New York Employment Lawyer Blog

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.

Have you ever heard that you should not leave a job until you have another one?   That has never been more true than now with so many unemployed and worse, companies are now refusing to consider unemployed people for jobs.

As reported in a recent Time.com article, companies across the nation are simply refusing to consider unemployed job applicants.   Some job postings actually come right out and say it.   One online job listing said, "No unemployed candidates will be considered at all."   Companies argue that unemployed people are not as qualified as those with jobs.

So the question is - is it legal for companies to discriminate against the unemployed?   The short answer is YES, it is legal for companies to discriminate against the unemployed, unless it happens in New Jersey.

The federal employment laws only prohibit discrimination on the basis of race, sex, religion, age, disability, and arguably sexual orientation.  But being unemployed is a not covered.   It is perfectly legal for companies to discriminate against the unemployed.  So now millions of otherwise qualified job applicants are being excluded solely because they are unemployed.  It is unfair but its not illegal.

New Jersey is leading the way in protecting its unemployed and in March it enacted a law that makes it illegal for employers to make current employment a requirement for job applicants.

In Congress, a representative from Georgia has introduced a law that would prohibit employers from counting out the unemployed - but that has little chance of becoming law with the current Republican Congress.

The only way to protect the unemployed is for the States to enact their own laws.   Congress will never do it.   Other States need to follow New Jersey on this one and protect their unemployed.

"First they ignore you, then they laugh at you, then they fight you, then you win."  - GANDHI

If you are thinking of bringing a case against your employer, you should know how these cases often play out.  After handling hundreds of employment cases over the years, I have noticed that these cases all tend to follow the same pattern. This is true for most all employment cases including claims for overtime pay and workplace discrimination.

Stage One - Ignoring It

Companies often ignore cases at first.  They ignore them because they don't want to deal with it and they hope the matter will just go away.   This is actually a good strategy because a lot of people will just go away if they are ignored.   Many employment law firms do not like filing law suits and they prefer to settle cases early so if a company ignores the case, sometimes they do just go a way.  So do not be surprised if the company ignores your case or provides a curt denial at first.  That is a common response.

Stage Two - Laughing About It

I cannot tell you how many times companies have tried to laugh off the allegations made in our employment cases.  The arrogance can be shocking.  But let them laugh.  We have handled many cases that start out with laughing denials and wind up settling with a large check or a verdict against the company. For example, during a recent sexual harassment case, the company representatives and lawyers were actually laughing during the hearing.  They never credited our client's claim and were confident they would prevail.   I would love to have seen their faces when they received the judge's decision finding in our client's favor.

Stage Three - Fighting It

Typically, after ignoring the case and then laughing it off, the company will then fight it.  They will deny the allegations, blame the employee or anyone else they can cast blame upon.  They will try to delay the case and complicate it and they will resist turning over relevant information.  The lawyers who defend companies in these cases are typically paid by the hour so they try to drag things out so they can bill more hours.  For example, a deposition that should only take two hours will take seven or eight hours and the company lawyers may even try to drag it out into a two day affair. If you bring an employment case against your employer, you may have your deposition taken and during this deposition you may be accused of being incompetent, dishonest, immoral and generally unfit for employment.  You may also have to deal with requests for information that have no connection to your case.   For example, I recently had to fend off a request for dental records in an employment discrimination case.   Our client's dental records obviously had nothing to do with the case but the company asked for them anyway just to be annoying.  These are just a few examples of what goes on in these cases.  Once these cases get into litigation, they tend to be long, nasty, expensive and unpleasant.

Stage 4 - You Win

If you can survive the first three stages of an employment case, your case will probably settle before trial.    Approximately 95% of these cases are resolved through settlement.   Settlements require compromise and that means getting less than you deserve.   When a case settles, you are likely to feel like a reasonable solution was reached in which both sides compromised their positions.   There is a famous saying that the sign of a good settlement is when neither side likes the result - the company usually feels like it paid too much and the employee feels like that they were not paid enough.

Do you have the right to severance pay in New York?

You do not have the right to severance pay unless you have an employment contract that sets forth the right to severance pay.  Or, if you are in a union, you may have the right to severance pay under the terms of a collective bargaining agreement.  In rare cases, employers will set forth a severance policy in the company employment manual.

