raynardo

VICTORY: Dr. Ayman Attia and NY Internal Medicine, P.C. Must Pay $55,000+ for Sexual Harassment

nardo@raynardo.com (Raymond Nardo) — Fri, 20 Dec 2024 02:04:28 GMT

Judge Orders Dr. Ayman Attia and New York Internal Medicine, P.C. to Pay more than $55,000 for Sexual Harassment

BACKGROUND

In 2013, a female employee was hired as a receptionist and administrative assistant at New York Internal Medicine, operated by Dr. Ayman Attia. She alleged that Dr. Attia made comments about her body and touched her while she was at work. She felt she couldn't "function," because Dr. Attia was "harassing [her] to death.” The emotional strain of the situation kept her awake at night. During this difficult time, she reached out to Employment Attorney Raymond Nardo for legal assistance.

Unfortunately, some employees who are sexually harassed feel they have nowhere to turn. If you are experiencing sexual harassment at your workplace, be sure to seek legal assistance. Attorney Nardo has extensive experience and has obtained millions of dollars in settlements for his clients. He can guide you through the legal process and defend your rights.

THE CASE

Employment Attorney Raymond Nardo filed a charge of sexual harassment against Dr. Ayman Attia and New York Internal Medicine. Attorney Nardo presented the claim of sexual harassment before the New York State Division of Human Rights (NYSDHR), which found that “probable cause existed to believe that” New York Internal Medicine and Dr. Ayman Attia engaged in sexual harassment and discrimination. Attorney Nardo then gathered witnesses and exhibits to demonstrate that Dr. Attia had engaged in sexual harassment and created a sexually hostile work environment to the detriment of his female employee. This evidence was presented as the hearing.

Over the span of two days in 2019, July 15 and July 16, an administrative hearing took place before an Administrative Law Judge (ALJ). The Complainant (the female employee) and Dr. Ayman Attia testified.

Ample supporting evidence came to light. The witnesses testified as follows:

An employee said Dr. Attia repeatedly hugged [her], and that Dr. Attia “let his hands scroll down [her] back so he could feel [her] butt. This happened so many times.”
Another employee saw Dr. Ayman Attia hug her “real tight and she turned red and uncomfortable.”
An employee testified that Dr. Attia “joked about adding a stripper pole in the basement” and asked if an interviewee was “pretty enough for the practice.”
Cell phone evidence showed that Dr. Attia sent her texts stating, “I appreciate you … a lot and will do the best I can to make you happy” and Dr. Attia referred to her as “my wife” and asked “are you cheating on me?”

THE ALJ'S RULING

The ALJ ruled that the employee “has shown that she was subjected to sexual harassment based upon a hostile work environment. Dr. Ayman Attia subjected her to unwelcome hugs and physically touched her repeatedly.” He also found that Dr. Attia “hugged, grabbed, and touched Complainant” and “made offensive comments and sent offensive texts,” and that “Attia’s behavior was witnessed by [the] Complainant’s co-worker,” and “[s]uch behavior is objectively offensive and had the effect of altering [the] Complainant’s work environment.”

The ALJ ruled that Dr. Attia had sexually harassed a female employee and ordered Dr. Ayman Attia and New York Internal Medicine, PC of 28-10 Steinway Street, Queens, NY 11103 and 17-52 Francis Lewis Boulevard, Whitestone, NY 11357, to pay damages to the employee, her attorney, and the NYSDHR.

After Dr. Attia filed written objections, the Commissioner of the NYSDHR issued a Notice and Final Order requiring them to pay more than $55,000: $20,000 to the Complainant “for her mental anguish,” and $15,620 in counsel fees and costs to Employment Attorney Raymond Nardo. In addition, the ALJ also ordered a civil fine of $20,000 to be paid to the NYSDHR. These findings were later upheld by the Commissioner of the New York State Division of Human Rights.

The case against Dr. Attia, and the supporting evidence, is more fully described HERE .

If you have a claim before the New York State Division of Human Rights, contact Employment Attorney Raymond Nardo for a consultation.

Return to Work Mandates: What you Need to Know

Sun, 01 Dec 2024 12:18:39 GMT

Navigating the Return to Work Mandate

The COVID-19 pandemic brought a massive shift from in-office work to telecommuting. Now, as the world transitions to a post-pandemic era, companies are enforcing return-to-office (RTO) mandates. Employers often cite the need for greater oversight, increased productivity, and enhanced innovation as reasons for requiring employees to return. However, many workers value the improved work-life balance telecommuting provides and argue that remote work is equally—if not more—productive than in-office work. Some employees are left questioning their ability to negotiate the terms of these RTO policies and maintain flexibility in their work arrangements.

If you're facing a return to office mandate, it’s essential to understand your rights and responsibilities. For honest, expert advice on how RTO policies could impact your business or your job, consult Employment Attorney Raymond Nardo .

RTO Mandates: Proceed with Caution

As RTO mandates take effect, both employers and employees should tread carefully. Employers have the right to set the terms of employment, including where employees work, which means the majority of workers must comply with mandates or face potential termination. However, employers must also ensure that mandates don’t appear to discriminate against legally protected groups of workers. RTO policies must respect employment contracts, give workers reasonable notice prior to returning to the office, and consider each employee’s individual circumstances. Companies that make unilateral demands for all employees to return to the office regardless of their individual circumstances could see a spike in discrimination claims and lose top talent to other firms.

Worker Protections

Employees in certain protected classes or with specific contractual agreements may have stronger grounds for remote work accommodations. Below are some key protections:

Americans with Disabilities Act (ADA) or New York State Human Rights Law (NYSHRL): Both statutes require employers to provide reasonable accommodations to employees with disabilities that interfere with their ability to return to the office. Remote work may be a suitable accommodation, depending on the circumstances.

Pregnant Workers Fairness Act (PWFA) and NYSHRL: These statutes ensure that employers must provide reasonable accommodations for pregnant workers. Reasonable accommodations could include remote work.

National Labor Relations Act (NLRA): Grants employees the right to collectively bargain and take collective action, including organizing against RTO mandates. Employees in unionized workplaces may have a better chance to successfully negotiate telework terms.

Religious Accommodations under Title VII of the Civil Rights Act of 1964 and NYSHRL: An employee may be accommodated for sincerely held religious beliefs, such as leaving work early, or not working at all, on the Sabbath.

Tips for Employees

Engage in the Interactive Process: Employees seeking exceptions to RTO mandates should engage in good faith discussions with their employers to find suitable solutions.

Documentation: Employees should document their accommodation or exemption requests and have notes from their physicians, where applicable.

Seek Legal Advice: Employees concerned about RTO mandates and potential violations should consult with employment attorneys or contact relevant government agencies.

Government Agencies

By learning about these laws and resources, employees can guard their rights while navigating RTO policies.

Equal Employment Opportunity Commission ( EEOC ): Handles ADA, Title VII, and ADEA complaints.

U.S. Department of Labor ( DOL ): Oversees FMLA compliance.

Occupational Safety and Health Administration ( OSHA ): Addresses workplace safety concerns.

New York State Human Rights Law ( NYSHRL ): Enforces workplace protections from discriminatory conduct.

The transition from remote work back to in-person offices poses challenges for both employers and employees. It’s vital to understand the legal and practical implications of RTO mandates. Whether you’re an employer implementing these changes or an employee navigating them, staying informed can help you avoid pitfalls and protect your rights.

For more than 30 years, Employment Attorney Raymond Nardo has represented workers and employers for employment related claims. He practices extensively in Federal Court, New York State Court, the EEOC , and the New York State Division of Human Rights and has obtained millions of dollars in settlements for his clients. Consult Attorney Raymond Nardo for professional legal advice on return to office mandates.

New York State’s Freelance Isn’t Free Act: What You Need to Know

Fri, 20 Sep 2024 18:45:18 GMT

Freelance Isn't Free

Effective May 20, 2024, the “Freelance Isn’t Free Act” (FIFA) introduces several new and critical protections for freelancers in New York State. Patterned on a law previously enacted by the New York City Council, the purpose of FIFA is to protect freelance workers by ensuring fair compensation and equal treatment in the workplace.

In the past freelancers have faced difficulties with employers who made late payments, failed to pay, or expected them to work without a contract, but the new law empowers freelancers with the tools to enforce their rights in the workplace.

For honest, expert advice on how FIFA might impact your businesses or your job, consult Employment Attorney Raymond Nardo .

FIFA Key Provisions

A freelance worker is defined by FIFA as “Any natural person or organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services” in exchange for compensation. FIFA grants new provisions to these workers, including:

● Written Contracts: Contracts are mandatory for freelance work over $800 in a 120-day period. Freelancers must receive a hard copy or an electronic copy of the written contract.

● Timely Payment: Payment must be made by the date in the contract or within 30 days of job completion if no date is specified.

● Legal Recourse: Freelancers can sue for double the unpaid amount plus legal fees if clients fail to comply. The statute of limitations for filing a complaint is two years from the date of the alleged violation. If the complaint involves retaliation, the statute of limitations extends to six years. Freelancers can file a complaint with the New York State Department of Labor or bring a civil lawsuit in state court.

The Impact of FIFA

Employers must now determine how to revise procedures and practices in accordance with the new law. Although challenges may arise, it is important to remember that those who fail to implement FIFA face substantial penalties, including but not limited to:

● Double Damages: Employers may be required to pay double the amount owed to a freelance worker.

● Legal Fees: Businesses could also be responsible for covering the freelancer's legal costs.

● Civil Penalties: Substantial fines may be imposed by the New York State Department of Labor if a pattern of FIFA violations is discovered during a civil suit.

Conclusion

FIFA strengthens protections for freelance workers and provides clear guidelines to companies that employ freelancers, fostering fair and transparent business relationships. As the new law rolls out, it is crucial to prepare for potential legal challenges. For more than 30 years, Employment Attorney Raymond Nardo has guided employees and employers in claims involving wage disputes and nearly all other employment claims. He practices extensively in Federal Court, New York State Court, the EEOC, and the New York State Division of Human Rights. Consult Attorney Raymond Nardo for professional legal guidance on the Freelance Isn’t Free Act.

Understanding the Highly Compensated Employee Exemption

nardo@raynardo.com (Raymond Nardo) — Fri, 20 Sep 2024 16:16:42 GMT

The Highly Compensated Employee Exemption

The Highly Compensated Employee (HCE) exemption went into effect July 1, 2024 and is part of a final rule under the Fair Labor Standards Act (FLSA). The exemption increases the HCE annual compensation threshold and allows businesses to streamline the process of determining which highly paid employees are overtime exempt while making sure that workers who need overtime protections receive them. To understand how the HCE exemption might impact your business or your job, consult Employment Attorney Raymond Nardo for honest, professional advice.

The Purpose of the Exemption

According to the U.S. Department of Labor (DOL), “The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at not less than time and one-half the regular rate of pay for all hours worked over 40 in a workweek,” unless they are classified as exempt . Congress intended the HCE exemption to help businesses simplify the process of determining whether certain highly compensated employees are exempt from FLSA overtime protections because they perform executive, administrative and professional (EAP) or “white collar” duties.

The HCE exemption also attempts to balance protecting workers’ rights to overtime pay with allowing businesses flexibility in compensating employees who are less likely to require such protections. This helps to address the changing realities of the modern workforce, where certain highly paid employees might not fit neatly into traditional exempt categories but may still perform job functions that justify overtime exemption.

The Reasoning Behind the Exemption

Recognizing Professional and Managerial Roles

Congress recognized that highly compensated employees typically have roles that involve a higher level of responsibility, decision-making authority, and autonomy. These roles often align with traditional exemptions like the EAP exemption, which do not require overtime pay.

Compensation as a Proxy for Job Duties

Employees who are highly compensated are more likely to perform exempt job duties and have greater bargaining power in negotiating their pay and working conditions. Therefore, the rationale is that high compensation serves as a proxy for a more detailed analysis of job duties, and allows businesses to shorten the prior HCE duties test. As the final rule indicates, “The HCE test’s primary purpose is to serve as a streamlined alternative for very highly compensated employees because a very high level of compensation is a strong indicator of an employee’s exempt status, thus eliminating the need for a detailed duties analysis.”

Balance Between Worker Protection and Business Flexibility

By setting a high compensation threshold, the HCE aims to balance protecting workers' rights to overtime pay with allowing businesses flexibility in compensating employees who are less likely to require such protections. Congress intended to ensure that only employees who are truly well-compensated and likely to hold significant responsibilities are exempt from overtime. As the final rule states, “The Department is increasing the HCE total annual compensation threshold to the annualized weekly earnings amount of the 85th percentile of full-time salaried workers nationally ($151,164). The new HCE threshold is high enough to reserve the test for those employees who are ‘at the very top of [the] economic ladder’ and will guard against the unintended exemption of workers who are not bona fide EAP employees, including those in high-income regions and industries.”

Exemption Criteria

To qualify for the HCE exemption an employee must meet the following tests:

Salary Test

As of July 1, 2024, receive total annual compensation of $132,964 per year including at least $844 per week paid on a salary or fee basis.
As of January 1, 2025, receive total annual compensation of $151,164 per year including at least $1,128 per week paid on a salary or fee basis.
As of July 1, 2027, meet new compensation thresholds which will be raised every 3 years.

Duties Test

Perform office or non-manual work as a primary duty.
Regularly perform one of the duties of an exempt executive, administrative, or professional employee.

For example, a worker could be exempt from minimum wage and overtime protection if he meets the highly compensated earnings threshold and customarily oversees two or more workers, even if he doesn’t meet the other duties requirements in the EAP exemption test.

The Implications of the Exemption

Financial

As a result of the HCE exemption, employers must address the new compensation thresholds in a timely manner, choosing between raising the salaries of certain employees in order to retain their exempt status or reclassifying employees as non-exempt and paying the required overtime.

Workforce

Exempt employees will not receive overtime pay for long work hours, which could potentially lessen their overall compensation and morale. Some employees could attempt to challenge the re-classification of their positions, while others might welcome a change in exemption status.

Legal

Employers could encounter significant legal problems, including lawsuits, back pay awards and penalties if employees are misclassified or don’t receive the required overtime or salary. State laws, which can be more stringent than federal laws, could present further challenges.

The rollout of the HCE exemption will bring diverse and unforeseen consequences, but expert employment attorneys can help navigate the transition.

