Category: Employment

Any employee has the right to be compensated for every hour of work that they finished. As a New York employee, you are entitled to file a complaint if your employer doesn’t pay you for all or any portion of your earned wages. 

Examples of Wage Theft

Employers must disclose the basis for employee payment at the time of hiring and can’t take their earnings after they’ve been hired. When an employer does indeed take from their employee, it is considered wage theft– a violation of the Fair Labor Standards Act (FLSA). Employers can commit this in various ways; here are examples of common wage theft violations:

• Minimum wage violations
• Failing to pay overtime wages
• Misclassifying employees as independent contractors
• Requiring employees to work “off the clock” (before and/or after their regular shifts or during meal breaks)
• Taking illegal deductions in pay
• Misappropriating tips 

Employee Methods and Tactics 

Employers can wrongfully withhold their employees’ wages and cheat them out of overtime using various methods. At a lot of companies, this is one of the biggest expenses is employee compensation and also a common form of wage theft. Employers may have incentive to falsify employee time keeping records to show employees working less hours and withhold benefits in order to reduce costs and increase profits. Additionally, the FLSA requires New York employees to pay their employees for overtime. You can’t agree to waive overtime payments or sign away your rights to the money that you’re entitled to receive, despite an employer requesting you to do this.  

Statute of Limitations

Just because your employer is cheating you out of your wages, doesn’t automatically mean that you’re going to get your overtime compensation or your wages back. To get what you’re entitled to, you must take action within a reasonable amount of time. First, you should demand your wages directly from the employer and can the report the problem to your Human Resources Department. If this approach doesn’t adequately resolve the issue, or they fail to investigate your case, you can take things outside of the company and file a claim with the Department of Labor or sue your employer directly to recover your wages.

You must bring your claim within 2 years after you realize that your employer violated provisions of the FLSA. If it’s a “willful” violation, then you have 3 years to file against your employer. However, in New York, the equivalent labor laws allow you to file for up to 6 years after a violation. 

Recoverable Damages

In New York, an employee who files an unpaid wage claim can recover an additional sum of damages – liquidated damages. If your wage claim includes wage and hour violations, as well as violations of meal and rest breaks and overtime laws, you can collect the total amount of your unpaid wages, in addition to liquidated damages. 

Also, if you prevail, you would be entitled to recover the following:

• Legal costs
• Attorney fees
• Interest on your unpaid wages

Get Legal Help Filing your Unpaid Wages Claim

Understanding how to file for unpaid wage claim in New York can be complex. If you’re not sure whether your potential claim is worth pursuing, you can talk it over with an experienced attorney. MOWK Law employment attorneys are familiar with the ins and outs of wage and hour violations and can advocate passionately on your behalf. Contact us for help with your next steps. 

With the arrival of the coronavirus vaccine, it has become a little easier to picture a time when more people return to their workplace. But when that day inevitably comes, will it also come with the reassurance that co-workers have gotten vaccinated? More specifically, the issue is whether employers can require workers to get the Covid-19 vaccine? The general answer is “Yes.” However, this does come with some limitations. 

The Equal Employment Opportunity Commission (EEOC) enforces and educates people about employment issues, including providing guidance and instructions on how to handle workplace compliance with the pandemic issues. Two laws are relevant here: Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, (ADA).

Religious Accommodations

Under Title VII, an employer must accommodate the sincerely held religious belief, practice, or observance of an employee, unless it would cause an undue hardship on the business. Courts have held that an “undue hardship” is created by an accommodation that has more than a small cost or burden on the employer. 

The definition of religion is broadly defined to include religious beliefs and practices that may be unfamiliar to the employer. If an employee can’t get the vaccine because of their religion and a reasonable accommodation isn’t available, then the individual may be excluded from physically entering the worksite. However, it doesn’t necessarily mean that they would be fired. According to the EEOC, “employers will need to determine if any other rights apply under other federal or state authorities.”  