The New York Labor Law does not provide employees with the right to severance pay.   Those companies that provide severance pay, do so on a voluntary basis.  Employees generally do not have a legal right to severance pay.   If companies do not have to provide severance pay, why do they do it?   They do it to make the transition smoother - companies want departing employees to leave quietly, cooperate with the transition and promise never to sue them.

Under certain situations that involve allegations of unlawful conduct such as employment discrimination, sexual harassment, retaliation or other similar charges, a settlement or severance agreement can be negotiated.  Employees can use the leverage of a potential employment suit to negotiate favorable terms.

Do you  have the right to accrued vacation pay in New York if you quit or get fired?

Your right to accrued vacation time depends upon the terms of your employer's vacation/resignation policy.  If your employer has a policy that allows for the accrual of vacation time and the policy does not state that the time is forfeited upon termination or resignation, then you have the right to receive your accrued vacation time.

If your employer does not have an accrued vacation time policy, then you do not have the right to any unused vacation time if you are fired or resign.  New York Labor Law does not provide employees with an independent right to unused vacation time.

If you have questions about a companies severance pay or vacation pay policies in New York, please give us a call.  We have been helping New York employees for over ten years.

The Center for WorkLife Law at the University of California recently published a study called Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers. Stephanie Bornstein of Workplace Fairness wrote a post on the study.   The study explains how women and male caregivers in low wage positions are routinely discriminated against.  The study illuminates the fact that American anti-disrimination laws do not apply to poor workers as employers regularly fire women for getting pregnant, sick or who need time to care for sick family members.   The study identifies six patterns that impact low wage workers who attempt to balance work and family responsibilities:

• Extreme hostility to pregnancy in low-wage workplaces
• A near total lack of flexibility in many low-wage jobs
• Low-wage workers treated disrespectfully, or even harassed at work
• Low-wage workers denied their legal rights around caregiving
• Hostility to men who play care giving roles
• Harsher treatment of mothers of color than white mothers

Low-wage workers are clearly being abused.  They are subject to blatant employment discrimination while middle and upper income workers enjoy more protection.   Why is this?   The study by Center for WorkLife details the suffering and its causes - but there is a practical contributing cause that is overlooked in the study.  It has to do with legal fees and access to legal services.

Employment lawyers who represent employees are one of the main protectors of employee rights.   If an employee is subject to employment discrimination, they should be able to hire an employment lawyer to sue their employer.   That is how the system is supposed to work.   But, the economics of modern law firms make it very hard to help low-wage workers.  Low wage workers cannot afford to pay a lawyer by the hour so the only option is a contingent fee arrangement.   Under a contingent fee, the lawyer's fee is based on the value of the case and low-wage worker cases have low values because the value of the case is dependent on the employees income.   Therefore there is little incentive for lawyers to take on low-wage cases, in fact it is easy to lose money on these cases.   Since there is no economic incentive for lawyers to help low wage workers, low wage workers do not have ready access to legal services.

For example,  if a person who earns $25,000 a year is fired for being pregnant, they might recover a years salary -  $25,000.  Most young mothers will find a new job within a year so the economic damages will probably be close to a years pay.    With a recovery of $25,000 the law firm will earn a contingent fee equal to one-third of the $25,000 - or $8,333.  It could easily cost more $8,333 to sue a company for pregnancy discrimination so law firms really cannot bring these cases in court.   It is bad business - a money losing venture.   The only way for a law firm to make money on such a case is to go all the way to trial and win and be awarded attorney's fees - but that is risky, time consuming and it takes years to get a case through the courts.   But, if a woman earning $150,000 a year is fired for being pregnant, she might be awarded $150,000 or more for the same thing. The legal fee in that case will be one-third of $150,000 or $50,000.   This case makes more economic sense because the fee will be $50,000 and the firm can earn a profit even if it settles.    As you can see, the well paid mom will have access to legal services but the low wage mom will have a harder time.  The legal system is broken because low wage workers are left out.

Since cases for low wage workers can only be handled on a contingent fee basis, most law firm's will avoid bringing cases for low wage workers because they will lose money.   Low wage workers do not have ready access to quality legal services and employers know this and therefore they can violate their rights with relative impunity.

A major improvement would be if our employment laws were altered so that employers faced penalties that were not based on a workers income.  This in itself would make it easier for lawyers to help low-wage workers and help to change the system.   It is possible to modify the laws to require that the legal fees must be paid separately in cases involving low-wage workers, even settlements by the employers.  This would provide an incentive for lawyers to help low-wage workers.

