Employment Lawyers – What they do, Who needs them & Why
Employment lawyers deal with or specialize in employment law, administrative rulings and precedents. These laws, rulings, and precedents address the restrictions on and the legal rights of workers and the organizations, if any, they belong to as members. Employment law serves as a mediating force between trade unions, employees and employers and their complex relationships.
Employment law governs all aspects of work. Employment law applies to employees, independent contractors, unions and employers. Employers must adhere to specific guidelines such as selecting and interviewing employees, setting work standards, resolving work issues, and termination (firing). If you have been wronged by an employer, you may need an employment law lawyer to help you.
Most state laws say that employment is “at will,” which means the employer can fire an employee from a position for any reason, so long as the reason is not an illegal reason or is non-discriminatory. State employment laws also apply to employment contracts. Also covered by state laws are clauses within employment contracts entered into between an employer and an employee. If you have to sign or create an employment contract, you should have an employment law attorney to assist you.
In general, all steps of employment, including interviewing, hiring, raises, advertising, and terminating employees are covered by bias laws. The EEOC is in charge of enforcing some of these civil rights laws. These laws state that an employer cannot single out an idividual because of factors such as race, age, gender, religion, national origin and/or disability. This is called discrimination. Getting the advice or assistance of an employment lawyer or attorney may be essential if your rights have been violated. You’ll need help finding Employment Discrimination Lawyers.
This is designed to assist individuals who have legal questions about their rights in the workplace. Work, of course, is the place where we spend the majority of our waking lives, and frequently individuals believe that they have been treated unfairly and seek redress.
Most of the time, individuals are able to resolve work problems at work, and have no need for the intervention of the courts or an administrative agency. However, sometimes individuals are simply unable to resolve their work place problems and believe they need some sort of intervention. This pamphlet is designed to provide a brief introduction to those individuals who feel they have a workplace problem and believe they require outside assistance.
Unfortunately for non-lawyers and occasionally for lawyers as well the field of labor and employment law can be extremely complex. The law of the work place is governed by a mixture of Federal, State, and City statutes, some of which over-lap, and some of which are mutually exclusive. An individual who believes that he or she has a problem at work has to determine a method for resolving the problem.
Among the questions that you will need to resolve in determining your rights are:
- Do I work under a union contract, an individual employment contract, or am I an employee at will?
- Am I a victim of discrimination in regard to race, sex, age, religion, disability, sexual orientation?
- Is there an agency or court to which I can turn to resolve my problems?
- Is there more than one agency or court? What are the comparative advantages or disadvantages of choosing one forum over the other?
SECTION I: AM I AN EMPLOYEE AT WILL OR AM I COVERED BY A UNION CONTRACT?
DO I HAVE AN INDIVIDUAL CONTRACT OF EMPLOYMENT?
Most employees are considered to be employees at will. Employees at will do not have individual written contracts. employers, nor are they working under a union contract. It sounds harsh, but employees at will may have the terms of their employment changed at any time. They may quit at any time and they can be disciplined or discharged for any reason or no reason. However, employees at will may not be discharged or disciplined for an illegal reason. As this handbook will demonstrate, there are a number of Federal, State and City statutes that protect your rights in the workplace. If you are an employee at will, in order to successfully assert the rights guaranteed by the statutes, you must be able to demonstrate that your employer in some way violated the law. There have been limited exceptions to the Employment-at-will doctrine, but they are extremely rare. Employees who have individual written contracts of employment or who are covered by a union contract frequently have far greater protections. This is because their union contracts or individual employment contracts frequently contain restrictions placed on their employers’ ability to impose discipline.
In order to enforce an individual contract of employment, you may have to sue in court. In addition, individual contracts and almost always collective bargaining agreements contain mechanisms for resolving disputes. Frequently individual employment contracts provide for some form of alternate dispute resolution, usually arbitration. Certain contracts provide that disputes arising under the contract will not be resolved in court, but instead submitted to an arbitrator or a panel of three arbitrators to resolve the dispute. Arbitrators are independent and neutral people selected by the parties to a contract to resolve disputes arising under the contract. There are several agencies that administer these proceedings including the American Arbitration Association, JAMS, and for the securities industry, the NASD and New York Stock Exchange. If you have an individual contract of employment, and a dispute arises that you cannot resolve, be sure to review your contract to determine if you are required to arbitrate your claims. Arbitration provisions are very common in the securities industry but may appear in any agreement. The decision of the arbitrator is final and binding, and there are only limited means of challenging an arbitrator’s award.
