Cuomo Signs New York “No Wage Theft Loophole Act” Into Law

On August 20, 2021, New York Governor Andrew Cuomo signed legislation to prevent businesses from committing wage theft against their employees. The “No Wage Theft Loophole Act” changes Article 6 of New York Labor Law to eliminate any exemptions that might allow employers to deprive their employees of wages to which they are fairly and legally entitled.

The Governor’s action will make it much easier for workers to file claims against their employers for owed and unpaid wages. The new legislation closed a previously applied loophole when an employer chose to withhold all of an employee’s wages rather than just a portion of those wages. Because the initial wording of Article 6 referred to “unlawful deductions,” it was deemed only to apply to cases in which the employee did receive at least some of the wages owed to them.

The “No Wage Theft Loophole Act” adds a new subdivision 5 to Section 193. It also adds this text to the end of subdivision 3 of Section 198 of Article 6:

• “There is no exception to liability under this section for the unauthorized failure to pay wages, benefits or wage supplements.”

This will remove a loophole that employers could otherwise use to avoid lawsuits by their workers, which had already resulted in the 2009 dismissal of a Section 193 claim by an employee based on the fact that no amounts were “deducted” from her wages. Instead, the court ruled that the employer “simply failed to pay her all the wages she had earned.” The new legislation removes this potential interpretation of the law.

At Risman & Risman, P.C., we offer practical help for workers in taking on discrimination and unjust treatment in the workplace. To learn more about the legal services we provide, give us a call today at 212-233-6400. We look forward to assisting your legal needs.

Biden Cracks Down on Non-Compete Employment Clauses

President Joe Biden is planning to issue a large-scale executive order that will restrict the use of non-compete clauses and roll back requirements for occupational licensing for specific jobs and career paths. According to members of the Biden administration, these requirements and employment contract provisions do serious and material harm to the ability of workers to seek out better employment opportunities and compete effectively in the job marketplace.

Working Out the Details

The proposed executive order is still undergoing scrutiny and reworking by members of the Biden administration. One of the administration’s critical issues is that occupational licensing and contract law matters are often settled at the state level. The executive order must make the most of the federal government’s ability to manage these issues on behalf of workers across the United States to be successful.

Targeting Corporate Monopolies and Encouraging Competition

When it is released, President Biden’s executive order will be the latest in a series of economic moves intended to promote increased competition in the business marketplace and protect workers’ rights to pursue career paths that will benefit them and their employers. Federal regulators are also encouraged to take a hard look at any mergers or acquisitions to determine the effects of these corporate actions on potential employees. Industries that consist of only a few companies can significantly limit the ability of workers to choose a workplace and leverage their talents for optimal compensation.

Protecting the Rights of Workers

For many employees, working with an experienced and knowledgeable employment attorney can often empower and encourage them to make the right decisions that can affect current and future employability. By working with a lawyer who concentrates on employment issues, workers can protect their legal rights and ensure the best outcomes for cases of sexual harassment, unsafe working conditions, and other problems related to their employment or their place of work. These proactive efforts can provide added help for employees when they need it most.

Risman & Risman, P.C. can provide the most effective and assertive representation for employees in the New York area. Our team is committed to helping employees stand up for their rights in the labor marketplace. We represent clients in all types of industries and for a wide range of issues. Call our law office today at 212-233-6400 to schedule an appointment with our legal team.

We look forward to the opportunity to serve you.

How the NY HERO Act Protects Workers

New York Governor Andrew Cuomo recently signed into law a measure that affords workers an added level of protection against exposure to infectious diseases in the workplace. The New York Health and Essential Rights Act, more commonly referred to as the NY HERO Act, implements a framework that businesses and employers can use to protect their workers from airborne viruses and diseases in the workplace.

General and Industry-specific Plans

The NY HERO Act includes some important provisions that affect employers throughout the state of New York:

  • The law establishes an Airborne Infectious Disease Exposure Prevention Standard that outlines the basic steps required to comply with New York regulations.
  • The NY HERO Act also offers a Model Airborne Infectious Disease Exposure Prevention Plan that can be adopted and adapted by companies within the state to protect their employees against the transmission of infectious diseases.
  • Some additional models are available in the NY HERO act that applies to specific industries operating in the state of New York.

The guidance and prevention models are currently available in English and are expected to be available in Spanish soon.

At Risman & Risman, P.C., we offer practical help for employees who have been negatively impacted by the policies or actions of their employers. We represent victims of wrongful termination, retaliatory action, and sexual harassment on the job. Give our team a call today at 212-233-6400 to schedule a consultation with us. We are here to serve you.