Conclusion

The HCE exemption is a crucial consideration as it directly impacts eligibility for overtime pay and requires careful analysis of job duties and compensation. Employment Attorney Raymond Nardo represents employees and employers in cases involving wage and overtime concerns. Consult Attorney Raymond Nardo for expert advice on the HCE exemption.

Pregnant Workers Fairness Act (PWFA)

Fri, 30 Aug 2024 15:00:41 GMT

What is the Pregnant Workers Fairness Act?

The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023, and provides enhanced protections for pregnant workers. The PWFA requires employers with fifteen or more employees to provide reasonable accommodations to workers affected by pregnancy, childbirth, or related medical conditions. The final rule grants protections similar to those granted to disabled employees under the Americans with Disabilities Act (ADA), but PWFA gives greater protection to pregnant workers than the ADA, covering most physical and mental conditions related to pregnancy, not only those severe enough to be regarded as disabilities.

For honest, expert advice on how the Pregnant Workers Fairness Act will impact your businesses or your job, consult Employment Attorney Raymond Nardo .

PWFA Key Provisions

● Reasonable Accommodations : Employers must provide reasonable accommodations for pregnant workers unless it would cause undue hardship. Examples of accommodations could include modified work schedules, temporary reassignment to less strenuous tasks, or allowing more frequent breaks.

● Prohibition Against Discrimination: Employers cannot discriminate against an employee or job applicant based on pregnancy, childbirth, or related medical conditions. This includes refusing to make reasonable accommodations to pregnant workers or retaliating against someone for requesting accommodations or participating in a PWFA proceeding, such as an investigation.

● Interactive Process: Employers are required to engage in an interactive process with the employee to determine suitable accommodations, similar to what is required under the ADA and New York State Human Rights Law . An employee must not be required to accept an accommodation other than a reasonable accommodation arrived at through an interactive process. Together, employers and employees are expected to determine the accommodations that meet the needs of both parties.

● Prohibition Against Mandatory Leave: Employers cannot force a pregnant worker to take leave if another reasonable accommodation is available that would allow her to continue working.

● Covered Pregnancy Related Limitations: The PWFA may cover pregnancy related limitations including but not limited to: current, past, potential and intended pregnancy; infertility, fertility treatment and the use of contraception; gestational diabetes; preeclampsia and hyperemesis gravidarum; nausea, vomiting, high blood pressure; postpartum depression or anxiety; lactation and conditions related to lactation.

The Impact of PWFA

The Pregnant Workers Fairness Act is a legal breakthrough that strengthens safeguards for working mothers so that they no longer have to decide between keeping their jobs and having a healthy pregnancy. Employers must now determine how to implement accommodations for pregnant workers to comply with the new rule. The ramifications for companies are diverse:

● Simplified HR Procedures: To ease PWFA compliance, companies may decide to simplify human resources procedures to allow for pregnant workers’ accommodations without the need for medical certification.

● Enhanced Training: Companies may undertake special training for management and other personnel who have the responsibility to provide for or enforce accommodation requirements.

● Potential Lawsuits: If companies have not complied with the PWFA, lawsuits could ensue. The Equal Employment Opportunity Commission (EEOC) is intent on enforcing the PWFA retroactively and prospectively. Though the law only went into effect in June of this year, already, the EEOC is enforcing PWFA regulations with several lawsuits. Companies or businesses that fail to abide by PWFA could pay out substantial conciliation fees and penalties.

Conclusion

The Pregnant Workers Fairness Act safeguards pregnant workers so that employers can no longer force them out of the workplace, or make their lives difficult if they choose to work throughout their pregnancy. Employers must now determine how to implement accommodations for pregnant workers.

All facets of employment, including hiring, firing, promotions, and any other terms or conditions of employment, are covered by this law. As the PWFA takes effect, it will be important for individuals and employers to understand the potential legal implications of the new rule.

For more than 30 years, Employment Attorney Raymond Nardo has represented employees and employers for claims involving pregnancy discrimination , sexual harassment, whistleblower claims, and nearly all other employment claims. He practices extensively in Federal Court, New York State Court, the EEOC, and the New York State Division of Human Rights . Consult Attorney Raymond Nardo for professional legal advice on the Pregnant Workers Fairness Act.

The Clean Slate Act

nardo@raynardo.com (Raymond Nardo) — Thu, 08 Aug 2024 15:33:31 GMT

Understanding New York State's Clean Slate Act: A Pathway to a Fresh Start

The New York State Clean Slate Act represents a significant milestone in criminal justice reform, providing a pathway for individuals to rebuild their lives without the constant shadow of their criminal records. Signed into law in 2023 and taking effect November 2024, it expands anti-discrimination protections and seals criminal records for individuals with certain criminal convictions, allowing them better access to employment, housing and professional licensing.

For honest, expert advice on how the law will impact your businesses or your job, consult Employment Attorney Raymond Nardo .

The Rationale for the Clean Slate Act

This legislation aims to remove barriers to opportunity by allowing individuals to overcome the collateral consequences of their past convictions. According to the Clean Slate Bill , “Individuals who commit a crime and later pay their debt to society should not be perpetually burdened by a criminal record. Having a criminal record impedes one’s ability to obtain housing, secure work and participate fully in modern society. We cannot expect successful rehabilitation without providing these individuals with a way forward that is not encumbered by their past mistakes.” The Clean Slate Act is a powerful tool for social and economic reintegration, offering a fresh start to those who served their sentences. Now, millions of New Yorkers who are committed to turning their lives around after a criminal conviction have the chance to thrive as conviction records begin to seal.

How Does the Clean Slate Act Work?

Under the Clean Slate Act, the New York Office of Court Administration has three years to put in place systems that will identify and seal eligible convictions. During this time records that will later be sealed could still be searchable. By 2027, every eligible record of conviction will be sealed without the need for a petition or court order, while certain records remain ineligible for sealing.

Eligible Records

● Misdemeanors : Provided there have been no new offenses, convictions are sealed seven years (inclusive of probation and parole time) after completion of the sentence.

● Felonies: Again, contingent on no new criminal activity, convictions are sealed ten years (inclusive of probation and parole time) after the completion of the sentence

Ineligible Records

● Violent Felonies: Crimes involving serious bodily harm or the use of a deadly weapon.

● Sex Crimes: Offenses related to sexual misconduct or abuse.

● Class A Felonies: The most serious offenses, such as murder or large-scale drug trafficking.

Waiting Period

A three year waiting period is required after a misdemeanor, while the waiting period for a felony is eight years. Individuals must maintain a clean record to qualify for automatic sealing. The waiting period starts either after incarceration is completed or, if there was no period of incarceration, from the date of the sentencing. If the individual is convicted again during the waiting period, the waiting period is reset to the most recent conviction.

The Impact of the Clean Slate Act

Sealing a criminal record under the Clean Slate Act has profound implications for individuals seeking to rebuild their lives:

● Employment : Sealed records will no longer be accessible to most employers, allowing those with prior convictions to apply for jobs without fear of their past holding them back.

● Housing: Landlords conducting background checks will not see sealed convictions, opening up more housing opportunities.

● Education and Licensing: Educational institutions and licensing bodies will not have access to sealed criminal records, providing a clearer path to further education and professional advancement.

However, it is important to note that sealed records will remain accessible to law enforcement and certain government agencies. According to the New York State Assembly , “Clean Slate still provides access to otherwise sealed records for necessary and relevant purposes, including employment to people working with children, elderly people or vulnerable populations.”

Conclusion

The Clean Slate Act aims to help individuals committed to turning their lives around after a conviction, as well as their families, gain economic stability and make meaningful contributions within their communities. As this legislation takes effect it will be important for individuals and employers to understand the potential legal implications.

For more than 30 years, Employment Attorney Raymond Nardo has represented employees and employers for claims involving overtime pay, discrimination, sexual harassment, whistleblower claims, and nearly all other employment claims. He practices extensively in Federal Court, New York State Court, the Equal Employment Opportunity Commission (EEOC), and the New York State Division of Human Rights . Consult Attorney Raymond Nardo for professional legal advice on the Clean Slate Act.

New York State Unemployment Insurance

nardo@raynardo.com (Raymond Nardo) — Mon, 01 Jul 2024 14:30:24 GMT

Collecting Unemployment Insurance Benefits in New York

If you are recently unemployed in New York State, you may be able to collect unemployment insurance (UI) benefits, depending on how and why you lost your job. Unemployment insurance eligibility is governed by specific rules established by the New York State Department of Labor (DOL), which means your employer does not determine whether you get UI benefits. In this blog we give an overview of requirements for UI benefits, how to file for benefits and what to expect after you file.

Not all applicants receive unemployment benefits and there are sometimes situations where an unemployment claim can lead to legal action on the part of the employee or the employer. In cases like these, or if you just need honest, expert advice about unemployment insurance in New York State, consult Employment Attorney Raymond Nardo .

Unemployment Insurance Requirements

Employment Status

Involuntary Separation from Employment: To qualify for benefits, you must be unemployed through no fault of your own. Quitting your job voluntarily without good cause or being terminated for misconduct could disqualify you. Misconduct is generally considered to be an intentional act contrary to the employer’s interest.

Work and Earnings History

Base Period: You need to have worked during a defined base period. This typically involves the first four of the last five completed calendar quarters prior to filing your claim.

Sufficient Earnings: You must have earned wages in at least two quarters during the base period. Additionally, for 2024, you need to have earned at least $3,300 during the highest quarter and have a total base period wage of at least 1.5 times the amount of earnings in your highest quarter.

Availability for Work

Able and Available to Work: You must also be physically able to work and actively looking for work. This includes being ready and willing to accept suitable work if it’s offered to you. If your employer, or the Commissioner of Labor, can prove that you were not ready, willing, and able to work during your period of unemployment (for instance, you were disabled), your benefits may be stopped.

Registration with the State

Filing a Claim : You must file a claim for unemployment insurance benefits with the New York State Department of Labor. Timely filing is important, as delays could affect your eligibility or the amount of benefits you receive. It is important to file your claim during the first week of partial or total unemployment since a delay in filing for benefits could result in a denial. For assistance filing an unemployment claim, the insurance claimant advocate office is available. Assistance received through this office is not a substitute for professional legal assistance.

Ongoing Certification : Once you’ve filed and your claim is favorably determined, you must certify your unemployment status weekly. This involves answering questions that confirm you’re still eligible and haven't refused any suitable work offers. If you fail to certify, you may not receive benefits for that workweek.

Fraud: If you provide false information or withhold pertinent information while applying for or claiming weekly UI benefits, it is considered fraud. You may be liable for a 15% cash penalty or a $100 fee on the overpayment of benefits. You will also have to pay back the money you received and forfeit future days of UI benefits and the DOL may refer your case for criminal prosecution.

After You File

Initial Determination: The Department of Labor will issue an initial determination about your eligibility for benefits. If the employer or employee disagrees with the Department of Labor’s initial determination, either side can request a hearing before an Administrative Law Judge (ALJ), who will adjudicate the issue after hearing testimony from both parties.

Hearing: At the hearing, the ALJ will hear sworn testimony from both sides, and any relevant witnesses, and consider any relevant documents, before rendering a written decision which will be mailed to the parties. If the case involves a claim of voluntary leaving, the employee usually testifies first. If the case involves a claim of misconduct, the employer’s witnesses usually testify first. The employee should forward any relevant documents to the New York State Department of Labor’s Unemployment office before the start of the hearing. All pertinent materials should be on hand for the hearing, which is usually done by Webex video conferencing or by phone.

Appeal: If either party is dissatisfied with the decision of the ALJ, that party can appeal by submitting a written statement to the Unemployment Insurance Appeal Board , who will then decide to uphold or reverse the decision of the ALJ.

Conclusion

If you believe you have been wrongly denied unemployment insurance benefits, contact Attorney Raymond Nardo for a consultation. Attorney Nardo can give you his assessment of your situation, determine if you have been the victim of unlawful conduct, and determine what to do about it. For more than 30 years, Employment Attorney Raymond Nardo has represented employees and employers for wage and employment related claims , sexual harassment, whistleblower claims, and nearly all other employment claims. He practices extensively in Federal Court, New York State Court, the EEOC, and the New York State Division of Human Rights . Consult Attorney Raymond Nardo ) for professional legal advice on the unemployment insurance related claims.

VICTORY! NLRB Judge Says Fired Pro-Union Nurse Was Not a Supervisor—Awards Her Compensation and Reinstatement

Fri, 10 May 2024 19:46:57 GMT

A Nurse at Mt. Sinai was Wrongfully Fired for Engaging in Union Activities

BACKGROUND

Mary, a nurse at Mount Sinai South Nassau Hospital, became involved with the New York State Nurses Association (NYSNA) union organizing campaign underway there. Mount Sinai interrogated and threatened her with disciplinary action if she continued to support the union, and ultimately fired her because she would not comply with their demands. Mary believed she was wrongly fired and sought the expert legal counsel of Employment Attorney Raymond Nardo .

THE CASE

The hospital alleged that Mary’s position was supervisory, and she was therefore exempt from the protections of the National Labor Relations Act (NLRA), a 1935 Federal Law enacted to shield workers’ rights to union organizing. In response, Employment Attorney Nardo thoroughly and expertly presented materials that refuted Mount Sinai’s claim. After a hearing brought by the NLRB's General Counsel, a National Labor Relations Board (NLRB) Administrative Law Judge considered the evidence and found that Mary’s nursing responsibilities did not rise to the NLRA’s definition of supervisory status. Therefore, she was free to support the Union and join the organizing campaign. Consequently, the judge found Mary’s union activity was protected under the NLRA, and that the hospital illegally fired her. The judge ordered Mount Sinai to offer Mary reinstatement of her position or a similar position at Mount Sinai, and awarded her compensation for the financial harm she endured due to her being fired. Mary was understandably thrilled with the outcome of the legal proceedings, which the Hospital appealed.

CONCLUSION

This victory exemplifies the role of legal advocacy in upholding individuals' rights in the face of unjust termination. Employment Attorney Raymond Nardo helped Mary win reinstatement to her former job and to receive compensation for her financial losses. If you encounter obstacles to union organizing at your workplace, contact Employment Attorney Raymond Nardo for honest, professional, results-focused legal advice that can help you understand your rights and options.

