Please note that the information contained in this blog is for informational purposes and is not to be considered legal advice. This blog does not create or imply an attorney-client relationship. Satter Ruhlen Law Firm makes no representation that the information herein reflects the most current state of the law. This blog is not a substitute for consultation with an attorney licensed in your jurisdiction. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
Tag Archives: workers rights lawyer near me
Ever wonder what your rights are when you get the dreaded call to appear at a meeting with your manager or someone from the human resources department? The answer is…well, it depends, so read on!
If you are a union member, you have the right to union representation during an “investigatory interview” if you reasonably believe the meeting might lead to discipline. These are your Weingarten rights, named after a U.S. Supreme Court decision that created this protection for union members. Employers violate a union member’s Weingarten rights if they proceed with an investigatory interview while refusing to honor the member’s request for union representation.
Most any meeting may be an “investigatory interview” that triggers Weingarten rights, provided the following occurs:
- A manager, representative of management, or supervisor wants to question an employee;
- The questioning requires the member to defend, explain, or admit misconduct or work performance issues, including absenteeism and tardiness;
- The employee reasonably believes that the investigation may result in discharge, discipline, demotion, or other adverse consequence to their job status or working conditions; AND
- The employee requests a union representative.
Not every meeting triggers Weingarten rights, and it can be tricky to determine if the meeting checks all the boxes to amount to an “investigatory interview.” If you are a union member, it is a good idea to ask for union representation. If you are denied union representation, keep track of everything that happens during the meeting and, as soon as the meeting is over, write detailed notes of everything that happened and contact your union representative and share what happened.
As of this writing (March 6, 2023), Weingarten rights only apply to union employees, but that has changed in the past, and whenever the presidential administration changes, there is a chance that the scope of Weingarten rights may change. For example, the NLRB recently held that strike replacement employees are entitled to Weingarten protections.
So, definitely speak with a lawyer to find out if you have Weingarten rights today. Meanwhile, the benefit of Weingarten rights is one of many reasons to remain #UnionStrong!
In July 2022, Senator Schumer’s Cannabis Administration and Opportunity Act bill was introduced, seeking to decriminalize marijuana federally. There are a variety of reasons the bill may not have the votes to pass, but many states – including New York – have laws that prohibit discrimination against employees who use cannabis… sort of.
So, what are the rules about cannabis in the New York workplace? In New York, employees’ lawful off-duty conduct is technically protected. And in March 2021, New York Labor Law was amended to specify that lawful off-duty conduct includes recreational use of marijuana.
Does this mean you can smoke up at work with impunity? NOPE. Please don’t do it – you’ll get fired. (See our previous blog posts here and here for more information about how marijuana can still get you fired.) But it does mean that a New York employee who works in a non-safety sensitive position shouldn’t be getting tested for cannabis, and shouldn’t be getting into trouble for off-duty use unless the employee “manifests specific articulable symptoms of cannabis impairment” that interfere with job performance or safety. What are “articulable symptoms of cannabis impairment?” Very good question. Nobody knows. Bottom line, don’t be high at work.
Also, if there are state or federal regulations (for example Department of Transportation rules) that require testing, the employer can still test and take disciplinary action on the basis of a positive test. If you have specific questions about cannabis in the New York workplace, make sure you consult with a New York workplace attorney!
So, the workplace is not going to become a magical mystery tour any time soon. But what you do after work is starting look a little more like your own business.
New York State recently passed a law requiring employers to give notice to employees if they monitor employees’ telephone, email, and internet activity.
Section 52-c of the New York Civil Rights Act requires employers to provide written notice of e-monitoring individually to new employees. If the employee doesn’t sign an acknowledgement of the notice, the notice is invalid. Further, the notice must inform the employee of monitoring of telephone, email, internet, or use of any electronic device (including computer, telephone, wire, radio or fax). Notice must also be posted in a conspicuous spot in the workplace.
The employer does not have to inform employees about computer system maintenance and protection such as spam filters and volume controls.
Realistically speaking, this means an extra form for New York employees to sign during the hiring process. If a new hire refuses to sign, in all probability the employer could refuse to keep the person on the job. Additionally, there is no private right of action, meaning employees can’t individually sue employers for violations of this law. But employees can report employers to the New York State Attorney General, who can impose monetary penalties. Repeat offenders will be assessed increasingly stiff penalties.
The law goes into effect on May 7, 2022. If you are concerned about how your employer is monitoring you, it’s not a bad idea to call the attorney general or speak with a workers’ rights attorney in your jurisdiction.