Disability Accommodations

Under the ADA, an employer can have a policy that includes a “requirement than an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If an employee doesn’t want a vaccine, the employer has to evaluate the risk that their refusal poses, especially if the employer is requiring that employees get vaccinated. 

The EEOC states that employers should evaluate four factors to determine whether there is a direct threat:

·       The duration of the risk

·       The nature and severity of the potential harm

·       The likelihood that the potential harm will occur

·       The imminence of the potential harm

Regarding these evaluations, the type of work would likely make a difference in determining whether a direct threat exists. For instance, if you’re a health care professional in contact with patients, being vaccinated could have a direct impact on you performing your job because you may not be able to do it safely without risk to other employees and patients. 

If you’re an office worker, you may be accommodated by using personal protective equipment, working remotely or working in a separate area. 

What Employers Can Do Instead of Forced Vaccinations

Although employers may have the ability to mandate vaccinations, they may be more likely to encourage or offer incentives to their employees rather than issue a requirement.

Talk to an Employment Law Attorney about Your Rights

If you’re concerned about your standing regarding vaccination by your employer, then you should seek help from a skilled attorney who can provide insight on this and other employment issues. Reach out to the experienced New York employment lawyers at MOWK Law. Contact us today to take the next steps.

People are fired for many reasons– including missing too much time from work, to messing up a deal, or failing to respond to client requests. However, if you’ve been fired because of a false allegation, it makes good sense that you would be upset. Anyone would be bothered by being dismissed for something that they didn’t do, especially if they think that the employer didn’t fully investigate the matter. However, it doesn’t necessarily mean that you can sue your former employer for wrongful termination. Read on to learn more about false allegations in this context.

At-Will Employment

In New York, most employment is “at-will,” which means that your employer can let you go for almost any reason. There are exceptions to this rule. One very notable exception is that your employer can’t discriminate against you on the basis of a protected class, including age, race, religion, disability, national origin, or sex and they can’t retaliate against you for reporting discrimination or reporting unsafe working conditions. Unfortunately, terminating an employee based on a false allegation is not an exception at at-will employment.

Reasons for False Allegations in the Workplace

The sad reality is that false accusations are common happenings in almost any employment setting. Whether they are based on malicious co-workers with an axe to grind or the result of poor communication and misunderstandings, the results can be devastating. It can lead to a bad reputation and ultimately, your firing. 

For instance, if a colleague accuses you of misconduct, your employer can terminate you based on the allegation, even if it isn’t true. This is especially problematic because you may be targeted based on an illegal reason like age discrimination. Your employer wants to get rid of you due to your advancing age, but they make up a false accusation about you (that you stole from the company) to cover up their true intentions. 

False Allegations and Defamation

The issue is whether a false allegation is considered defamation. You’re a victim of defamation in the workplace when someone makes a false statement about you to a third party and that false statement damages your career or reputation. There are barriers to establishing a false accusation as defamation. 

First, you may know that the allegation is false, but can you prove it. Mere opinion isn’t considered defamation. Additionally, false statements may be privileged if they are made within the regular course of business. This means that if your supervisor’s or coworker’s false allegation against you was made within the company, it likely would not be considered defamation. 

Dealing with Wrongful Termination? Discuss with an Experienced New York Employment Attorney

False allegations are unfair especially if you’ve been fired because of it. If you think that you’ve been wrongfully terminated, then you will want to act in your best interests and plan out your options with an experienced employment law attorney. The skilled New York employment lawyers at MOWK Law can evaluate your case and will let you know how to proceed. Contact us for more information.  

The New York State Sick Leave Law (NYSSL) was signed on April 3, 2020 and went into effect on September 30, 2020. Employees can immediately start accruing leave and can then start using the accrued leave beginning January 1, 2021. The new law is in addition to the New York State provisions that are already in effect providing emergency paid sick time due to Covid-19. Read on to learn about the specifics of this New York employment law. 