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VICTORY: Bank Employee Awarded More Than $400K in Workplace Sexual Harassment, Retaliation Case

Sun, 10 Dec 2023 15:42:29 GMT

VICTORY: $400,000+ Jury Award for Sexual Harassment and Retaliation

BACKGROUND

An employee earned a raise and promotion for her work at a bank in Long Island, New York. After attending a seminar on sexual harassment, she realized that her supervisor had sexually harassed her during her tenure there. Per The Bank’s policy, she lodged a complaint with the human resources department. However, they did not perform an adequate investigation and, instead, made her the subject of an investigation, as well as targeting her for workplace retaliation . This retaliation included adverse job reassignments, denial of vacation requests, poor performance reviews, and culminated in her being constructively terminated—in effect, The Bank’s conduct towards her forced her resignation. To make matters worse, she was later gaslighted by the alleged harasser who accused her of workplace retaliation. All because she followed The Bank's own anti-discrimination and harassment policy. The employee decided to exercise recourse to legal representation, and contacted Employment Attorney Raymond Nardo .

THE CASE

Even though the employee had essentially been forced out of her job by her employer, officially, she had left her job of her own volition. The employer used this against her, contesting her right to receive Unemployment Insurance benefits. However, represented by Employment Attorney Raymond Nardo, she prevailed at a hearing and was thereby able to receive the benefits to which she was entitled.

Attorney Nardo then filed a charge of discrimination at the Equal Employment Opportunity Commission on her behalf, and, undeterred by the commission’s finding of "no probable cause," he filed a complaint in Federal Court. Documents were exchanged, and numerous depositions were taken, including from the President of The Bank. Eventually, the case went to trial.

The jury trial lasted several weeks and involved numerous witnesses. Carefully considering the evidence expertly presented by Employment Attorney Raymond Nardo, the jury deliberated for an extended period.

CONCLUSION

After several weeks, a ruling came down in favor of the employee on the basis of the retaliation claim. To reprimand The Bank for its unlawful actions, the jury awarded compensation included back pay and punitive damages. Sweetening the victory, post-trial motions led to a total award surpassing $400,000, inclusive of counsel fees for Employment Attorney Raymond Nardo.

The employee's legal victory highlights the struggles of those faced with workplace harassment and discrimination and the necessity of legal recourse. Employment Attorney Raymond Nardo's successful litigation shows the crucial role experienced legal advocacy plays in safeguarding employees' rights and ensuring accountability in the workplace.

For individuals facing similar challenges or seeking legal advice, consultations with Employment Attorney Raymond Nardo are available.

What is New York State Paid Family Leave?

Sat, 02 Dec 2023 00:56:42 GMT

Am I Entitled to New York State Paid Family Leave?

What is NYS Paid Family Leave?

New York State Paid Family Leave (NYS PFL) is a crucial program that provides eligible employees with job-protected, paid time off to bond with a new child, care for a family member with a serious health condition, or address certain military family needs. The program is designed to support individuals in balancing the demands of work and personal life, promoting a healthier work-life integration.

Key Features of NYS Paid Family Leave

Coverage
NYS PFL covers most private employers in New York State, regardless of the size of the business. Both full-time and part-time employees may be eligible.

Eligibility Criteria
To qualify for NYS PFL, employees must meet specific eligibility criteria, including:

- Having a regular work schedule and being employed for a certain duration.
- Providing timely notice to their employer when taking leave.

Reasons for Taking Leave
Employees can use NYS PFL for various family-related reasons, including:

Bonding Leave

To spend time with a new child during the first 12 months after birth, adoption, or fostering.

Caregiving Leave To care for a family member with a serious health condition.

Qualifying Military Exigency Leave For family members dealing with issues arising from a close relative's active military duty.

Duration and Benefits
The duration of NYS PFL varies depending on the purpose of the leave. As of [current date], eligible employees can receive up to 12 weeks of paid family leave within a 52-week period. The benefit amount is a percentage of the employee's average weekly wage, subject to a cap set by the state.

Job Protection
During the NYS PFL period, employees are entitled to job protection. This means that employers must generally reinstate employees to their same or a comparable position upon returning from leave.

How to Apply for NYS Paid Family Leave

Applying for NYS PFL involves a straightforward process. Employees typically need to:

1. Notify The Employer
Inform the employer in advance about the need for leave and the expected duration.

2. Complete Required Forms
Fill out the necessary forms provided by the employer or the insurance carrier.

3. Submit Documentation
Provide any required documentation, such as a birth certificate or medical certification, to support the leave request.

4. File a Claim
If applicable, file a claim with the insurance carrier, which will determine eligibility and provide the paid leave benefits.

Conclusion

NYS Paid Family Leave is a valuable resource for individuals seeking to balance work and family responsibilities. By providing paid time off for significant life events, the program aims to enhance the overall well-being of employees while fostering a supportive workplace environment.

For more detailed information and to stay updated on any changes to the NYS Paid Family Leave program, individuals are encouraged to visit the official NYS Paid Family Leave website .

Employment Attorney Raymond Nardo handles issues arising from New York State Paid Family Leave.

VICTORY: Federal Whistleblower Settles for More than $4 Million

Thu, 30 Nov 2023 15:43:16 GMT

VICTORY: Federal Whistleblower Settles for More than $4 Million

Background

Employment Attorney Raymond Nardo represented four employees of a major defense contractor in a qui tam federal whistleblower case. The employees claimed that the defense contractor overbilled, and thereby defrauded the United States of America.

Qui tam , or the False Claims Act (FCA), also known as the “Lincoln Law,” was enacted in 1863 under President Abraham Lincoln’s administration. It allows employees to blow the whistle on fraud against the United States government and receive a portion of the recovered funds. When a qui tam case is filed, it is typically done under seal to allow the government to investigate thoroughly. Filing under seal allows sensitive or confidential information to be filed in court without becoming a matter of public record. Depending on the government's decision, parts of the case may be unsealed. The government's discretion in unsealing the case allows the defendant to become aware of the allegations against them while still protecting the whistleblower's identity, minimizing the risk of retaliation .

THE CASE

After the case was filed under seal, it was investigated and reviewed by the United States Attorney's Office. After a period of time, the United States government unsealed the case and intervened in the lawsuit. Throughout the complex qui tam process, Employment Attorney Raymond Nardo pursued the case against the defense contractor for false billing and overbilling and protected the interests of the whistleblowers.

CONCLUSION

The whistleblowers were vindicated. The case settled for more than $4 million and, as is common in qui tam settlements, the majority of the recovery was collected by the United States government. This victory underscores the importance of legal expertise in qui tam cases. It serves as a reminder of the crucial role of legal advocacy in giving employees the tools to blow the whistle on corrupt employment practices. Employment Attorney Raymond Nardo has handled many qui tam cases. The Law Office of Raymond Nardo offers consultations to address any concerns about whistleblowing in the workplace.

Am I Entitled to Severance Pay?

Thu, 16 Nov 2023 00:39:46 GMT

What is Severance Pay?

Severance pay is commonly associated with employment situations where an employee is downsized or laid off, as opposed to termination for cause. In the context of downsizing or layoffs, employers may provide severance packages as a financial cushion to help affected employees during the transition period. Severance pay is often seen as a form of compensation beyond regular wages and may include additional benefits. However, in cases where an employee is terminated for cause, such as due to misconduct or violation of company policies, employers generally do not provide severance pay.

Is Severance Pay Required under New York Law?

In New York State, private employers are generally not required by law to provide severance pay to employees. Severance pay is typically a matter of agreement between the employer and the employee, either through an employment contract, company policy, or negotiations during the termination process.

Is There a Plan or an Agreement Providing Severance Pay

It's essential for employees to review their employment contracts, company policies, or any agreements they may have with their employers to determine if they are entitled to severance pay upon termination. Additionally, some employers may offer severance pay as part of a separation or termination package, but this is not mandated by state law.

What are the Conditions to Receive Severance Pay?

Formula for Severance Pay: The amount of severance pay is typically determined by a formula, often based on the number of years an employee has worked for the company. Commonly, a specific number of weeks of pay is assigned for each year of service. This formula aims to provide financial support to employees during the transition period and varies across companies and industries.

Consideration/Revocation Period: In situations of individual layoffs, employees are usually given at least 21 days to consider the terms of the severance package before making a decision, and 7 days to revoke their signature, once it is signed. In cases of group layoffs, this consideration period is extended to 45 days. This timeframe is designed to allow individuals the necessary space to review the terms, consult with legal counsel if needed, and make an informed decision about accepting or negotiating the severance offer.

Navigating the Process: Employees should approach the severance negotiation process with diligence. Carefully reviewing the terms, seeking legal advice when necessary, and understanding the implications of the release of claims are crucial steps. Negotiating certain aspects of the severance package, such as the terms of the release or the amount of severance pay, may be possible and can usually be negotiated with the employer.

CONCLUSION

In times of employment transition, being well-informed empowers individuals to make decisions aligned with their best interests. Consideration of these key conditions can contribute to a smoother and more informed process when navigating severance packages.

If you have specific concerns or questions about your situation, it's advisable to consult with an employment attorney who can provide guidance based on your individual circumstances and any applicable agreements in place.

VICTORY - Employee Settles Whistleblower Claim Under the False Claims Act

Sat, 15 Apr 2023 01:28:01 GMT

Filing a Qui Tam Action Under the Federal False Claims Act

Employment Attorney Raymond Nardo files qui tam cases, which are whistleblower cases where an individual sues a company who defrauded the United States government. The Plaintiff actually sues on behalf of the United States government, and is known as a “relator.” The information provided by the relator must first be provided to the local United States Attorney’s office and the United States Attorney General in Washington D.C. under seal, and the relator must be the original source of otherwise unknown information. The Plaintiff then files her complaint under seal, and the United States Attorney's Office decides whether or not to intervene.

Employee Uncovers Medicare Fraud in a Medical Practice

Employment Attorney Raymond Nardo recently represented a young medical assistant who worked at a medical practice on Long Island. She noticed that the medical practice was very secretive about billing a certain asthma medication, which cost $1,000 to $1,500 per vial. She obtained firsthand relevant information about what turned out to be a scheme. As a result, Employment Attorney Raymond Nardo filed a qui tam federal action, under seal, against the medical practice based on Medicare fraud, under the Federal False Claims Act 31 U.S.C. § 3729.

The employee uncovered the fact that the medical practice ordered extra quantities of an asthma medication, which was initially billed to the government through the Federal Employee Compensation Act because the patient was a 9/11 firefighter. The practice then administered the extra quantities to other patients and double billed the government through the Medicare “buy and bill” program, falsely claiming that it purchased these medications from a third party. Thus, the medical practice profited from overbilling the United States government, in violation of the False Claims Act. Apart from the overbilling, each false certification to the United States government constitutes a violation of the False Claims Act.

The Government Intervenes and the Case Settles

After an extensive period of investigation involving several governmental agencies, the United States Attorney’s office intervened in the action and represented the Plaintiff. In 2023, the case settled for hundreds of thousands of dollars.

If you know of a situation where a company has defrauded the United States government, please call Employment Attorney Raymond Nardo, who can evaluate your case.

What is the Equal Employment Opportunity Commission?

Sat, 15 Apr 2023 00:53:41 GMT

Understanding the Equal Employment Opportunity Commission (EEOC)

The Equal Employment Opportunity Commission (“EEOC”) plays a pivotal role in safeguarding the rights of employees against workplace discrimination. This blog post will delve into the origins and functions of the EEOC, as well as provide guidance on when and how employees should utilize this federal agency to advance their claims of discrimination.

The Genesis of EEOC

The EEOC came into existence as a result of the Civil Rights Act of 1964, a landmark piece of legislation that aimed to end racial segregation and discrimination in various facets of American society, including the workplace. Title VII of the Civil Rights Act specifically targeted employment discrimination on the basis of race, color, religion, sex, or national origin.

The EEOC was established to enforce Title VII and ensure that employers across the United States adhere to the law's provisions. Over the years, its scope has expanded to encompass other anti-discrimination laws, such as the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA).

The Role of EEOC

1. Investigating Discrimination Claims

One of the primary functions of the EEOC is to investigate complaints of workplace discrimination. Employees in New York State who believe they have been subjected to discrimination based on a protected characteristic, such as race, gender, religion, or disability, must file a charge with the EEOC within 300 days of the date of the last incident of discrimination. Upon receiving a charge, the EEOC will assign an investigator to determine whether there is merit to the claim. The investigator will ask the employer to prepare a position statement in opposition to the charge of discrimination. That position statement will then be sent to the employee, who may submit a rebuttal.

2. Providing Mediation and Conciliation

In some cases, the EEOC may offer mediation or conciliation services to resolve disputes between employees and employers. These processes can be quicker and less adversarial than pursuing a lawsuit. Mediation is a process that requires calculations, strategy, and preparation to try to achieve a fair and just settlement of claims.

3. Issuing a Notice of Right to Sue Letter (“NORTS”)

If a settlement cannot be reached, and the EEOC investigation finds “probable cause,” the EEOC may try to Conciliate the charge through a process of settlement. If the case does not resolve, the EEOC will issue a NORTS.

In addition, if the EEOC does not find probable cause, it will also issue a NORTS.

Once an employee receives a NORTS, the employee must file a Summons and Complaint in Federal Court within 90 days of the date of receipt of the NORTS. This deadline is strictly enforced.

4. Enforcing Compliance

The EEOC also plays a crucial role in enforcing compliance with anti-discrimination laws. This includes taking legal action against employers who engage in discriminatory practices. The agency occasionally files “high profile” lawsuits on behalf of aggrieved employees.

When and How to Use the EEOC

Employees who believe they have experienced workplace discrimination should follow specific steps to utilize the EEOC effectively:

Contact an Attorney: Before filing a charge with the EEOC, it is advisable for employees to consult with an experienced employment lawyer. An attorney can provide guidance on the best course of action and assist in preparing the necessary documentation.
File a Charge: To initiate the EEOC process, employees must file a formal charge of discrimination. This charge should detail the discriminatory actions, the parties involved, and any relevant dates, and must be filed timely.
Cooperate with EEOC: Once a charge is filed, it is essential for employees to cooperate fully with the investigation, providing any requested documents or information promptly.
Review Options: Depending on the EEOC's findings, employees may receive a Notice of Right to Sue letter or be offered mediation or conciliation. Consulting with an attorney at this stage is crucial to make informed decisions about the next steps.
Consider Legal Action: If a resolution cannot be reached through the EEOC, employees can proceed to file a lawsuit in federal court with the assistance of counsel.