Whistleblower law in New York was abysmal. The only people who seemed to be protected were folks who warned the public that a nuclear power plant was about to blow up. Anything less than a “substantial and specific” public safety threat was not covered; thus, employees who reported their employers for misconduct such as cooking the books did not get job protection, even when the boss went to jail.
Enter the amended NY Labor Law Section 740, which takes effect on January 1, 2022. Here’s what the amendments do:
- There is no longer a requirement that the reported violation constitute a substantial specific public safety threat – although reporting such a threat is still a protected activity.
- Employees are protected from retaliation if they report conduct that they reasonably believe constitutes a violation of a law, rule, or regulation. What constitutes a “reasonable belief” remains to be seen, so it’s wise to make sure you have a good understanding of the violation you’re reporting before making the complaint.
- Employees must make a good faith effort to notify the employer of the violation, giving the employer the chance to fix the problem. But that notification requirement is eased in situations where there is imminent or serious danger to public safety, the employee reasonably believes that the employer would take steps to conceal the activity (such as shredding incriminating evidence), the report would result in physical harm or result in endangerment of a minor, or the employee reasonably believes that the employer is already aware of the violation and will not correct it.
- The amendments extend the statute of limitations to two years from the date of the violation, and entitle the parties to a jury trial.
- Particularly bad conduct can result in an award of punitive damages.
- Employers are required to post a notice of employees’ whistleblower rights in a conspicuous spot in the workplace.
Fair warning: Employees who bring frivolous claims may be ordered to pay the employer’s attorneys’ fees and costs – which often amount to six figures. So before you file a big court claim, it’s a good idea to speak to a workers’ rights attorney in your jurisdiction.
 Healthcare workers had slightly better protections under NYLL 741.
Hello, fellow Upstaters! You probably know by now that New York State private sector minimum wages are going up on December 31, 2021. This is pursuant to amendments to New York State minimum wage orders, which since 2016 have set a goal that the rate, eventually, will reach $15.00/hour for private sector workers statewide. As of December 31, 2021, minimum wage for private sector, non-hospitality or building trade employees in Upstate New York will increase to $13.20/hour.
But be careful before you take this opportunity to go on a shopping spree. First, you might not be in a sector governed by the minimum wage orders (sorry, public employees). Second, if you’re in New York City, the rules are different for you. Third, hello food service workers! You have to deal with stuff like tip credits, tip pooling, and other complications (hint: your wages are still far below everyone else’s because, allegedly, tips are supposed to make up the rest.)
Luckily, the New York State Department of Labor has created a wage calculator that will help you figure out whether, and how much, you benefit from this new increase. (Go try it out, it’s fun!) Additionally, there’s a handy flyer that can give you some background information on where the strive for $15 has taken us so far.
As always, if you have questions about your wages, contact a workers’ rights attorney today!
Need To Take Time Off From Work To Vote on November 2, 2021?
On Tuesday, November 2, 2021, polls in New York will be open from 6:00 am to 9:00 pm.
Employees in New York are eligible for up to two hours of paid time off to vote in certain circumstances.
Specifically, if you don’t have “sufficient time to vote” during your workday, NYS Election law gives you up to two hours paid time off to vote. Election Law §3-110. By contrast, you are deemed to have “sufficient time to vote” if you have four consecutive hours to vote either from the opening of the polls to the beginning of your shift, or four consecutive hours between the end of your shift and the closing of the polls. Id.
Here’s an example. If you must work from 9:00 am to 5:00 pm on Tuesday, November 2, 2021, the election law deems you as having “sufficient time to vote” and therefore not eligible to paid voting leave. This is because the polls are open until 9:00 pm – which is four consecutive hours after the end of your shift at 5:00 pm. If, however, you work from 9:00 am to 6:00 pm on Tuesday, November 2, 2021, you can get paid voting leave because the polls are open for only three consecutive hours after the end of your shift. The total amount of paid time off you are entitled to depends on several factors, including travel time from your workplace to your polling place, waiting time at your polling place, traffic, among other things. The maximum paid time off to vote is capped at two hours.
Please note the following:
- You are required to give your employer at least two working days prior notice of your intention to take paid time off to vote, but not more than ten working days’ notice. The term “working days” is defined as any day that your employer is open for business.
- Your employer cannot require you to use personal time off or any other form of earned leave time to vote.
- Regardless of your vaccination status, masks are required for all individuals entering polling locations.
If, you believe your employer is impermissibly denying you paid time off for voting, contact a workers’ rights attorney or the New York State Department of Labor.
This article is an update of our January 27, 2021 blog post.
