New York State’s Sweeping Anti-Sexual Harassment Legislation

New York State’s Sweeping Anti-Sexual Harassment Legislation by Sara Wyn Kane {Read in 4 minutes} In response to the #MeToo Movement, New York State and New York City overhauled their sexual harassment policies to give women additional protection in the workplace.

  • It is important that women know they now have additional rights that they did not have before.
  • It is also important that employers know they now have additional responsibilities that they did not have before.

In April 2018, Governor Cuomo signed sweeping anti-sexual harassment legislation into law, which goes into effect October 9th and applies to all employers. The new law requires employers to adopt a prevention plan that not only prohibits sexual harassment but provides examples of unacceptable conduct. The policy has to include information about the federal and state laws, and a standard complaint form. Continue reading

Workplace Discrimination? Get that Complaint Filed!

Employees in this country have protections against workplace discrimination and harassment. These include protection from sexual or racial harassment, national origin, religion, age, disability, and gender (including sexual orientation) discrimination. These forms of harassment and discrimination are spelled out under Title VII, and its amendments, which is the statute enacted as a result of the Civil Rights Act of 1964.
Workplace Discrimination? Get that Complaint Filed!
Prior to that time, there had been other federal statutes such as §1981 and §1983 which address primarily race and national origin discrimination as well as retaliation. These sections, however, did not include gender, religion, disability, or age discrimination. As a result of the civil rights movement, the Civil Rights Act was passed, which was designed to specifically address workplace discrimination and expanded protections for employees subjected to these additional types of discrimination.
The Title VII statute empowered what is known as the Equal Employment Opportunity Commission (EEOC) and created that faction of the government whose job it is to survey and take complaints of workplace discrimination. Anyone wanting to bring a complaint and go into Federal court under those claims has to first go through the EEOC administrative process. As a federal statute, it is the same in every state and any employer who has 15 employees or more is subject to the statute.
The EEOC Filing Deadline
Title VII sets a complaint filing deadline of 180 calendar days. However, it also provides that in any state where there is a similar employment discrimination statute, such as New York, the deadline may be expanded to 300 days. With the exception of a few states like New Mexico and Georgia, every state in this country has a state-level statute against workplace discrimination. In those states that do not, the filing period is limited to the 180 days.
A complaint must be initiated when the harm takes place. You can’t have something happen two years earlier and then wait, worrying whether you are going to lose your job. That is certainly a legitimate worry, but if you choose to wait and try to raise that complaint after the 180-300 days have passed, it will be considered untimely because the statute requires you to make that complaint within 180-300 days of the occurrence of discrimination.
However, certain claims trigger the 180-300 day filing requirement after the last occurrence of discrimination where the discrimination takes place over a period of time. This type of discrimination is known as a “continuous violation.” For example, if you are a victim of sexual harassment and you were subjected to repeated, unwanted sexual advances or comments over a period of months, the clock starts running from the last act of harassment, not the first. Most employees do not know this.
If you believe you have a legitimate complaint, it is extremely important that you make use of resources like the EEOC’s website, or contact a lawyer like us to ask for information about what to do, even if you choose not to act on it at that time. Failing to act in many states leaves you high and dry, without any other protection, because either there is no state statute, or in more conservative jurisdictions like Texas, for example, the states only adopt the same 180-day rule as Title VII.
Paying attention to the EEOC deadlines is an important issue because an employee may have a very strong legal claim but if they do not act within a certain period of time, or get the information to act within a certain period of time, their claim may be completely barred leaving you with no avenue for justice.

James A. Vagnini
Partner
email: jvagnini@vkvlawyers.com

Supervisor sues Omni hotels, alleging sexual harassment and retaliation when she reported it

A former supervisor with Omni Hotels & Resorts has filed suit against the Dallas-based company, alleging sexual harassment and saying the company broke federal laws governing equal pay.Continue reading

Valeant Unit Settles Sex Discrimination Claims For $7.2M

Law360, Los Angeles (July 12, 2016, 4:56 PM EDT) — Valeant-owned Medicis Pharmaceutical Corp. will pay $7.2 million to settle a class action alleging gender discrimination and other claims brought by female sales representatives of the medical cosmetics company, according to a final settlement order signed by a D.C. federal judge Monday. Continue reading

