Employment Discrimination

New York is an employment at will state.  An employer is generally free to terminate an employee for any reason (or no reason at all) if the reason is not illegal or based on the employee’s protected status.

The New York Human Rights Law contains a broad definition of protected status, and an employer may not terminate, refuse to hire, or otherwise discriminate against an employee because of “age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status.”

There are also various federal statues such as Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments Act of 1972, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and other statutes that specifically prohibit sexual harassment and discrimination based on race, color, religion, sex, national origin, gender, age, and disability.

We are experienced representing clients in the following types of employment discrimination claims:

• Age discrimination
• Sexual preference discrimination
• Pregnancy discrimination
• Gender discrimination
• Disability discrimination
• Racial discrimination
• Religious discrimination
• National origin discrimination
• Disability discrimination
• Military status
• Marital status
• Domestic violence victim status
• Familial status
• Predisposing genetic characteristics

Overtime/Wage and Hour

There are many federal and New York State laws that require an employer to pay its employees for all the hours the employees worked, including paying a premium pay for overtime, with a few narrow exceptions.  Generally, these laws provide:

• An employer is obligated to pay an employee a basic minimum hourly rate.
• An employer is obligated to pay an employee overtime pay of 1½ times the employee’s base pay if the employee works more than 40 hours in a week.
• An employer must ensure its employees do not work during their required break.
• An employer cannot allow an hourly employee to work “off the clock” or “off the books.”
• An employer must accurately record, maintain, and preserve employment records.
• An employer may be obligated to pay an employee overtime even if the employer pays the employee a salary or a commission.
• An employer cannot misclassify an employee as an independent contractor.
• An employer cannot allow employees to work before or after a shift without paying for the entire time they are working, not just the employee’s scheduled time to work.

New York State law also prohibits an employer from taking deductions from an employee’s wages for anything except taxes, insurance, voluntary retirement contributions, and garnishments.  An employer generally cannot deduct for such things as shortages in the cash register, broken or lost equipment, advanced vacation days, dine and dash customers, uniforms, or any other deduction that does not solely benefit the employee.

New York State law also requires an employer to provide a written notice to each newly hired employee regarding the employee’s wage rate and other information, including how the employee is paid, the official name of the employer, the address and phone number of the employer’s main office or principal location, and any allowances taken.  The written notice must generally be updated if any data in the notice changes.

New York State and federal law also has special rules for employers in the restaurant and hospitality industry.  While it is beneficial for employers in the restaurant business to take a tip credit to pay its employees’ wages, the law imposes strict requirements to be eligible to take the tip credit and comply with the minimum wage requirement.

In addition to employment discrimination and overtime/wage and hour claims, we represent clients in the following types of employment litigation cases:

• Wrongful discharge
• Non-competition agreements/restrictive covenants
• Breach of employment contracts
• Sexual harassment
• Whistleblower