employment law

Baron Associates P.C. has, for over thirty years, represented workers and classes of employees in a variety of matter including but not limited to discrimination, harassment, contract disputes, and wage lawsuits. Being a victim at your workplace is an unfortunate situation and can cause extreme stress, negatively affect your job performance, and create a hostile, intimidating work environment. The experienced attorneys at Baron Associates P.C. have the knowledge and compassion to help guide clients through these tough situations.

fair labor standards act

Under New York Labor Law and the FLSA, all “non-exempt” employees are entitled to overtime pay. Unfortunately, it seems to be common practice for many employers to deny this right to their employees and avoid the overtime requirements. This can be done in many devious ways such as misclassifying employees as exempt “executives” or “professionals” even though the employee’s responsibilities would not entitle them to such a classification (and their payroll certainly would not reflect the same).

If you work over forty (40) hours per week, even if you are paid a salary, there is a good chance you are entitled to time and one-half overtime for every hour over forty (40) hour threshold.

If you are aid by the hour, you must be paid time and one-half for all hours worked over forty (40) hours per week. For example, if you are paid $40 per hour, you are entitled to $60 per hour for each hour worked over forty (40) hours that week.  If instead you have paid only your regular hourly rate, rather than time and one-half, you are entitled to the difference between what you were paid for overtime hours worked and what you should have been paid.

Please note, it is illegal that instead of paying your time and one-half your company offers your “comp time” or time off instead of paying you what you have earned and deserve.

Many salaried employees earning less than $100,000.00 per year are also entitled to overtime pay. Unfortunately, these types of employees are often hoodwinked and bamboozled into believing they can be made to work overtime for no extra pay. In such a situation, the employer is either misinterpreting the law or deliberately attempting to underpay. If you are a salaried employee working overtime hours, it would be wise to keep track of all extra hours worked. This information would be critical to help you determine your hours of employment if a lawsuit is filed. While your company may give you a title such as “manager” or “vice president” to avoid paying you overtime, keep in mind that such a title does not dictate whether you are eligible to receive overtime pay.

As said prior, there ARE exemptions to The Fair Labor Standards Act. These depend on the type of business or work that the employer and employees engage in. Frequently, the overtime provision, the minimum wage provision, or both provisions will not apply to certain employees. 

Some common occupations and employees that are not covered under all or parts of the FLSA include:

  • Commissioned sales employees of retail or service establishments;
  • Seasonal and recreational establishments;
  • Computer professionals who earn at least $27.60 per hour;
  • Salesmen, partsmen, and mechanics of car dealerships;
  • Drivers, driver’s helpers, loaders and mechanics;
  • Farmworkers; and
  • Executive, administrative, professional and outside sales employees who are paid on a salary basis.

The Fair Labor Standards Act creates several requirements. Some of the most important of them are those that require an employer to:

  • Pay employees at least minimum wage;
  • Pay overtime pay for time worked over 40 hours in a workweek;
  • Adhere to child labor provisions; and
  • Maintain various records of hours, wages, and other wage items ordinarily kept in a business practice.

The FLSA requires employers to keep accurate and truthful records regarding wages, hours worked, and other important information for their employees. Records do not need to be kept in any specific form or format, and time clocks are not required. However, with respect to minimum wage and overtime provisions, employers must keep the following records: 

  • Personal info of the employees, including name, address, occupation, sex, and date of birth (if the employee is under 19 years old);
  • The hour and day when the workweek begins;
  • The total hours worked during each workday and workweek;
  • Total daily and/or weekly earnings;
  • Regular hourly pay rates for weeks when overtime is performed;
  • Total overtime pay for the week;
  • Any wage deductions or additions;
  • Total wages rendered for each pay period; and
  • Payment dates and pay periods covered. 

While the FLSA has many requirements, it does not require them to do certain things. These include:

  • Providing payment for employees who take valid vacation, sick leave, or holidays;
  • Giving workers compensation for meal or break periods;
  • Providing additional payment or higher wages for employees who work weekends, nights or holidays;
  • Providing a pay increase or fringe benefits;
  • Giving a discharge notice or reason for discharge;
  • Providing employees with severance pay;
  • Giving performance evaluations; and
  • Providing health insurance or other similar insurance benefits.