Working Off The Clock? Think Again


With the American economy in the midst of its worst downturn in decades, corporations are trying to squeeze that last buck out of every corner they can. Job satisfaction is going down across the board. One largely unsung issue that may be elevating to epidemic proportions is “Off the Clock” work.
For many, going unpaid for the work you perform for your employer is illegal.  Many corporations in the U.S. are, unfortunately, asking their workers to buck up and work without minimum wage or overtime pay.  This violates both New York and Federal law. The plain fact of the matter is that the laws are designed to protect during the bad times as well as the good. Just because there is not as much money to go around does not mean that it is all right to ask workers to work off the clock without compensation.
Full Time Employees in New York
For the most part, New York State follows Federal guidelines when it comes to minimum wage and overtime. If a non-exempt employee is performing work of any sort for their employer, they are to be paid at least minimum wage for their work.  If they are working over forty hours in a work week, then any time worked above that is eligible for overtime pay. Live in employees may claim overtime after forty-four hours as well. Naturally, standard exemptions apply to certain types of employees, including certain interships.
However, a controversial case is brewing in New York that might potentially change how the law sees interns nationwide. An intern is suing Harper’s Bazaar, claiming that minimum wage is due to all intern workers and that internships are exploitive. We will follow this case closely and continue to report on its significant role in the wage and hour litigation world.
Full Time Workers That Receive Tips
If your employer claims that you are not entitled to overtime pay because you receive tips in your line of work (such as a restaurant server, delivery driver, dancer, etc.), then your employer is out of compliance with New York and Federal law. All work performed by these types of workers are subject to minimum wage and overtime law.
If you are a non-exempt, hourly worker, an employer cannot refuse to pay you time working off the clock.  You are entitled to be paid for all hours work at minimum wage or an overtime rate if over 40 hours in a work week.  If you feel you are being forced to work “off the clock” meaning you are not being paid for your time, then you should contact an attorney familiar with these laws immediately.  For a free consultation, contact the law offices of Valli Kane & Vagnini, LLP at (866) 441-2873.  You need a talented lawyer that is not afraid to take on exploitive employers that disregard the law.

Wage Theft Prevention Act: Redundant Bureaucracy or Employer Protection?

No state in the Union has taken more steps to protect its workers and employees than the state of New York. However, critics say the state went too far with the Wage Theft Protection Act. This act caps off what some industry leaders—especially in construction—call an explosion of bureaucratic red tape that renders New York business unprofitable and untenable. The law’s proponents have commented that the new Wage Theft Protection Act may actually protect New York’s employers from horrific, small business-destroying lawsuits. Read on for the basics of the WTPA debate.
As of February 1, the act requires that workers be notified of their wages annually. The WTPA Pay Rate form must include how much the employee is paid and when, the name and address of the employer, and allowances. The new form must be provided in English, and the employee’s primary language, if applicable. New York’s Labor Department provides translations in Spanish, Chinese, Korean, Russian, Polish, and Haitian Creole. Failure to comply will result in fines up to $50 weekly.
Businesses have complained that the new paperwork burden will cost the state’s industry millions, and that the law will do little to curb shady work practices. The Wage Theft Protection Act is essentially, say critics, bureaucracy without function. However, the law may provide advantages to employers.  For example, the WTPA may prevent lawsuits from employees that sue over pay disputes.  As paperwork is a key component in all legal proceedings, this paperwork functions to protect employers in the event a dispute over pay turns into litigation.
Only time will tell if the WTPA changes the way New York does business for the better. America’s economic turmoil has been felt deeply in New York State. Entrepreneurs most often call for deregulation, citing that decreased laws and streamlined businesses will turn NY’s economy around. However, most would agree that employees need protection as well, and the WTPA’s goal is to provide that.
As the Wage Theft Protection Act forces your employers into documenting information relating to your wages, you may become aware that your employer has not been paying you properly or depriving you of certain rights relating to your pay.  If you are involved in a wage dispute in New York, then you may benefit by speaking to an employment lawyer. An expert employment attorney can help you understand the complexities of New York workplace law as it relates to you and will vigorously fight for your right to fair pay. Do not let yourself be victimized. Call the law offices of Valli Kane & Vagnini. LLP now at (866) 441-2873 and get one of NY’s most experienced and accomplished employment attorneys on your side.

