Some Employers Just Don't Get It
The “me too” movement. The criminal conviction of Harvey Weinstein. Changes in laws that make it easier for employees to recover damages for sexual harassment in the workplace.
These developments have had a significant impact on both the number of sexual harassment cases being filed, and on the amounts being paid by employers who have not gotten the message.
Yet, sexual harassment is still a major problem at companies in New York. Surveys report that between 20% and 30% of women are sexually harassed at work at some point during their careers.
Thousands of employees file complaints of sexual harassment in the workplace every year. Many of these cases settle on a confidential basis before trial, and the ones that go to trial often result in very significant compensatory and punitive damages awards.
So, What Is Sexual Harassment Exactly?
Sexual harassment is not asking a co-worker if they want to go out on a date, or complimenting their new jacket, or asking if they want to have a cup of coffee. It is not one offensive comment or joke.
Sexual harassment is a pattern of unwelcome comments or conduct that results in adverse employment actions or creates a hostile work environment.
The harassment may be blatant. It may involve unwanted sexual advances, unwanted touching, or demands for sexual favors.
The harassment may also be subtle and have nothing to do with sex. A supervisor who makes derogatory comments about women, or who constantly comments about their appearance, can create a hostile work environment without ever mentioning sex.
The harassment does not have to be directed at women. Men can be sexually harassed. Individuals who do not fit into gender stereotypes can be harassed. Whatever your gender or gender identity, the law protects you from sexual harassment and a hostile work environment.
The harassment does not have to be directed at you personally. When one woman is being sexually harassed, for example, it can result in a hostile work environment for all women.
Sexual harassment is a form of employment discrimination. It occurs when the harassment is based on your sex, gender, or gender identity. It becomes illegal – and you have a claim for compensatory and punitive damages – when the comments or conduct result in adverse employment actions or create an environment that is hostile or intimidating.
How to Respond to Sexual Harassment
Sexual harassment or a hostile work environment can cause emotional and psychological harm, including stress, depression and anxiety. You may experience decreased confidence and self-esteem. Physical health problems can include loss of sleep, appetite, weight fluctuations, nausea and headaches. Sexual harassment can also have a negative impact on your job performance and career trajectory.
For these reasons, it is important to act promptly when faced with sexual harassment or a hostile work environment. Do not let the harassers wear you down. Get support from a family member or close friend. Talk to them about what is happening at work. Having someone on your side will give you the strength and confidence you need to make smart decisions.
Consult with an experienced employment lawyer. If you are still working for your employer, we can demand that they take steps to stop the harassment and warn them against any retaliation. If you have been fired or quit, we can help you understand your rights and develop a case for compensatory and punitive damages.
Do not delay. There are strict time limits to file a claim. Call us today at (212) 601-2728 to schedule a free and confidential consultation with one of our experienced lawyers.
Are You Eligible for a Whistleblower Reward?
Medicare and Medicaid fraud is a serious problem. The government loses billions of dollars every year due to fraudulent claims. The fraud is almost impossible to uncover without help from insiders who have access to information about and evidence of the fraud.
That is where the whistleblower laws come in. Every year, the government pays hundreds of millions of dollars to whistleblowers who help uncover Medicare and Medicaid fraud. Under the False Claims Act, you are entitled to between 15% and 30% of the amount the government recovers as a result of the information and evidence you give them.
How Do You Become a Whistleblower?
First, you must be the “original source” of information about the fraud. In other words, you must have information that is not publicly available. And you must provide it to the government voluntarily, before the government serves you with a subpoena or otherwise asks you to turn it over.
Second, you must have evidence. A "tipster" is someone who “knows” or “suspects” that their employer is submitting false claims to Medicare or Medicaid. They are entitled to a big thank you. A "whistleblower" is someone who has evidence of the false claims. This may include medical records, billing records, emails, recorded conversations, or your own observations. By turning over that evidence to the government, the whistleblower becomes eligible for a financial reward.
Third, you must not be the perpetrator of or a participant in the fraud. If you participated in the fraud, a good criminal defense lawyer may be able to help you cut a deal with prosecutors in return for your cooperation, but you will not be eligible for a reward. Whistleblower rewards are given to those who help uncover the fraud, not to those who perpetrated or participated in it.
