PRACTICE AREAS
DISCRIMINATION IN THE WORKPLACE
Several federal, state, and local laws prohibit discrimination in the workplace. If you are a member of a protected class and your employer took an adverse employment action against you because you are a member of that class, you may have a claim against your employer for employment discrimination. Examples of adverse actions that an employer may take against you are discharging you, refusing to hire you, refusing to promote you, or paying you less than other similar employees. Basically, an employer cannot discriminate against you while making decisions regarding the terms, conditions, or privileges of your employment.
Title VII of the Civil Rights Act of 1964 (Title VII): Protects employees from discrimination against them by their employers based on their race, color, religion, sex, or national origin. Title VII generally covers employers with 15 employees or more.
The Age Discrimination in Employment Act of 1967 (ADEA): Protects employees from discrimination against them by their employers based on their age once they have reached the age of 40. The ADEA generally covers employers with 20 employees or more.
Americans with Disabilities Act of 1990 (ADA): Protects employees from discrimination against them by their employers based on their physical or mental disability or medical condition. The ADA generally covers employers with 15 employees or more.
The Pregnancy Discrimination Act of 1978 (PDA): The PDA amended Title VII to include pregnancy, childbirth, or related medical conditions and women affected by pregnancy, childbirth, or related medical conditions as a protected class under gender discrimination.
New York State Human Rights Law (NYSHRL): Protects employees from discrimination against them by their employers based on their age, race, creed, color, national origin, sexual orientation, military status, sex, pregnancy, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status. The NYSHRL generally covers employers with 4 employees or more except in the case of sexual harassment in which all employers are covered regardless of the number of employees.
New York City Human Rights Law (NYCHRL): Protects employees from discrimination against them by their employers based on their actual or perceived age, race, creed, color, national origin, gender, pregnancy, disability, marital status, partnership status, caregiver status, sexual orientation, uniformed service, or alienage or citizenship status. The NYCHRL generally covers employers with 4 employees or more.
HOSTILE WORK ENVIRONMENT
Harassment in the workplace of members of the protected classes is a form of employment discrimination. The same laws that protect employees who are members of a protected class against adverse employment actions also protect them against harassment in the workplace.
If you are a victim of offensive conduct because you are a member of a protected class you may have a claim for workplace discrimination in the form of a hostile work environment.
Under federal and New York State law, the conduct must be severe or persuasive enough to create a hostile, intimidating, or abusive work environment. Single or minor incidents may not be enough to establish a hostile work environment under federal or state law. However, under New York City law even isolated or minor incidents may be covered.
RETALIATION
If you complained against your employer’s discriminatory or other unlawful practices and your employer takes an adverse action against you, you may have a claim for retaliation. This includes if you assisted in someone else’s claim against the employer for discriminatory or other unlawful practices such as assisting in an investigation or testifying as a witness in a trial or deposition. Your employer cannot fire you, demote you, reprimand you, reduce your pay, or otherwise interfere with any of the terms or conditions of your employment for retaliatory reasons. This applies even if the claims against your employer are ultimately dismissed.
SEXUAL HARASSMENT
The anti-discrimination laws also protect employees against sexual harassment. The protected class that covers victims of sexual harassment is gender. Sexual harassment usually happens in two contexts. The first situation is when a victim is requested to perform sexual favors in exchange for something in return from the employer or supervisor. For example, an employer or a supervisor may request that the victim perform a sexual favor in order to keep their job or in order to be promoted. The second situation is when the victim is subjected to unwelcomed sexual conduct including physical contact, sexually suggestive gestures, or inappropriate verbal or written communication by either the employer or supervisor. The employer may also be liable for the sexual harassment of an employee by a third party if the employer or their agent is aware or should have been aware of the conduct and did not take the appropriate measures to stop it.
WAGE AND HOUR CLAIMS
You may be a victim of wage theft and not even know it. The questions below may help you find out if you are owed wages from your employer:
- Are you paid less than $12.00 per hour and your employer has less than 11 employees or less than $13.00 per hour and your employer has more than 11 employees?