If you work under a collective bargaining agreement and you feel that you have been improperly disciplined or discharged, or your employer has in some way violated the contract, your claim is almost always subject to the grievance and arbitration provisions of the collective bargaining agreement. You should be familiar with the grievance and arbitration provisions of your collective bargaining agreement, because they frequently contain very rigid time limits. You should also be aware because the collective bargaining agreement is between the union and your employer; the union is empowered to determine how to prosecute your grievance.
While the union has a well-enshrined duty to represent you fairly, it is not obligated to take every case to arbitration. The union may decide that the facts and circumstances of a particular grievance merit settlement prior to arbitration.
In most cases the only recourse an individual covered by a collective bargaining agreement may have is the contract=s grievance and arbitration procedures. The arbitrator=s decision is almost always final and binding, and there are only limited means of challenging an arbitrator=s award.
The only exception to this rule concerns victims of statutorily defined discrimination. If you contend that you are a victim of such discrimination, then you may pursue both a grievance under a collective bargaining agreement and as we will demonstrate – file a charge of discrimination with an appropriate agency. This exception is made in the collective bargaining context because your union controls the grievance and arbitration procedure, but the statutory protections are given to the individual employee.
SECTION II: AM I A VICTIM OF EMPLOYMENT DISCRIMINATION IN REGARD TO RACE, SEX, SEXUAL ORIENTATION, AGE, RELIGION, OR DISABILITY?
Discrimination on the basis of race, sex, age, religion, or disability is generally prohibited by federal, state, and local laws. However, one law may specifically cover a certain type of discrimination or group of people, while the others may not. As you read through this section, pay close attention to the important differences between each law. The distinctions may ultimately have a significant effect on where you file your discrimination claim.
It is unlawful for your employer to discriminate against you because of your actual or perceived race. You may be a victim of race discrimination if you believe an employer chose not to hire you, promote you, or retain you on the basis of your race. An employer is also prohibited from making decisions about your hours or wages because of your race. Furthermore, it is illegal for an employer to harass you because of the color of your skin, or to print or circulate messages or advertisements that discriminate on the basis of race.
National Origin Discrimination
An employer is also prohibited from discriminating against you because of your birthplace, ancestry, national culture, or because of an accent you may have. An employer may only require that you and other employees speak only English at work if he or she can prove that the requirement is necessary for conducting business. If the employer believes that the English-only rule is necessary, he or she must inform you when English is required and explain the consequences for violating the rule.
Sex Discrimination: Gender Discrimination, Sexual-Orientation Discrimination and Sexual Harassment
Sex discrimination can take many forms. First, you may be a victim of sex discrimination if your employer has made decisions about your employment on the basis of your gender. An employer is prohibited from considering your gender when hiring, firing, transferring, promoting, or setting wages or hours. Second, you may be the victim of discrimination if your employer discriminates against you on the basis of your sexual orientation. Sexual orientation is defined as heterosexuality, homosexuality, bisexuality, asexuality, whether actual or perceived. Third, sexual harassment is also a form of sex discrimination. If you have experienced unwelcome, unprovoked sexual advances from an employer, supervisor, manager or co-employee, you may be a victim of sex discrimination. It is unlawful for your employer to require you to engage in sexual relations as a basis for employment decisions or as a condition to keep your job.
You may also have grounds for a sex discrimination charge if your employer’s sexual conduct interferes with your ability to perform your job or creates a work environment that is intimidating, hostile or offensive. The employer and the victim can be male or female and the behavior that may constitute harassment may take many forms. For example, you may have a sexual harassment claim if your employer makes physical sexual advances towards you, says or writes sexually inappropriate remarks, draws sexually charged pictures or sends you sexual photos. Even if the sexual harassment is not directed towards you, you may still be a victim if you are affected by your employer’s unlawful sexual behavior.
