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New York Employment Law Blog

Retaliation a serious fear when reporting harassment

Employees who witness sexual harassment or other kinds of dangerous and illegal conduct at their New York workplaces may be afraid of speaking up due to threats of retaliation. While retaliation against whistleblowers is generally illegal, this doesn't mean that people who report unethical or damaging conduct have nothing to worry about.

Men who report sexual harassment have, on multiple occasions, been subject to firings, demotions or other forms of retaliation, even when these workers have followed company guidelines like reporting inappropriate comments, behavior, gestures or touching to human resources. In most cases, someone who is subsequently demoted or fired will have difficulty providing documentation as to the reason for their dismissal.

6 Plaza Hotel employees claim incessant sexual harassment

Six current and former female workers who were employed at New York's Plaza Hotel filed a lawsuit against the establishment on Aug. 8. They alleged in the court documents that they experienced incessant sexual harassment from senior management and other male hotel workers.

A current employee of the hotel stated that unwanted sexual advances began just shortly after she began working there in November 2016. She said that, at first, she attempted to ignore the advances in the hopes that it would stop on its own. However, the unwanted advances and other sexual misconduct just became part of the job. When asked why she just didn't leave, the worker said that she did not have a choice as she needed the job. A second female employee said that the reports she made were ignored.

Employers could be responsible for FMLA mistakes

Employers in New York could create liability for their organizations if written communications contain errors regarding a worker's eligibility under the Family Medical Leave Act. An appeals court ruling allowed one employee's FMLA legal complaint to go to a jury even though the person had not technically qualified for the leave.

The appellate court based the decision on the legal concept of equitable estoppel. This principle prevents a party from using a legal argument that contradicts an earlier action. The case involved an employee of a road commission who lost his position after taking a leave that he thought was legally available. The employer's policy had stated that any full-time employee who had worked 1,250 hours within the last 12 months had protection under the FMLA.

Race and color discrimination: Things you need to know

Did you know that Title VII of the Civil Rights Act of 1964 provides protection against employment discrimination on the basis of both race and color?

Simply put, it is against the law to discriminate against a job candidate or employee because of his or her race or color.

Justice Department opposes gay, lesbian civil rights

A former instructor at a skydiving company in New York filed a discrimination lawsuit against the company claiming he was fired because of his sexual orientation. His claim that this falls under sex discrimination as outlined in the Civil Rights Act has been supported by the Equal Employment Opportunity Commission. However, on July 26, the Justice Department informed the appeals court that the law applied to different treatment between men and women and not sexual orientation.

Most federal appeals court have reached similar conclusions, but the Obama administration took a different approach. Supporters of the Justice Department decision said that since Congress had declined to change the law to apply to gay and lesbian people, the law was being interpreted correctly. The Justice Department filed the brief on July 26.

Restaurant workers and the 80/20 Rule

New York employees in tipped occupations such as waiting on tables should be aware of the 80/20 rule, which requires minimum wage payment for certain activities by tipped workers. Under the Fair Labor Standards Act, if an employee performs two jobs, one that is tipped and one that isn't, the employer is in many cases required to pay minimum wage for the non-tipped work.

Also referred to as the side work rule, the 80/20 rule comes from the Field Operations Handbook published by the Department of Labor. Generally speaking, a waitress whose workday includes making coffee, cleaning and setting tables, toasting bread and sometimes washing glasses or dishes will not be considered to have a dual job requiring payment of minimum wage under the FLSA. Typically, the employee must be paid minimum wage for side work that does not qualify as incidental to the tipped work.

Understanding religious discrimination

Workers in New York are protected by Title VII of the Civil Rights Act of 1964 from religious discrimination in the workplace. Specifically, employers are prohibited from engaging in any discriminatory behavior during the hiring or termination processes and setting conditions and terms of employment based on an individual's religion.

Current and potential employees are also entitled to be provided reasonable accommodations for their religious practices as long as doing so does not present an undue hardship on the employer. Reasonable accommodations include any alteration of the work environment, including reassignments of jobs, flexible scheduling and lateral transfers that allow employees to practice their religion.

Many workers struggle with wage discrimination

Wage discrimination can be experienced by workers in New York for a number of reasons. While gender is a major example, wage discrimination can be experienced by both women and men. Older workers and workers with disabilities have also reported wage discrimination on the job.

The Equal Employment Opportunity Commission reports on the charge filings it has received alleging wage discrimination. While the majority of these filings based on gender over the past four fiscal years were filed by women, approximately 15 percent of them were filed by men.

Restaurant workers can face scheduling issues

People who work in restaurants, especially those who depend on tips, need to work when the restaurant is busy to make the money they need. The issue with this is that they also need to live life. Having to be at the mercy of the restaurant doesn't give you much of a life.

The conundrum here is that trends in restaurant scheduling don't usually allow the managers to make schedules more than one scheduling period ahead of time. This can make it difficult for employees to make any type of plans that require advanced notice.

The consequences of misclassifying workers in New York

Entrepreneurs who set up businesses in New York sometimes seek to avoid paying employment-related expenses like payroll taxes and disability insurance premiums by classifying workers as independent contractors rather than employees, but doing this can have serious repercussions. The state has pursued cases of worker misclassification aggressively in the past, and an executive order signed by Gov. Andrew Cuomo in July 2016 established a permanent task force to combat the problem.

In addition to fines and penalties levied by state agencies, misclassifying workers as independent contractors can lead to sanctions from the Internal Revenue Service and the U.S. Department of Labor. Federal and state agencies treat the issue seriously and impose severe penalties because the misclassification of workers denies them much-needed tax revenue, and the costs can quickly spiral out of control when several workers are involved.

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