How Can You Use the Leave?

Under the NYSSL, an employee must be allowed time off from their employer if they make a verbal or written request and the leave is used for “sick leave” (dealing with illness or injury) or “safe leave” (if the employee or a family member is a victim of certain types of crime). Specifically, the leave can be used for the following:

• The employee’s physical or mental illness/injury, or diagnosis, care, treatment, or preventive care for their physical or mental illness/injury
• A covered family member’s physical or mental illness/injury, or diagnosis, care, treatment, or preventive care for their physical or mental illness/injury
• Time-off related to the employee’s status as a victim of domestic violence, stalking, a sexual or family offense, or human trafficking.
• Time-off related to an employee’s family member’s status as a victim of domestic violence, stalking, a sexual or family offense, or human trafficking.

How Much Leave Do You Get?

The number of sick days that you’re entitled to take will depend on the size of your employer. The coverage of employers is the following:

• Employers with 4 or fewer employees and a net income of $1 million or less in the previous tax year must provide up to 40 hours of unpaid sick leave per calendar year.
• Employers with 4 or fewer employees and a net income of more than $1 million must provide up to 40 hours of paid sick leave per calendar year.
• Employers with between 5 and 99 employees, regardless of net income, must provide up to 40 hours of paid sick leave per calendar year.
• Employers with 100 or more employees must provide 56 hours of paid sick leave annually regardless of income.

Who is Eligible for the Leave?

The law covers all private-sector employees in New York State, regardless of industry, occupation, part-time status, and overtime exempt status. If you’re a federal, state, or local government employee, then you are not covered. However, employees of charter schools, private schools, and not-for-profit corporations are covered. 

Who is Considered a “Family Member?”

Under the NYSSL, a “family member” can be an employee’s child (biological, adopted, or foster child, a legal ward, or a child of an employee standing in loco parentis), spouse, domestic partner, parent (biological, foster, step, adoptive, legal guardian, or person who stood in loco parentis when the employee was a minor child, sibling, grandchild), or grandparent; and the child or parent of an employee’s spouse or domestic partner. 

Retaliation

Employers are prohibited from retaliating against an employee who exercises their legal right to take leave.  An employee also has a right to reinstatement after they take the leave. If they aren’t restored to their position prior to the leave, it is considered retaliation by the employer. 

Speak to an Experienced New York Attorney about Sick Leave

If you’re interested in using leave under the NYSSL, just make sure that you understand that you can take leave beginning January 1, 2021. And if you need assistance with leave questions, you should talk to an employment attorney at MOWK Law who can help you navigate the complexity of New York’s labor and employment laws. Please contact us for help with your specific situation.  

With Covid-19 still being very active in New York and businesses struggling to normalize operations, it’s expected that employers would want to do everything they can to protect their employees from contracting the virus, and to help prevent the spread of it. This would include the inclination to recognize high risk employees. However, employers must be careful that in the zeal to prevent the spread of the virus that they don’t break employment anti-discrimination laws. While it’s permissible for employers to take measures to do this, there are certain things that they can’t ask employees and certain requirements that they can’t make. 

While New York employees can rely on state, and local laws that can help protect them from employment discrimination, The Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination employment laws, including The Americans with Disabilities Act (ADA) and the Rehabilitation Act. These laws, which prohibit discrimination against persons with disabilities and forbid medical exams indeed apply during Covid, but the EEOC provides guidance on appropriate employment behavior during a pandemic, which may include some differences. 

Distinction Between an Applicant and an Employee

During recruitment, when an individual is an applicant without a conditional job offer, the organization usually can’t ask about disabilities or health; they can ask these things between the time of the offer and when the applicant begins work, as long as they are required for everyone in the same job category.