You should be aware that not every form of sex discrimination is covered by Federal law. Title VII is a federal law that prohibits gender discrimination and sexual harassment. Title VII also specifically prohibits pregnancy discrimination. Employment policies or practices that negatively affect female employees because of pregnancy, child birth, and related medical conditions constitute unlawful sex discrimination. Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
Additionally, the Equal Pay Act is a federal law that requires that men and women receive equal pay for equal work in the same establishment. For you to make a claim under this Act, your job must be the same or substantially equal to that of an employee of the opposite sex. Two jobs are substantially equal if each requires the same skills, effort, and responsibility and the jobs are performed in substantially equal working conditions in the same establishment. It is, however, lawful for an employer to pay different employees different amounts on the basis of seniority, merit, quantity or quality of production, or factors other than sex. If your employer is paying one employee less than another because they are of different sexes, both employees are entitled to the higher of the two=s pay. (No employee’s pay may be lowered.)
Sexual orientation discrimination is not covered by federal law.
Discrimination against individuals with Disabilities
An employer or labor organization is prohibited from discriminating against you on the basis of your physical or mental disability or medical condition. Under Federal law it is generally unlawful for an employer or union to discriminate on the basis of your disability, but the protection provided by each law varies.
The Americans with Disabilities Act of 1990 is a federal law that prohibits an employer in the private sector or a state or local government or agency from discriminating against an employee or applicant on the basis of an individual=s disability when hiring, firing, promoting, setting wages, training, and when considering other terms and conditions of your employment. The ADA’s nondiscrimination policies also apply in the federal sector under Section 501 of the Rehabilitation Act. You may have a disability under the ADA if you have a physical or mental impairment that substantially limits one or more major life activities, have a record of your impairment, or are regarded as having a disability. If you are using illegal drugs you are not protected by the ADA and the employer can make a job-related determination on the basis of your illegal use of drugs. Tests for illegal drugs are not subject to the ADA’s restrictions on medical examinations.
Illegal use of drugs.
If you have a protected disability, federal, state and city law require your employer to take reasonable steps to accommodate your needs and allow you to adequately perform the requirements of the job. Your must inform your employer if you have a disability that impairs your ability to perform a current or prospective job. In response, your employer may be required to reasonably accommodate your disability by providing you with an accessible work site, different or modified equipment or special services if your hearing or vision is impaired. An employer may also need to restructure the job to accommodate your disability, find you another available position, or modify training materials or examinations. Keep in mind, however, that an employer must only provide you with reasonable accommodations. Therefore, an employer is not required to make changes or additions that are unreasonably costly or that generally cause undue hardship for the employer=s business or organization. Furthermore, you must have the required education, skills, experience and ability to the extent that these qualifications are required of non-disabled employees and applicants. You must be able to reasonably perform the job which requires that you reasonably meet the employers’ needs to achieve his or her business goals.
It is illegal for an employer to discriminate against you because of your age when making decisions about your employment, including hiring, firing, promotions, layoffs, compensation, benefits, job assignments, and training. It is also unlawful for the employer to include age preferences, limitations, or specifications in job notices or advertisements.
On rare occasions, age or gender may be a A bona fide occupational qualification, @ known as a ABFOQ.@ An employers age requirement is only a ABFOQ,@ if it is reasonably necessary to the operation of the employer\s business. Also, if you are applying for a job, the employer is permitted to ask you your age or date of birth.
The Age Discrimination in Employment Act of 1967 is a federal law that prohibits private employers having 20 or more employees from discriminating against their employees and job applicants who are at least 40 years old on the basis of age. The law also applies to federal, state and local governments, employment agencies and labor organizations with 25 or more members. The ADEA also applies to labor organizations that operate a hiring hall or office that recruits potential employees or obtains job opportunities. Additionally, the Older Workers Benefit Protection Act of 1990 prohibits employers from denying benefits to older employees. Notably, New York State and New York City Law also prohibit age discrimination and these laws do not have a minimum age requirement. Thus, an employee of any age may have a legitimate age discrimination claim, and need not be 40 in order to assert an age discrimination claim.