In New York, if you get fired, you must be paid in full on the next pay day.  Your employer cannot hold your paycheck for any reason.  They cannot say that you must sign a document or return company property to get your check.   You have an absolute right to your pay because it is your money once your earn it.

For example, if you get paid on the 1st  and 15th of the month (bi-monthly) and you get fired on the 21st of the month, you must be paid in full (including overtime pay) at the next pay cycle - the 1st of the month.  And you have the right to have your last pay check mailed to you.  

 If you are not paid on time (within the pay cycle in which you were fired), your employer then can be forced to pay a penalty equal 25% of the amount due plus all reasonable attorney's fees that you incurred in enforcing this right.    

If you are paid commissions in New York, all earned commissions must be paid within five days of your termination.   If you have unearned commissions pending at the time you are fired, those must be paid within five days after they are due.   You can request that your commissions be mailed.   If your commissions are not paid on time, you can force your employer to pay you "double damages" or twice the amount you are owed and the company will have to pay you for any legal fees incurred in enforcing this right in court.   

If you are having trouble collecting your pay or outstanding commissions, please give us a call for a free consultation.  We will help you determine if you have a case.  There is no charge or obligation.   We have been helping employees enforce their rights for over ten years.  

If you left your car keys at work, would your employer have the right to take your car out for a spin?   If you left your house keys at work, would your boss have the right to enter your home and rummage through your belongings?   No.

Likewise, if you leave your personal online email password at work, can your employer log onto your gmail or yahoo mail account?  The answer is no.  There is a law that protects your right to privacy in your online email accounts.

The law is called the Stored Communications Act.   This law makes it a crime for anyone to access your online email accounts without your permission.   It also creates a civil right of action to sue for damages, legal fees and even punitive damages.

Most companies today have policies stating that employees have no right to privacy in their emails or anything they do on a company computer system.   The law is clear that you do NOT have any right to privacy in your work email.  But you do have the the right to privacy in your personal online email accounts like gmail,  hotmail or yahoo mail even if you store your passwords at work.  If you access these personal email accounts from a company computer then your employer may have the right to view the emails you send and receive from your work computer - but they do not have the right to logon to these personal email accounts and view other emails.

There is at least one published case in New York where a federal court fined an employer for accessing an employee's personal online email account.  In that case, the employee stored their login information on their work computer and the employer then logged onto the employee's gmail or yahoo mail accounts and obtained damaging information that the employer tried to use against the employee.   The employee sued the company back and the employer was not allowed to use the information that they obtained from the gmail and yahoo mail accounts and the employer was fined $4000.00 as well.  The case is Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008).

If you believe that your privacy rights at work have been violated, please give us a call.  We have been handling employee rights matters since 1999.

There is a great article in SmartMoney today called "10 Things Your Boss Won't Tell You."

Some good practical realities about today's work environment. According to SmartMoney, bosses invade your privacy, don't like to hire older workers, don't believe you when you call out sick, are two faced, unfair, too busy for you and self centered.

Here is the list:

1. Yes, we are reading your emails...and your IMs

2. You're too old for this

3. I know when your faking the flue

4. Your kid? Your problem.

5. I'm your best friend....

6. ...And your worst enemy.

7. I don't promote based on performance.

8. I'm shallow.

9. I don't have time for you.

10. It's all about me.

Read the whole article here.

The Dodd-Frank Act was passed last July (2010) in a belated attempt to curb corporate shenanigans on Wall Street. The goal of the Dodd-Frank Act is to prevent the corrupt and irrational behavior that wreaks havoc upon investors and the countries financial system. These lofty goals might make for good politics, but I doubt this law will transform the financial system. Laws don't work unless someone is willing to report the violations. For this law to really work, the financial executives who observe the violations need to feel comfortable reporting them. But fear of retaliation will deter many from reporting violations of the Act.