If you believe that your employer has been unfairly and unlawfully holding back your wages, you may have a claim under FLSA. Baron Associates P.C. has over thirty (30) years of experience representing claims of such nature. Our experience and aggressiveness coupled with our strong ethical beliefs will make sure you have the very best representation throughout the entire process from initiating a claim all the way through resolution to get you the best possible result.

employment discrimination

Being a victim of discrimination in the workplace is an unfortunate situation and can cause extreme stress, negatively affect your job performance, and create a hostile, intimidating work environment. Federal, state, and New York City laws forbid workplace discrimination on the basis of certain specific protected categories such as age, race, sex, sexual orientation, etc. Discrimination in the workplace occurs when employees are unfairly treated or harassed in matters concerning hiring/firing, promotions, pay or compensation or forced retirement by employers, supervisors, and/or coworkers. Discrimination can also lead to a wrongful termination and a hostile work environment. If you believe you have a claim for workplace discrimination, please contact Baron Associates P.C. today for a free initial consultation. 

Age discrimination in the workplace is illegal and can take many forms. Some are more obvious; other forms are subtle and under current. Some examples of age discrimination might include:

  • Comments such as: “We need more young people in this company” and “It’s time we get some fresh young faces in here”
  • Repeatedly asking an employee, “So when are you going to retire?”
  • A company that refuses to hire anyone who appears older than a certain age
  • Refusing to invest in an employee’s training and growth due to age
  • Threatening to fire an employee if he/she does not retire
  • Forced retirement

Federal, state, and New York City laws protect employees against discrimination in the workplace due to age. The Age Discrimination in Employment Act of 1967 (ADEA) is a federal law that protects employees who are over 40 years of age from being discriminated against because of their age. This law applies to most employers who have 20 or more employees.

The Older Workers Benefit Protection Act of 1990 (OWBPA) is a federal law that amended the ADEA and grants further protections to older employees. The OWBPA prevents employers from denying benefits to employees who are older. According to this law, an employer can only reduce benefits based on age if the cost of providing reduced benefits to older employees is the same as the cost of providing benefits for younger employees.

Racial discrimination in the workplace is illegal and includes discrimination against people of mixed backgrounds, ethnicity, and/or cultural heritage, discrimination because someone is married to a person of a particular ethnic or racial background, and discrimination that may involve issues of gender or religious freedom as well as race. This discrimination can take many forms, some examples are:

  • Jokes based on racial groups,
  • Stereotyping of individuals based on their ethnic backgrounds
  • Derogatory names, as well as racial epithets
  • Even superficially positive remarks, like “Mexicans are hard workers” or “Jews are good at managing money” tend to show discrimination at work.

It is very sad and unfortunate but there are people in our society that hold racist views, or ignorantly group and label people based on racial background – even in the melting pot that New York City is famously known for. While these attitudes can be expressed in many different ways, often they are present at the workplace. Racially discriminatory attitudes can have very real and tangible effects in the job force, leading to refusals to hire, firings, poor performance reviews, passing over employees, and many other negative impacts on an innocent person’s livelihood.

Discrimination cases are often based on what is called disparate treatment, under Title VII of the federal Civil Rights Act. Disparate treatment simply means that individuals of one racial background are treated differently than others. It is very important to take note that Title VII applies only to employers with fifteen (15) employees or more, and the amount of monetary damages a successful plaintiff can win depends on the size of the employer. Because of the malicious nature of racial discrimination, sometimes punitive or “punishment” damages are awarded. Title VII also provides protections against retaliation: if an employer takes adverse action against an employee because the employee opposes a discriminatory practice, the employer is subject to additional claims under federal law. New York State and New York City human rights laws provide additional protections to employees and apply to employers with as few as four employees.

Employment laws protect your right to practice your religion under federal, state, and local law; your religious beliefs have substantial protections in the workplace. Religion in the employment setting includes not only established religions such as Christianity, Catholicism, Judaism, Islam, or Buddhism, but also ethical, personal, or religious beliefs. Employers are not allowed to discriminate based on religion, which means that it is illegal or employers to refuse to hire, deny promotions, fire people, or take other negative actions that are driven by hatred or animosity towards an individual’s religion. Company policies that have the effect of discriminating against all people of a particular religion may also be found to violate the law. This discrimination can take many forms, some examples are:

  • Individuals are singled out and repeatedly harassed or subjected to disparaging remarks based on their religion Stereotyping of individuals based on their ethnic backgrounds
  • Derogatory remarks, as well as racial epithets
  • Not making reasonable accommodations for the employee’s religious practices.