- Are you paid one and a half times your hourly rate for hours you worked in excess of 40 hours per week?
- If you are a minimum wage employee, are you paid an extra hour for days you worked 10 hours or more?
- Is your employer taking tips that belong to you or requiring you to share your tips with nontipped employees?
- Does your employer force you to work extra time that you are not being paid for?
If you answered “Yes” to Question 1 you may have a claim for unpaid minimum wages.
If you answered “No” to Question 2 you may have a claim for unpaid overtime wages.
If you answered “No” to Question 3 you may have a claim for unpaid spread of hours pay (the New York State law that requires employers to pay their employees an extra hour’s pay if the employees work 10 hours or more in one day and are paid at the minimum wage rate).
If you answered “Yes” to Question 4 you may have a claim for unlawful deductions and/or illegal tip pooling.
If you answered “Yes” to Question 5, you may have claims for unpaid minimum wages, unpaid overtime wages, and unpaid spread of hours pay.
Federal and New York State law both require that employers pay double the total amount of the wages owed to victims of wage theft as liquidated damages.
Peter has worked at a supermarket in his neighborhood as a stock boy for the last six months. The supermarket has a total of 25 employees. The supermarket owner pays Peter $400.00 per week for his work. Peter works 11 hours a day and 5 days a week for a total of 55 hours a week. Peter is owed minimum wages because he is making less than $13.00 per hour. Peter is also owed overtime wages because he is not getting paid time and a half for the 15 hours he works over 40 each week. Peter should be paid $13.00 for each straight time hour he works and $19.50 for each overtime hour he works. Lastly, Peter is also owed spread of hours pay because he is not being paid an extra hour’s pay for every day that he works at least 10 hours or more.
Peter is a victim of wage theft. Peter’s weekly wages should be calculated as follows:
Straight Pay: $13.00 x 40 hours = $520.00 +
Overtime Pay: $19.50 x 15 hours= $292.50 +
Spread of Hours Pay: $13.00 x 5 days = $65.00 =
Total: $877.50 per week
Since Peter was only paid $400.00 a week, he is owed $477.50 for each week he worked at the supermarket ($877.50 - $400.00).
Peter worked at the supermarket for 6 months so he is owed unpaid wages for 24 weeks. Peter ‘s employer must pay him $477.50 times 24 for a total of $11,460.00.
The employer is required to pay Peter double the amount of the wages owed to him as liquidated damages so Peter is owed a total of $22,920.00.
Maria worked as a bartender at a small bar during the entire year in 2017. Although she no longer works at the bar, she feels that she may be owed unpaid wages from her past employer. The only other workers employed at the bar at the time Maria worked there was one other bartender and a busboy. Maria received an hourly rate from her employer for her work and also received tips from her customers. Since Maria was a tipped employee, her employer did not have to pay her the minimum wage for nontipped employees. Instead, the employer was allowed to pay Maria $8.75 per hour which was the minimum wage for tipped employees in the hospitality industry in 2017. She received a tip credit because she earned over a certain amount in tips per week. Maria worked 8 hours a day and 5 days a week for a total of 40 hours a week. However, Maria was only paid for 35 hours of work each week because her employer did not pay her to clean up the bar at the end of the night. It took Maria an hour each night to clean up the bar. Also, the bartenders were required to pay the busboy $20.00 each day from their tips. The busboy was also paid hourly by the employer and did not receive any tips directly from the customers. Thus, Maria was only paid $306.25 per week and was forced to share her tips with the busboy.
Maria was a victim of wage theft. Maria should have been paid $350.00 a week ($8.75 x 40 hours). Maria also should not have been required to pay the busboy the $20.00 each day from her tips. Maria’s employer was taking an unlawful deduction from her pay and forcing her to illegally pool her tips with a nontipped employee.
Thus, Maria is owed $43.75 per week for the extra time she worked ($350.00 - $306.25) plus $100.00 per week for the money she was required to pay the busboy ($20.00 x 5 days per week). In total, Maria was owed $143.75 per week.