Questions that an Employer can ask the Employee

• Symptoms: Employers who are covered under the ADA may ask their employees if they are experiencing any Covid-19 symptoms, such as a fever, sore throat, chills, and shortness of breath.   
• Measuring Body Temperature: Because a fever is one of the signs of the coronavirus, employers are allowed to take an employee’s temperature. This isn’t farfetched at all, due to the community spread of Covid. Additionally, this is equivalent to customers of certain stores who have their temperatures taken before they are allowed access to shop. 
• Diagnosis of Covid-19: Employers may ask all employees upon entering the workplace if they’ve been diagnosed or tested for the coronavirus because a positive test indicates that the individual has a present infection and may likely be able to spread it to others. 
• Whether an employee has had contact with Covid: Employers are permitted to ask employees whether they had contact with anyone who has the virus or who has symptoms of the virus.  

Questions A New York Employer Cannot ask the Employee 

• Requiring antibody testing to re-enter the workplace: An employer can’t ask an employee for an anti-body test to return to the worksite because the anti-body test is considered a medical exam under the ADA. 
• Asking one particular person questions designed to determine if they have the virus: An employer can’t pull apart one employee for testing or screening without doing this for all employees, unless there is a reasonable belief by the employer (based on objective evidence) that the employee has Covid-19. 
• Asking about family members’ Covid status: The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about their relatives.

Discuss Employment Law Issues with an Experienced Attorney

With the pandemic changing some many things, it’s normal to be curious regarding what you must disclose to your employer. If you think that you’ve experienced discrimination in your workplace or that your employer has otherwise violated your rights, discuss your concerns with an experienced employment attorney at MOWK Law. Contact us today answer your questions and to take action.   

While the trend of working from home (WFH) had already been on the rise in recent times, the coronavirus, forced many employees to turn to that alternative indefinitely. Check out MOWK Partner Brian Wagner discuss his change in office and wardrobe here.  

But even with New York “opening up” in attempts to restore its economy, some employers are continuing to have their employees work from home. One concern for employees with this new WFH reality is whether the benefits and policies that apply to them as in-office employees remain the same now that they’re not physically in the workplace. Specifically, pregnant women wonder whether they’re entitled to maternity leave when working from home. 

Remote Work Policy and Remote Work Agreements

Whether an employer foresees all or some of its employees working from home on a temporary or more permanent basis, a remote work policy or agreement provides clarity; it gives employees information on the procedures, expectations, rights, and responsibilities of a remote work assignment. If your company has a policy or you signed an agreement, then it could contain information about things like leave and accommodations and will determine your standing.

Underlying Eligibility

If you’re working remotely, it doesn’t mean that the usual employment laws don’t apply: Generally, you have the same rights that you had prior to working from home, and it is acceptable to apply all workplace policies to remote workers. If you were otherwise entitled to maternity leave, then that doesn’t change just because you’re a WFH employee. If your employer has a specific policy on parental leave, then the expectations about the leave are determined by this. 

Rights to Paid or Unpaid Time Off

Most parents rely on a mash-up of several laws to serve as their time for maternity leave, including the Family Medical Leave Act (FMLA), which allows eligible employees the right to a total of up to 12 weeks of job-protected leave to take care of a family member or to take care of a serious health condition. New York has its own version of this federal law.  

Additionally, the pandemic has triggered legislation. If you’re an employee who isn’t able to work due to coronavirus sickness or quarantined and have coronavirus symptoms, you may be eligible for two weeks (up to 80 hours) of paid sick leave under the Families First Coronavirus Response Act. Eligible employees can also take up to 12 weeks of paid leave (at two thirds pay) to care for a child whose child-care provider or school is closed/unavailable due to coronavirus. These provisions expire on December 31, 2020. 

Multiple State Laws Issues

The state laws always apply to the location in which the employees work and reside. For instance, if you’re working remotely in New York and then want to move, it could affect your maternity leave options. First, some companies will not allow you to work from anywhere that you want. Also, not all states have their own FMLA laws like New York. 