Conclusion

In conclusion, understanding when and how to use the EEOC's services can be pivotal in seeking justice and protecting one's rights in the workplace. If you have any specific questions or need further clarification on any aspect of the EEOC and employee discrimination claims, please contact Employment Attorney Raymond Nardo.

New York Requires Manual Workers to be Paid on a Weekly Basis

Fri, 14 Apr 2023 23:07:50 GMT

Manual Worker Pay

Article 6 of the New York Labor Law contains frequency of pay provisions which require weekly pay for manual workers.

Safeguarding Manual Workers

Employers must pay “manual workers” on a weekly basis, as opposed to other types of employees, such as commissioned salespersons or clerical workers, who may receive wages biweekly or semi-monthly.

Defining a "Manual Worker"

To comprehend the scope of the Weekly Pay Requirement, it is essential to understand who qualifies as a "manual worker." In broad terms, “manual worker” encompass individuals engaged in physical labor or those who predominantly perform non-clerical tasks. Importantly, the New York State Department of Labor has ruled that an employee is a manual worker if he is engaged in manual work for at least 25% of the time. This includes construction workers, factory workers, maintenance staff, janitors, most drivers and chauffeurs, and others involved in similar occupations.

Promoting Financial Stability and Employee Protection

The Weekly Pay Requirement promotes financial stability for manual workers because they rely on regular wages to meet their immediate financial obligations. Weekly pay ensures that these workers can manage their expenses more efficiently and plan their budgets with greater ease.

Additional Considerations

The Weekly Pay Requirement does not supersede other legal provisions, such as minimum wage regulations or overtime pay requirements. Employers must still adhere to these regulations, ensuring that manual workers receive fair compensation for their labor.

Enforcing the Weekly Pay Requirement: Seeking Legal Remedies

If an employer fails to pay a manual worker on a weekly basis, employees can pursue legal action to recover liquidated damages for late wages, along with counsel fees. The liquidated damages could amount to half the wage that the employee received from the employer for the last six years, because half of the payments were paid late, under Article 6. This can be a sizable recovery.

Workers should consult with an experienced employment attorney who specializes in Employment Law to navigate the complexities of pay frequency.

DISABILITY DISCRIMINATION UNDER FEDERAL AND STATE LAW

Fri, 14 Apr 2023 19:00:55 GMT

Understanding the Americans with Disabilities Act (ADA) and New York State Human Rights Law (NYSHRL)

As an employee, it is essential to be aware of your rights and protections under the Americans with Disabilities Act (ADA) and New York State Human Rights Law (NYSHRL). Enacted in 1990, the ADA is a landmark civil rights law that prohibits discrimination against individuals with disabilities in various aspects of public life, including employment.

What is the Americans with Disabilities Act (ADA)?

The ADA is a federal law designed to ensure that individuals with disabilities have equal opportunities in employment, public services, public accommodations, transportation, and telecommunications. It applies to employers with 15 or more employees, state and local governments, and places of public accommodation.

Who is Covered under the ADA?

The ADA protects individuals with disabilities, which are defined as:

A physical or mental impairment: This includes various medical conditions such as mobility impairments, visual or hearing impairments, intellectual disabilities, and certain chronic illnesses.
Substantial limitation: The impairment must substantially limit one or more major life activities, such as walking, seeing, hearing, speaking, or learning.
Record of impairment or regarded as having an impairment: Even if the individual no longer has the impairment or is perceived to have an impairment, they are still protected under the ADA.

Employment Protections under the ADA

1. Prohibition of Discrimination

The ADA prohibits employers from discriminating against qualified individuals with disabilities in all aspects of employment, including hiring, firing, promotions, training, and job assignments. Employers are required to provide reasonable accommodations to enable qualified individuals to perform their essential job functions.

2. Reasonable Accommodations

A reasonable accommodation is an adjustment or modification that allows an individual with a disability to perform their job effectively. These accommodations may include:

Providing assistive devices or technologies
Making workplace modifications
Adjusting work schedules or job duties
Granting leave for medical treatment or recovery

3. The Interactive Process

If you believe you need a reasonable accommodation, it is essential to initiate the interactive process with your employer. This involves discussing your disability-related needs and potential accommodations. Both parties must engage in good faith to find an appropriate solution.

4. Prohibition of Retaliation

The ADA also prohibits employers from retaliating against employees who assert their rights under the law or request reasonable accommodations.

Disability Rights Under the New York State Human Rights Law (NYSHRL)

The New York State Human Rights Law is comprised of legislation which prohibits discrimination on the basis of various protected characteristics, including disability. The law is enforced by the New York State Division of Human Rights (NYSDHR) and applies to all employers, housing providers, businesses, and educational institutions within the state.

Who is covered under the NYSHRL

Similar to Federal Law, the NYSHRL has a broader definition of disability than the ADA. The NYSHRL defines a person with a disability as someone who:

· Has a physical, mental, or medical impairment: This includes a wide range of conditions such as mobility impairments, sensory impairments, chronic illnesses, mental health disorders, and intellectual disabilities.

· Has a history or record of such impairment: Individuals with a past history of disability, such as those in remission from a medical condition, are also protected.

· Is perceived as having such an impairment: Even if an individual does not have a disability but is perceived as having one, they are protected under the NYSHRL.

Employment Protections under the NYSHRL

1. Prohibition of Discrimination

NYSHRL ensures that employees with disabilities are treated fairly in the workplace, and are free from discrimination and harassment.

2. Reasonable Accommodation.

Employees must also engage in an interactive dialogue with the employer if the employee wants an accommodation. The employee is entitled to a reasonable accommodation.

3. Protection Against Retaliation

In addition, the NYSHRL prohibits employers from retaliating against employees who assert their rights under the law or request reasonable accommodations.

FILING A COMPLAINT AGAINST YOUR EMPLOYER FOR DISABILITY DISCRIMINATION UNDER FEDERAL OR STATE LAW

Filing a Complaint Under the ADA

If you believe your employer has violated the ADA, you have the right to file a complaint with the Equal Employment Opportunity Commission (EEOC) within 300 days of the last date of discrimination. The EEOC will investigate your claim and take appropriate action if discrimination is found. After the EEOC issues a Notice of Right to Sue Letter, you can file a complaint in Federal Court within 90 days of the date of that letter.

Filing a Complaint Under the NYSHRL

If you believe your employer violated the NYSHR, you can file a complaint with the New York State Division of Human Rights within one year of the last date of discrimination. The NYSDHR will investigate your claim and take appropriate actions to remedy the discrimination. Alternatively, you can file in New York State Supreme Court within 3 years of the date of discrimination.

Conclusion

The EEOC and NYSHRL are powerful tools to protect the rights of individuals with disabilities. By understanding your rights, you can ensure that you are treated fairly and have equal opportunities in the workplace. If you believe you have experienced discrimination, require an accommodation, or need assistance in navigating the law, consult an experienced employment attorney who can guide you through the process and advocate for your rights.

Diversity Equity and Inclusion (DEI): Did DEI just DIE after the Supreme Court's affirmative action decision?

Wed, 12 Apr 2023 16:18:52 GMT

Is DEI Still Permitted After the Supreme Court's Affirmative Action Decision concerning College Admissions?

TITLE VII of the Civil Rights Act of 1964

Following the assassination of President Kennedy, President Johnson signed the Civil Rights Act of 1964 (“the Act”). The Act prevented discrimination on the basis of race, color, national origin, sex, or religion in employment. Initially, the Act disallowed jury trials because it was surmised that juries would not fairly adjudicate the claims of minority plaintiffs. The Act created the Equal Employment Opportunity Commission (“EEOC”), a federal administrative agency that processes, and sometimes litigates, charges of discrimination. The Act applies to employers with 15 or more employees.

Affirmative Action

As a response to racial imbalances in the workplace, employers developed affirmative action plans. Voluntary plans (not imposed by a court) must be justified as a remedial measure to redress patterns of segregation or hierarchy, must be temporary, and must not unnecessarily trammel the interest of white employees. For instance, in Steelworkers v. Weber, the Supreme Court approved an affirmative action plan which reserved 50% of openings for African American employees, where the local workforce was 39% African American, but the workforce was 1.8% African American.

In contrast, where Hispanics were 6.8% of the population, and the employer had nearly twice that amount in its workforce, with 12.9%, the Court struck down the affirmative action plan in Jurgens v. Thomas. The court held that the plan was not remedial because there was no discrimination to remedy, since Hispanics were not under-represented in the workforce.

The Supreme Court Addresses Affirmative Action in Colleges

In Students for Fair Admissions, Inc. (SFFA) v. President and Fellows of Harvard and SFFA v. University of North Carolina , decided in 2023 by the United States Supreme Court, the Court scrutinized affirmative action decisions in the context of College admissions. The majority opinion condemned an admissions process that “picks winners and losers based on the color of their skin.” Chief Justice Roberts wrote for the majority that “a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.” In his concurrence, Justice Gorsuch similarly observed, “it is never permissible to say ‘yes’ to one person but to say ‘no’ to another person even in part because of the color of his skin.” And Justice Thomas declared, “under our constitution, race is irrelevant.” Notably, Chief Justice John Roberts explained that college admissions programs can consider race to allow an applicant to explain how their race influenced their character in a way that would have a concrete effect on the university. But a student “must be treated based on his or her experiences as an individual — not on the basis of race.”

This concept – that companies cannot prefer candidates on the basis of race – already governed employment decisionmaking in the context of Title VII. In the workplace, voluntary affirmative action efforts are permissible only when there is sufficient data to demonstrate that the plans are narrowly and carefully tailored to remedy conspicuous racial or gender imbalances in traditionally segregated job categories. Whether or not the Supreme Court takes aim at affirmative action remains to be seen.

DEI Programs

An employer’s DEI programs must be carefully crafted, temporary, and based on solid data, with the goal of achieving a better racial imbalance; otherwise, employers risk liability for reverse discrimination. Hiring decisions should not be made on race, color, sex, religion, or national origin, unless there are documented imbalances and a corresponding written, temporary, thorough, affirmative action plan. (Later statutes or Court decisions included the additional categories of pregnancy, age, and disability, and sexual orientation). However, employers can still encourage and recruit applicants from minority areas and historically black colleges and universities, to increase diversity in their applicant pool. This can ultimately increase diversity in the workforce. But Title VII prevents an employer from using a preference to hire a candidate, based on minority status.

If you have a question about discriminatory hiring or promotion, feel free to consult with Employment Attorney Raymond Nardo.

The Case of Groff v. DeJoy: U.S. Supreme Court Expands Workers’ Rights to Religious Accommodation

Mon, 10 Apr 2023 17:38:11 GMT

Supreme Court Expands Workers’ Rights for Religious Accommodation

BACKGROUND

In 2012 Gerald Groff, a practicing Evangelical Christian, took a job with the United States Postal Service (USPS) in Pennsylvania. At that time the USPS rarely made Sunday deliveries, and Groff was unlikely to face a conflict between his work responsibilities and his religious practice of observing Sunday as a day of worship and rest. However, when the USPS contracted with Amazon to deliver packages on Sunday, Groff was unwilling to compromise his religious beliefs in order to work Sunday shifts. His work was distributed to other staff and his supervisors subjected him to progressive discipline until Groff resigned in 2019 because he perceived that he was about to be fired. Groff believed that his employer had discriminated against him on the basis of religion under Title VII of the Civil Rights Act, and sought legal counsel. If you are experiencing workplace discrimination on the basis of religion contact Employment Attorney Raymond Nardo .

What is a Reasonable Accommodation for Religion?

Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the bases of race, color, sex, national origin, pregnancy, and genetic information. It also prohibits discrimination on the basis of religion and requires employers to make “reasonable accommodations” to allow the practice of religion, unless it causes an “undue hardship” for the employer. However, the scope of the practice of religion in the workplace was narrowed in a 1977 case called TWA v. Hardison , which held that any religious accommodation that causes more than a small expense to the employer is considered “undue hardship.”

THE CASE

Under prior precedent, a case called TWA v. Hardison , the United States Supreme Court ruled that any hardship that causes more than a small expense for the employer was an “undue hardship.” As a result, Mr. Groff lost his cases in the District Court and the United States Court of Appeals. However, four decades later, the United States Supreme Court unanimously decided, in Groff v. DeJoy , that a business must show a “substantial” burden to deny an accommodation – a burden that “would result in substantial increased costs in relation to the conduct of its particular business.” Further, the Supreme Court held that, "[a] hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice, cannot be considered undue. Bias or hostility to a religious practice or accommodation cannot supply a defense."

CONCLUSION

Groff and his expert legal team won a landmark victory for workers’ rights across the USA. Though the vast majority of cases never reach the Supreme Court, Groff v. DeJoy illustrates the unpredictable nature of workplace disputes and the crucial role of professional legal representation in cases involving religious bias in the workplace. Employment Attorney Raymond Nardo has won millions of dollars in settlements for his clients and he has extensive experience resolving cases of workplace discrimination. If you believe you are experiencing religious discrimination at work, consult Employment Attorney Raymond Nardo for honest, expert, results-focused legal advice that can help you understand your rights and options.

Litigating at the New York State Division of Human Rights

nardo@raynardo.com (Raymond Nardo) — Mon, 10 Apr 2023 16:26:14 GMT

Protecting Your Rights with the New York State Human Rights Law

What is the New York State Human Rights Law?

The New York State Human Rights Law (“NYSHRL”), § 290 et. seq. of the New York Executive Law, mandates that employees be able to work without harassment or discrimination based upon sex, gender identity, pregnancy (including failure to accommodate), disability (including failure to accommodate), race, creed, color, national origin, sexual orientation, military status, age, marital status, domestic violent victim status, predisposing genetic characteristics, prior arrest or conviction record, or familial status.

In addition, an employee cannot suffer an adverse action (termination, etc.) for opposing discrimination in the workplace. That constitutes retaliation.

How Does the New York State Human Rights Law Protect Employees?

If your employer takes any adverse action against you because you belong to one, or more, of the above categories, or fails to accommodate your disability, or retaliates against you for engaging in protected activity because you complained of discrimination, your employer has violated the New York State Human Rights Law.

What is the Process?

The New York State Division of Human Rights is an administrative agency that handles complaints of discrimination. You can file a charge or complaint of discrimination at the New York State Division of Human Rights within one year of the last act of discrimination, or three years if you are claiming sexual harassment. (You may also file a Summons and Complaint in New York State Supreme Court within 3 years of the date of discrimination).