Fourth, you must have an attorney who is experienced with the whistleblower laws. In New York, you are not allowed to file a whistleblower complaint on your own. Nor would you want to try. The process of filing a whistleblower complaint under seal and providing your evidence to prosecutors is extremely complex. One mistake and you could lose your right to a reward.
Fifth, you must not disclose your whistleblower claim to anyone other than your lawyer. Your whistleblower complaint will be filed under seal (that is, in secret). The secrecy allows the government to gather evidence and prepare the case before the perpetrator of the fraud knows that they are under investigation. If you disclose your whistleblower complaint to anyone other than your lawyer, the court may dismiss your claim and disqualify you from receiving a reward.
Sixth, you must not delay. Only the first whistleblower is entitled to a reward. If a government agent or another whistleblower discovers the fraud before you file your whistleblower complaint under seal, you could lose all rights to a whistleblower reward.
Consult with an Experienced Whistleblower Attorney
If you have evidence that your employer or healthcare provider is engaged in Medicare or Medicaid fraud, then you should consult with an experienced whistleblower lawyer immediately. You may be entitled to a very large reward and legal protections.
The whistleblower lawyers at The Howley Law Firm focus on healthcare fraud. Call us today at (212) 601-2728 to schedule a free and completely confidential consultation.
Your Right to be Paid for “Off the Clock” Work
Are you paid by the hour? Do you have to answer work emails on weekends or after business hours? If so, you may be owed a lot of money for that time.
Your employer must keep accurate records of all the time you work, and they must pay you for all that time. It doesn’t matter if you are doing the work in the office or at home, during regular business hours or on weekends. It also doesn’t matter if you do the work because you were told to do it or just because it had to get done.
Your employer must pay you for all the time that you spend working on their behalf.
For example, if you have to respond to work emails on weekends or after normal business hours, then you must be paid for that time. Even if answering emails only takes 15 minutes per day, that adds up to 62.5 hours per year. That is more than two and one-half weeks of compensation that your employer owes you!
If you are responding to emails from an owner, manager, or supervisor, then your case is fairly straightforward. You employer is on notice that you are doing the work outside normal business hours. As long as that work is for the benefit of the company, you must be paid for all of your time.
The amount of time you spend responding to emails is fairly easy to calculate. The emails themselves will prove when each one was sent to you and when you responded. Based on the content of the emails, you can provide a reasonable estimate of the amount of time it took to respond.
That said, it is always better to keep a record of how much time you spend responding to emails. You can use one of the time-keeping apps that are available for your smartphone, or simply jot down the times you start and end working on emails.
What if your employer does not know that you are responding to emails outside normal business hours? For example, what if you are answering emails from customers? or from co-workers who are not supervisors or managers?
The answer depends on your employer’s written policies. Some companies have policies requiring that you get approval from a manager if you are going to do work outside normal business hours. If your company has such a policy, then you need to put them on notice that you are doing the work. Once they are on notice, they either have to tell you to stop doing the after-hours work or pay you for all the work that you are doing on their behalf.
How to Recover Compensation for “Off the Clock” Work
In New York, you can recover damages for unpaid wages going back six years. Assuming you spend 15 minutes per day answering emails after normal working hours, that amounts to 375 hours over six years or more than 9 weeks of compensation. You are also entitled to 9% interest on that amount. And if your employer’s failure to pay for that time was intentional, you can recover two times the amount you are owed.
You may be entitled to thousands of dollars in additional penalties if your employer did not provide the proper notices and maintain the required records of your working hours and compensation.
We can help you. For more than 30 years, we have represented clients in disputes over unpaid wages. We use that experience every day to help our clients get paid the compensation they are owed.
The process begins by consulting with one of our experienced employment attorneys. We will ask you questions about your employment status, review your compensation documents, and help you understand your rights. We will also explain your options. If you have a strong case, we will represent you on a contingency basis. This means that you will not owe us any legal fees unless you win. Best of all, the employer is usually ordered to pay our legal fees if you win.
Call us today at (212) 601-2728 to schedule a free and confidential consultation.
Every year, more than 3,000 pregnancy discrimination charges are filed with the U.S. Equal Employment Opportunity Commission. And every year, employers pay millions of dollars to settle those cases in order to avoid a trial.