As more and more employers implement mandatory vaccination policies for employees, it’s important for employees to understand why the requirement is legal, and what their options are.
Legal challenges to vaccine mandates have not, so far, been successful. Applications for injunctive relief have been denied, and a federal court in Texas has rejected wrongful termination and public policy arguments. New York City Municipal Labor Committee, et al. v. City of New York, et. al, Index No. 158368/2021 (New York Co. September 22, 2021); Bridges, et al v. Houston Methodist Hospital, et al., H-21-1774 (SD Tex. June 12, 2021).
This said, employees who are afflicted with disabilities that make it dangerous for them to be vaccinated, as well as employees with sincerely-held religious beliefs, may be able to seek a reasonable accommodation. Each employer has its own process for requesting those accommodations, and determining whether there is a reasonable accommodation available involves an interactive process that requires the cooperation of both employer and employee. Below, we recap several FAQs from our previous vaccination article.
Can my employer demand that I receive the COVID-19 vaccine as a condition of employment?
Yes. Requiring the vaccine is not a medical exam, nor does it seek information about your current health status or impairments. A vaccine mandate does not in itself violate discrimination laws if the mandate allows a case-by-case assessment of whether there a reasonable accommodation could be provided for those who need it.
What if I do not want to be vaccinated because of my disability or because of my sincerely-held religious beliefs?
If your disability or religious beliefs prevent you from being vaccinated, you may request an accommodation from your employer. When you request an accommodation, your employer needs to determine if you, as an unvaccinated employee, pose a “direct threat” to the health and safety of yourself or others, and whether the threat can be eliminated or reduced by a reasonable accommodation.
If the assessment results in a finding of direct threat, your employer will try to determine if there is a reasonable accommodation that would allow you to continue to work. This interactive process includes getting information from you and your doctor or religious leader. It is important for employees to cooperate in the interactive process; failure to do so can result in termination. Keep in mind that your employer does not have to provide the specific accommodation that you request. Also, if your employer genuinely cannot come up with a reasonable accommodation, you may be terminated.
Can my employer ask for proof that I have received the COVID-19 vaccine?
Yes. Simply requesting proof of a COVID-19 vaccine is not likely to elicit information about a disability and, as such, is not a disability-related inquiry that would trigger ADA or other health information privacy protections. However, if you have not been vaccinated due to a medical condition, you’ll need to be prepared to request an accommodation, which will require you to provide medical information to allow the employer to determine what kind of accommodation can be provided.
Do I have ADA protection if my employer administers the COVID-19 vaccine ?
Yes. The pre-vaccination medical screening questions are likely to elicit information about your health. When these questions are asked by your employer (this might happen in the healthcare context), they meet the ADA definition of a “disability-related” inquiry, and, as a result, you are entitled to ADA protection. The ADA requires that the disability-related screening questions be “job related and consistent with business necessity.” If you are concerned that your employer’s mandatory vaccination program does not meet this threshold, contact an attorney for advice.
On March 31, 2021, Governor Cuomo signed the Marijuana Regulation and Taxation Act [“MRTA”] into law. The MRTA legalizes the recreational use of marijuana in New York for individuals over the age of 21 and expands New York’s existing medical marijuana program. While the law takes effect immediately, the sale of recreational marijuana is not expected to become legal for at least a year from the enactment date while the state works to create a regulatory framework for the cannabis industry.
This blog post will discuss how the use of marijuana, whether for a medical or recreational purpose, may impact your workplace rights. As a warning to all, it is important to understand that the recently passed legislation does not give one free license to show up for work under the influence of marijuana. In fact, some workplaces can still impose discipline if an employee tests positive even if s/he was not under the influence while at work. It must be understood that if you are under the influence of marijuana at work you are subject to discipline, up to and including termination. If you test positive and your employer is subject to safety regulations, your employer may impose similar discipline, even if you were not under the influence while at work.