Discrimination on the basis of Religion
It is unlawful for an employer to force you to violate or abstain from observance of your religion, including the observance of any holy day, Sabbath day, religious custom or usage. An employer must reasonably accommodate your religious needs. Your employer is not required to make an accommodation that will cause an undue burden on his or her business. An employer may not fire or transfer you or refuse to hire or promote you because you are unable to work on certain religious days. However, your employer is not required to pay for the time you take off for religious observance and the employer may require you to make up the time you missed.
Discrimination for Union Activity and for Engaging in Concerted Activity
The National Labor Relations Act is a federal law that provides in part that employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representation of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities …@ (Emphasis supplied).
While the National Labor Relations Act is the primary statute governing relationships in the private sector between unions and employers, and is, therefore, beyond the scope of this pamphlet, certain key points have to be made. If an employer or union violates the National Labor Relations Act (ANLRA@), a charge may be filed at the National Labor Relations Board. Under the NLRA, it is an unfair labor practice for an employer – to interfere with, restrain or coerce employees in the exercise of the rights guaranteed [by the statute]. While many violations of the NLRA arise in the context of a union organizing campaign, individual employees covered by the statute – even in the absence of a union organizing campaign – who are disciplined for taking steps on behalf of their fellow employees are protected by the National Labor Relations Act. For example, an employer would not be permitted to discharge or discipline an employee merely because that employee asked for a raise on behalf of his/her colleagues or protested an employer=s policy concerning discipline or leave. Such activity must be on behalf of his or her fellow employees or it will not be considered concerted activity and protected by the statute.
One other aspect of the National Labor Relations Act that is relevant to this handbook concerns a unions Duty of Fair Representation (ADFR@). As mentioned above, most union contracts contain a grievance and arbitration mechanism for resolving disputes under the contract. If your employer disciplines or discharges you, and you contend that the employer violated the collective bargaining agreement, you must follow the contractual procedures and file a grievance. At this point the union is required to represent you. (You need not be an actual member of the union to receive representation. You need only be an employee covered by the collective bargaining agreement.)
The union is obligated to investigate your grievance to determine its merits, evaluate the facts, and determine your likelihood of success. You should be aware that not every grievance is meritorious and the union is not obligated to pursue each case to arbitration. However, if you have both a meritorious grievance, and the union has treated your grievance in an arbitrary and capricious manner or unlawfully discriminated against you and refused to process your grievance, then you may have a claim that the union breached its Duty of Fair Representation to you. At that point, you may file an unfair labor practice charge against both your union and your employer at the National Labor Relations Board. You also have the option of commencing a lawsuit in either state or federal court. In either case you must file your charge or commence your lawsuit within six months of the violation.
Federal law prohibits an employer or labor organization from retaliating against you in any manner for reporting an employment discrimination incident or for filing a discrimination claim. For example, it is unlawful for your employer to fire, transfer, or demote you because you have revealed a discrimination incident that occurred at work. It is also unlawful for an employer to retaliate against you for testifying or assisting in legal proceeding related to employment discrimination. Even if you have not been directly discriminated against, you may still have a retaliation claim if you have complained about discrimination affecting others. Finally, your employer is prohibited from retaliating against you for engaging in concerted activity or for reporting an unfair labor practice.
SECTION III: AM I WHISTLE BLOWER PROTECTED BY A STATUTE?
It has been recognized that employees are often torn by loyalty to their employers, and the duty to report improper, illegal or dangerous conditions to public authorities. As a limited exception to the Employee-at-will Doctrine certain so-called whistle blowers are protected under particular statutes.
Although it is beyond the scope of this handbook, it is worth noting that a number of Federal statutes provide whistle blower protections. These statutes include:
- Sarbanes Oxley Act, 18 USC Section 1514(A): protects employees of publicly traded companies who disclose information relating to a wide range of accounting fraud.