Will your case result in a large settlement before trial? That depends on the quality of your evidence and the experience of your lawyer.
What is Pregnancy Discrimination?
The law protects pregnant women from discrimination in the workplace. For example, an employer may not offer a woman employment and then withdraw the offer after learning that she is or plans to become pregnant. An employer also may not change a woman’s terms and conditions of employment in a negative way because she is pregnant. A negative change in terms and conditions of employment may include changing her job responsibilities, denying her a raise or promotion, harassing her and creating a hostile work environment, forcing her to take a leave of absence, or terminating her employment because she is pregnant or intends to become pregnant.
At the same time, the law requires that employers provide reasonable accommodations for employees who are pregnant or have medical conditions related to their pregnancy. An accommodation may include something as simple as allowing time off for medical appointments or providing a place to rest during the workday. It may also include changes in the job duties of a pregnant employee if the employer would agree to such changes for an employee with a temporary disability unrelated to pregnancy.
As you can see, the law is complicated and confusing. Employers are not allowed to unilaterally change a woman’s terms and conditions of employment in a negative way because she is pregnant, but they may be required to change her terms and conditions of employment if she requests an accommodation.
In a perfect world, the process would be simple. A woman would speak to her employer about her pregnancy-related needs, receive a reasonable accommodation so she would have no stress during the most important time of her life, continue to work and earn a living until her baby arrives, and know that she could return to work when she is ready.
Unfortunately, too many employers think only about the short term. They react badly while thinking about how they will cover the pregnant woman’s job responsibilities when she gives birth and takes maternity leave. Or what will happen when the woman wants to return to work. By focusing on these short-term, temporary issues, employers often make stupid decisions that cause serious harm to the pregnant woman (and do not help the company in the long run anyway).
That is where the law comes in to protect your rights. If your employer discriminates against you because you are pregnant, refuses to give you a reasonable accommodation, or retaliates against you for complaining of discrimination, then the law will make the employer pay. You may also be entitled to reinstatement, a promotion, and/or a raise of you want to continue working for them.
How to Convince Your Employer to Settle Your Pregnancy Discrimination Claim
Before starting this law firm to protect the rights of employees, I was a partner in a large law firm representing employers in discrimination lawsuits. So, I know how employers think when it comes to deciding whether or not to settle a pregnancy discrimination case.
The first factor is the evidence. When an employee has taken the time to gather and organize her evidence of discrimination, that sends a signal that she is serious about pursuing her claims.
The second factor is the employee’s lawyer. Is the lawyer someone who takes on every case, does very little work to prepare, and then settles quickly for small amounts? Or is the lawyer someone with decades of experience, who takes on a small number of significant cases, prepares thoroughly, and is ready to go to trial if necessary to win the maximum amount of compensatory and punitive damages?
Employers tend to settle cases when the employee has an experienced lawyer who is prepared and ready to go to trial if necessary. It is very costly for employers to defend an employment case. And if the employer loses, they will have to pay compensatory damages, the plaintiff’s attorney fees, and often punitive damages too. They could also face disruptions inside the company and negative publicity in the media if the case goes to trial.
The last thing an employer wants to do is fight with a lawyer who is ready, willing, and able to try the case. When an employer sees that a pregnant employee has gathered her evidence and retained a lawyer with real trial experience, they start thinking about settling the case long before it gets to a jury.
How to Get Started
The first step is working with a qualified employment attorney to prepare a strong case. You need someone who understands how federal and state laws protect pregnant employees – and who has extensive trial experience. That will send a message to the employer that you are prepared to take the case to trial if they do not agree to a reasonable settlement.
We have represented clients in employment discrimination cases for more than 30 years. Our experience includes jury trials, appeals, and some of the largest employment discrimination settlements in U.S. history. When you retain us as your lawyers, we level the playing field by giving you the same high-quality, aggressive representation that large employers receive.
The process begins with a conversation. Call us today at (212) 601-2728 to schedule a free and confidential consultation. We will listen to your concerns, review your evidence, and explain your options. If you have a strong case, we will represent you on a contingency fee basis – which means that you will not owe us any legal fees unless you win.
