Tag Archives: #EmployeeRights

Workplace Violence: Safety Concerns and Legal Protection in New York

August 20th, 2024 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, New York, Syracuse, Workplace Harassment, Workplace Rights, Workplace Violence |

Tags: #EmployeeRights, #EmploymentandLaborAttorneyNearMe, #EmploymentAndLaborLaws, #FindAnAttorneyNearMe, #SyracuseNY, #Workplace Safety, #WorkplaceViolence

Workplaces are dangerous places. Even jobs that don’t involve heavy machinery, poisonous substances, or other physical hazards are plagued with one inescapable safety concern: other people.

Bureau of Labor Statistics data for 2021-22 indicates workplace violence was responsible for 57,610 workplace injuries that resulted in days away from work; there were 524 fatalities as the result of workplace violence in 2022 alone. These injuries resulted from gun violence, bombs, knives, arson, fisticuffs, sexual assault, strangulation, and threats and verbal assault. They were perpetrated by coworkers, bosses, customers, clients, and vendors. Many took place at service and healthcare job sites, but they also occurred in educational settings, professional offices, construction, and transportation, and other industries.

What protections do workers have? Well, it’s complicated. Read on.

What We’ve Got In New York

Several states have enacted laws addressing workplace violence. Some are more effective than others, and each state focuses on different areas. Here’s what’s available in New York (if you work in another state, talk to an attorney in your jurisdiction!):

Since 2006, New York State has had a Workplace Violence [“WPV”] Prevention Act [“Act”] on the books. The Act covers public sector workplaces only (as of January 4, 2024, this includes public school districts as well). It is designed to prevent intentional injuries as well as threats and attempts, including a prohibition on stalking. The Act requires government employers to evaluate risk factors, provide training, implement a system for reporting WPV incidents, and keep records. Certain employers are required to develop a written WPV Prevention Program and post notices about it.

Does this mean New York public sector workers can go to work free from the threat of workplace violence? Well, hardly. Enforcement of the Act is confided to New York’s Public Employee Safety and Health [“PESH”] Bureau, an organization that will inspect a workplace and issue notices to the public employer. Public sector employees can file a complaint with PESH, and PESH may arrange a site visit or issue a notice. If the employer does not abate the hazards, PESH can impose fines of up to $200.00 per day (which seems like a chunk of change, but it’s not much of a deterrent for a lot of employers).

Help (Might Be) On The Way (Sort Of)!

Notice how we keep bolding the word “public” above? That’s because most employees are private sector employees. If you work at a nonprofit hospital or a hardware store, this law does not protect you.

The New York Retail Worker Safety Act [“RWSA”], designed to address workplace violence in retail establishments, has been making its way through the New York State Legislature and has passed in both the Senate and Assembly. The RWSA would require employers in the retail industry to identify risk factors, provide training (including active shooter drills), document and report incidents, and some retail employers would be required to employ a security guard. And the RWSA would require installation of “panic buttons” in certain retail situations. Enforcement is not mentioned in the bill, but the New York State Commissioner of Labor would be empowered to come up with regulations to implement the provisions. Watch this space.

What About The Rest Of Us?

While public sector and retail workers are getting some minimal attention, these laws don’t do much for the rest of us. Injured workers may have recourse to Workers Compensation, and workers who are being harassed may, in some cases, have protection under antidiscrimination or other laws. OSHA keeps making noise about workplaces being “free from recognized hazards” but does not currently have a standard specific to workplace violence.

So a lot of people who work with a legitimately scary person are at the mercy of the boss, who may or may not feel like doing something about the scary person. This is where speaking with a good workplace attorney can be useful. The individual facts of any workplace situation are key to understanding what options are available to employees in these frightening situations.

Conclusion:

While New York has implemented some measures to address workplace violence, such as the Workplace Violence Prevention Act for public sector workers and the pending Retail Worker Safety Act for those in the retail industry, these laws do not cover everyone. It is important for employees who are dealing with frightening situations to consult with an experienced workplace attorney to explore their options. A good workplace attorney can help individuals navigate the complexities of their situation and determine the best course of action.

Avoiding the Legal Snare: The Perils of Training Repayment Agreement Provisions (TRAPs)

August 13th, 2024 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, New York, Non-Compete Agreements, Syracuse, Workplace Rights |

Tags: #attorneynearme, #EmployeeRights, #EmploymentAndLaborLaws, #LaborAndEmployment, #Lawyer, #NewYorkState, #NewYorkStateLaborLaws, #SyracuseNY, Ask A Worker's Rights Attorney!, employment attorney near me, labor attorney near me, non-compete, syracuse, workplacerights

Employers are increasingly using Training Repayment Agreement Provisions (TRAPs) to replace other restrictive covenants such as noncompetes and nonsoliciation agreements. But TRAPs can be even more restrictive—and more exploitative—than noncompetes. In this article, we’ll explain what a TRAP is and how to avoid getting caught in one.