- Water Pollution Control Act, 33 USC Section 1367: protects employees who disclose information relating to unlawful water pollution.
- Clean Air Act, 42 USC Section 7622: protects employees who disclose information relating to unlawful air pollution.
- Toxic Substance Control Act 15 USC Section 2622: protects employees who disclose information pertaining to unlawful toxic substance (asbestos) pollution.
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
As discussed , several Federal laws also prohibit an employer from discriminating against you when hiring, firing, setting wages, transferring, promoting and laying-off and other terms and conditions of employment. It is also unlawful discrimination if your employer harasses you about your race, color, religion, sex, national origin, disability, or age.
The Equal Employment Opportunity Commission (EEOC) enforces the following federal Laws: Title VII of the Civil Rights Act of 1964; as amended, the Age Discrimination in Employment Act of 1967, as amended (ADEA), the Equal Pay Act of 1963, as amended (EPA), Title I of the American Disabilities Act of 1990, as amended (ADA), and the Civil Rights Act of 1991 (CRA). (See Section II for a more detailed explanation of each federal law.)
For and employer to be covered by Title VII and the ADA, it must have at least fifteen employees. However, under the ADEA, it must have at least twenty employees.
How do I file a discrimination charge with the EEOC?
Any individual who believes that his or her employment rights have been violated may file a discrimination charge with the EEOC. Also, an individual, organization, or agency may file a charge on behalf of another person so as to protect the victim=s identity. A charge may be filed by mail or in person at the nearest EEOC office (see appendix D for contact information). If you are employed at a federal agency and you believe you have been discriminated against you should contact your agency’s EEO counselor before filing a formal complaint.
If you file a complaint with the EEOC you must include:
- Your name, address, and telephone number on the complaint
- The employer, employment agency, or union that allegedly committed the discrimination and the number of employees [or union members] employed by that employer, business, or union.
- A short description of the alleged violation/event that occurred that caused the complaining party to believe that his or her rights were violated; and
- Date(s) of the alleged violation(s)
- See Appendix F for a copy of the EEOC’s questionnaire.
3 29 C.F.R. Section 1614.105 provides that you must contact the counselor within 45 days of the date of the alleged discrimination. Your EEO counselor will inform you about the federal sector complaint process and may help you to resolve the dispute. After you contact the EEO counselor, this preliminary stage must be completed within 30 days. If the counselor does not successfully resolve your dispute within this period, you then have the right to file a formal complaint with the agency that allegedly discriminated against you.
Processing Your Complaint
Step 1: Filing the Complaint
All the federal laws explained in Section II, except the Equal Pay Act, require you to file your discrimination charge with EEOC before a private lawsuit may be filed in court. A charge must be filed with the EEOC in New York within 300 days of date of the discriminatory incident. These time limitations do not apply to claims under the Equal Pay Act, because under that Act you do not have to first a file a charge with the EEOC in order to have the right to go to court. You should still try to file your complaint within the 300 day period because many Equal Pay Act claims also raise Title VII sex discrimination issues and these are still subject to the EEOC=s time limitations. The EEOC will send a copy of the complaint to the employer at least 10 days after you file your claim.
Step 2: Investigation
After the complaint has been filed and sent to the employer, the EEOC will begin investigating your discrimination claim. If after investigation the EEOC concludes that there is no reasonable cause to believe that the discrimination occurred, your charge will be dismissed.
If the EEOC determines that there is in fact reasonable cause to believe that you are the victim of employment discrimination, the EEOC will try to resolve your dispute with the employer informally. In fact, you may be required to attend a pre-hearing conference or a mediation session.
If after 30 days (from the date the complaint was filed), the EEOC is unable to resolve your dispute and stop the unlawful discrimination, the EEOC may file a lawsuit against your employer. If, however, your employer is the government or a government agency, your case will be handed over to the Department of Justice who will sue the employer on your behalf in federal court.