Nurses Suspended for Refusing to Treat COVID-19 Patients Without Proper PPE

Source: Associated Press April 16, 2020

A nurse who led a protest in Providence Saint John’s Health Center in Santa Monica, California, demanding protective N95 masks when treating COVID-19 (coronavirus) patients, has been suspended for his actions. Mike Gulick was dismayed to learn that the hospital was not providing the standard of personal protective equipment (PPE) in N95 masks as administrators said that they were not necessary. Gulick was especially frustrated knowing the stark discrepancy in standards between hospitals. His wife is a nurse at nearby Cedars-Sinai Medical Center, where healthcare staff is armed with appropriate PPE.

When a fellow nurse tested positive for COVID-19 on Gulick’s ward, he and a group of his nursing colleagues told hospital administrators that they would no longer treat COVID-19 patients without N95 masks. According to the group’s representation with the National Nurses Union, the group of 10 nurses is now suspended with pay as a result of their demands.

While the Centers for Disease Control and Prevention (CDC) does not mandate that medical professionals use N95 to treat COVID-19 patients, the high level of protection that these masks offer providers should not be discounted.

Nurses all over the country have become increasingly vocal about the lack of PPE available to them. A global shortage of this equipment, particularly face masks, have led to many protests in hospitals in every part of the country. Because of the mass shortages, the CDC revised its guidelines by lowering the standard use of PPE to simply bandanas or other types of homemade protective masks.

Since that guideline revision, many nurses have had to weigh the pros and cons of protesting the change and risking being suspended from their jobs as a result of speaking out. In recent weeks, there have been more and more instances of healthcare providers testing positive for the deadly coronavirus. Some nurses have pointed out that the minimal protection they are being asked to use now would have invited discipline from their superiors in the past. What’s worse is that most of these vital healthcare workers have no means to complain about their employer’s failure to provide necessary safety precautions without risking retaliation.

Currently, in New York State, healthcare workers have no protection for making complaints regarding their safety, other than filing a complaint with United States Department of Labor under the Occupational Safety and Health Act – 29 U.S.C. § 660(c) (OSH Act). Specifically, this law states:

  1. No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.
  2. Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.
  3. Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph 2 of this subsection.

As you can see, the OSH Act provides for recovery of lost wages and a court may enforce punitive damages to deter other employers from engaging in comparable egregious behavior. Unfortunately, the OSH Act does not provide for attorney’s fees or any special damages, such as emotional distress damages associated with an employer’s unlawful actions.

This lack of legislation to protect health care workers should be a wakeup call for politicians in the entire country, but especially New York State and New York City, one of the hardest-hit areas by the coronavirus. They must institute safeguards to protect our front-line workers, so they feel safe to make complaints regarding their safety and health without fear of retaliation.

Retaliation and discrimination can rear its ugly head, especially in these difficult times, as the entire world battles this coronavirus pandemic. A thoughtful and knowledgeable advocate can make a tremendous difference.

The attorneys at Risman & Risman concentrate their practice in employment and labor law on behalf of employees in the New York Metropolitan area. Consultations are free, and our legal team will work tirelessly to achieve the best result in your matter. Please call us at 212-233-6400 to discuss your inquiry.

New York State Enacts Law Banning Discrimination Based on “Reproductive-Health” Decisions

Effective November 8, 2019, New York State passed a non-discrimination law addressing protections for employees and their reproductive and sexual health decisions, giving these employees protected status.

What the Law Covers
The New York State Labor Law, Section 203-e focuses on the protection of “reproductive health decision making,” defined as “including, but not limited to, the decision to use or access a particular drug, device or medical service.” Under this new law, employers cannot:

  • Access an employee’s (or employee’s dependent) reproductive health records without specific prior consent.
  • Retaliate in the form of compensation or other terms of employment because of an employee’s reproductive health decisions.
  • Insist on employees signing waivers that impede their right to reproductive decisions.

What Can Happen to An Employer Who Violates the Law
Any employee who is aggrieved based on discrimination because of their reproductive or sexual health choices can now sue their employer and potentially prevail. Should the employee prevail, the court can award back pay, benefits pay, and reinstatement to employment, all paid by the offending employer. Such awards go beyond other discrimination remedies, making this law very comprehensive in terms of trying to prevent discrimination in this area.

Further, Section 203-e prevents employers from “retaliating” against any employee bringing a lawsuit or testifying in a trial related to discrimination around reproductive health decisions.

