall into one of the exemptions then you have a legal right to overtime.

• Mistakes in recording: I use the term “mistake” as a courtesy to employers. In reality, a lot of employers very purposefully mis-enter hours for an employee in order to skimp out on overtime payments. This is why it becomes so important to keep track of your time!

I have only highlighted some general situations to look out for. You have a legal right to get paid appropriately for your time. As a New Year’s resolution to yourself, be sure to check on the points I have highlighted and make sure you are getting the compensation you deserve.