Since Maria worked at the bar for the entire 2017, she is owed $143.75 times 52 weeks for a total of $7,475.00. Her employer must also pay her an extra $7,475.00 as liquidated damages. Thus, the total amount of wages that Maria is entitled to from her prior employer is $14,950.00.
WRONGFUL TERMINATION
Most employees in New York are at-will, which means that absent an employment contract your employer can terminate you at any time for any lawful reason, just like you can quit your job at any time. However, your employer cannot:
- Fire you for a discriminatory reason including because of your race, national origin, sex, sexual orientation, religion, or disability;
- Fire you as retaliation for reporting certain illegal activity;
- Fire you as retaliation for making a claim for worker’s compensation benefits; or
- Fire you as retaliation for making a claim against them for unpaid wages.
Car Accidents
Construction Accidents
Falls
False Arrest
Motorcycle Accidents
Premises Liability
Worker’s Compensation
Wrongful Death
Personal Injury:
A car accident can be a life changing event. You may suffer a great deal of pain from your injuries. You may also need extensive medical treatment and miss time from work. If you are involved in a car accident, you may have the right to be compensated for your losses. But first, a few steps must be taken before you can start a suit against the negligent party who is responsible for your losses.
First, you should know that New York is a No-Fault State which means that every vehicle registered in the state must carry No-Fault insurance. Regardless of who is responsible for the accident, the No-Fault insurance carrier will pay for the “basic economic loss” of anyone covered by the policy. Generally, the insurance law defines basic economic loss as up to $50,000 of medical expenses, lost wages, and out of pocket expenses, with individual monetary limits on each of those categories. However, motorists may purchase additional coverage. A vehicle’s No-Fault policy will cover the driver and any passengers of the vehicle as well as any pedestrians or bicyclists that collided with the vehicle. Generally, No-Fault claims must be made within 30 days of the date of accident with few exceptions. Thus, you should file for No-Fault benefits as soon as possible. This is imperative.
The next step is to make a claim against the responsible party for all the damages you suffered as a result of their negligence. You may recover an award from the negligent party for your economic damages as well as for your non-economic damages, such as pain and suffering.
In order to recover an award for your economic damages, the insurance law requires that you prove that you suffered economic loss in excess of your basic economic loss as described above. This means that if you are covered by No-Fault and your medical bills, loss of wages, and out of pocket expenses did not exceed $50,000 and none those categories exceeded their individual monetary limits, you cannot recover economic damages from the negligent party. One of the purposes of the insurance law is to reduce the number of lawsuits arising from car accidents and this requirement is meant to prevent lawsuits for economic damages that were already covered.
In order to be awarded non-economic damages you must prove that you suffered a “serious injury”. This is another way that the insurance law limits the number of lawsuits that arise from car accidents. Insurance Law §5102(d) states: "Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.” Although some of the definitions of a serious injury in the insurance law are straight forward, others are not. Only an experienced attorney that understands the insurance law and how the courts interpret it can help you recover the right award for your personal injuries.
The Labor Laws place strict rules on owners and contractors. One of the most familiar of the statutes is Labor Law Section 240(1), otherwise known as the Scaffold Law. This law imposes strict liability on owners and general contractors that do not provide safe scaffolding or other safety devices for workers working at elevated heights. Strict liability means that all that has to be proven for the owner and general contractor to be held liable is that the statute was violated and the worker was injured in a matter that the statute was meant to prevent. It does not matter if the worker contributed to the accident due to their own negligence or that a subcontractor was supposed to be in charge of complying with the statute. The owner and general contractor will still be absolutely liable for the accident.
Other important statutes are Labor Law Section 200, which imposes a general duty on owners and contractors to maintain a safe work site, and Labor Law Section 241, which outlines specific actions that are imposed on owners and contractors as well as the requirements to provide specific safety equipment to the workers.