New York Allows You to Sue for Compensatory and Punitive Damages for Sexual Harassment
Sexual harassment is a serious issue. It can have a negative impact on your job and your career. The stress can take a serious toll on your health and well-being.
Fortunately, New York has some of the strongest laws against sexual harassment in the country. Employees in New York have three years to file a claim against their employer, an easier burden of proof, and no statutory limit on punitive damages.
You are entitled to recover compensatory damages for emotional distress caused by sexual harassment. The amount of damages will depend on the severity of the harassment and the evidence you have to support your claim of emotional distress.
The highest awards are given when severe emotional distress is corroborated by medical records. This type of evidence can include consultations with a doctor, psychiatrist, psychologist or social worker. Other evidence supporting emotional distress claims may include prescriptions for blood pressure or anxiety medications.
While emotional distress awards are in the thousands of dollars when based on just your testimony, there are many cases where courts have awarded hundreds of thousands of dollars, and sometimes millions of dollars, for emotional distress claims backed by medical evidence.
You are also entitled to recover any financial losses. Financial losses may include damages for back pay and lost future earnings if you were fired, underpaid, or denied a promotion or raise as a result of sexual harassment. You are also entitled to reimbursement of medical expenses for emotional distress. Plus, you are entitled to 9% annual interest from the dates the losses were incurred.
The best way to build a case for significant damages is to speak to an experienced lawyer as soon as possible after the harassment occurs. By getting your lawyer involved early, you can build a strong case for compensatory and punitive damages. Having a lawyer on your side also helps to protect your legal rights, so you can focus on healing emotionally from the trauma caused by the abuse or mistreatment at work.
Our experienced New York sexual harassment attorneys can help you prove your claims. We begin with a conversation. We will listen to you, help you understand your rights, and develop a plan. If you have a strong case, we will represent you on a contingency fee basis, which means that you will not owe us any legal fees unless you win.
Call us today at (212) 601-2728 to schedule a free and confidential consultation.
Do you work more than 40 hours a week without overtime pay?
If so, then you may be owed thousands of dollars. New York law requires employers to pay one and one-half times your usual hourly rate when you work more than 40 hours in a workweek, unless you are considered an “exempt” employee.
You can sue your employer for unpaid overtime going back 6 years. And if your employer intentionally failed to pay the overtime rate, then you are entitled to be paid two times the amount of overtime pay you are owed.
If you have a strong case, we will represent you on a contingency fee basis. This means that our attorneys will fight to make sure you get paid every penny that you are owed, and you will not owe us any attorneys’ fees unless you win.
Do not delay. Your claims are subject to strict time limits. Call us today at (212) 601-2728 to schedule a free and confidential consultation with an experienced employment attorney.
You May Be Entitled to Overtime, Even If You Are Paid a Salary
Many people believe that they are not entitled to overtime pay if they are paid a salary. Some people also believe that they are not entitled to overtime just because they are given a “manager” or “assistant manager” title, or if they are called an “independent contractor.”
It is not that simple.
Your right to overtime compensation depends on how much regular compensation you are paid, what education and skills are required to do your job, how much independence you have when doing your job, and what type of work you actually perform for your employer.
The law says that you must be paid overtime – at the rate of one and one-half times your regular rate of pay – for all the hours you work over 40 per week, unless your employer can prove that you are “exempt” from the overtime requirements.
This means that you may be entitled to overtime, even if you are paid a salary or are called an “independent contractor.” And if your employer fails to pay overtime compensation, you may be entitled to two times the amount of overtime you are owed.
Here are just a few of the jobs where employers try to cheat workers out of their rights to overtime compensation:
How do you know if you should be paid one and one-half times your regular rate of pay for overtime? As a general rule, you are entitled to overtime unless you fall within one of the following exemptions.
The Compensation Exemption
If you work in New York and earn more than $1,125.00 per week in regular compensation, then you are probably not entitled to overtime.
“Regular” compensation means the amount you are paid by your employer for a 40-hour workweek. It does not include compensation for more than 40 hours per week or tips left by customers.
The Administrative Exemption
Some administrative and management employees are “exempt” from the overtime requirements, even if they earn less than $1,125.00 per week.
Your job title alone does not determine if you are an administrative or management employee.
