Employment Law Litigation

Frequenly Asked Questions


Q. What is discrimination?

A. The most common kind of discrimination is “disparate treatment.” If employer treats you differently on account of your membership in a legally protected group, this is unlawful discrimination. Discriminatory acts include firing, pay discrimination, transfers, denial of equal promotion opportunities, harassment and others.

Q. What are the legally protected groups?

A. Legally protected categories include race, sex, national origin, religion, age, disability, marital or family status, pregnancy, gender, sexual orientation, immigration status and bankruptcy status.

Q. What should I do if my employer is treating me unfairly – but not on account of my membership in one of the legally protected groups?

A. There are many different laws that affect your rights in the workplace. It may be that your employer is violating one or more of them. Fill out our questionnaire and we can help you assess your situation.

Do you sometimes work more than 40 hours per week? If so, you may be entitled to time and a half for overtime – most workers in the United States are. Even if your employer has told you that you are exempt from the overtime laws, you should get an independent opinion.

Unfortunately, the law doesn’t require employers to be fair. That is why many people join unions.

Q. My employee handbook promises that I will be treated fairly. Can I believe this promise?

A. Most employee handbooks have disclaimers that specify that the handbook does not create a contract. This often means that you are an “at-will employee.” The handbook may be a valuable source of information on company policies on vacation and other fringe benefits as well as payroll practices, harassment and discrimination.

A. Under this legal doctrine, an employee may be fired at any time – for any reason or for no reason at all. However, even an at-will employee may not be fired for an unlawful reason, for example, membership in a protected group (see “Discrimination”, whistleblowing, retaliation), or to deny you rights under a pension or other benefit plan.

Most employees in New York are employees at will. Government employees, union members and people who have employment contracts (see Handbooks) cannot be fired at will.

Q. What should I do if I am being harassed by a co-worker or supervisor?

A. Many employers have anti-harassment policies. Consult your employee handbook. The law encourages your employer to protect you from racial, sexual and other forms of harassment, and most companies follow the law. If your employer has a complaint or grievance procedure, you should follow the steps for reporting harassment. Before you do, however, you should protect yourself from retaliation – just in case your employer is one of those that doesn’t follow the law. Be sure your report of harassment is in writing – and that you can prove that you filed it.

Q. What should I do if my employer retaliates against me for reporting harassment or complaining about discrimination?

A. You have the right to complain about unlawful discrimination – and to speak out when others are being discriminated against. If you have been retaliated against, you should seek immediate assistance.

Q. What is whistleblowing?

A. Whistleblowing includes reporting, or threatening to report, illegal activity by the employer that affects health or safety. Whistleblowing also includes reporting fraud in government contracting. Whistleblowing includes reporting financial fraud (but only in publicly traded companies). Contact us for more information.

Q. What steps should I take to protect myself before blowing the whistle?

A. Call us. We will work with you to protect your position and help you accomplish your goal.

Q. What is overtime?

A. Most employees are entitled to time and a half for all overtime hours worked (hours in excess of 40 per week).

Q. My employer tells me that I am exempt from overtime. Am I?

A. Start from the assumption that you are entitled to overtime -- most people are. Your employer cannot simply wave a magic wand and make you “exempt” -- unless the law grants that right. Some employees are exempt from overtime – for example, executives, professionals, interstate drivers and outside salespeople. Remember that your job title is not what makes you exempt or non-exempt. Your job duties are.

Many people assume that they are exempt because their jobs are important, or because they are white-collar employees, but that is simply not true. For example, computer network administrators, graphic designers, social service caseworkers, secretaries, security guards and nurses are usually entitled to overtime. This can be a confusing area of the law. Call us for additional information.

Q. Can my employer force me to work overtime against my will?

A. Yes. But if you do work overtime, you must be paid time and a half.

Q. Can my employer make me work through lunch?

A. No (except for government employers). Many people, including social service caseworkers, receive “comp time,” i.e., paid time off in the future in exchange for overtime hours. You are entitled to time and a half for your overtime – whether you have taken the comp time or not.

Q. My employer only pays overtime if the hours were pre-approved. Is this legal?

A. No. If you worked the hours, you must be paid.

Q. Can I demand that my employer pay me overtime? What about back pay?

A. You should seek legal advice before demanding overtime pay.

Q. When I leave my job, what happens to my vacation time?

A. You may be entitled to the cash value of your unused vacation time.

Q. I was laid off. Am I entitled to severance pay?

A. You may be entitled to severance pay, especially if the employer shut down part of its business or has a practice or policy of giving severance pay.

Q. I was laid off. My employer just gave me a severance package to review and sign. Should I sign it?

A. You should seek legal advice before signing. This document could affect important legal rights and employment opportunities as well as your cash flow between now and the time you obtain another job.

Q. My employer pays me as an independent contractor. Is this legal?

A. It is unlawful to pay an employee as an independent contractor – unless , of course, the person really is an independent contractor. Generally, an independent contractor has the right to refuse assignments and an employee does not. An employee is subject to his or her employer’s control in ways that an independent contractor is not. Many laws protect employees more than independent contractors. You should also be aware of the tax, pension and disability implications of being paid as an independent contractor. This can be a complex area of the law.