Step 3: Mediation or Judicial Proceedings
The EEOC provides mediation as an alternative to traditional investigation or litigation. An EEOC representative will contact you and the employer and request that you come in for a mediation session. If you and the employer agree, you will meet together with a trained mediator. You do not need to have an attorney to participate in the EEOC=s mediation program. The mediation is free of charge and ultimately may save you money if you and the employer resolve the dispute at this stage. You, the respondent, and the mediator will sign a confidentiality agreement and the information disclosed during your mediation session will be kept confidential. If your dispute is not resolved through mediation, the EEOC will continue to investigate your charge of discrimination and pursue in rare instances your claim in federal court on your behalf. Even if the EEOC believes you were a victim of discrimination, it will not always pursue your claim. Furthermore, unlike the state and city agencies there is no administrative tribunal to seek relief.
Step 4: Remedies
As provided by Section 102 of the Civil Rights Act of 1990, if an employer or labor organization intentionally discriminated against you, you may potentially receive any relief authorized by section 706(g) of the Civil Rights Act of 1964 and the following damages:
If your employer violated Title VII:
– You may recover compensatory and punitive damages:
You may recover punitive damages against an employer (not including the government, government agency or political subdivision) if you prove that the employer engaged in discrimination towards you with malice or reckless indifference to your civil rights. You may also receive compensatory damages in addition to back pay, interest on back pay, reinstatement etc.
There is a maximum amount of compensatory damages and punitive damages you can receive for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.
– If the employer has more than 14 but less than 101 employees every week for 20 weeks or more (in the current or preceding calendar year) you may receive up to $50,000.
– If the employer has more than 100 employees, but less than 201 employees every week for 20 weeks or more (in the current or preceding calendar year), you may receive up to $100,000.
– If the employer has more than 200, but less than 501 employees every week for 20 weeks or more (in the current or preceding calendar year), you may receive up to $200,000.
– If the employer has more than 500 employees every week for 20 weeks or more (in the current or preceding calendar year), you may receive up to $300,000.
NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board is an independent federal agency that investigates and remedies unfair labor practices committed by employers and unions in the private sector. The National Labor Relations Board enforces the National Labor Relations Act, the federal law described in Section II.
How do I file an unfair labor practice charge with the National Labor Relations Board?
An unfair labor practice charge may be filed by an employee, an employer, a labor organization, or any other person. Charge forms are available at the NLRB’s Regional Offices, must be signed, sworn to or affirmed under oath, and filed with the appropriate Regional Office. The appropriate Regional Office is in the area where the unfair labor practice took place. See attached appendix for contact information.
You only have 6 months from the date of the unfair labor practice to file your charge. Your charge will be dismissed if you try to file it after the 6 month period.
Your Unfair Labor Practice Charge
On the Charge form you must include:
– your name and current address
– the name and address of the employer or union against whom you are filing the charge
– A description of the unfair labor practice that your employer or union committed.
Processing Your Charge
Step 1: Filing Your Complaint
After you have completed the charge form, the appropriate Regional Office will process your complaint. Although the charging party is responsible for the service of the charge, the Regional Office will process your charge and as a courtesy will send a copy of the charge to the employer or union who has allegedly committed the unfair labor practice.
Step 2: Intake
After your charge is filed, the NLRB will request evidence supporting your claim. Evidence usually will include sworn statements and other information gathered during interviews with the parties and witnesses.
Step 3: Investigation
If there is sufficient evidence supporting your charge, the NLRB will initiate an investigation of the alleged unfair labor practice. Generally, the Board agent will start the investigation within 7 days. The Regional Board agent will contact witnesses and others who may have information regarding your case.
The Regional Officer will seek to determine if there is reasonable cause to believe that an unfair practice has occurred. This determination is generally made within 45 days from the time you file the charge.
If after the investigation and review of the evidence gathered, the Regional Office determines that no unfair labor practice has occurred, you will be asked to withdraw your charge. If you refuse to withdraw your charge, the Regional office will dismiss your complaint. If you wish to continue pursuing your claim, you can appeal the Region=s dismissal to the General Counsel=s Office of Appeals in Washington, D.C.