The Dodd-Frank Act contains a strong anti-retaliation provision in Section 1057 entitled "Employee Protection." This section prohibits a company from firing or taking any adverse against any who has -

(1) provided, caused to be provided, or is about to provide or cause to be provided, information to the employer, the Bureau, or any other State, local, or Federal, government authority or law enforcement agency relating to any violation of, or any act or omission that the employee reasonably believes to be a violation of, any provision of this title or any other provision of law that is subject to the jurisdiction of the Bureau, or any rule, order, standard, or prohibition prescribed by the Bureau;

(2) testified or will testify in any proceeding resulting from the administration or enforcement of any provision of this title or any other provision of law that is subject to the jurisdiction of the Bureau, or any rule, order, standard, or prohibition prescribed by the Bureau;

(3) filed, instituted, or caused to be filed or instituted any proceeding under any Federal consumer financial law; or

(4) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any law, rule, order, standard, or prohibition, subject to the jurisdiction of, or enforceable by, the Bureau.

If a financial executive or other employee is retaliated against for reporting a violation of the Dodd-Frank Act, they are required to file a complaint with the Secretary of Labor. The Secretary of Labor is required to investigate the matter and issue a ruling. The Secretary of Labor can order the reinstatement of the fired employee or make other orders to remedy the harm including an award of compensatory damages. If the Secretary of Labor does not take action within 210 days of the complaint, the aggrieved employee can file a case in federal court.

These anti-retaliation laws can produce excellent results in certain situations. If an employee can establish that they reported their employer for violating the Dodd-Frank Act (make sure your report of wrong doing is in writing) and that they were promptly fired, demoted or otherwise subject to adverse employment action, then a substantial recovery is likely. These can be great cases. In fact, retaliation case produce some of the best results for our clients.

I am surprised that more people are not using technology to capture evidence in employment cases. It's now so easy to record people or photograph them and this kind of evidence can win cases. In most every employment discrimination and sexual harassment case, the outcome of the case turns on who the judge or jury believes. In a sexual harassment case, for example, the victim contends that her boss sexually harassed her and the boss denies it. Likewise, in many employment discrimination cases the victim argues that she was fired because of her race, age, sex, religion etc and the accused company denies it. A recording of key comments could win these cases.

A new case in New York involving a secret recording made by an iphone makes it clear that it is legal to make certain kinds of secret recordings in New York. Also, technology today makes it very easy to make secret recordings. An iphone or blackberry, for example, can now be turned into a voice recorder by installing an app such as Quick Voice or you can buy a tiny voice recorder on the web. With one of these devices, it is possible to record the sexual harasser's lewd comments comments or capture the bigot's racial slurs. Capturing these kinds of comments can turn a tough case into a great case.

In New York, you can secretly record any conversation so long as you are part of that conversation. You do not need to let the other people know that you are making a recording. But you can NEVER record a conversation if you are not part of that conversation. For example, you cannot secretly record a phone call if you are not part of the call.

The law on this subject was a little murky until the recent Caro decision. In August of 2010, the Second Circuit Court of Appeals, in Caro v. Weintraub, held that Title III of the Omnibus Crime Control and Safe Streets Act permits such recordings. In Caro, one party to a conversation placed their iphone on the table and recorded the conversation without anyone else knowing it. The court held that this was lawful. This is also lawful under the New York State wiretapping law. See the Citizen Media Law Project site for more on the New York wire tapping law. Other states such as California, Florida, and Connecticut, have laws that prohibit any kind of secret recordings, but in New York it is legal so long as the person making the recording is a party to the conversation.

In the future, victims of employment discrimination and sexual harassment should seriously consider recording the illegal conduct at work. You can be sure that the company will deny any wrongdoing and a recording may be the only way to prove your case. But you need to be careful how you make the recordings. Before making any recordings, you might want to talk to a good employment lawyer so they can guide you. Also, if you are not in New York, you should check your local laws before making any kind of secret recordings because twelve states currently prohibit such recordings.

New York still enforces non-competition agreements. These agreements have haunted employees for ages because they severely restrict a person's ability to find a new job. New York employees can find themselves trapped in bad jobs because of these agreements. Non-competition agreements also force experienced employees to change careers because they prevent people from transferring positions among competing firms in the same fields.

In California, however, these agreements are void and cannot be enforced. California has determined that non-competition agreements do not serve any good public purpose and will not enforce them. In fact, if a California employee loses a job over a non-compete agreement, they can sue for wrongful termination. Why is New York still in the dark ages and allowing companies to restrict an employee's ability to move between jobs? The public loses here because it is bad for the economy.

In New York, good employees are trapped in bad companies. Worse, employees who build expertise in a field are forced to change careers and start over again just to avoid these non-competition agreements. This damages efficiency and harms the economy. It wastes skill and experience in the workforce.