What is a TRAP?

TRAPs, also known as Training Repayment Agreement Provisions, are contractual terms that employees sign when they are hired. While the wording may vary, a TRAP requires an employee to work for a certain period of time. If the employee separates from service prior to that timeframe (whether they quit or are fired), the employee has to pay back the employer’s training costs, the costs of buying or renting equipment, or the costs of replacing the employee. Sometimes those fees are prorated depending on how long the employee has worked.

How TRAPs Hurt Employees

TRAPs can be very misleading. Often they don’t state how much the employee will have to pay back, or they don’t disclose interest accrual rates or other information a person would usually be entitled to when entering an agreement that might affect their credit. Sometimes the “training” that an employee is expected to pay for is just the orientation or legally-required videos. Sometimes the fees for such “training” are outrageous – we’ve seen TRAP fees ranging anywhere from $5,000 to $50,000. Some TRAPs accrue interest so fast there is no way an employee will ever repay it. And TRAPs usually don’t provide any exceptions in situations where, the employee quits for reasons beyond their control – like sexual harassment, disability, or lousy working conditions.

A TRAP can reduce an employee’s pay below minimum wage. It can destroy an employee’s credit. Worse, employers use TRAPs as a threat: don’t leave this job or we’ll sue you, destroy your credit, report you to immigration, and make it so you can never find another job. There’s a word for this, and it was outlawed by the 13^th Amendment to the United States Constitution. 😡 😡 😡

How To Spot A TRAP

TRAPs are often hidden in piles of onboarding paperwork, so employees might not even realize they’ve signed one. They are commonly used in nursing, trucking, and service industries, but we’ve also seen them in child care and professional contexts.

The only way to know if your employer is trying to get you to sign a TRAP is to read everything before signing. This can be difficult. People get trapped into TRAPs because they are so desperate for a job that they’ll sign anything. But that’s the trap. Employers may be counting on you to sign because you just need the money, and they may pressure you to sign by acting like the job won’t be there if you take your time.

What To Do When You See A TRAP

GET LEGAL ADVICE. TRAPs are illegal in some, but by no means all, jurisdictions—there’s no way to know without consulting an employment law attorney in your area. Legal or not, if someone is pressuring you to sign a document without having an attorney review it, that’s a sign you probably shouldn’t be signing the document. No job is worth your freedom.

Dressing for Success: Workplace Dress Codes, Grooming Standards, and Your Rights

July 16th, 2024 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, Workplace Rights |

Tags: #attorneynearme, #DressCode, #EmployeeRights, #EmploymentAndLaborLaws, #NewYorkState, #SyracuseNY, employment attorney near me, workplacerights

Employers may establish dress codes or grooming standards to create a particular image or comply with safety requirements. These workplace rules may require uniforms or simply require a particular type of attire. Companies generally have the authority create these rules, as long as they apply them equally. As long as the dress code does not stifle Union activity, treat certain groups less favorably, or interfere with a reasonable accommodation, then the dress code wins. But there are some exceptions.

1. Union Clothing

Union-related clothing is a great way to show solidarity with your coworkers. In general, an employer can’t just say “don’t wear Union paraphernalia.” But they can prohibit buttons and pins of any type, or make rules about safety, or say that their dress code prohibits wearing t-shirts. The rules on this issue flip-flop approximately every four years, so talk to your Union rep or a workplace lawyer if you are getting called out for wearing that “Respect Our Contract” button.

2. Discrimination

Although employers have the right to implement dress codes, they must do so in accordance with anti-discrimination laws. Any dress code policy that disproportionately impacts certain protected groups may be deemed discriminatory:

A. Gender

The EEOC has concluded that a dress code that requires only women to wear uniforms probably violates Title VII. Historically, dress codes requiring roughly equivalent standards for male and female employees were considered nondiscriminatory if they were enforced equally (for example, neckties for men, skirts for women). But the Supreme Court’s decision in Bostock v. Clayton County has moved the needle, affirming that Title VII prohibits employers from discriminating on the basis of gender identity or sexual orientation. Under Bostock, dress codes and grooming standards may be discriminatory if they are based on outdated sexual stereotypes.

B. Race

Grooming standards that are harsher on one group than another may be discriminatory. For example, if white men are allowed to wear long sideburns and facial hair but Black men are not allowed to wear afros, the grooming policy may be discriminatory. Many states (including New York) have implemented legislation to prevent discrimination on the basis of hair textures and hair styles that protect hair from damage.