Immediate Action Required by Employers
Unlike similar legislation enacted in the past, the immediacy of this law taking effect means that employers will need to rapidly update any employee policies and policy manuals around the issue of employee reproductive health decision-making rights and protections. Failure to comply could result in a costly outcome for any employer.

If You Are a Victim of Discrimination
Employment discrimination in any form is against the law, but filing a lawsuit and dealing with the court system can be incredibly intimidating. Strong legal representation can make all the difference.

The attorneys at Risman & Risman concentrate their practice in employment and labor law on behalf of employees in the New York Metropolitan area. Consultations are free, and our legal team will work tirelessly to achieve the best result in your matter. Please call us at 212-233-6400 to discuss your inquiry.

FAIR Act Passes the House but Faces a Steep Climb in the Senate

In mid-September 2019, lawmakers in the House of Representatives (“House”) passed the Forced Arbitration Injustice Repeal Act (FAIR). This bill bars businesses from forcing their employees, as well as their customers, to resolve legal disputes via private arbitration. With arbitration, there is no jury, no judge, and very little governmental oversight.

Arbitration clauses, often seen in customer and employment contracts, block employees and customers from pursuing litigation in an open forum based on allegations of sexual harassment, wage theft, racial discrimination, and just about anything else. Workers rarely win in private arbitration. When they do win, they often see less in compensation than they would in court. If the FAIR Act ultimately becomes law, more than 60 million workers in the United States, who previously signed away their right to sue in court, will regain full access to them.

A Brief Explanation of the FAIR Act

Initially, this bill came to light because of the efforts of both Representative Hank Johnson of Georgia and Senator Richard Blumenthal of Connecticut. It would prevent businesses from forcing mandatory arbitration clauses on employees and customers. It would also invalidate ceratin arbitration agreements previously agreed upon, as permitted by law. This bill has passed the House, but is expected to be strongly resisted by the Republicans in the Senate.

Many Workers May Give Up Their Rights to Sue Without Knowing It

Sixty million Americans have given up their right to go to court to earn a paycheck. Employees regularly sign hiring documents without thoroughly reading them or having them reviewed by an attorney. Some of the largest companies in the United States, including Walmart, Google, McDonald’s, and Starbucks, require employees to accept mandatory arbitration as a condition of their employment.

When employees face wage theft, job discrimination, or overtime violations, their arbitration agreements make it impossible for them to seek justice by way of a jury. The secretive nature of arbitration agreements has been seen by some to have the ability to hamper the #MeToo movement as well. Women and employees of color are disproportionately affected by their subjection to arbitration agreements because they make up the most significant percentage of workers in industries that require arbitration, including retail, education, and healthcare.

Arbitration Favors Employers

Past Supreme Court rulings have opened the way for businesses to expand their use of mandatory arbitration. In the past, arbitration was primarily a tool used for contract disputes between businesses. Now, it covers legal disputes with employees and customers. Companies argue that arbitration is less expensive and is a quicker way to resolve employment conflicts. All of this is true.

However, it is also true that private arbitration allows companies to hide conduct that would be made public in court. Moreover, arbitrators are more inclined to rule in favor of employers, and they are less likely to give significant awards to workers when a company is found violating the law. According to information published by the American Arbitration Association from 2013 through 2017, there were approximately 8,200 complaints filed by employees and handled through arbitration. Arbitrators ordered monetary damages in only 1.8 percent of the cases. The vast majority, 78 percent of them, were resolved via an unspecified mutual resolution.

Additionally, arbitration lacks oversight. Arbitrators do not need to be neutral, they do not need to memorialize or publish their opinions, and there are very few avenues for appeal. Courts can only overturn an arbitrator’s decision if the appealing party can demonstrate a “manifest disregard of the law.” Most courts have interpreted this to mean that intervention is necessary only in the event of arbitrator fraud or misconduct.

The FAIR Act passed the House by a margin of 225 to 186. As of the time of this writing, the Senate has not put this bill up for debate.

Protection Against Retaliation for Accommodation Requests in New York City

The New York City Council passed Intro 799 this past June. This ordinance is awaiting the mayor’s signature, and it will protect individuals who request reasonable accommodations from retaliation by their employers.

What does this mean for you?

The New York City Human Rights Law is one of the most progressive anti-discrimination laws in the nation. The law mandates that all employers are required to provide reasonable accommodations for certain protected groups of employees. An employer must grant reasonable accommodations to employees who are disabled, pregnant, victims of domestic violence, or part of a protected class. Providing an accommodation is required unless doing so would produce undue hardship for the employer.