What Happens after a Charge of Discrimination is Filed?

An investigator will review your charge of discrimination and the Respondent employer will submit a position statement. If your complaint receives a finding of "probable cause," you will be entitled to a hearing before an Administrative Law Judge, who may award damages if you can prove that you were discriminated against.

What Kind of Damages Can be Awarded?

After a hearing, an Administrative Law Judge can award backpay to the employee (which represents lost earnings), compensatory damages for pain and suffering, punitive damages, if the employer’s conduct is found to be willful or reckless, and, possibly, reinstatement. Also, the ALJ must award counsel fees to the employee’s attorney, if the employee prevails. The ALJ must also award civil penalties, which are paid to the New York State Division of Human Rights.

Should I Use an Attorney?

For more information about litigating at the New York State Division of Human Rights, CLICK HERE .

Employment Attorney Raymond Nardo has represented hundreds of employees at the New York State Division of Human Rights.

Am I Being Cheated Out of Overtime Pay?

Fri, 31 Mar 2023 16:42:22 GMT

Did my boss Cheat me out of Overtime Pay?

Many employees are being cheated out of overtime, and they don’t even know it. Workers who work hard and struggle to make ends meet are being deprived of their rightful compensation for their hard work. Both New York Labor Law and Federal law (the Fair Labor Standards Act) protect employees from such abuses.

Under New York law, non-exempt employees are entitled to overtime pay for all hours worked in excess of 40 hours in a workweek. Overtime pay is defined as one and one-half times the employee's regular rate of pay. This means that if an employee earns $20 an hour, his overtime pay rate would be $30 an hour for all hours worked in excess of 40 hours in a workweek.

Unfortunately, some employers cheat their employees out of overtime pay by misclassifying them as exempt or independent contractors, or by manipulating time records to make it look like the employee worked fewer hours than they actually did. These actions are illegal.

If you believe that your employer is cheating you out of overtime pay, there are steps you can take to protect your rights. First, document your hours worked and any unpaid overtime you believe you are owed. If possible, keep records of your work schedule, pay stubs, and any other relevant information.

Next, consult an experienced employment attorney who can advise you about your legal rights and help you pursue legal remedies against your employer. An attorney can help you recover double the amount of wages due, which includes liquidated damages for any willful damages committed by your employer. The laws also provide remedies if your employer retaliates against you by terminating you for making claims about unpaid overtime.

Employers who cheat their employees must be held accountable for their actions. By understanding your legal rights and hiring the right attorney, you can protect yourself from being abused by your employer. The statute of limitations is 6 years under New York State Law, and an employee can protect double, or liquidated, damages.

Employment Attorney Raymond Nardo has represented thousands of employees in overtime cases, and has collected millions of dollars for his clients.

Understanding the Wage Theft Prevention Act

Fri, 31 Mar 2023 15:34:10 GMT

New York's Wage Theft Prevention Act

The Wage Theft Prevention Act (WTPA) aimed at protecting employees' rights and deterring wage theft. As an employee, it is essential to be aware of the provisions of this act to ensure you receive fair compensation for your work.

What is the Wage Theft Prevention Act?

The Wage Theft Prevention Act was enacted in 2010 by the New York State Legislature to address the prevalent issue of wage theft, which refers to the illegal withholding of wages or the failure to pay employees the full amount they are owed. This act strengthens the existing labor laws and provides additional protection for workers in New York.

Key Provisions of the Wage Theft Prevention Act

The WTPA introduced several provisions to combat wage theft, exploitation of employees, and ensure that employees receive proper compensation. Employers can face stiff penalties for failing to comply with the WTPA.

Wage Notices

Under the WTPA, employers are required to provide employees with a written notice at the time of hiring. This notice must include specific details, such as the rate of pay, regular payday, and any allowances or deductions that will be made from the wages. The notice must be provided in the employee's primary language, and both the employer and employee must keep a copy of the notice for at least six years. Failure to provide this notice can result in a $5,000 recovery for an employee.

Pay Statements

Employers must also furnish employees with regular pay statements, either electronically or in writing, that include detailed information about the hours worked, rate of pay, overtime rate of pay, gross and net wages, and any deductions made. Pay statements should be provided each pay period and must be in an understandable format. Failure to provide this paystub can result in a $5,000 recovery for an employee.

Recordkeeping Requirements

The WTPA emphasizes the importance of maintaining accurate records related to employee wages, hours worked, and other relevant information. Employers must keep records for at least six years and make them available to employees upon request. These records are vital in case of any disputes regarding wage payments.

Penalties for Non-Compliance

Aside from penalties of $5,000 per violation per employee, violators must pay the employee’s counsel fees, and may even face criminal charges. By holding employers accountable, the WTPA aims to deter wage theft practices and ensure fair treatment of employees.

Conclusion

New York's Wage Theft Prevention Act is a vital piece of legislation designed to combat wage theft and protect employees' rights. By familiarizing yourself with the provisions of this act, you can ensure that you receive fair compensation for your work and take necessary action if your rights are violated. Remember, knowledge is power, and understanding your rights as an employee is crucial in maintaining a fair and just work environment.

If you have concerns about wage theft or believe your employer is not complying with the Wage Theft Prevention Act, please contact Employment Attorney Raymond Nardo who can guide you through the legal process and help you secure the compensation you deserve.

Am I Exempt from Overtime Pay?

Thu, 30 Mar 2023 13:03:01 GMT

What is an Overtime Exemption?

Am I Exempt from Overtime Pay?

Certain employees may be legitimately exempt from minimum wage and overtime requirements under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL), but sometimes employers misclassify employees as “exempt” to get out of paying overtime . This is illegal and constitutes wage theft. If you believe you have been misclassified as an overtime exempt employee, consult Employment Attorney Raymond Nardo . Attorney Nardo has extensive experience and has obtained millions of dollars in settlements for his clients. He can guide you through the legal process and protect your rights.

What Does It Mean to Be Exempt Under the FLSA and NYLL?

The FLSA was enacted in 1938 as a federal law which established the minimum wage, overtime pay, recordkeeping, and child labor standards for employees in the United States. The FLSA requires employers to pay non-exempt employees at least the federal minimum wage ($7.25 per hour) for all hours worked and overtime pay at one and one-half times their regular rate of pay for all hours worked in excess of 40 hours in a workweek. The New York Labor Law (NYLL) has similar requirements, but has a minimum wage of $16.00 per hour in Downstate New York as of January 1, 2024. To be exempt, an employee must meet certain tests related to their job duties and salary. These tests are known as the "salary basis test" and the "duties test.”

The Salary Basis Test

To be truly exempt under the FLSA, an employee must be paid on a salary basis, meaning a predetermined amount of pay is received each pay period regardless of the quality or quantity of work performed. The salary must meet a minimum threshold, which is currently set at $844 per week or $43,888 annually under the FLSA and $1,125 per week under the NYLL for downstate New York. Therefore, if you are paid on an hourly basis, you cannot be an exempt employee, with very limited exceptions.

The Duties Test

In addition to the salary basis test, an exempt employee must also meet certain job duties tests. Simply giving employees job titles such as "manager" or "supervisor," does not make them exempt. The job duties performed by the employee must meet the applicable duties test to qualify for exemption and the employee must be paid on a salary basis. These tests vary depending on the exemption category. The three major “white collar” exemptions are typically called executive, administrative and professional exemptions (EAP):

Executive: The employee's primary duty must be managing the enterprise or a customarily recognized department or subdivision, and the employee must regularly direct the work of at least two full-time employees. This would include a manager, for example, who has input into hiring and firing employees.

Administrative: The employee's primary duty must be performing office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and the work must require the exercise of discretion and independent judgment on significant matters. For example, this would include employees who work in accounting, human resources, and claims adjusters.

Professional: The employee's primary duty must be performing work requiring advanced knowledge in a field of science or learning that is customarily acquired by a prolonged course of specialized intellectual instruction, and the work must be predominantly intellectual and varied in nature. This would include engineers, doctors, CPAs, etc.

The Highly Compensated Employee (HCE) Exemption

The HCE exemption went into effect July 1, 2024 and is part of a final rule under the FLSA. Congress intended the HCE exemption to help businesses streamline the process of determining whether certain highly compensated employees are exempt from FLSA overtime protections because they perform EAP duties. Congress recognized that highly compensated employees typically have roles that involve a higher level of responsibility, decision-making authority, and autonomy. These roles often align with traditional exemptions like the EAP exemption, which do not require overtime pay.

To qualify for the HCE exemption an employee must meet certain compensation thresholds on a timeline set by the Department of Labor. As of July 1, 2024 an HCE employee must receive total annual compensation of $132,964 per year including at least $844 per week paid on a salary or fee basis. As of January 1, 2025, the total HCE annual compensation threshold increases to $151,164 per year including at least $1,128 per week paid on a salary or fee basis. And, as of July 1, 2027 HCE compensation thresholds will be raised every three years.

HCE exempt employees must also perform office or non-manual work as a primary duty and regularly perform one of the duties of an exempt executive, administrative, or professional employee. For example, a worker could be exempt from minimum wage and overtime protection if he meets the highly compensated earnings threshold and customarily oversees two or more workers, even if he doesn’t meet the other duties requirements in the EAP exemption test.

Notably, there are many other exemptions under the FLSA, including, for example, the computer employee exemption, outside sales exemption, retail sales exemption, creative professional exemption, and many others. Some do not require a salary basis test.

Conclusion

Whether you are a worker who has been misclassified as overtime exempt or an employer seeking clarification on the latest FLSA and NYLL overtime legislation, consult Employment Attorney Raymond Nardo for honest, professional , results-focused legal advice that can help you understand your rights, obligations and options.

What Rights do Domestic Employees have?

Thu, 30 Mar 2023 02:48:29 GMT

Understanding the Legal Rights of Domestic Workers in New York.

Domestic workers, including nannies, housekeepers, and caregivers, play a vital role in our economy, and they have rights under Federal and New York labor laws.

Coverage under New York Labor Laws

Domestic workers in New York are protected by the New York Domestic Workers' Bill of Rights, which was enacted in 2010. Under this law, domestic workers are entitled to a minimum wage, overtime pay, and safe working conditions. The minimum wage varies depending on the region, but is $15 per hour in downstate New York. Additionally, domestic workers must receive overtime pay at a rate of 1.5 times the regular hourly wage for hours worked in excess of 40 hours in a workweek.

Domestic workers must also receive one day of rest each week. If the worker is compelled to work on her day of rest, the worker must receive overtime pay for that day.

After one year of work, the domestic worker must have at least 3 paid days off.

Overtime Pay

Domestic workers are also entitled to minimum wage and overtime under the Fair Labor Standards Act and New York Labor Law for hours worked in excess of 40 hours per week. This means that if the domestic worker works more than 40 hours per week, and receives the same amount of pay for each week, the employer probably violated applicable wage and hour laws. However, an employer’s obligations differ for live-in domestic workers.

Live-in Domestic Workers

A “live-in” domestic worker is defined as an employee who spends at least 120 hours living and working on the employer’s premises, or one who spends five consecutive days on the employer’s premises.

An employer has different obligations to live-in domestic workers differ. First, they must be provided with appropriate sleeping accommodations in a separate room, with a bed and door. Second, under New York law, they must receive overtime under New York Law after 44 hours of work. Third, even though they are eligible for overtime under New York Law, live-ins are exempt from overtime under the Fair Labor Standards Act. Many domestic workers are being paid a flat rate for workweeks in excess of 40 or 44 hours per week, which violates wage and hour laws because such a wage does not include premium overtime pay.

Discrimination and Harassment

Domestic workers are also protected against discrimination and harassment in the workplace under State and Federal laws. It is illegal for employers to discriminate or harass an employee based on factors such as race, gender, religion, national origin, or disability.

Conclusion

Domestic workers in New York have unique legal rights and protections under State and Federal laws. It is crucial for employees to understand their rights. If you are a domestic worker and believe your rights have been violated, it is important to consult with an experienced employment attorney who can provide guidance and advocate for your rights.

Workplace Retaliation

Wed, 29 Mar 2023 01:10:14 GMT

Is My Employer Retaliating Against Me?

What good are rights in the workplace if you will be fired for exercising them?

The law protects employees who complain about discrimination and harassment in the workplace. Nevertheless, employer retaliation is still a reality and some managers do fire employees who exercise their workplace rights. Cases of retaliation can be both emotionally distressing and legally complex, so if you believe you’re experiencing retaliation, consult Employment Attorney Raymond Nardo . Attorney Nardo has extensive experience in cases of retaliation and has obtained millions of dollars in settlements for his clients. He can guide you through the legal process and protect your rights.

What is Workplace Retaliation?

In this blog post we will explore what workplace retaliation is, how to recognize retaliation, and what you can do about it. Retaliation occurs when an employer takes adverse action against an employee for engaging in a “protected activity.” To qualify as "protected activity," your underlying complaint must allege discrimination based on race, national origin, color, age, gender, disability, sexual orientation, or some other protected characteristic. According to the U.S. Department of Labor , “An adverse action is one which would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity.”

Retaliation can take many forms—from an employer taking adverse action against an employee for speaking out about a workplace issue, to a coworker seeking revenge against a colleague for reporting misconduct. Depending on the facts of your situation adverse actions can include:

- Negative performance evaluations despite no change in job performance.
Demotion, transfer, or a sudden change in job duties, workload, or responsibilities.
Pay cuts, loss of hours, or withholding pay.
Reassignment to a less desirable location.
Being passed over for a promotion despite meeting the qualifications.
Requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities. In fact, all employees are protected against employer retaliation regardless of immigration or citizenship status.
Taking (or threatening to take) a materially adverse action against an employee’s close family member.
Threatened or actual physical abuse against an employee.
Termination of employment.

Retaliation often takes place behind closed doors and can take more subtle forms:

Ostracism, harassment, unwarranted warnings or discipline, and/or being treated unfairly or differently from other employees.
Verbal abuse, threats or intimidation from a supervisor or coworker.
Micromanagement or more intensive critical supervision without justification.
Exclusion from training or development opportunities, meetings, or other work-related activities.

These actions can undermine an employee’s ability to work and could ultimately lead to “constructive termination,” where a company creates or allows conditions under which no reasonable person would continue to work, in effect forcing an employee to resign.