Accommodations are often at hotly debated issue in a religious discrimination cases. Employers are required to provide reasonable accommodations to employees’ religious practices, but do not need to provide accommodations where it would create an undue hardship for the employer. Sometimes practices that are impossible to someone of a particular religion are required by an employer, such as working on the Sabbath, wearing certain uniforms or other particular attire, or requiring grooming of facial hair. Sometimes these are bona fide qualifications of the job that the employer is entitled to require, but in other cases there are accommodations that can easily be made without any detriment to the employer. Accommodation issues also often arise with scheduling around particular religious observances. Under the federal Civil Rights Act, an undue hardship for purposes of accommodation is interpreted to mean anything that has more than a minimal cost to the employer. New York City’s Human Rights Law was recently amended to strengthen the definition of undue hardship.

New York City, New York State, and federal laws prohibit employers from discriminating on the basis of sex or gender. Gender or sex discrimination occures when an employer treats an employee unequally based on the fact that the employee is a woman or is a man. During all levels, phases and aspects of the employment process, the policies and practices in the workplace must be equal between men and women, including matters involving hiring, firing, compensation, promotions, opportunities, training, working conditions, benefits, and other privileges. An employer cannot make employment decisions based on gender stereotypes and other assumptions about men and women. Some examples of sex or gender discrimination can include:

  • Refusing to hire or give promotions to someone based on gender
  • Giving benefits to wives of male employees but not to husbands of employees who are women
  • Paying a male employee more than a female coworker for a substantially similar position
  • Refusing to hire or promote an employee because of his or her family responsibilities
  • Comments such as “It must be that time of the month”, “She is too emotional to make the decision”, or  “He is thinking with the wrong head”
  • Refusing to promote a woman because she is pregnant or intends to become pregnant, or firing/letting go same woman under guises of “downsizing” or “reorganization”

According to the U.S. Equal Employment Opportunity Commission’s Equal Pay Act of 1963, men and women must receive equal pay for substantially equal jobs in the same company. Pay does not only refer to salary, but also includes benefits, bonuses, stock options, and overtime pay. If you are doing substantially equal work as someone else and are being paid less than a coworker of the opposite sex, you may have a legal claim for gender discrimination under this law.

New York state law prohibits employers from discriminating against an individual because of his or her sexual orientation. Sexual orientation discrimination in the workplace occurs when an employee is treated differently based on his or her actual or perceived sexual orientation (whether homosexual, bisexual or heterosexual etc.). It is important to note that it does not matter if your employer’s perception of your sexual orientation is right or wrong. All it takes is that fact that your employer is treating you unequally based on your sexual orientation, this conduct is still prohibited by state law.

There are currently no federal laws that prohibit sexual orientation discrimination in the workplace, except for employees of the federal government. However, in some circumstances, sexual orientation discrimination may overlap with sex/gender orientation, which federal law does prohibit. However, New York state law does apply to workplaces in the private sector and protects employees from being discriminated against on the basis of their sexual orientation.

Some examples of sexual orientation discrimination may include, but are not limited to:

  • Harassment from coworkers or employers about your sexual orientation
  • Derogatory comments from coworkers or employers about gay, lesbian, transgender, or bisexual individuals
  • Being denied a promotion or opportunity and/or benefits  purely based on sexual orientation
  • Comments such as “He is such a sissy,” or “She’s so butch.”
  • Being asked not to bring a same-sex partner to an event while different-sex partners are invited

Disability discrimination in the workplace is illegal and involves unfair treatment in the workplace on the basis of disability. The federal Americans with Disabilities Act (ADA) requires that employers covered by the law provide reasonable accommodations to known physical or mental limitations of qualified employees. This law applies whether the employee works part-time or full-time. New York State and New York City laws such as the New York City Human Rights Law and New York State Human Rights Law also prohibit disability discrimination.