Additionally, the New York City Human Rights Law makes it illegal for employers to retaliate against people who engage in various protected activities. Employers, landlords and the like, cannot take adverse action against people who file discrimination lawsuits, assist in discrimination investigations, or engage in a variety of other protected activities.

Appellate Courts in New York have recently taken some of the teeth out of the New York City Human Rights Law. They have held that a request for accommodation does not constitute a protected activity. In response, the New York City Council drafted Intro 799, which was designed to re-affirm the intent of the New York City Human Rights Law. The amendment adds requests for reasonable accommodation explicitly as a protected activity. The hope is that in the future, the Appellate Courts will interpret the New York City Human Rights Law more broadly, and in conformity with the legislative intent of the New York City Council.

Specific details added by the New York City Council.

This new amendment to Chapter 1 of section 8-107(7) of the New York City Human Rights law will make it illegal to retaliate when a person has, among other things, asked for a reasonable accommodation. Companies, landlords, and other covered entities that engage in this kind of discrimination can be subject to significant penalties, just as they would be if they retaliated against a person for reporting discrimination and other forms of wrongdoing.

What Can Employees Do?

Employees who believe that their employer has wrongfully taken action against them will soon be able to use this section of the New York City Human Rights Law to bring a claim against their employer. Discrimination based on sex, race, national origin, age, disability status, and many other protected categories is illegal under Federal, New York State, and New York City anti-discrimination laws. Consulting with an experienced employment attorney is key to preserving potential claims. Firms that keep up with and understand legislative authority can be especially helpful in these matters.

Age Discrimination on the Rise in the U.S. Job Market

In an era of record-low unemployment, older workers are still facing discrimination in the workplace. Even in areas where employers are desperate for workers, those over 50 may have difficulty in finding a job that suits their talents and experience. According to recent employment statistics, more than half of all workers over the age of 50 lose their jobs before retirement age. In 90 percent of these cases, the affected workers never regain their previous salaries and upward mobility.

Recruitment on Social Media

One of the most subtle forms of age discrimination may be the use of social media sites as recruitment tools. By publishing job openings and recruiting on Facebook, Twitter, and other online sites, companies may be able to limit the number of older people who see and respond to these ads. This can serve as a passive method of screening out less net-savvy individuals and increasing the percentage of younger workers who apply for these jobs.

Screening Out Older Workers

Resumes that include years of experience may be viewed by employers as an indication that the worker is older, which can allow companies to eliminate some of the most qualified applicants for a particular job. The claimed reasons for these actions may be that the individuals are overqualified or that they lack qualifications that are never clearly explained or outlined in the job description.

During the interview process, older workers also experience discrimination based on their appearance. This leads to both conscious and unconscious bias during interviews and can reduce the likelihood that an older applicant will be reasonably considered for the job.

Increased Risk of Prolonged Unemployment

According to figures released by the U.S. Bureau of Labor Statistics, older workers are less likely to find a job quicker than their younger counterparts. A 54-year-old job seeker, for example, takes almost a year to obtain gainful employment on average. A study sponsored by the Federal Reserve Bank of San Francisco found that older applicants were far less likely to find work than their younger competitors.

The study involved 40,000 fictitious resumes sent out by researchers across a wide range of low-skill professions. The older the imaginary candidate, the less likely he or she was to receive a callback. The study also found that age discrimination began earlier for women, with those in their 40s more likely to experience difficulties in obtaining jobs and in achieving promotions in the competitive marketplace. This could lead to financial issues and other challenges for otherwise qualified candidates.

Finding the Right Representation

Many age discrimination victims are discouraged from taking their case to court because of the expense involved in the process. Working with a qualified and knowledgeable attorney who concentrates in employment law is the most reliable way to hold companies accountable for age discrimination. By taking action against companies that routinely bypass older and more qualified applicants in favor of younger candidates, you can do your part to reverse this current and unfortunate trend in the employment marketplace.

At Risman & Risman, we focus on all aspects of New York employment law. We can pursue your age discrimination case and provide you with the best representation for your legal action in and out of court. We approach your case with compassion and comprehensive knowledge of the legal landscape. Call us today at 212-233-6400 to schedule a free consultation with our team. We look forward to the opportunity to serve you.