New York Employment Lawyer

To understand your rights, it’s crucial to understand exactly which laws apply to you. Anytime you’re pregnant or about to become a new parent, you’re concerned about balancing your professional life with your personal life. However, in this unpredictable time of a pandemic, it’s even more stressful to work out these things. That is why you can turn to the New York employment lawyers at MOWK Law to help with any employer or employee parental leave questions. Contact us to discuss your specific circumstances.   

As New York moves into Phase 3 of its reopening, many individuals who have been working remotely are beginning to return to their places of employment in an effort to get the economy back on its feet. However, the return of employees to work has caused anxiety both for workers potentially facing COVID-19 exposure and for employers trying to understand what they are permitted to do in light of protecting themselves from liability and protecting other employees during the pandemic. One concern for employers centers around whether they are legally permitted to either require an employee to remain at home and away from their place or employment or else leave the workplace due to COVID-19 concerns. 

COVID-19 Exposure and Symptoms

The CDC guidelines currently recommend any employee displaying COVID-19 symptoms should not remain at work, so an employer may properly send a worker home if they begin to show any characteristics of infection. 

Employers may also require an employee to remain at home if someone they have been in close contact with is either COVID-19 positive or displaying symptoms of the virus. In this case, it’s proper to require the employee to quarantine at home for the CDC recommended:

• 14 days after their last contact with the sick person, or
• 14 days after someone sick in their household meets CDC guidelines for ending their period of home quarantine.

Travel Concerns

Employers may also properly require an employee to refrain from coming to work if they’ve travelled somewhere that public health officials recommend a quarantine upon return for a specific period of time. Employers may also ask an employee if they have recently returned from any such location.

Immunocompromised and Other Susceptible Employees

However, employers are prohibited from requiring that one of their employees either change job duties or come to work if they have a condition, quality, or disability identified by the CDC as putting them at an elevated risk for serious or life-threatening illness if they contract COVID-19. There would need to be an assessment to see if a reasonable accommodation – such as telework – could be made to mitigate the elevated risk to the employee, as well as an analysis of any direct threat to see if the employee’s health is endangered by their presence in the workplace.

New York Employment Lawyer

In these unprecedented times, employers and employees alike are struggling to understand their rights, obligations, and how to safely begin returning to a new normal. The fact the pandemic is a case of first impressions makes keeping up with new legal developments, executive orders, and regulations burdensome and confusing, but to avoid costly mistakes on both sides it’s critical to stay current and understand the rules. To make sure you stay on the right side of developing issues related to work, 

contact the experienced employment lawyers at MOWK Law to have your questions answered. We’re here to explain how the law applies to your situation and look out for your best interests. Contact us today to learn more.  

The COVID-19 pandemic has presented many challenges for individuals nationwide– this is especially true for workers lucky enough to still be employed but dealing with children that are not in school and cannot go to outside childcare. In some circumstances, workers may be presented the opportunity to work remotely but due to a working spouse and the needs of their children are unable to continue working even at home. This can create anxiety about whether these individuals qualify for federal pandemic unemployment insurance (PUA). The federal government has addressed this situation generally, and in some cases New York workers may qualify for these important financial benefits. 

CARES Act Self-Certification

Under Section 2102(a)(3)(ii)(I)(dd) of the federal CARES Act, an individual that is a child’s primary caregiver may qualify for PUA benefits if they can self-certify a need for their child to be in school in order to permit them to work. The child must be staying home as a direct result of a coronavirus-related school closure. 

Who Is a Primary Caregiver Under the CARES Act?

Primary caregivers are defined as individual workers whose need to care for a child makes it impossible to perform usual work duties from home because of the level of constant attention the child requires. This means it’s likely an individual wouldn’t qualify for PUA benefits if they can still work remotely because they have an older child at home who doesn’t require the constant attention as a small child.

What Happens When the School Year Ends?