You fall within this exemption only if (a) you perform office or non-manual work, AND (b) that work is directly related to the management or general business operations of your employer or its customers. Your primary duties must also involve the exercise of discretion and independent judgment with respect to significant matters.
If you do not have the authority to make important decisions on your own, then you may not be an administrative or management employee for purposes of being paid overtime.
The Professional Exemption
Professionals and other skilled occupations that require licenses or advanced degrees are usually exempt from the overtime laws. This includes doctors, lawyers, engineers, and accountants.
The mere fact that you are licensed as a professional or hold an advanced degree does not automatically exempt you from the overtime laws. You must actually need to use your professional skills or advanced education to do your job.
For example, Registered Nurses (RNs) are usually considered “exempt” from the overtime laws, but Licensed Practical Nurses (LPNs) are not. If you are licensed as an RN, but you are performing the duties of an LPN, then you may be entitled to overtime compensation.
The Independent Contractor Exception
Many employers try to avoid paying overtime – and some employers try to avoid paying the minimum wage – by calling you an “independent contractor.”
When deciding whether you are an independent contractor or an employee, courts look at the totality of the circumstances. Here are some of the circumstances that suggest you are an employee and should be paid overtime compensation:
If this sounds like you, then you are probably an employee entitled to be paid overtime compensation when you work more than 40 hours per week.
How to Get Paid the Overtime Compensation You Are Owed
At The Howley Law Firm, we begin with a conversation. We will talk with you about where you work, what type of work you do, and how you are paid. We will review any documents you may have, such as paystubs or other payroll records, time records, tip reports, and job descriptions.
There is no charge for this initial consultation. It can be done over the phone, by videoconference, or in person.
We will tell you whether you have a case and, if so, what your options are.
If you have a strong case, we will represent you on a contingency fee basis. This means that we will not be paid any attorneys’ fees unless you win. In most cases, the court will order your employer to pay our attorneys’ fees in addition to the amount of unpaid overtime and liquidated damages the employer will have to pay to you.
To get started, call us at 212-601-2728 to schedule a free and confidential consultation.
New York State and City Laws Make It Easier to Prove Sexual Harassment
Sexual harassment is sometimes blatant. Even in the 21st century, too many employees are subjected to offensive remarks, crude jokes, unwanted touching, and sexual advances in the workplace.
Sexual harassment can also be very subtle and confusing. Did that guy brush against you on purpose? Or was it an accident? Are you being overly sensitive? Or was that comment meant to upset you? It often takes time to realize that a series of small incidents are adding up and creating a hostile work environment.
Fortunately, the law is on your side and getting better. Thanks to the “me too” movement, laws have been changed to make it easier to prove sexual harassment and a hostile work environment. Judges and juries are more likely to believe women and men who claim that they were sexually harassed. They are also more likely to award compensatory and punitive damages.
In a perfect world, we would not need these laws. People would treat each other with respect. Everyone would value each other for their contributions. Job performance would be judged solely on the quality of your work, without regard to your sex, race, religion, national origin, age, or disability.
The reality is that we do not live in a perfect world. Many people make decisions based on conscious and subconscious biases and prejudices. Some people use their positions at work to satisfy their base desires. Others have a perverse need to prove their own worth by denigrating their co-workers. Some employers take advantage of their employees, while others turn a blind eye to conduct that is unacceptable.
When this happens – when you subjected harassment or a hostile work environment because of who you are – the law gives you the tools to fight back.
You have the right to be free from sexual harassment in the workplace. You also have the right to be free from a hostile work environment based on your sex, age, race, religion, national origin, gender, or gender identity.
Whether the harasser is a supervisor, a co-worker, or even a customer, your employer must take steps to protect you and provide a safe working environment. An employer that fails to protect you from illegal harassment in the workplace can be forced to pay compensatory and punitive damages.
You also have the right to be free from retaliation for reporting or opposing a hostile work environment. Once you file a complaint with your employer or a government agency, an adverse employment action by your employer may be considered an act of retaliation. Retaliation can also result in an award of compensatory and punitive damages.