Parental Leave Policy Prompts Lawsuit, Settlement by JPMorgan Chase

On May 30, 2019, JPMorgan Chase & Co. reached an agreement in a class-action lawsuit regarding its parental leave policies. The father who initiated the case had been denied the 16 weeks of paid parental leave offered by the company because he was deemed not to be the child’s primary caregiver. The proposed settlement will include changes to the company’s policy and training to make sure that the parental leave policy is handled in a gender-neutral and nondiscriminatory manner. It will also establish a $5 million compensation fund for other fathers who have experienced similar discrimination in the past.

A Pattern of Gender-Based Discrimination

JPMorgan Chase is not the only company that has faced criticism and legal action based on its unequal application of parental leave policies. The Equal Employment Opportunity Commission (“EEOC”) settled a case in 2018 against Estée Lauder that netted a $1.1 million payout for 210 male employees. Estée Lauder had offered only two weeks of paid leave for new male parents, which contrasted unfavorably with the six weeks of leave afforded to female parents in the same situations. The EEOC found that the actions taken by Estée Lauder in offering less paid parental leave for male parents than for female parents were in violation of Title VII of the Civil Rights Act of 1964.

Understanding Your Rights as an Employee

If you have been treated differently from other employees because of your gender, age, race, sexual orientation or other protected class, working with a qualified New York employment law firm is crucial to protect yourself from the negative repercussions stemming from this unequal treatment. Failing to take action to address these issues could result in further negative and adverse effects and a reduced ability to earn throughout your working career. By working with a qualified and knowledgeable employment law attorney, you can take the appropriate steps to reduce unfavorable consequences and create a fairer and more even playing field for all employees within your organization.

The Role of Your New York Employment Lawyer

By retaining the services of an attorney with experience in the employment law field, you can rest assured that your case is evaluated accurately and that you receive the best possible representation for your situation.

As leaders in the field of New York employment law, Risman & Risman offer focused assistance for clients in the New York metropolitan area. Our team will work diligently on your behalf to ensure that you achieve the best possible outcomes for your case. To learn more about our services or to schedule a free consultation with our team, call us today at 212-233-6400. At Risman & Risman, we work for you.

New Proposal Limits Ability of Employees to Sue Franchise Companies

The U.S. Department of Labor (DoL) announced on April 1, 2019, that it plans to limit the ability of employees to pursue claims against companies based on the actions of their franchise owners or contractors.  While employees could still take legal action against their local franchise holder or contractor, the new proposal would prevent them from including the franchisor as part of their lawsuit.   This limitation could significantly affect the ability of employees to collect damages for violations of overtime and minimum-wage laws.

Four Factors Will Determine Whether Joint Employment Is Applicable

The DoL proposal establishes four factors used to determine joint-employment status between franchises and franchisees.  Franchise companies must engage in most of these activities to be considered joint employers with the local franchise locations:

•    The franchisor has and uses its power to hire and fire employees at the local franchises.
•    It sets schedules and has supervisory responsibility for employees.
•    The franchisor maintains employment records for individual franchise locations.
•    It sets pay rates for employees.

Franchise companies that do not engage in this level of management with their local franchises would necessarily be immune from claims against them based on the actions of their franchise locations.

The Franchise Paradigm

Large franchises like McDonald’s, SUBWAY and KFC hold varying degrees of control over their franchise holders, which allows the franchise to protect its reputation and its brand for the benefit of all franchises.  Because of this control, the U.S. has historically recognized the filing of lawsuits that included both the local franchise owner and the franchise itself for minimum-wage violations and other employment issues.  This policy was outlined most recently in 2016 when the DoL specifically stated that franchises could be held liable as a joint employer for infractions committed by the local franchise owner.

Added Protections for Big Business

The DoL proposal would provide an added level for protection for some of the largest businesses in the U.S.  By preventing lawsuits against the parent franchise for the actions of the individual franchise locations; the move would reduce the liability for these corporations.  The DoL announcement was greeted with approval by the International Franchise Association. The president of that organization stated that the proposed rule “creates certainty for America’s 733,000 franchise businesses.”

Reduced Protections for Workers

For those employed by franchise locations, however, this proposed rule change would reduce their ability to collect meaningful compensation for illegal actions taken by their employers.  Many franchise locations operate on a smaller profit margin than their upstream franchisors.  This rule could limit the amount that could be collected by employees who have been negatively affected by the policies of these companies.

At Risman & Risman, we specialize in providing zealous and effective representation for employees in the New York City area.  Our employment law team is committed to helping our clients achieve their goals and in providing tailored solutions for a wide range of employment issues.  We offer competent strategies and caring representation for cases of discrimination in the workplace and other employment law violations.  Call our offices today at 212-233-6400 to schedule a free consultation with our team.  We are here to work for you.