Q. I am a commission salesperson. Am I entitled to overtime?

A. Many commission salespeople, especially those who work in “inside sales” -- retail stores, wholesalers, car dealerships, etc. are entitled to overtime pay. Salespersons who primarily make outside sales calls are not.

Q. I am a commission salesperson. My employer changed the commission arrangement after I’d closed a sale. Do I have rights?

A. You probably have rights.

Q. I am a commission salesperson. I was fired just before a major transaction closed, and I would have earned a substantial commission. Do I have rights?

A. You may have rights. Call us for a consultation.

Q. What is the Family and Medical Leave Act (FMLA)?

A. The FMLA gives qualifying employees the right to take up to 12 workweeks per year of unpaid leave for a serious health condition, to take care of a close relative with a serious health condition, or for the birth or adoption of a child. It is very important to give your employer adequate notice of your need for family or medical leave.

Q. How can I give my employer advance notice of an unplanned medical emergency?

A. You can’t. The law requires you to give as much notice as is reasonable under the circumstances. Although this can mean a prompt telephone call to the employer, you should follow it up as quickly as possible with a fax (keep the confirmation sheet).

Q. What should the FMLA notice say?

A. The notice should say generally what the health condition is and when you are expected to be able to return to work.

Q. I don’t qualify for FMLA leave. What can I do if I am sick or injured?

A. Under the disability discrimination laws, you may be entitled to medical leave as a reasonable accommodation. If your injury is work-related, you may be entitled to workers’ compensation.

Q. What is disability discrimination?

A. Disability discrimination includes the failure to provide reasonable accommodation for an employee’s known disability -- so long as the employee is able to perform the essential functions of the job. Disability discrimination also includes the kinds of acts that are illegal under the other discrimination laws.

Q. What is a disability?

A. There are several different laws that protect employees who have disabilities -- the Americans with Disabilities Act, the Rehabilitation Act, New York State Human Rights Law and the New York City Human Rights Law. These laws define “disability” in various ways.

Q. My former employer is giving me bad references and making it impossible for me to get a new job. Do I have rights?

A. You may have rights, especially if your former employer is being dishonest or is retaliating against you for doing something protected by law.

Q. My employer wants me to sign a non-compete agreement. Should I?

A. You should seek legal advice before signing a non-compete agreement, which could affect your legal rights and employment opportunities in the future.

Q. I would like to work for an employer, but I have a non-compete agreement with a former employer. Is the non-compete agreement enforceable?

A. Some non-compete agreements are enforceable and others are not. You should seek legal advice.

Q. I would like to have a consultation with an attorney. What documents do I need?

A. You should have all documents relevant to your situation. This can include employee handbooks, letters or emails to or from your employer, contracts, agreements, collective bargaining agreement (union contract), job description, performance evaluation, disciplinary writeups, performance evaluations, witness statements, letters or emails to or from any person who is harassing you, time and pay records, medical documentation, pension statements, or any other document that you believe may be relevant. An initial consultation with an attorney is usually much more informative for both parties if you can supply as many relevant documents as possible.

Q. Do I have a right to see my personnel file?

A. In New York, an employee has no right to see his or her personnel file. If you file a lawsuit, you will be probably be able to review your personnel file as part of the discovery process.

Q. Do I have a right to paid maternity leave?

A. If you qualify under the Family and Medical Leave Act, you have a right to 12 weeks of unpaid leave for the birth or adoption of a child. You may have the right to paid leave under company policies – especially if the company has a policy of giving paid time off to men with temporary disabilities. You may also have the right to disability benefits during any period of incapacity.

Q. I just lost my job and cannot pay attorney’s fees. Can you represent me?

A. We take pride in representing employees across the economic spectrum. We may be able to offer you a fee arrangement (contingency or modified contingency) depending upon your needs and goals. Under the discrimination and overtime laws, your employer may be required to pay your attorney’s fees if you prevail.

Q. I prefer a negotiated solution to my problem and I do not want to file a lawsuit.

A. If possible, we evaluate employment disputes from a problem-solving perspective. It is often best to negotiate a solution. Our approach to the employer can be as aggressive or as collaborative as your circumstances require.

Q. What is mediation?

A. Mediation is a form of alternative dispute resolution in which a neutral third party tries to help the employee and the employer arrive at a mutually acceptable compromise. The mediator cannot force a compromise, however. We have represented many clients in mediation.

Q. What is arbitration?

A. Arbitration is a form of alternative dispute resolution in which an arbitrator acts as a judge. Although arbitration is sometimes faster and less expensive than litigation, the process sometimes favors the employer. Many employees are subject to arbitration clauses found in handbooks. Some of these clauses are enforceable and some are not.

Q. How can I prove discrimination?

A. In most cases, an employer accused of discrimination asserts a legitimate non-discriminatory reason for the adverse employment action. The employee must then expose that reason as a pretext for discrimination. This can be difficult, especially without access to the personnel files. You should seek assistance from experienced counsel.