Any legitimate concern about the transfer of confidential company information can be handled with a confidentiality agreement. There is no reason to trap an employee or force them to change careers. People should be free to work for whomever they please and talent needs to move freely for the economy to remain efficient.

Companies argue that non-compet]ion agreements protect their secrets and prevent employees from leaving and transferring vital information to competitors. But this agreement misses the mark. First, if a company wants to keep its employees from joining competitors, it should keep them happy so they don't want to leave. Second, very few companies have real secrets and those few companies that do have genuine confidential information can protect it with other agreements. Binding employees with non-competition agreements destroys the competitive engine that drives vibrant economies. They are bad for everyone - even the companies that use them are hurt because they are not motivated to create a positive work environment that will retain employees out of loyalty. Instead the companies shackle their employees with non-compete agreements.

The employment-at-will doctrine governs most every person who works in America, yet it is widely misunderstood. People think that they have a right to their job or that fairness matters.

Today, for example, I met with a successful executive who works for a well known company. The executive had worked for his company for about 6 years and things were going fine. Then, out of the blue, the company asked him to sign a non-compete agreement that would prevent him from working in his field for 12 months if he left his employer. The executive did not want to sign the agreement because he was thinking of joining another firm in the future. At first he refused to sign it. Then the company told him that he would be fired if he did not sign it.

The executive came into our office today under the impression that his company was breaking the law. He said, "they can't do that right." He almost fell out of his chair when I told him that it was perfectly legal and actually common. He said, "you mean they can just demand that I sign it and they can fire me if I don't."

Then I explained the joys of being an employee at will. I told him that unless he had a written employment contract that said otherwise, he could be fired at any time and for any reason or no reason. This executive was stunned. His eyes widened and he sat there looking at me in shock as if I told him that Barak Obama just got caught cheating with Laura Bush.

The executive faced a dilemma. He had to sign that agreement or get fired. In the end he did what most people do. He signed the non-compete agreement because he needed the pay check - he had kids in college etc....

It is true. Employees do not have the right to keep their jobs. They can be fired at any time and for any reason. They have no right to notice or severance pay or fair treatment. Fairness is not required.

On the bright side, employees have the right to quit at any time and for any reason. It is a two way street. Notice is not required either.

If you are one of the thousands of medical case managers, or disability case managers, working for large health plan companies throughout the US, you should keep close tabs on the case of Ruggles v. WellPoint, Inc., No. 08-cv-00201, because the case is likely to have an enormous impact on the industry, your profession and, if the plaintiffs prevail, your own pocketbook. Ruggles and the putative class are seeking to certify a class of misclassified nurse case managers who work in call centers collecting documents and data requested by claims adjusters. According to the Ruggles complaint, the nurse case managers receive a salary and are misclassified as exempt from overtime requirements under federal (FLSA) and NY state law (NYLL).

Often, registered nurses are hired for these positions since their nursing experience is useful for interpretting medical data, but they do not provide "traditional" direct medical services to patients, render an opinion or make any medical diagnosis (which is prohibited by state law). Traditionally, registered nurses qualified for the “learned professional” exemption to FLSA overtime requirements under 29 C.F.R. § 541.301(a). According to the regulations, to qualify for the exemption, an employee’s primary duties must require consistent discretion and judgment. See id. § 541.301 (b). The regulations further state “[r]egistered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption.” See § 541.301(e)(2). The central inquiry in Ruggles is whether or not nurse case managers who are, for all intents and purposes, not using traditional nurse skills and training still qualify for the exemption. Certain Wage and Hour opinion letters suggest that registered nurses who are not expected to utilize "traditional" nursing skills and instead rely on company manuals to perform administrative services, or who do not need a nursing degree or license to qualify for employment, do not exercise independent judgment and do not qualify for the exemption. Our firm intends to file a complaint next week against one of the largest health care companies in the US seeking to certify a class of disability and medical case management nurses for overtime violations. According to our client, a social work degree and other non-nursing degrees are suitable qualifications for employment as disability or medical case manager. Also, our client was urged by her managers to perform case management services in states other than those she was licensed in as a nurse. If you are in a similar situation, call for a free screening. This appears to be the next big thing in overtime litigation - the big defense firms are already issuing scary "client alerts" to notify (i.e. frighten) potential management clients of the litigation timebomb that awaits them if they don't rapidly retain counsel and reform their policies. This is a telltale sign that a massive wave of litigation is on the horizon.