Unfortunately, the PUA benefits under the CARES Act only extend to children home due to a forced school closure resulting from COVID-19. This means that once the date passes when a school year should originally have ended, a primary caregiver won’t qualify for PUA unless they can show other circumstances which qualify them to receive these benefits – they are expected instead to rely on their usual summer childcare arrangements. For example, they may be able to qualify if their usual summer childcare facility has been forced to closed because of COVID-19. 

New York Employment Lawyer

During the coronavirus pandemic, New York employees are not only facing the stress of avoiding infection and continuing to make ends meet, they are also dealing with the challenge of balancing childcare when schools and daycares are shut to prevent virus spread. To learn more about whether you may qualify for financial assistance as a direct result of the childcare needs you face, contact the experienced employment lawyers at MOWK Law with your questions. We can evaluate your unique situation, provide guidance, and work to help you secure the most financial assistance possible to help you deal with these challenging times and make ends meet. Contact us today with your questions and see how we can improve your situation. 

For people who are employed in most capacities in the health care industry in New York, which has been hit hard by the coronavirus pandemic, many have found themselves overwhelmed by the number of patients they are treating and struggle to meet all of their needs. To give some medical professionals a break during these trying times, Governor Andrew Cuomo signed a new act into law extending many more protections to these individuals, as well as healthcare facilities, from civil and criminal liability. Here is an overview of the new protections. 

Emergency or Disaster Treatment Protection Act

The Emergency or Disaster Treatment Protection Act (EDTPA) recognizes the strain on the healthcare system imposed by treating all patients as positive for COVID-19 until it has been proven otherwise. The EDTPA’s purpose is to encourage healthcare professionals to act in good faith and use their best professional judgment by protecting these individuals from liability due to the overwhelmed system and innocent human error. 

Protections Under the Act

The EDTPA grants civil and criminal immunity to almost every healthcare worker if they act in good faith and in some way are involved in the COVID-19 pandemic response. The law will remain in effect until the state of emergency in New York ends. 

Immunity Protections

The EDTPA gives qualified civil and criminal immunity claims if:

1. The healthcare professional was providing or arranging for healthcare services following any COVID-19 emergency rule or as provided by law, and
2. Either an alleged omission or negligence takes place when:
   1. Arranging for healthcare treatment or services, or
   2. Deciding, per New York’s directives, on the response to be taken to the outbreak, and
3. The professional acts in good faith, and
4. There was no willful, intentional act or any action constituting gross negligence, reckless misconduct, intentional infliction of harm, or criminal misconduct. 

Which New York Healthcare Professionals are Immune?

Under the new law, immunity is granted to many professionals whether their services are rendered in the capacity of an employee, volunteer, independent contractor, or agent of another facility or healthcare provider. The EDTPA immunity extends to:

• Physicians
• Physician assistants
• Nurses and Nurse practitioners 
• Nurse attendants or Certified nursing aides (also those participating in certified training programs)
• Registered special assistants
• Psychologists
• Pharmacists
• Midwives
• Mental health practitioners including psychoanalysts, licensed mental health counselors, and marriage and family counselors
• Certified EMTs
• Social workers
• Clinical laboratory technicians
• Respiratory therapists and technicians
• Home care services workers
• Healthcare workers giving services per the COVID-19 emergency rule (this includes those providers brought out of retirement or licensed in another state who are working in New York due to the state of emergency)
• Healthcare facility administrators, supervisors, executives, trustees, board members, and any others who direct, supervise, or manage a facility or serve in any of those roles. 

New York Employment Lawyer

Drastic times call for drastic measures, so New York has stepped in and provided extra protections for those on the front line when judgment calls must be made, and gray areas exist. However, for many professionals these rules and guidelines may not be clear. To get guidance about whether the EDTPA applies to you, how to operate within its guidelines, and what protections apply to you, contact the experienced employment lawyers at MOWK Law. We can help explain the act in greater detail and protect your best interests, so contact us today with your questions.