Likewise, if shaving causes you skin problems, you may be able to get a reasonable accommodation allowing you to deviate from an employer’s “clean shaven” policy – but you’ll probably have to ask for it.

C. Reasonable Accommodations for Religious or Disability-related Considerations

If a dress code conflicts with an employee’s religious practices or medical condition, the employee may request an accommodation. The employer is then required to modify the dress code unless to do so would result in an undue hardship. Caution: If you don’t request an accommodation, the employer isn’t going to just hand one out. Also, the employer doesn’t have to provide the accommodation requested, just one that doesn’t cost them too much money.

In case you’re wondering, a dress code that allows pregnant workers to wear maternity clothes does not violate Title VII as long as other employees with medical conditions are allowed to deviate from the dress code as needed.

D. National Origin:

In general, a dress code does not have to be modified to adhere to a person’s national identity. But a dress code that prohibits some kinds of national attire but not others may be discriminatory. For example, if brightly colored clothing is allowed but an employee gets into trouble for wearing Kente cloth, that could be discriminatory.

Conclusion:

This is a rapidly-changing area, so it’s important to get advice from legal professionals or government agencies when it seems like a dress code is cramping your style. Always speak with a qualified workplace attorney in your geographical area to determine whether you have legal protections against your employer’s dress code!

Federal “White Collar” Overtime Exemption is Getting A Raise!

June 26th, 2024 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Workplace Rights |

Tags: #EmployeeRights, #LaborAndEmployment, #NewYorkState, #SyracuseNY, employment attorney near me, labor attorney near me, labor lawyer near me, workers rights attorney near me, Workplace Rights, workplacelawyer

Heads up: the Federal “White Collar” overtime exemption is getting a raise. Specifically, the salary threshold above which an employee no longer qualifies for overtime will go up on July 1, 2024 to $844/week ($43,888 annually). On January 1, 2025, the threshold will rise again to $1,128/week ($58,656 annually). The new rule contemplates automatic increases to the salary threshold every three years.

The salary threshold is one test for determining whether employees are “exempt” from overtime rules (which actually means the employer is exempt from having to pay overtime). To be considered exempt, employees must meet the salary threshold, be paid on a salary basis (which means the amount of pay is predetermined and not subject to deductions if the employee is ready, willing, and able to work), and perform duties consistent with being a bona fide executive, administrative, professional, or outside sales person.

Currently the threshold is at $684/week ($35,568 annually) which cuts out a lot of employees who are making more than minimum wage, but not much more. The July increase won’t have much effect on executives and administrative workers in New York, whose salary threshold is already over $1000/week ($1,124.20 for upstaters, $1,200.00 downstate). But New York professional employees may see a difference.

Expect legal challenges to this rule. And always talk to a workplace rights lawyer in your jurisdiction before making any decisions or claims.

Pregnant Workers Fairness Act UPDATE

June 10th, 2024 by Sarah Ruhlen

Posted in Ask A Worker's Rights Attorney!, Employment and Labor Attorney, Workplace Rights |

Tags: #attorneynearme, #EmployeeRights, #EmploymentAndLaborLaws, #NewYorkState, #NewYorkStateLaborLaws, #pregnantworkersrights, #SyracuseNY, employment lawyer near me, labor law firm, labor lawyer near me, workers rights lawyer near me, Workplace Rights

The EEOC has issued final rules clarifying how the Pregnant Workers Fairness Act (“PWFA”) is implemented. Those rules go into effect on June 18, 2024. These regulations clarify the availability of accommodations for limitations arising out of pregnancy, childbirth, and associated conditions.

Employers don’t have to grant every accommodation request, just those accommodations that are “reasonable.” Without getting into a long discussion of how “reasonableness” is determined by legal decisionmakers, suffice it to say that accommodation requests often get watered down or negotiated out of existence. These guidelines help set a baseline.

Predictable Assessments: The new rules are exciting because they propose four accommodations that are presumed reasonable—meaning that, if the employer wants to deny them, the employer has to prove that they aren’t reasonable. Those accommodations are: 1) keeping water nearby and breaks for drinking (for example, having a water bottle); 2) additional restroom breaks; 3) allowing standing, sitting, and alternating positions; and 4) allowing additional eating/drinking breaks. These accommodations are called “predictable assessments.”

Limits on seeking additional documentation: Employers should not be seeking additional documentation in the following circumstances: 1) The need to adjust the workplace is obvious (for example, needing a larger uniform); 2) The employee has already provided sufficient information; 3) The employee is requesting one of the predictable assessments; 4) The employee requests time to pump or nurse; or 5) Non-pregnant or nursing employees would not be required to provide documentation for the same accommodation.

