Know Your Rights
The employment laws are very complex. There are federal laws (the Fair Labor Standards Act, the WARN Act, ERISA, COBRA, Title VII, Family Medical Leave Act), state laws (the New York Labor Law) and thousands of judicial decisions interpreting those laws.
With that said, this section has been drafted to give you general information about some of the laws and judicial decisions that may govern your employment. The sections below are not legal advice, and are not intended to create an attorney-client relationship between you and Gardy & Notis. Rather, these sections are for your general information. If you have questions, or feel that your rights are being violated, feel free to contact us for more information. We have not gone through all of the laws applicable to your employment--if you feel something is wrong, contact us and we'll help you determine if your rights have been violated.
Your Rights at the Time of Hiring
Before you are even hired, your potential employer has to comply with various federal and state anti-discrimination laws. Your employer cannot discriminate based on age, race, religion, gender, disability, pregnancy, national origin, genetic information, and several other characteristics in the hiring process.
The Hiring Process--Employee Handbooks and Employment Contracts
Some employers may require you to sign an employee handbook or policy manual. Others may give you a written employment contract. Before you sign either of these documents, read them very, very carefully. If at all possible, ask your employer if you can take the handbook or contract home and review it for a few days (any reasonable employer should allow you to do that). These documents may contain a very important provision that could make it very difficult for you to enforce your rights against your employer at a later time: a provision known as an "arbitration clause" or a "class action waiver." Read our blog post on these provisions by clicking here.
The Hiring Process--Determining Your Pay Rate
Once you are hired, your employer must comply with a vast set of laws that govern your rate of pay. The federal law governing pay rates is the Fair Labor Standards Act (the "FLSA"). Most states also have their own set of labor laws that complement the FLSA and, in some cases, provide even more protection than the FLSA. New York has a set of laws called the New York Labor Law. The FLSA and state laws set the minimum hourly wage that an employee must be paid, require an employer to pay most employees at 1.5x their hourly rate for hours worked over 40 in a week (overtime pay), require that you be paid for all hours worked, require your employer to pay you in a timely manner, and set the penalties that an employer faces if they fail to follow the laws concerning payment. In New York, we also have laws that protect waitstaff by prohibiting an employer from stealing your gratuities, whether those are cash tips, a "service charge" added to a bill, or a tip pool that includes non-service employees and managers.
Minimum Wage and Overtime Requirements
Under the Fair Labor Standards Act and most state laws, you must be paid a minimum hourly wage, which is currently $7.25 per hour under the Fair Labor Standards Act and $9.00 per hour in New York.
An employer must also pay a non-exempt employee at overtime rates of 1.5 times their hourly rate for hours worked over 40 in a work week. Many employers attempt to evade these requirements in order to save money. Some employers misclassify their employees as "independent contractors" even though the employee works on the premises and is under the complete control of the employer. Some employers misclassify their employees as "managers" even though the employee is not performing any management duties, or does not all requirements for exemption from overtime as a manager. Some employers require the employee to perform tasks without pay, although those tasks are for the employer's benefit and should be compensable work.
If an employer unlawfully unlawfully fails to pay minimum wage or overtime, the employer could owe you damages in the amount of the underpayment, plus "liquidated damages," or double the amount by which you were underpaid.
End of Employment--If You Are Laid Off
One of the most common questions we receive is: I was fired, is that illegal? If you were laid off without notice, your termination may have been illegal. Under the WARN Act, an employer must give 60 days notice of a mass layoff or a plant closing.
There are several other situations where firing an employee may be illegal. The first is if the employer terminates the employee for a discriminatory reason (based on race, gender, religion, national origin, age, disability, pregnancy, or as part of a scheme of sexual harassment). It is also illegal to retaliate against an employee who has made a complaint about violations of law in the workplace. For instance, if an employee complains to the employer, or brings a lawsuit for failure to pay overtime and is fired the next week, the timing of that firing suggests unlawful retaliation.
End of Employment--COBRA
When you leave your job, either because you are terminated or because you resign, an employer who provides health care coverage is required to notify you that you are eligible to continue receiving your benefits. This is commonly referred to as COBRA insurance; COBRA is an acronym for the federal law that requires your employer to give you notice (the Consolidated Omnibus Budget Reconciliation Act). If your employer does not give notice of your right to continuation coverage, the employer is violating COBRA.
End of Employment--Legal Action Against Employer
Many people leave the job on good terms. But others leave under not-so-good circumstances, which may be their fault (termination for cause), layoff, or the result of an unlawful termination. If you believe your termination was unlawful, you should speak to an attorney right away. Certain discrimination claims have a very tight statute of limitations and a missed step can mean a legitimate claim is wiped out. For instance, many discrimination claims have a 180-day statute of limitations (300 days in some states including New York). And, before going to a court with a claim, an employee is required in many circumstances to file a charge with the EEOC first. Other claims you may wish to pursue in conjunction with a discrimination claim, such as claims under the Fair Labor Standards Act, have a statute of limitations of two years. If you signed an employment contract or were subject to a collective bargaining agreement, the statute of limitations on any claim could be even shorter by agreement.
If you believe your rights have been violated, contact us and we will help you determine the proper course of action.