It’s important to remember that not all workplace disputes are necessarily cases of retaliation. For instance, a generalized complaint about being treated poorly or a personality conflict does not constitute "protected activity" and cannot form the basis of a retaliation claim.

Know Your Workplace Rights and Protections

Workplace retaliation often takes place behind closed doors, and may occur in subtle ways that are hard to document. However, there are some common, and even obvious, signs of retaliation that you should be aware of:

Sudden changes in job duties, workload, or responsibilities
Exclusion from meetings or other work-related activities
Negative performance evaluations, despite no change in job performance
Being treated unfairly or differently from other employees
Verbal abuse or threats from a supervisor or coworker
Demotion or being passed over for a promotion despite meeting the qualifications
Termination from employment

What to Do If You Experience Workplace Retaliation

If you believe you are experiencing workplace retaliation, there are steps you can take to protect your rights and seek redress:

Speak to your supervisor : If you feel comfortable, you can speak to your supervisor about the retaliation you are experiencing. He may be able to address the issue and help you find a solution.
File a complaint : You can file a complaint internally, with Human Resources, detailing the protected activity you engaged in and the corresponding adverse actions which constitute retaliation. They should investigate your claims and take appropriate action.
Contact an attorney : You may want to contact an attorney concentrating in Employment Law, who can advise you on your rights and help you pursue legal action.
Document everything : It is important to document your protected activity and all instances of retaliation, including the date, time, location, and individuals involved. This will help support your case if you need to take legal action.

Conclusion

Workplace retaliation is a serious issue that can have lasting and harmful effects on an employee's career and mental health. If you have been the target of workplace retaliation you know firsthand that it harms both employees and the company as a whole. If you believe you are experiencing retaliation, it is important to take action to protect your rights and seek redress. Consult experienced Employment Attorney Raymond Nardo for guidance on your next steps. Employment Attorney Nardo has litigated many claims of retaliation at the Equal Employment Opportunity Commission , the New York State Division of Human Rights and in Federal and State courts, he can help you assess your situation.

Overtime Exemptions of Truck Drivers under the FLSA: Understanding the Motor Carrier Act

Tue, 28 Mar 2023 01:20:00 GMT

What is the Motor Carrier Act Exemption and How Does it Apply?

Truck drivers play a critical role in the transportation industry, ensuring the delivery of goods across the country. They often spend long hours on the road, facing challenges such as irregular schedules and extended periods away from home.

Understanding the Motor Carrier Act Exemption

The Motor Carrier Act, a component of the Fair Labor Standards Act, outlines specific exemptions for truck drivers engaged in interstate commerce. This exemption recognizes the unique nature of the trucking industry, where drivers often spend long hours on the road, facing challenges such as irregular schedules and extended periods away from home.

However, not all truck drivers fall under the Motor Carrier Act Exemption. It’s important to know where you fit in, so that you can receive overtime pay if you’re entitled to it. If you have questions about the Motor Carrier Act Exemption, or any concerns regarding hourly wage or overtime, contact Employment Attorney Raymond Nardo, he can help you understand your rights.

Exemption Criteria

To be eligible for the Motor Carrier Act Exemption, truck drivers must meet the following criteria:

Engaged in Interstate Commerce: The exemption applies to drivers involved in the transportation of goods or passengers across state lines or those who support the transportation of goods in interstate commerce.

Regularly Engaged in Safety-Sensitive Activities : Truck drivers, driver’s helpers, and loaders who are responsible for regularly performing safety-sensitive activities are exempt. These safety-sensitive activities include driving, proper vehicle loading and unloading, and vehicle maintenance directly on vehicles to be used in transportation of passengers or property across state lines.

Exceptions to the Motor Carrier Act Exemption

Not all drivers fall under the Motor Carrier Act Exemption. Some fall under the protection of FLSA, and must be paid overtime by their employers. These include:

-Local drivers who operate solely within a single State
Employees who are not involved in “safety affecting activities” such as dispatchers, office personnel, those who unload vehicles, or those who load, but are not responsible for the proper loading of the vehicle.

Small Vehicle Exception

Also, the Motor Carrier Act Exemption does not apply to employees whose work centers around certain vehicles. According to the overtime provisions of the FLSA, employers are required to pay overtime to an employee of a motor carrier or motor private carrier, in any work week where:

The employee’s work, in whole or in part, is that of a driver, driver's helper, loader, or mechanic who affects the operational safety of motor vehicles weighing 10,000 pounds or less, in transportation on public highways or in interstate commerce or foreign commerce. Except vehicles:
(a) Designed or used to transport more than 8 passengers, including the driver, for compensation; or
(b) Designed or used to transport more than 15 passengers, including the driver, and not used to transport passengers for compensation; or
(c) Used in transporting hazardous material which requires placarding under regulations prescribed by the Secretary of Transportation.

Seeking Legal Advice

The Motor Carrier Act Exemption is complex and it’s crucial to understand your rights so that you don’t lose valuable overtime pay if you are entitled to it. If you have concerns or questions regarding employment rights, compensation, or working conditions, seeking legal advice from an attorney experienced in labor and employment law is crucial. Contact Employment Attorney Raymond Nardo for guidance. He can review employment contracts and collective bargaining agreements, and ensure compliance with applicable laws and regulations

Off-the-Clock Work

Mon, 27 Mar 2023 14:28:31 GMT

The Employee's Guide to Off-the-Clock Work: Protecting Your Rights

As an employee, it's important to understand your rights when it comes to off-the-clock work. Off-the-clock work refers to any tasks or duties performed outside of your regular working hours, for which you are not compensated. This is illegal. Unfortunately, many employers try to exploit their employees by requiring them to work off the clock.

What Constitutes Off-the-Clock Work?

Off-the-clock work can take various forms, including:

Pre- and post-shift tasks : If your employer requires you to perform any work-related activities before or after your scheduled shift, such as setting up equipment, cleaning up, or attending meetings, you should be compensated for that time.
Take-home work : Employers may sometimes expect you to take work home, such as paperwork, assignments, or projects. Any time spent on these tasks should be considered as work hours and should be compensated accordingly.
Unauthorized overtime : Some employers may discourage employees from reporting overtime hours, either by explicitly forbidding it or through implicit pressure. If you are working beyond your scheduled hours and not receiving overtime pay, it may be considered off-the-clock work.
Checking emails and messages : If your job requires you to be available outside of working hours to respond to emails, texts, or calls, you should be compensated for the time spent on these communications.

The Legal Implications

Off-the-clock work is illegal. The Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) mandate that employees must be paid for all hours worked, including overtime.

Employers who require or encourage off-the-clock work may face serious legal consequences, including fines, penalties, and lawsuits. It's crucial for employees to be aware of their rights and take appropriate action if they are being exploited by working off the clock without getting paid.

Protecting Your Rights

Off-the-clock work should not be taken lightly. As an employee, you deserve to be compensated for all the time and effort you put into your job. If you suspect that you are being asked to work off the clock or your employer is failing to compensate you for off-the-clock work, consider taking the following steps:

Document everything: Keep a record of all the hours you work, including any off-the-clock tasks or activities. Make note of the date, time, and nature of the work performed. The United States Department o Labor has an app called “Timesheet,” which enables you to track your time on your cellphone.
Seek legal assistance: Consult with Employment Attorney Raymond Nardo, who concentrates in labor and wage disputes. He can guide you through the legal process and protect your rights.

Have I been Misclassified as an Independent Contractor?

nardo@raynardo.com (Raymond Nardo) — Mon, 20 Mar 2023 11:53:49 GMT

Am I Misclassified as an Independent Contractor? Am I Really an Employee?

Companies often misclassify workers as “independent contractors,” when the workers are actually employees. This misclassification benefits the company and deprives workers of valuable rights. If you believe you have been misclassified as an independent contractor, it’s important to contact an experienced Employment Attorney.

WHAT IS AN INDEPENDENT CONTRACTOR?

An independent contractor is a person or company that provides goods or services under a contract or agreement. The key difference between an independent contractor and an employee is the “degree of control” that the company exercises over the worker. In general, an independent contractor has more control over their work and is responsible for managing their own work schedule, workspace, and tools. They are typically paid a fixed fee for their work and are responsible for their own taxes and insurance. Their hours are usually not set by the company, they usually do not work on company premises, they use their own tools and equipment, and they often have multiple clients.

WHAT IS AN EMPLOYEE?

On the other hand, an employee is hired by a company to perform specific tasks and is typically subject to much greater control and direction from the employer. Employees are often directed when and where to report to work, use company-owned tools and equipment, and receive benefits such as health insurance, retirement plans, and paid time off. The employer is responsible for withholding and paying taxes for employees. Thus, the classification of a worker as an independent contractor or employee is determined by the degree of control exercised by the employer, the level of

independence of the worker, the method of payment and taxation, and the nature of the work performed.

THE IMPACT OF MISCLASSIFYING EMPLOYEES AS INDEPENDENT CONTRACTORS

If you are an employee misclassified as an independent contractor, the employer could

be depriving you of:

● Minimum wage ($16 per hour in Downstate New York and $15 in the rest of the State), and overtime pay at the rate of time and one-half of your basic minimum hourly wage.

● Unemployment Insurance and Workers’ Compensation.

● Employee benefits, such as health insurance, PTO or a retirement plan.

● Other benefits or compensations enjoyed by those classified as employees.

Once again, if you believe you have been misclassified as an independent contractor, it’s important to contact an experienced Employment Attorney. Please contact Employment Attorney Raymond Nardo with your questions or concerns.

VICTORY: Large Chain Restaurant Violates Minimum Wage/ Tip Share Rules: Waitstaff Awarded Backpay

Wed, 15 Mar 2023 14:50:41 GMT

VICTORY: Large Chain Restaurant Violates Minimum Wage/ Tip Share Rules

BACKGROUND

Employment Attorney Raymond Nardo and co-counsel filed a class action lawsuit against several chain restaurants in New York State on behalf of wait staff who complained of the restaurants’ unlawful practice of compelling them to redistribute their tips to kitchen staff.

THE CASE

Under New York State law, wait staff “tipping out” or tip sharing with owners, managers, or kitchen personnel is expressly prohibited. The law safeguards tips paid to wait staff. The complaint alleged, among other things, that the restaurants unlawfully paid its waitresses below the minimum wage since it forced waitstaff to tip out to the kitchen staff, and compelled them to purchase uniforms with their own money. Through the diligent efforts of Employment Attorney Raymond Nardo, and co-counsel, numerous violations were exposed.

THE CONCLUSION

Following extensive legal proceedings, the lawsuit culminated in a significant settlement, marking an important victory for Attorney Nardo, co-counsel and the aggrieved waitstaff. This resulted in waitstaff receiving awards of rightful restitution in the form of back pay for lost wages. This resolution not only rectified the injustices experienced by the affected workers, but also sent a message regarding the imperative of adhering to labor standards within the industry.

This significant legal triumph emphasizes the indispensable role of vigilant legal advocacy in upholding the rights and dignity of workers. By holding accountable those who flout labor laws, such victories fortify the foundation of equitable employment practices and foster a culture of respect and fairness within the workplace.

Employment Attorney Raymond Nardo has extensive experience in legal advocacy on behalf of employees who face workplace disputes, and is focused on getting the best results for his clients.

The Law Office of Raymond Nardo offers consultations to address any questions or concerns.

Finding an Employment Lawyer in New York

Fri, 10 Mar 2023 17:51:44 GMT

You need an Employment Lawyer with Education and Experience

Employment Attorney Raymond Nardo graduated New York University School of Law in 1990. For more than 30 years, Attorney Nardo has sued airlines, banks, hospitals, universities, restaurants, and employers of all sizes, winning verdicts and achieving settlements on behalf of employees. He also teaches Labor & Employment Law at a State University. You can trust his knowledge and experience to guide you through a stressful and complicated process.

You need an Employment Lawyer who works on Contingency to recover money for you

Employment Attorney Raymond Nardo has free consultations and takes most cases on full contingency, so you don’t have to risk your money. Attorney Nardo focuses on obtaining successful outcomes for his clients. He has recovered millions of dollars in Class actions, Collective actions, and Individual cases.

You need an Employment Attorney with a Track Record of Success

Employment Attorney Raymond Nardo has won arbitrations, hearings, trials, and jury verdicts for employees. Hundreds of employees have trusted Mr. Nardo with their cases. In fact, a federal judge wrote, in a published opinion, that: "[t]he trial advocacy of Raymond Nardo, for the plaintiff and [attorneys] for the defendant, was outstanding. The trial attorneys were well-prepared, conscientious, diligent, and, equally important, courteous and ethical in upholding the traditions of our profession."

You need an Employment Attorney Who is a Fighter

Employment Attorney Raymond Nardo fights for your rights with passion so that you can get the compensation you deserve. Due to his no-nonsense approach, Attorney Nardo has won verdicts in Federal Court, and awards, at quasi-judicial agencies, such as the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights ("NYSDHR").

VICTORY: Suffolk County Dental Office Found Liable for Pregnancy Discrimination by New York State Division of Human Rights, with an award of more than $100K in Damages

Sun, 15 Jan 2023 15:48:48 GMT

VICTORY: NYS Division of Human Rights Awards six figures for Pregnancy Discrimination

BACKGROUND

An employee, who had worked for a dental office in Suffolk County for less than a year, found her position terminated approximately 10 days after she disclosed her pregnancy at the workplace. She had depended on her job to help support her family. Now, a time which should have been full of the anticipation and joy of bringing a new life into the world turned into a nightmare of anxiety and financial distress. Seeking recourse, she decided to turn to Employment Attorney Raymond Nardo for help.

THE CASE

Attorney Nardo took immediate action, filing a charge of discrimination with the New York State Division of Human Rights (NYSDHR) on behalf of the aggrieved employee. Following a thorough investigation into the pregnancy discrimination charge, and hearings involving testimony from both the employee and the employer, the NYSDHR issued a "probable cause" finding, affirming that discrimination had indeed occurred. A "probable cause" finding indicates that there is a reasonable belief or likelihood that discrimination has occurred, which then results in a hearing. Attorney Nardo’s capable handling of the case resulted in a hearing.

THE CONCLUSION

At the hearing, nearly a dozen witnesses testified, undergoing rigorous examination and cross-examination. After careful consideration of the evidence presented by Employment Attorney Raymond Nardo, the Administrative Law Judge delivered a momentous decision, awarding the plaintiff a total sum exceeding $100,000 in damages!