I was recently reprimanded by my wife for checking my work email at a wedding. She said it was rude and she was right.

As if on cue, my wife, who is also a lawyer and works for a low-tech government office which only allowed for external email four years ago, was issued a blackberry last week by her supervisor. Now she is one of many lawyers carrying two smart phones. My poor manners aside, there are virtually no social limitations on smart phone usage, including usage of smart phones for professional purposes.

Should you be paid for the time spent on your blackberry? Of course. Check out this NPR article on blackberry usage and overtime. Under the FLSA, time spent communicating with your employer or otherwise working on your crackberry is compensable. If you are a non-exempt employee who spends a tremedous amount of time on your blackberry and feels...well...instinctively undercompensated, you're probably right. Don't rest on your hunch, call for a free screening.

I have screened hundreds of overtime cases. In my practice, the following three categories of nonexempt employees under the FLSA are the most blackberry dependent, misclassified and undercompesated (i.e. abused):

1. IT employees, including help desk employees and systems engineers;
2. Pharmaceutical sales representatives;
3. Staffing recruiters (incredibly long hours and hard work - hats off to these employees - case law says you should be getting OT if you aren't involved in project management and post-recruitment supervision).

Smart phones are embedded in the culture. My 3 year old is adept with my iphone; she knows how to find the games she likes and will undoubtedly be asking for one before she is 10. Frightening. There's no turning back. However, you should not let your employer abuse the popularity of these phones by discounting the time you spend on them. Use your blackberry to call for a free screening.

This month, the Department of Labor issued a Fact Sheet that detailed a nursing mothers rights to express milk while at work.

According to the Fact Sheet, a nursing mother has the following rights at work:

- she is entitled to reasonable break time to express milk for her nursing child for 1 year after the child's birth each time she has a need to express the milk.

- She is entitled to have a private location (bathrooms do not qualify) to express her milk.

- If employees are normally compensated for break time, then the mother would also be entitled to compensation for the time spent expressing her milk. Otherwise she is not entitled to compensation for this time.

There are limits on these rules. First, these rules only apply to non-exempt employees under the Fair Labor Standards Act. This would exclude managers, professionals such as doctors and lawyers, most people who earn over 100K per year, and any other exempt employee.

These rules do not apply to employers with less than 50 employees if compliance would impose an undue hardship.

Thanks to the Connecticut Employment Law Blog for its post on this subject today.

A new report confirms what we have always thought about those annoying perfectionist bosses - no one that uptight can live long. The study by Trinity Western University in Canada found that perfectionists have a 51% increased risk of death.

How many of us have worked for one of these nut cases? I think we all have at some point and the experience is miserable.

At our law firm, we get calls almost every day from someone suffering a "Martha Stewart" like boss. These perfectionist bosses usually lack patience and often fire at will. Stunned and feeling abused, the fired employees look for answers from the law. So when the fired workers call us, they want to know about their employee rights. Bottom line is they want justice.

Sadly, it is not illegal to be a jerk at work. It is perfectly legal to be fired for an unfair reason or even no reason. But even though we cannot sue these rotten souls, they will not get away with it. Karma will get them (we hope).

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.

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.

Employee rights are slowly expanding and includes strong legal protection against work place retaliation. The New York City Administrative Code is powerful and outlaws almost any kind of retaliation. Also, the United States Supreme Court has issued several good opinions supporting retaliation laws.

Retaliation occurs whenever an employee is punished for reporting illegal work place conduct such as discrimination, sexual harassment or certain health and safety violations. The anti-retaliation laws also protect other employees who may not have reported the illegal conduct, but who serve as witnesses or support the employee who reported the misconduct.

The United States Supreme Court has made it clear that workers must be protected from retaliation. The Court recognizes that retaliation cannot be tolerated. Otherwise, the anti-discrimination and harassment laws will have little effect if workers can be punished for reporting discrimination or harassment. Employees will not report workplace violations if they are not protected.

In a recent decision, the United States Court stated that "fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination." In it's most recent decision, Crawford v. Metropolitan Government of Nashville, the Court again held in favor of an employee who had been fired shortly after she told company investigators that her boss had sexually harassed her. For more on this case or to get a full version of the Court's decision, see The Employment Law Memo.