If you have faced sexual harassment or a hostile work environment, call us to discuss your rights. You may be entitled to protection from the harassment and a substantial damages award. The initial consultation is free of charge. And if you have a strong case, we will represent you on a contingency fee basis -- which means that you will not pay us any attorneys' fees unless you win.
Call us today at (212) 601-2728 to schedule a free and confidential consultation.
Excessive “Buyout” Clauses in Employment Contracts are Illegal
If you have been to a hospital or nursing home anywhere in the United States, you have probably seen nurses from the Philippines. In some parts of the country, more than 20% of all Registered Nurses (RNs) are from the Philippines.
Most of the nurses sign contracts with employment agencies that require payment of “liquidated damages” if they stop working. A liquidated damages clause is permissible, but only if it is reasonably related to the agency's actual costs and the agency's damages would be difficult to calculate if the contract is breached.
Some of the contracts require payments of $25,000, $45,000, and even $90,000. Filipino nurses refer to these clauses as “buyout” provisions, because they have to “buy out” their contract in order to stop working for the agency.
The financial pressures on Filipino nurses to continue working for the agencies often lead to abuses. Some agencies ignore complaints of understaffing, unsafe conditions for patients, and sexual harassment of the nurses. Others threaten to have the nurses deported if they quit and refuse to pay the “buyout” fee. Many agencies fail to pay Filipino nurses the prevailing wage, which tends to depress the wages of all nurses.
You May Be Able to Get Out of Your Contract
We have brought dozens of legal challenges against these “buyout” provisions. In most cases, the agencies have quickly agreed to cancel the contracts and pay our legal fees. They know that their “buyout” fees are indefensible.
In the cases that have been decided in court, judges have ruled that “buyout” fees are unenforceable when the amount is excessive or when the agency’s actual losses can be calculated. In several cases, we have convinced courts that “buyout” clauses requiring payment of between $15,000 and $25,000 were unenforceable because the amounts were disproportionate to the agencies’ actual losses.
In the most egregious cases, we have convinced courts that the “buyout” clauses created contracts of indentured servitude. In other words, the contracts imposed a debt (an indenture) on the nurses that they had to work off or pay off in order to buy their freedom to leave and work someplace else.
In one case – a class action on behalf of more than 200 Filipino nurses – we convinced the court that an agency’s threats to enforce a $25,000 buyout clause violated the Trafficking Victims Protection Act.
Find Out If Your "Liquidated Damages" Clause is Illegal
If you are worried that you cannot leave an employer because of a “liquidated damages” or “buyout” clause in your contract, call us at (212) 601-2728. We will review your contract and let you know what your options are.
Your Employee Handbook May Limit or Expand Your Legal Rights
You probably never read your Employee Handbook. That is not surprising. Your boss probably never read it either. Most people don’t read it until there’s a problem.
Here are three reasons why you should read it now.
Understanding Your Rights as an Employee
Your handbook is almost as important as a contract. It describes company policies on performance evaluations, compensation reviews, vacation and sick days, discipline, and other terms and conditions of your employment. For example, many handbooks include a “progressive discipline” process that requires a verbal warning, and then a written warning, before you can be fired.
Depending on what is in your employee handbook and how it is written, it may be considered a legally binding contract. You may have rights in your employee handbook that are enforceable in court.
Exercising Your Legal Rights
Your handbook describes how to exercise your rights. For example, the law gives you a right to take family or medical leave, but your company can decide the process for requesting leave and whether you must use vacation or sick leave first. The law also protects you from discrimination and a hostile work environment, but your company can decide the process for investigating and resolving internal complaints.
Understanding how to exercise your rights is just as important as knowing what your rights are. If you fail to follow procedures in your employee handbook, you could lose a valid claim against your employer.
Limitations on Your Legal Rights
If you signed an acknowledgement that you received a copy of the handbook, then you may have given up some important rights. For example, you may have agreed that all disputes with your employer will be resolved in binding arbitration.
Think about that for a moment. The U.S. Constitution gives you the right to a jury trial in most cases against your employer. But you may have waived that right by signing for an employee handbook that virtually no one ever reads.
Don’t wait until you have a dispute with your employer to find out what your rights are. Read your Employee Handbook now. And keep a copy at home just in case you ever need it.
Questions? Call us at (212) 601-2728 for a free and confidential consultation.