This ruling highlights the vital role of organizations like the NYSDHR in upholding the rights of workers who have been discriminated against, and serves as a powerful reminder of the importance of retaining top notch legal counsel when attempting to combat workplace discrimination

What is Mediation?

nardo@raynardo.com (Raymond Nardo) — Fri, 30 Dec 2022 11:33:59 GMT

What will happen at Mediation?

What is mediation?

The whole point of mediation is to achieve a favorable settlement. It’s as simple as that. A mediator is trained to facilitate or manage settlement negotiations. A mediator is “neutral,” and doesn’t favor one side over the other. The mediator focuses attention on the real issues which divide both parties and assists the parties in reaching a common ground. Mediation is voluntary, although sometimes a trial judge orders the parties to mediate their differences.

What mediation is not .

Mediation is not a trial or hearing. A mediator is neither a judge, nor an arbitrator. The mediator does not make an order or ruling. A mediator will not decide who is right or wrong (although the mediator may discuss the strengths and weaknesses of the case). A mediator will not give legal advice (although the mediator may discuss law and court procedures). No one testifies under oath. There is no court reporter present. A mediation session is not public.

Mediation agreement.

Everyone who attends the mediation signs the mediation agreement. This agreement is written by the mediator and sets the ground rules. The agreement indicates that all discussions are confidential. What is said during the mediation cannot be used against at trial. If mediation is to succeed, both sides must understand that they can speak freely and frankly to the mediator and to each other. That is why all statements are confidential. Sometimes the mediator may encourage a party to reveal sensitive information to the other side in hopes that it might break a logjam in negotiations.

Initial joint session .

Many times (but not always) a mediator holds an opening meeting of the parties and their lawyers. The mediator explains the ground rules. The mediator may ask lawyers to describe their clients’ position. The mediator may ask questions to clarify matters or gain an understanding of the facts.

If the mediator does not hold a joint session but separates the two sides at the outset, the mediator will explain the process and go over the agreement in the initial meeting with each side.

Caucus .

After the joint session, the parties move to separate conference rooms. This is called “caucusing.” At the initial session, the mediator will ask questions about the case – and the employee can tell the mediator how he or she was treated, and how he or she was damaged. The mediator then meets separately with the employer in its caucus room and gets their version of the facts. In each meeting, the mediator endeavors to get a more complete picture of the facts, arguments, and claims of each side.

One of the most important duties of a mediator is to force each side to re-examine its position. Frequently a party will enter mediation with a feeling of great certainty and confidence in its position. A skilled mediator impresses each side that absolute certainty is never possible in a lawsuit, and that there are great benefits to settlement.

As the process continues, the mediator receives settlement proposals from both sides. The mediator “shuttles” between the two conference rooms. A creative mediator initiates creative settlements. Remember, one of the functions of the mediator is to dislodge the parties from entrenched positions, and encourage both to be flexible and realistic about resolving differences. In other words, a skilled mediator acts as “devil’s advocate.” Mediation is a superb “reality check” for parties with unrealistic expectations.

An experienced mediator will not say how much a case is worth, but may guide the parties about counterproposals. The mediator is like a referee who stands in the middle of the settlement arena and tries to accommodate the differences between the parties.

Settlement .

As the day passes, the mediator spends less time learning the facts and more time proposing and exchanging terms of settlement. In a successful mediation, the differences between gradually narrow until, eventually, settlement is reached.

What happens if mediation fails? If mediation fails, the parties continue litigation.

Benefits of mediation .

First, the mediator is an impartial, neutral – a trained professional who views the dispute objectively and can assist the parties in discussing and reaching a creative solution. Second, mediation is quick -- usually the parties will know whether the case will be settle by the end of the day, if not before. Third, mediation is confidential or secret. No judge or jury publicly decides the outcome. Fourth, mediation saves money. If properly timed, a successful mediation can save the two sides substantial attorney’s fees, deposition costs, expert witness fees and the like. Fifth, mediation brings an end to litigation which often is destructive because it forces employees to relive very unpleasant experiences. Mediation is a process that both sides can control.

Employment Attorney Raymond Nardo frequently participates in mediation on behalf of his clients.

What Does It Mean if My Case Has to Go to Arbitration?

nardo@raynardo.com (Raymond Nardo) — Sat, 29 Oct 2022 10:57:01 GMT

Does my case have to go to Arbitration? What does that mean?

On your first day at work, amid a flurry of administrative tasks like filling out tax forms and getting acquainted with company policies, there might have been one document that slipped under your radar: an arbitration agreement. This agreement, often bundled with the numerous forms handed to new hires, holds a lot more weight than most employees would imagine.

The pervasive adoption of arbitration agreements by employers has reshaped the landscape of workplace disputes. Today, an arbitration agreement is often a mandatory prerequisite to being hired, and not signing one could impact current or future opportunities with the company.

What is Arbitration?

Arbitration, as enacted by the Federal Arbitration Act (FAA) in 1925, is a viable legal process for resolving conflicts outside the conventional courtroom. Instead of a trial by jury, workplace disputes are adjudicated by an arbitrator who is often selected through mutual agreement of the parties involved. Arbitration may be favored by the courts because it can reduce the number of cases coming to trial.

What is in an Arbitration Agreement?

Waiver of Rights : By signing an arbitration agreement, an employee agrees not to pursue any legal action against the employer in a court of law and waives the right to trial by jury. Instead, disputes must be resolved under the adjudication of an arbitrator.

Specific Rules: Arbitrations operate under pre-established rules set by arbitral forums such as the American Arbitration Association or JAMS, another organization specializing in arbitration.

Quicker Turnaround : Arbitration generally takes less time and is less formal than a trial. The rules of evidence are relaxed.

Appeals : Once an arbitrator renders a decision, it is very difficult to reverse and subject to very narrow grounds for appeal.

Confidentiality: Decisions rendered by arbitration are often confidential and the details of the dispute may not be made public.

Class Action Waivers: Arbitration agreements prevent an employee from filing a class-action or collective action against the company; this means the employee must pursue an individual action and may not pursue legal action collectively with other affected individuals.

Financial Concerns: As in traditional litigation, there are potential financial costs to arbitration, including filing fees, and arbitrator fees. Except for the filing fee, the employer usually bears these expenses.

Legal Counsel : Given the complexity of arbitration and its potential implications, it is crucial for employees to have recourse to knowledgeable, professional legal counsel.

Employment Attorney Raymond Nardo has extensive experience in arbitration on behalf of employees who face workplace disputes, and is focused on getting the best results for his clients.

VICTORY: NYS Division of Human Rights Awards Franchise Employee More Than $40,000 in Sexual Harassment Damages

Sat, 20 Aug 2022 14:45:40 GMT

NYS Division of Human Rights Awards Franchise Employee More Than $40,000 in Sexual Harassment Damages

BACKGROUND

An employee, who worked at two franchises owned by the same individual, sought legal recourse against sexual harassment in the workplace. Retaining the services of Employment Attorney Raymond Nardo, she pursued litigation to address the misconduct.

THE CASE

With the help of Attorney Nardo, she filed a charge of discrimination at the New York State Division of Human Rights (NYSDHR), initiating a legal process to address her grievances. Subsequently, the investigator found probable cause that discrimination occurred, leading to the advancement of the case for a hearing.

During the proceedings, the Administrative Law Judge (ALJ) presided over testimonies and evidence presented by both parties. Witnesses underwent rigorous direct and cross-examinations, contributing to a comprehensive study of the case.

Employment Attorney Raymond Nardo had carefully prepared the Complainant’s case, exposing the toxic nature of the workplace on the basis of sex and the hostile work environment. He proved that "other co-workers subjected Complainant to an offensive, sexually charged work environment that was degrading to women." The workplace included, "degrading, sexually explicit drawings [which] depicted male genitalia, sexual acts, and vulgar expressions," and a boss who "spoke openly about his sex life at work, made sexually explicit comments about women in Complainant's presence, and showed pornographic videos to Complainant on his cell phone."

THE CONCLUSION

Attorney Nardo had made the case abundantly clear that the Complainant had worked in an environment full of degrading, sexually explicit materials and behavior. Following this thorough legal battle, the New York State Division of Human Rights awarded Complainant $27,359 in backpay and $15,000 in compensatory damages.

For individuals facing similar challenges or seeking legal advice, consultations with Employment Attorney Raymond Nardo are available.

AMENDMENT TO NEW YORK LABOR LAW EXPANDS WHISTLEBLOWER PROTECTIONS

nardo@raynardo.com (Raymond Nardo) — Fri, 29 Jul 2022 20:54:42 GMT

THE 2022 AMENDMENT TO NEW YORK LABOR LAW

In 2021, New York Governor Hochul signed an amendment to Section 740 of the New York Labor Law (NYLL). The amendment, which went into effect in 2022, benefits whistleblowers by offering them robust protections against employer retaliation. The legislation is complex and has a significant impact on both employees and businesses, so it is crucial to seek expert guidance. If you have questions or concerns regarding how the legislation could affect your workplace, consult Employment Attorney Raymond Nardo

THE IMPACT OF THE AMENDMENT

Expanded Definition of “Employee”: One way that the amendment expands whistleblower protection is by redefining the term “employee.” Prior to the amendment, the definition of employee was someone who performed “services for, and under the direction and control of, an employer for wages or other remuneration.” Under the amendment, "employee" also includes contractors and former employees. Significantly, whistleblowers are protected from employer retaliation whether or not an alleged violation is within the scope of their official duties.

Expanded Definition of “Law, Rule or Regulation” and “Retaliatory or Adverse Action”: Prior to the amendment, the definition of “law, rule or regulation” was limited to “any duly enacted statute or ordinance or any rule or regulation promulgated pursuant to any federal, state or local statute or ordinance.” Under the amendment, “law, rule or regulation” also includes executive orders and judicial or administrative decisions, resulting in a wider array of potentially reportable employer violations.

"Retaliatory or adverse action" has also been expanded to include:
actual or threatened adverse employment actions;
actions that would adversely impact future employment; or
the reporting of the suspected citizenship or immigration status of employees, their family or their household members.
Strengthened Protections for Employees Who "Reasonably Believe" a Violation Occurred: Prior to the amendment, if an employee alleged that his or her employer had violated a law, rule or regulation, whistleblower protections applied only if the employee could provide proof the violation had actually occurred. Under the amendment, employees are protected from retaliation if they disclose or threaten to disclose an employer practice which they "reasonably believe" violates a law or poses a substantial and specific danger to public health or safety. This covers employees who provide information or testimony to public bodies, as well as those who intentionally refuse to participate in such investigations or hearings.

Relaxed Internal Disclosure Requirement: Prior to the amendment, whistleblowers were required to disclose alleged violations to their employer before reporting them to a public body. Under the amendment, whistleblowers must make a "good faith effort" to internally disclose an alleged violation. However, the amendment allows whistleblowers to omit internal disclosure entirely in the event that:
There is an imminent and serious threat to public health and safety;
The employee reasonably believes prior notification of employer will result in the destruction of evidence or concealment of the activity, policy or practice;
Such activity could reasonably be expected to endanger a minor;
The employee reasonably believes that prior notification of an alleged violation will result in physical harm to the employee or another person; or if
The employee reasonably believes the employer is already aware of the unlawful or harmful practice and will not correct the practice if reported.

Enhanced Plaintiff Entitlements and Relief: Prior to the amendment, whistleblowers had one year to file a retaliation claim against an employer and were denied a jury trial. Under the amendment whistleblowers are entitled to two years to file a retaliation claim and are entitled to a jury trial. The amendment also provides successful plaintiffs with the following forms of relief:
injunctive relief;
reinstatement to the same or an equivalent position;
reinstatement of full fringe benefits and seniority rights;
compensation for lost wages and benefits;
reasonable costs and attorneys’ fees associated with bringing the action;
front pay in lieu of reinstatement;
a civil penalty of up to $10,000 and
punitive damages where the employee can prove that the employer’s violation was willful, malicious, or wanton.
Publication: Finally, the statute now requires employers to “inform employees of their protections, rights and obligations under this section, by posting a notice thereof,” which “shall be posted conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”

CONCLUSION

In short, the amendment to New York labor law expands whistleblower protections against employer retaliation and thereby employees may be encouraged to report illegal or unsafe employer practices. Nevertheless, blowing the whistle on an employer can be intimidating. Thankfully, access to experienced legal counsel can help whistleblowers successfully speak out against workplace violations. Employment Attorney Nardo has won jury trials and secured millions of dollars in settlements for both employer and employee clients. If you reasonably believe your employer is engaged in unlawful activity or that your employer has retaliated against you for reporting illegal activity, consult Employment Attorney Raymond Nardo for honest, professional, results-focused legal advice that can help you understand your rights and options.

Understanding the Family Medical Leave Act (FMLA)

Thu, 16 Jun 2022 18:33:37 GMT

Understanding the Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA), enacted February 5, 1993, offers crucial job-protected leave for medical or family reasons. This federal legislation affords employees protection to balance work-life with health-related challenges.

What is the Purpose of the FMLA?

The aim of FMLA is to allow employees to balance work commitments with familial and medical life-changing events. It allows eligible employees to take unpaid leave without fear of job loss or other workplace retaliation. Though FMLA leave is unpaid, the employee may be paid accrued leave-time, subject to an employer's policies.

Eligibility

To be eligible for FMLA benefits, you must meet the following criteria:

You must have worked for the employer for at least 12 months, which need not be consecutive.
You must have worked at least 1,250 hours during the 12-month period immediately preceding the FMLA leave.
You must work at a location where the employer employs at least 50 employees (within a 75-mile radius).

What Events Qualify for FMLA Leave

FMLA provides leave for various qualifying circumstances, including:

● Management of an employee's own serious health condition.

● An employee’s need to provide care for a spouse, child, or parent grappling with a serious health condition.

● Parental leave to accommodate the birth, adoption, or foster care placement of a child.

● Qualifying circumstances arising from the deployment of a covered military member.

● Employee support of a covered military service member grappling with a serious injury or illness.

Rights and Protections under the FMLA

Employees availing themselves of FMLA leave are entitled to:

● Job protection, ensuring reinstatement to the same or equivalent position upon return.

● Continuation of health benefits equivalent to those during active employment.

● Accrual of employment benefits such as seniority and vacation time during the leave period.