Disability discrimination can include:

  • Ban on Caregiver Discrimination under the NYCHRL
  • Cancer Disability Discrimination
  • FMLA Violations
  • Heart Condition Discrimination
  • Medical Condition Discrimination
  • Mental Illness Discrimination
  • Not being provided Reasonable Accommodations

Reasonable accommodations can include modifications to the work environment or to the way the job is customarily done, to help a disabled employee perform the duties of the job. Examples of reasonable accommodation can include modifying the employee’s work schedule or making facilities accessible to the disabled (e.g. making ramps).

Some examples of disability discrimination in the workplace might include:

  • Derogatory comments about an employee’s disability, e.g. “retarded”
  • Refusing an employee’s request for time off to get medical treatment for a disability; terminating the employee instead
  • Refusing to make changes to make the facility accessible to the disabled

If you or a loved one believe you have been treated unfairly at your workplace due to discrimination it is important to consult with an experienced New York attorney who can help advise you regarding the next steps you should take. We here at Baron Associates P.C. aggressively fight for the rights of our clients at their workplace. Our tenacity coupled with our compassion will ensure our clients receive the very highest standard of representation in any discrimination matters. 

sexual harassment

Sexual harassment is considered a specific form of gender discrimination, because it is harassing conduct that occurs because of an individual’s gender. Gender discrimination in all its forms, including sexual harassment, is prohibited by Title VII of the federal Civil Rights Act of 1964. Sexual harassment claims are handled by the Equal Employment Opportunity Commission (EEOC). New York State’s Human Rights Law and the New York City Human Rights Law also prohibit sexual harassment and reach much smaller employers than the Civil Rights Act. In 2010, 11,717 sexual harassment claims were filed with the EEOC across the country.

The EEOC groups sexual harassment into two main categories. The first is called “quid pro quo” sexual harassment. This happens where one is submitting to unwelcome sexual conduct and this is made the basis for employment decisions – such as requiring sexual favors in order to grant a promotion, basically “you do something for me, and I’ll do something for you”. On the flip side of the coin, when a rejection of sexual advances forms the basis for a decision to fire, demote, or refuse to promote an employee, quid pro quo sexual harassment has also occurred. This type of harassment results in an economic loss to the victim. Basically, “since you didn’t do something for me, I am taking away something from you.”

The other form of sexual harassment is called “hostile work environment” harassment. A hostile work environment is created or exists when unwelcome verbal or physical conduct unreasonably interferes with the victim’s ability to do his or her job, or creates an offensive, intimidating, or hostile working environment. The environment created is fact specific and varies in a case by case nature. Even general, non-sexual comments – such as comments about one gender – can create a hostile work environment where the comments are frequent or severe. Indeed, words do not even need to be exchanged for a hostile work environment to exist. In example is a coworker posting or displaying pictures of an offensive nature to a reasonable person.  However, it is important to distinguish that minor isolated incidents or harmless lighthearted teasing do not amount to a hostile work environment. If you are uncertain, it can be helpful to consult with an attorney to get an idea of whether the conduct at issue is so offensive as to constitute a hostile work environment.

Sexual harassment is a fact specific case by case issue and does not always follow expected patterns. Men can also easily be the victim of sexual harassment. Between 1997 and 2010, the percentage of harassment charges filed with the EEOC by men has risen from approximately 12% to 16%. Sexual harassment can also occur between members of the same sex, based on unwelcomed conduct of a sexual nature or patterns of favoring the opposite sex for inappropriate reasons. Anyone affected by improper conduct can be a victim, not just the person directly subjected to harassing conduct, and harassment can take place without any economic injury to the victim.

Sexual harassment cases are difficult and require an experienced attorney. There is inevitably a high level of discomfort in testifying about the facts of harassment, and often sexual harassment cases involve “he said, she said” types of testimony, making credibility and any documentary evidence or email critical. While retaliation based on pursuing a sexual harassment claim is prohibited, the workplace may remain uncomfortable.

At Baron Associates, P.C., we understand the difficulties of pursuing a sexual harassment claim, but we also know that no one should have to tolerate unwelcome sexual advances in the workplace. We are aggressive advocates for our clients and have experience in harassment and discrimination claims.

Brooklyn, New York

Contact Baron Associates P.C. Law Firm for a Free Consultation

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