There are many dangerous conditions that can cause someone to fall and get seriously hurt. Many falls are caused by ice and snow or other slippery surfaces, as well as by tripping hazards, unsafe staircases, or other dangerous conditions.
A tripping hazard may exist on sidewalks, parking lots, walkways, or any other surface that people walk on.
A key element in slip and fall or trip and fall cases is proving that the defendant either created the dangerous condition or had notice that the dangerous condition existed. Notice can be proven in two ways, actual notice or constructive notice. Actual notice is when the defendant actually knew that the dangerous condition existed. Constructive notice is when the defendant should have known the dangerous condition existed because of the length of time it existed. However, for actions against the City of New York, prior written notice must be proven.
People are often arrested although they are 100% innocent. The police sometimes arrest the wrong person or simply arrest someone without any justification. Now the innocent person has to face incarceration and go through the system when they did nothing wrong. If the police did not have probable cause to arrest you, you may have a claim for false arrest and malicious prosecution. If the police used excessive force against you, you may have claim for police brutality.
Motorcyclists face many dangers on the road. Drivers are often distracted and make dangerous mistakes that cause serious injuries and even fatalities. Furthermore, motorcycles are not covered by the No-Fault law meaning that motorcyclists do not receive No-Fault benefits like those involved in other car accidents, as explained above. This means that none of the motorcyclist’s medical bills, lost wages, or out of pocket expenses are covered by No-Fault insurance. Thus, the motorcyclist may have no other recourse but to go after the driver for his economic losses. However, since motorcyclists are not covered by the No-Fault law they are not required to prove that they suffered a “serious injury “, as defined above, in order to sue for non-economic damages. This makes it a lot easier for motorcyclists to recover for damages such as pain and suffering then it is for car accident victims.
If you are injured because of a dangerous condition that exists on or abutting a property, the owner or any other person who is in control or possession of the property may be liable.
For example, you may be caused to slip and suffer injuries due to the negligence of a property owner who did not remove ice or snow from the sidewalk in front of the property. In sidewalk cases involving falls caused by ice or snow, the property owner has 4 hours from the when the storm ended to clean up the snow and/or ice.
A person who was injured at work cannot sue their employer for damages related to the accident except in limited circumstances such as for intentional torts or grave injuries. Generally, the worker will instead file for worker’s compensation benefits. The employer must be notified of the accident within 30 days from the date of injury and the employee must file a worker’s compensation claim within 2 years from the date of injury.
Worker’s compensation benefits will cover 2/3 of the worker’s weekly pay subject to the weekly maximum that is in effect at the time of the accident. Additionally, worker’s compensation benefits will pay the reasonable medical expenses related to the work injury.
After the worker has reached their maximum medical improvement, they be entitled to a lump sum or continued weekly payments for a period of time if they are permanently totally or partially disabled. This includes compensation for the total or partial loss of use of a body part.
Just because an injured worker cannot sue the employer in most cases does not mean that they cannot sue a third party who was responsible for the accident. Often a worker will make a claim for worker’s compensation benefits and also sue a third party for negligence.
A wrongful death claim arises when someone dies as a result of the conduct of another. The conduct must have been negligent, reckless, or intentional. Common examples are deaths arising from auto accidents, construction accidents, medical malpractice, or from intentional acts. The surviving family members may be able to recover an award for their financial losses resulting from the death of the decedent. These losses may include funeral and medical expenses paid for by the survivors for the decedent as well as for the financial support that the decedent would have provided them had the decedent survived. The survivors may also be able to recover an award for the loss of services and care that they would have received from the decedent. The surviving family members cannot start a wrongful death claim directly. Only the personal representative of the Estate of the decedent may start a wrongful death claim. The damages recovered by the Estate will then be properly distributed to those who are entitled to them. The Estate may also be able to recover damages for conscious pain and suffering if the decedent did not immediately perish from the injuries that caused their death. However, the decedent must have actually suffered from the injuries while they remained alive. If the decedent was unconscious or otherwise unaware of the injures they sustained, the Estate cannot recover damages for conscious pain and suffering.