● Protection from retaliation for asserting FMLA rights or taking leave.

Requesting FMLA Leave

To initiate FMLA leave, employees should:

● Provide advance notice to their employer whenever possible, or notify promptly if the leave is unforeseen.

● Complete requisite documentation, which may include medical certification or other substantiating evidence.

● Maintain thorough records of all communications related to FMLA leave for future reference.

Seeking Legal Help

In cases where employers fail to grant FMLA leave or engage in retaliatory actions, seeking legal counsel is imperative. Employment Attorney Raymond Nardo, with extensive experience in litigating FMLA cases, stands ready to advocate for employees' rights and ensure fair treatment in the workplace.

VICTORY: Pregnancy Discrimination Award at New York State Division of Human Rights

Wed, 15 Jun 2022 14:48:42 GMT

VCITORY: Pregnancy Discrimination Award at New York State Division of Human Rights

An employee worked for a dentist in Suffolk County for less than one year. The dentist terminated her approximately 10 days after she disclosed that she was pregnant. At a time when she was supposed to be filled with joy about bringing a new life into the world, she was beset with anxiety and financial problems. Employment Attorney Raymond Nardo filed a charge of discrimination at the New York State Division of Human Rights ("NYSDHR").

After an investigation of the charge of discrimination, the employer's position, and an interview of both sides, the New York State Division of Human Rights issued a "probable cause" finding that discrimination occurred, and set the matter down for a hearing.

After nearly a dozen witnesses testified and were examined and cross-examined at the hearing, the Administrative Law Judge issued an award to totaling more than $100,000.

VICTORY! EEOC Rules in Favor of Employee Denied Promotion at OSHA: Awards Back Pay, Pain and Suffering Damages, Attorney Fees

Sun, 15 May 2022 14:48:49 GMT

VICTORY: EEOC Awards Damages for Failure to Promote at OSHA

THE BACKGROUND

Following an unjust denial of a promotion by his employer, an employee working at the Occupational Safety and Health Administration (OSHA), a Federal Agency, sought legal counsel from Employment Attorney Raymond Nardo.

THE CASE

Employment Attorney Ray Nardo meticulously prepared the employee’s case, aware that all evidence would be thoroughly tested. A period of discovery ensued, leading to a trial before an Administrative Judge appointed by the Equal Employment Opportunity Commission ( EEOC ). Throughout the proceedings, witnesses from both sides were presented, examined and cross-examined.

THE CONCLUSION

After careful deliberation, the Administrative Judge delivered a written ruling in favor of the employee, affirming that he had been unlawfully denied a promotion which he deserved. As part of the ruling, the Administrative Judge mandated the employee's promotion to the supervisory position he had been denied, along with retroactive back pay to compensate for the lost opportunities and financial hardships endured during this period.

In addition, recognizing the emotional toll inflicted upon the employee due to the unjust treatment, the Administrative Judge also granted compensatory damages for pain and suffering. Furthermore, in acknowledgment of the diligent advocacy provided by Employment Attorney Raymond Nardo, the Administrative Judge awarded that OSHA pay his counsel fees.

This significant victory not only rectifies the injustice suffered by the employee, but also serves as a testament to the effectiveness of the EEOC's adjudicatory process in addressing instances of employment discrimination and promoting a fair and equitable work environment.

It also underscores the vital role of expert legal counsel in safeguarding the rights and interests of workers against discriminatory practices in the workplace, especially in cases where an individual employee has a dispute against a powerful government agency, like OSHA.

What is Employment At Will?

Tue, 10 May 2022 15:44:35 GMT

Employment At Will

One of the fundamental principles that guides employment in New York is the concept of "Employment at Will." The employment at will doctrine emerged in the 19th century as a reflection of the laissez-faire economic principles prevalent at the time. Under this doctrine, employers had broad discretion to hire and fire employees without providing a reason. In New York, this age-old doctrine has great implications, and important considerations, for both employees and employers.

Defining Employment at Will

Employment at will is a legal doctrine that establishes the right of employers to terminate an employee's employment at any time, with or without cause, or notice. Similarly, it grants employees the freedom to resign from their positions without providing a reason or advanced notice. This means that, by default, an employment relationship in New York State is presumed to be at will, unless otherwise specified in an employment contract, collective bargaining agreement, civil service, or by other applicable laws.

Key Implications for Employees

While employment at will provides employers with significant flexibility, employees must understand and protect their rights and interests. Here are some important considerations:

Termination without Cause : Under employment at will, an employer can terminate an employee's job without notice and without providing a specific reason. But illegal motives for termination are still prohibited under various Federal or State laws which protect employees from discrimination and termination based on their race, color, gender, religion, age, disability, sexual orientation, retaliation, and other protected characteristics.
Whistleblower Claims : Aside from statutory claims of discrimination, Federal and State whistleblower laws prohibit terminations based on an employee's refusal to engage in illegal activities, or for reporting illegal conduct in the workplace.
Contractual Protections : Employees may have their own individual employment contracts, or be subject to union collective bargaining agreements, which modify the terms of their employment. These agreements can include provisions that require “cause” for termination or establish specific notice periods.
Other Exceptions : There may also be public policy exceptions and implied covenants of good faith and fair dealing to counter the employment at will doctrine.

Seeking Legal Advice

The doctrine of employment at will effectively prevents employees from suing for wrongful termination, unless the employee has evidence of discrimination based on a characteristic protected by law, or a whistleblower claim, or some other statutory claim. Employees who have concerns about their employment status, or believe they have been wrongfully terminated, should contact Employment Attorney Raymond Nardo, who can evaluate the specific circumstances, review relevant laws and contracts, and provide guidance on potential legal actions or negotiation strategies.

VICTORY: NYS Division of Human Rights Awards Damages for Race Discrimination

Sun, 30 Jan 2022 15:45:42 GMT

VICTORY: NYS Division of Human Rights Awards Damages for Race Discrimination

THE BACKGROUND

An employee became aware that he was discriminated against at work due to his racial background. He made the decision to contact Employment Attorney Raymond Nardo and enlist his services to pursue litigation for his claim of race discrimination in the workplace.

THE CASE

Employment Attorney Raymond Nardo filed a charge of discrimination. The New York State Division of Human Rights conducted a thorough investigation into the matter and subsequently determined that there was "probable cause" to believe that discrimination had occurred. The fight was not yet over, however. Attorney Nardo presented, examined, and cross-examined witnesses. His expertise was crucial during the hearing.

THE CONCLUSION

The Administrative Law Judge ruled that the company had indeed fostered a racially discriminatory and hostile work environment. As a remedy, the Judge awarded the employee $15,000 in compensatory damages, recognizing the emotional and professional harm caused by the employer’s discriminatory practices.

This case highlights the importance of legal representation in ensuring fair and equitable treatment for all employees in the contemporary workplace. Employment Attorney Raymond Nardo offers consultations to address any questions or concerns about workplace discrimination.

VICTORY: Post Office's Failure to Promote is Discriminatory

Sat, 15 Jan 2022 15:45:41 GMT

VICTORY: Post Office's Failure to Promote is Ruled Discriminatory

THE BACKGROUND

An employee of the United States Postal Service (USPS) sought a promotion but was denied despite possessing the requisite qualifications and track record within the postal service. Suspecting discriminatory practices, the employee sought legal representation and retained Employment Attorney Raymond Nardo to address the issue.

THE CASE

Under the representation of Employment Attorney Raymond Nardo, the employee’s case proceeded to litigation before an Administrative Judge ("AJ") at the United States Equal Employment Opportunity Commission ( EEOC ). Following a period of discovery, a two-day hearing ensued during which witnesses were sworn in, examined, and cross-examined to ascertain whether discrimination influenced the denial of the promotion to the plaintiff.

THE CONCLUSION

Attorney Nardo’s client emerged victorious as the AJ ruled in favor of the employee. The ruling determined that discrimination had indeed occurred, evidenced by the USPS selecting a less qualified female candidate for the promotion instead. Consequently, the AJ reinstated the employee to the position retroactively, along with awarding back pay. Additionally, the USPS was ordered to pay counsel fees to Employment Attorney Raymond Nardo, marking a significant triumph for the client who had been unjustly overlooked for a promotion due to workplace discrimination.

Recent inquiries have surfaced regarding the definition of discrimination and the role of affirmative action in contemporary workplaces. For those seeking clarification or legal counsel on such matters, Employment Attorney Raymond Nardo offer consultations to address any questions or concerns..

VICTORY: Long Term Disability Awarded to Injured Employee

Thu, 30 Dec 2021 15:50:04 GMT

Insurance Carrier Must Continue to Pay Injured Employee Long-Term Disability

BACKGROUND

A seriously injured employee collected long-term disability benefits from an insurance carrier for several years. The insurance company suddenly stopped his benefits, claiming that he could perform "sedentary" work despite his debilitating back injury. He sought the expert legal counsel of Employment Attorney Raymond Nardo in the hope of regaining his disability benefits.

THE CASE

Employment Attorney Raymond Nardo agreed to represent the injured employee. The long-term disability carrier compelled that the disability claim be arbitrated . In arbitration, the arbitrator acts in the place of a judge and makes binding decisions about evidence and the ultimate outcome of the case. Attorney Nardo had to prove to the arbitrator that the decision of the Disability Committee was "arbitrary and capricious" under the Employment Retirement Income Security Act ("ERISA"). The arbitrator heard evidence from both parties in the form of testimony and documents, including Attorney Nardo's cross-examination of the Independent Medical Examination physician. Based on the evidence and testimony presented, the arbitrator awarded the injured employee full long-term disability benefits both retroactively and for the future.

CONCLUSION

This case illustrates the crucial role of legal advocacy in fighting for an injured employee’s disability benefits. If you have been receiving long-term disability and your insurance carrier suddenly denies your benefits, contact Employment Attorney Raymond Nardo for honest, expert , results-focused legal advice. Attorney Nardo has obtained millions of dollars in settlements for his clients. He can guide you through the legal process and protect your rights.

VICTORY: Federal Court Reinstates Long Term Disability Award

Tue, 02 Nov 2021 14:48:47 GMT

Background

A disabled woman faced the sudden termination of her long-term disability benefits, which were provided through her former employer’s long-term disability carrier. She was unable to work due to a chronic, degenerative condition, so she relied on these benefits to support herself. During this difficult time, she turned to Employment Attorney Raymond Nardo for assistance.

The Case

Attorney Nardo took swift action by filing a lawsuit in the United States Federal Court for the Southern District of New York on behalf of his client. The lawsuit alleged that the insurance company had arbitrarily and capriciously terminated her long-term disability benefits. Despite recognizing the challenges associated with winning such a case, Attorney Nardo meticulously assembled evidence to support the validity of the legal claims, establishing that his client was indeed entitled to continued benefits. Thanks to his expertise, the case progressed successfully to the discovery phase, during which each party had the opportunity to gather evidence through methods such as requests for documents and depositions. It was hoped that the case could be settled out of court, which would save time, money, and stress during an already challenging time for his client.

Conclusion

The case was tried in Federal Court. The Federal Judge ruled in her favor, restoring her long-term disability benefits retroactively to the date that the company terminated them. Additionally, the defendant was ordered to cover all legal fees incurred throughout the process, marking a significant victory for the client, and affirming the importance of legal advocacy in safeguarding individuals' rights, especially in challenging circumstances like disability benefit disputes.

Am I Entitled to Spread of Hours Pay in New York?

Tue, 01 Jun 2021 14:29:23 GMT

What is "Spread of Hours" Pay?

When it comes to fair compensation, it's crucial to understand Spread of Hours Pay, which is codified at 12 NYCRR § 146-1.6. Spread of Hours pay refers to the additional compensation that employees in New York are entitled to receive when the workday extends over a significant period, including non-consecutive hours. This provision is designed to ensure that employees are fairly compensated for irregular work schedules that may lead to extended workdays.

Applicability of Spread of Hours Pay

Spread of Hours pay applies when an employee's total amount of time at work equals or exceeds ten hours, including all breaks. It is important to note that the spread of hours pay is calculated separately from overtime pay. Even if the total hours worked in a day, or a week, do not qualify for overtime, an employee may still be eligible for spread of hours pay. For instance, if your workday starts at 10:00am, and then you have a break from 1:00pm to 3:00pm, and then you work until 8:00pm, you would have worked a total of 8 hours. But the “spread” of hours worked is from 10:00am to 8:00pm, which is 10 hours, so you would be entitled to an extra hour of pay, at the basic minimum hourly wage, which is currently $16 per hour in Downstate New York.

Importance of Compliance

Compliance with Spread of Hours pay regulations is crucial to compensate employees fairly. Failure to provide the required compensation may result in legal consequences and financial penalties.

Employees should be aware of their rights regarding spread of hours pay and contact an Employment Attorney if they believe they are not being adequately compensated for extended workdays.

Employment Attorney Raymond Nardo handles cases for employees who are denied spread of hours pay. Employees may be entitled to remedies of lost pay, liquidated damages (in the same amount of the backpay, if the employer’s conduct is intentional), and counsel fees.

VICTORY: Court Orders Wrongfully Terminated Employee to Return to Work!

Mon, 02 Nov 2020 15:50:05 GMT

VICTORY: Employer Ordered to Put Employee Back to Work!

BACKGROUND

Employment attorney Ray Nardo waged two legal battles to secure the reinstatement of an employee at a private school. The employee, working under an agreement implying tenure, faced termination by the school district, which claimed she was an at will employee.

THE CASE

In response, Mr. Nardo filed an Article 78 petition in the Supreme Court of the State of New York. Article 78 is a tool to challenge actions or inactions by New York State and local government agencies. It can be used against various entities, including private companies operating under statutory authority. In this case, the Supreme Court of the State of New York ruled in favor of the employee, acknowledging her tenured status and ordering her reinstatement—with back pay. However, the private school appealed the Supreme Court’s decision. Undeterred, Mr. Nardo fought for his client a second time, and the *Appellate Court* reaffirmed the employee’s tenured status, ordering her reinstatement with back pay.

CONCLUSION

This victory, where an employee returned to work through Article 78 proceedings, underscores the importance of legal expertise in workplace disputes. The case exemplifies the power of attorney perseverance and the role of legal advocacy in upholding individuals' rights amid unjust termination. In cases like this one and many others , Employment Attorney Raymond Nardo guides clients through the complex landscape of seeking justice in the modern workplace.