If the Regional Office finds that there is reasonable cause to believe that an unfair labor practice has occurred, they will first go to the employer or union and ask them to remedy your situation. At this point, you and the employer or union may be able to reach a voluntary settlement. If the charged employer or union refuses to provide a remedy, the Regional Office will issue a formal complaint against the charged party.
Step 4: The Hearing
After the Regional Office issues the complaint, your case will be scheduled for a formal hearing before an Administrative Law Judge. An NLRB lawyer will represent your interests at the hearing. The Administrative Law Judge will then issue a decision and determine whether the discrimination occurred and if so, what remedy you are entitled to.
You may then appeal the ALJ’s decision to National Labor Relations Board=s Main Office in Washington D.C. (See Appendix E for contact information) The Board=s decision may then be appealed to the U.S. Court of Appeals.
SECTION IV: WHAT OTHER STATUTES GOVERN EMPLOYMENT
A. The Family Medical Leave Act
Employers of 50 or more employees are required to grant employees who have 1,250 hours of service during the previous 12 months, up to 12 work weeks of unpaid leave during any 12 month period for one or more of the following reasons:
- for the birth and care of the newborn child of the employee;
- for placement with the employee of a son or daughter for adoption or foster care;
- to care for an immediate family member (spouse, child or parent) with a serious health condition; or
- to take medical leave when the employee is unable to work because of a serious health condition.
If the employer violates this provision, an employee may commence an action in State or Federal Court or file a charge with the United States Department of Labor.
B. Fair Labor Standards Act
Workers covered by the United States Fair Labor Standards Act are entitled to a minimum wage of $5.15 an hour. However, workers in New York State are entitled to a minimum wage of $6.75 an hour. (In New York the minimum wage will increase to $7.15 an hour as of January 1, 2007. Any increase in the federal wage above the state rate will result in an increase in the state=s minimum.)
Under the FLSA, employees covered by the statute are entitled to overtime pay at a rate of not less than one and a half times their regular rate of pay after 40 hours of work in a work week. Determining who is covered by the FLSA can be very complicated. The Department of Labor has issued a series of regulations concerning workers to determine if they are covered by the statute or not. Generally, professional, management and supervisory employees are exempt from the coverage of the act and may be required to work over 40 hours a week without additional compensation.
If you believe your employer has violated the FLSA you may file a charge with the US Department of Labor Wage and Hour Division or the New York State Department of Labor or file a lawsuit in the US District Court or State Court.
C. Occupational Safety and Health Act of 1970
The Occupational Safety and Health Act of 1970 (OSH Act) requires your employer to provide you with a workplace that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. The Occupational Safety and Health Administration (OSHA) is the federal agency that establishes and enforces the OSHA. Under OSHA, your employer must establish a written communication program, to provide you with extensive information about the chemicals that you are exposed to at work and train you how to protect yourself from harm. Furthermore, you have the right to request and review information and specific records from your employer pertaining to OSHA’s standards, worker injuries and illnesses, job hazards and workers’ rights. You also may ask your employer to fix hazardous working conditions, even if they are not violations of OSHA’s specific standards.
If you believe that your employer is violating OSHA’s standards or you are working in hazardous conditions, you may file a complaint with OSHA and request that OSHA inspect your workplace. You can file your complaint online, in writing, by fax or phone.
If OSHA inspects your workplace, you are entitled to be involved in the inspection process. You have the right to have an authorized employee representative, like a union steward, escort the OSHA compliance officer during the workplace investigation. The OSHA officer, however, cannot select the employee representative. If there is no union representative or employee representative present, the OSHA official must speak confidentially with a Areasonable number of workers during the course of the investigation.@ If you know of workplace hazards and illnesses and injures that have occurred as a result, you have the right to approach the officer and inform him during the inspection. After the investigation is conducted, you are entitled to find out what the results are and request a review of the inspection if OSHA chooses not to issue a citation. You can also file an appeal of the deadlines that OSHA establishes for your employer to remedy any workplace hazards. Finally, you may file a discrimination complaint with OSHA if you are punished or discriminated against for exercising your safety and health rights. You can also file a complaint if you are discriminated against or penalized for refusing to work due to imminently hazardous working conditions, but this right is not guaranteed by the OSHA. You should be aware that under the OSHA you do not have the right to walk off the job because of unsafe conditions. OSHA may not be able to protect you if you decide to walk off the job and you are subsequently fired or disciplined.
