Employment Discrimination and Adverse Employment Action Qualification

My supervisor told me my performance was terrible the last few weeks and is threatening to put me on probation, and I’m certain he feels that way because I’m Jewish, and he overtly displays his dislike for Jewish people. This feels like an adverse employment action, but is it?

Title VII, the New York Executive Law and the New York City Human Rights Law makes an employer liable for discriminating against its employees based on agegender, national origin, race, religion, or for retaliating against an employee for having challenged such discrimination. Courts recognize that most discrimination and retaliation is not carried out so openly as to provide direct proof of it.  Accordingly, a wronged party may use circumstantial evidence to assert a prima facie case of discrimination (or retaliation) by alleging: 1) [she] belonged to a protected class; 2)[she] was qualified for the position; 3) [she] suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. But what really is an adverse employment action?  Sounds like so many different events can fall under such a category, including the one above.

Courts have traditionally defined an adverse employment action as a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of such a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation.

So, when assessing whether an action taken by your employer is “adverse” under the law, you should make sure the action is substantial in nature.  Even though an action may feel substantial, does not necessarily mean that it qualifies the same under the law.  It is always best to consult with an employment discrimination attorney to better determine whether any action taken against you is materially adverse.

If you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

Discrimination During Interview, No Way

New York employment discrimination runs rampant, even if the actions of the violators may not be overt or obvious.  And employers should certainly know it is illegal to discriminate against employees or prospective employees based on their age, gender, national origin, race, religion, sexual orientation, a pregnancy or a disability or perceived disability. Often, employees who are forced to endure employment discrimination suffer anxiety, humiliation, fear, anger or financial problems due to the unjust acts of their superiors, or even their coworkers.  Fortunately, there are laws which protect victims of employment discrimination from injustice.

You have certain rights as a potential employee afforded by Federal, New York State, and New York City law.  The protections of Title VII of the Civil Rights Act of 1964, New York Executive Law, and New York City Human Rights Law even apply to the interview process.  Know before you go. There are certain questions regarding your identity which are off limits during the interview. The interviewer is barred from asking you about your birthplace, nationality, religion, maiden name, marital status, which church you attend, whether you have (or plan to have) a family, whether you need time off for a religious holiday, whether you are pregnant, whether you are the head of a household, or whether you have physical disabilities. It certainly makes sense why these areas are forbidden territory during an interview. A prospective employee should be measured on the quality of their education, work history and character, not unessential characteristics which have no bearing on their potential for workplace success.

By educating yourself concerning the type of questions an employer may not ask, you can safeguard yourself against improper questioning, voice your concerns, and determine whether you would like to work for a company.  And if you truly believe that an employer has overtly discriminated against you in the interview process, there are several legal avenues you may choose to entertain, and the attorneys at the Law Offices of Maya Risman, P.C. can help you choose the best one to follow.

If you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

Can my employer really deduct that from my wages?

The answer is probably not. New York employers should be very wary of the type of wages they withhold from employees, since certain deductions are in violation of § 193 of the New York Labor Law. § 193 of the New York Labor Law prohibits all deductions other than those expressly identified therein.  If an employer chooses to make prohibited deductions, the penalty is severe.  The violating employer is required to  pay compensatory damages equal to the illicit deduction, 25 percent liquidated damages if the violation was willful, in addition to attorney’s fees.  Additionally, § 198-a of the New York Labor Law  provides for criminal penalties for violation of article 6, which includes § 193. In order to ensure your rights are not being violated, it is imperative you carefully examine your pay-stubs to see if any deductions were made in violation of the law.

§ 193 of the New York Labor Law provides that:

1. No employer shall make any deduction from the wages of an employee, except deductions which:

a.  Are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency; or

b. Are expressly authorized in writing by the employee and are for the benefit of the employee; provided that such authorization is kept on file on the employer’s premises. Such authorized deductions shall be limited to payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments for the benefit of the employee.

It must be noted that § 193 only applies to “wages.” § 190(1)  of the New York Labor Law defines “wages” as:

The earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis. The term “wages” also includes benefits or wage supplements as defined in section one hundred ninety-eight-c of this article, except for the purposes of sections one hundred ninety-one and one hundred ninety-two of this article.

Wages do not apply to discretionary additional remuneration, which is not considered “wages” under the statute.  This would include compensation which is contingent and discretionary, such as bonuses paid out at the end of the year based on performance.

Additionally, in many cases, if one employee is being deprived of their fair share of wages, other equally situated employees are being deprived as well.  This is when a class-action suit against the violating employer is employed.  Employees should remain vigilant, and unify if necessary to combat illicit employment practices in connection with wage deductions.

If you believe you have been a victim of  illegal wage deductions, please do not hesitate to contact the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.