New York Workers: Meanwhile, New York Pregnancy protections are gearing up. On June 19, 2024, New York employees will be entitled to a paid[1] 30-minute lactation break “each time such employee has reasonable need to express breast milk for up to three years following child birth.” While some employers are already wringing their hands about how often the need to pump might be “reasonable,” there is similar language in the FLSA (“a reasonable break time…each time such employee has need to express milk…”) 29 U.S.C. §218d (a)(1). Additionally, under New York’s Paid Prenatal Leave, on January 1, 2025, pregnant New York workers will be entitled to 20 hours of paid prenatal leave per calendar year, at the regular rate of pay, to be used to attend prenatal doctor’s appointments. This leave is in addition to New York statutory paid sick leave.

Always contact a reputable workplace rights attorney to understand how new developments affect your rights!

[1] This beats out the Federal PUMP Act, which only requires unpaid leave, unless the employee is not completely relieved from duty during the pump break.

Speaking Up On Behalf Of Your Coworkers

October 9th, 2023 by Sarah Ruhlen

Posted in Advocating for Coworkers, Ask A Worker's Rights Attorney!, Workplace Rights |

Tags: #AdvocateForYourRights, #EmployeeRights, #EmploymentAndLaborLaws, #LaborAndEmployment, #NewYorkState, #NewYorkStateLaborLaws, #SyracuseNY, Accommodations, employment attorney near me, labor attorney near me, labor law firm, labor lawyer near me, Reasonable Accommodations, workers rights attorney near me, workplacelawyer, workplacerights

Your employer probably does not welcome your advocating for your colleagues. Whether your advocacy is protected or not depends on what you are discussing, how you say it, and how many other employees it involves.

This is an area of law that flip-flops every few years, so make sure you speak to a reputable workplace attorney!!!

A recent decision by the National Labor Relations Board has expanded the protections for your workplace discussions. It’s complicated, but you may have the right to talk with other employees or the boss about things like workplace safety, your wages, the schedule, or other terms and conditions of employment for the purposes of “mutual aid and protection.” “Mutual aid and protection” is one of those legal phrases that has a special meaning, so you’ll definitely need to speak with a lawyer to know whether a particular comment is protected. Generally speaking, if your comment to coworkers is intended to initiate or prepare for group action, or to bring group complaints to management’s attention, it may be protected.

Discussions that only involve your individual circumstances are not protected. And not every remark made in a group setting is protected. And even if your remark turns out to be protected, it may take months or years of litigation to ascertain that it was protected – during which time you are probably going to be looking for a job.

That said, Section 7 of the National Labor Relations Act gives many private-sector workers a federally-protected right to engage in protected concerted activity for the purposes of mutual aid and protection, and they don’t have to be in a union to exercise that right.

If your boss is on your case for a remark you made about a concern shared by your coworkers, talk to a workers’ rights attorney. It may turn out you have some protection.

Illegal Mandatory Overtime for New York Nurses

September 11th, 2023 by Sarah Ruhlen

Posted in Illegal Mandatory Overtime, Workplace Rights |

Tags: #EmployeeRights, #EmploymentAndLaborLaws, #IllegalOvertime, #LawFirm, #Lawyer, #MandatoryTimeOff, #NewYorkState, #NewYorkStateLaborLaws, #NYSNurses, #TimeOff, workplacerights

Imagine you’re an LPN working at a nursing home, and you haven’t had a day off in two weeks. The nursing home is short-staffed. Management says they’re trying to hire, but you don’t see them trying very hard. You need the job, so you keep on working. And working. And working. You need to take your child to the dentist, there is a mountain of laundry, and you really need to get snow tires. And you need a nap! But there’s no time, because they keep scheduling you for back-to-back shifts.

Now, imagine you’re coming to the end of yet another double. You put in for time off three weeks ago. You’re really looking forward to that nap!

Then the scheduler announces that you are being mandated for overtime. Your heart sinks. No time now for the dentist. No laundry, no snow tires. No nap! You have a feeling that something isn’t right, but you’re not sure who can do anything about it. What’s a nurse to do?

Good news: the New York State law on mandatory overtime for nurses has been amended. Employers are not allowed to require mandatory overtime for nurses except in emergency situations – defined as a health care disaster, a state of emergency, an unforeseen emergency that the employer could not plan for, or during a medical procedure where the nurse is needed. Note that emergency situations do not include chronic staffing shortages! This law applies to registered nurses (RNs) and licensed practical nurses (LPNs).

The amendment sets up civil penalties for violations, as well as requiring the employer to pay an additional 15% of overtime to the nurse. These penalties only kick in after the New York State Department of Labor completes an investigation and concludes that the law was violated. Nurses who believe that their employers are violating the mandatory overtime protections should speak with their union representative or a New York State workplace lawyer.

And then they should take a good long nap.