A. Employees of the United States Government Certain employees of the United States Government are given the right to bargain collectively. The agency that administers labor management relations in the Federal Government is the Federal Labor Relations Authority (“FLRA”). The Regional Office is located at:
Federal Labor Relations Authority
99 Summer Street
Boston, MA 02110
Telephone: (617) 424-5730
The main office is located at:
Federal Labor Relations Authority
1400 K Street NW
Washington, DC 20424
Telephone No.: (202) 218-7770
Employees of the Unites States who are disciplined may challenge their discipline and the Merit Systems Production Board (MSPB). In New York, the field office is located at:
Merit Systems Production Board
3137A Federal Building
26 Federal Plaza
New York, New York 10278
The main office is located at:
Merit Systems Production Board
1615 M Street NW
Washington, DC 20036
Employees of the United States who believe they are victims of discrimination may have recourse through the procedures of the Equal Employment Opportunity Commission.
D. Employees of Public Authorities
Employees of public authorities such as Port Authority of New York and New Jersey or the Metropolitan Transit Authority should refer to the relevant regulations of their employers.
Equal Opportunity Employment Commission
EEOC National Headquarters
U.S. Equal Employment Opportunity Commission, 1801 L Street, N.W.Washington, D.C. 20507 Phone: (202) 663-4900
EEOC’s National Contact Center (NCC) customer service
U.S. Equal Employment Opportunity Commission,
P.O. Box 7033, Lawrence, Kansas 66044
E-mail: email@example.com (include your zip code and/or city and state so that the EEOC NCC will send your information to the appropriate office.)
New York Regional Offices
New York District Office
33 Whitehall Street
New York, NY 10004
Phone: (212) 336-3620
TTY: (212) 336-3622
Director: Spencer H. Lewis, Jr.
Regional Attorney: Elizabeth Grossman
Federal Sector Information
Contact: Kenneth W. Chu, Supervisory Administrative Judge
Phone: (212) 336-3740
TTY: (212) 336-3622
Mediation Contact Information
Michael Bertty, ADR Program Coordinator
Phone: (212) 336-3645
TTY: (212) 336-3622
Newark, NJ area Office
One Newark Center, 21st Floor
Raymond Blvd at McCarter Hwy (Rt.21)
Newark, NJ 07102-5233
Phone: (973) 645-6383, TTY: (973) 645-3004
Director: Corrado Gigante
Regional Attorney: Elizabeth Grossman
Buffalo Local Office
6 Fountain Plaza, Suite 350
Buffalo, NY 14202
Phone: (716) 551-4441
TTY: (716) 551-5923
Director: Elizabeth Cadle
Regional Attorney: Elizabeth Grossman
Federal Sector Information
Contact: Kenneth W. Chu, Supervisory Administrative Judge
Phone: (212) 336-3740
TTY: (212) 336-3622
Mediation Contact Information
David Ging, Mediator
TTY: (716) 551-5923
National Labor Relations Board Contact Information
Washington, D.C. – Main Office
National Labor Relations Board
1099 14th Street, N.W.
Washington, D.C. 20570-0001
Phone: (202) 273-1000
New York City Headquarters
Joel P. Biblowitz, Associate Chief Administrative Law Judge
120 West 45th Street, 11th Floor
New York, New York 10036-5503
Phone: (212) 944-2940
New York=s Regional Offices:
Manhattan B Region 2
26 Federal Plaza, Room 3614
New York, NY 10278-0104
Phone: (212) 264-0300
Buffalo B Region 3
111 West Huron Street, Room 901
Buffalo, NY 14202-2387
Phone: (716) 551-4931
Brooklyn – Region 29
One Metro Tech Center (North)
Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, NY 11201-4201
Phone: (718) 330-7713
Newark, NJ B Region 22
20 Washington Place, 5th Floor
Newark, NJ 07102-3110
Phone: (973) 645-2100
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