Workers Adjustment and Retraining Notification Act (WARN)

The Workers Adjustment and Retraining Notification Act (“WARN”) became effective on February 4, 1989.  WARN requires employers to give employees notice when an employment change is advanced.  The Act calls for at least sixty (60) days notice to employees who will experience employment loss either because of a plant closing or because of a scheduled mass layoff.
 
 
An employee experiences employment loss in any one of the following three scenarios:

  1. An employment termination, other than a discharge for cause, voluntary departure, or retirement;
  2. A layoff exceeding six (6) months;
  3. A reduction in an employee’s hours of work of more than fifty (50) percent per month for a period of six (6) months.

 
WARN covers employers who have more than one hundred (100) employees.  Employees who work less than six (6) of the past twelve (12) months, as well as employees who work less than twenty (20) hours a week are not counted into this total.  Private for profit or non-profit, as well as public and quasi-public entities who operate in the commercial context are obligated under WARN to give their employees notice pending a plant closing or mass layoff.  Federal, State or local government entities are governed under WARN.  Hourly, salaried, managerial and supervisory employees are all entitled to the sixty (60) day notice.  Business partners however, are not entitled to the Act’s protections.
 
Employers of a temporary project are not required to give their employees notice prior to plant closings or mass layoffs.  Additionally, if the closing of the plant or mass layoff is the result of completion of a project, those workers are also not entitled to WARN’s protection.  The employees must have been hired with the understanding that their employment was conditional on the completion of the project.  An employer cannot label an ongoing project as temporary to avoid the requirements under the WARN act.    Additionally, striking employees are not entitled to notice when their actions lead to a lockout, which acts as an equivalent to a closing or mass layoff.  Non-striking employees who are adversely affected are entitled to notice.
 
If fifty (50) or more employees will experience employment loss (defined above) during any thirty (30) day period, then WARN requires employers to inform their employees.  Part time employees and new employees are not included in this employee total.  Advanced notice is also required when an employer has a mass layoff proposed.  If during any thirty (30) day period, five-hundred (500) or more employees, or forty-nine (49) to five-hundred (500) employees, which make up thirty-three (33) percent of the workforce are going to be laid off, then the employer must give notice.  The employee calculation for plant closings apply to mass layoffs as well (part time and new employees are not included in the total employee calculations).
 
If an employer plans to sell his business or is involved in the sale of the business, employees are still entitled to receive notice if a closing or mass layoff is proposed.  It is the seller of the business’ responsibility to give sixty (60) days notice to his employees up to and including the date/time of the sale if there is a risk of employment loss.  The buyer is responsible to provide employees with sixty (60) day notice of any proposed plant closing or mass layoff after the date/time of the sale.  Notice that the business has been sold is not required unless a closing or mass layoff is in the works.
 
The employer must give notice to either the chief elected officer of exclusive represented employees, the labor union, or to unrepresented workers who may reasonably be expected to experience employment loss.  Even employees who do not count towards employment totals, those workers who work less than twenty (20) hours a week or who have worked less than six (6) of the last twelve (12) months are still entitled to due notice.  Notice must also be given to the State dislocated worker unit, as well as the chief elected officer of the local government where the employment site is located.  There are, however, three exceptions to this requirement:

  1. If the employer is seeking new capital to stay open and advanced notice would ruin this opportunity, then notice is not required.  This exception only applies to plant closings and not mass layoffs.
  2. If a plant closing or mass layoff was not reasonably foreseeable at the time notice is required, then the notice requirement is excused.
  3. If a plant closing or mass layoff is the result of a natural disaster, such as a flood, earthquake, drought or storm; notice is not required.

If an employer does not provide sixty (60) days notice, and relies on one of the exceptions listed above, the employer must prove that one of the exceptions did in fact take place.
 
While notice is required sixty (60) days in advance, there is no requirement delineating what that form must be.  The notice must be in writing, but any reasonable method of delivery that will ensure receipt sixty (60) days prior to closing or mass layoff will suffice.  The notice must specify the reasons for a plant closing or mass layoff.  If either will occur more than fourteen (14) days after the date announced in the notice, then additional notice on behalf of the employer is required.
 
If you have been affected by a plant closing or mass layoff and your employer has not followed the requirements under the Worker Adjustment and Retraining Notification Act, contact Valli, Kane & Vagnini to learn more about your rights and legal options.