Medical Marijuana Use
New York’s Compassionate Care Act [“CCA”] allows for, and regulates, the cultivation, distribution, prescription, and use of marijuana for medical purposes. The CCA allows approved organizations, such as hospitals and community health centers, to dispense medical marijuana to patients who have been certified by their health care provider and who have registered with the state Department of Health. Although federal criminal law forbids the possession, distribution, sale, or use of marijuana, thanks to the CCA, in New York the United States Department of Justice does not currently enforce criminal law provisions against individuals and entities engaged in the cultivation, transportation, delivery, prescription, or use of medical marijuana in accordance with state law.1
The CCA states that “certified patients” have a “disability” for the purposes of state antidiscrimination law. N.Y. Pub. Health L. §§ 3360(3), 3369(2). As a result, under New York State Human Rights Law, employers may not discriminate against an employee or job applicant based on lawful use of medical marijuana. N.Y. Exec. L. §§ 292(21), 296(1)(a). While under New York’s CCA, people with serious medical conditions may legally use marijuana in the manner prescribed by a registered care provider who is licensed to dispense, it is important to understand that this does NOT mean that a certified medical marijuana patient can show up for work under the influence or use medical marijuana in a manner that violates workplace rules. In addition, the CCA specifically exempts employers from doing “any act that would put the [employer] in violation of federal law or cause it to lose a federal contract or funding.” This means your employer may be exempt from following the CCA if subject to federal regulation, such as Department of Transportation rules.
Here are a few examples of how New York’s Human Rights Law and the CCA may, or may not, protect your rights if you are a certified medical marijuana patient.
I’m a certified user of medical marijuana and, while I was not under the influence of marijuana at work, I tested positive after a random drug test. Can I get fired?
It depends. As a certified medical marijuana patient, you are “disabled” under New York law and, therefore, are a member of a protected class. As such, before imposing discipline, your employer must engage in a good faith interactive process to assess your needs and determine if there is a way to accommodate your use of medical marijuana that does not impose an undue hardship on the employer. If you work in a safety sensitive position, in a job subject to federal regulation, and/or your use of medical marijuana poses a direct threat to yourself, co-workers, or customers, your employer may have grounds to terminate even if you were not under the influence of marijuana while at work.
I am a certified medical marijuana patient and report to work under the influence of marijuana or use marijuana during my shift. Can I get fired?
Yes. In fact, a New York employer is free to fire, discipline, or take other adverse action against an employee who uses marijuana at work or shows up to work under the influence of marijuana—even if you need it to treat a medical condition. The understanding is that marijuana use to address your underlying health condition must occur when you are off the clock and at intervals that allows you to be at work when you are not under the influence.
I am a certified medical marijuana patient with a conditional offer of employment. I tested positive for marijuana and synthetic tetrahydrocannabinols (THC) during the pre-hire drug test. After explaining that I am a certified medical marijuana patient, my employer withdrew the offer on the spot. Is this legal?
It depends. Once your prospective employer is on notice that you are a certified medical marijuana patient, the law requires the employer to engage in a good faith interactive process to assess your needs and determine if there is a reasonable accommodation that will allow you to perform the essential functions of your job as a medical marijuana patient. An employer is obligated to participate in an interactive process even if the employer is subject to federal regulations that prohibit hiring or retaining employees that test positive for scheduled substances. If there is a way to accommodate your use of medical marijuana that does not impose an undue hardship on the employer, or create a direct threat to yourself, co-workers, or customers, you should not be denied the job. If you feel the sole reason you were not hired is due to your status as a medical marijuana patient, you may want to contact an attorney to discuss your rights.
If you are applying for a job in New York City on or after May 10, 2020, you will benefit from a local law amending the New York City Human Rights Law to prohibit pre-employment testing for marijuana and synthetic tetrahydrocannabinols (THC). See N.Y. Pub. Health L. §§ 3302(21), 3306(d)(21). This prohibition on marijuana testing in the hiring process, however, does not apply if you are seeking employment in a safety sensitive position, such as law enforcement, elder care, or medical services.
Recreational Marijuana Use
The MRTA amended the New York Labor Law provision that prohibits employers from refusing to “hire, employ or license, or to discharge from employment or otherwise discriminate against an individual” for engaging in legal recreational activities outside of work. N.Y. Lab. L. §201-d(2). As amended, the provision now provides that the recreational use or consumption of marijuana outside of work hours, off an employer’s premises, and without use of the employer’s equipment or other property, constitutes lawful recreational activity.
As a practical matter, the MRTA’s amendment of the Labor Law limits an employer’s ability to discipline employees for their recreational use of marijuana but, be forewarned, there are still employment related limits imposed on an employee’s right to partake and exceptions to the law that allow an employer to impose discipline. Consider the following:
- Nothing in the law “is intended to limit the authority of…employers to enact and enforce policies pertaining to cannabis in the workplace” or “exempt anyone from any requirement of federal law.” In other words, employees still must adhere to workplace drug policies. Also, under federal law, marijuana use is still illegal. The CCA’s protection from criminal prosecution for use of medical marijuana does not extend to recreational use.
- “Work hours” means all work time, “including paid and unpaid breaks and meal periods” and “all time the employee is actually engaged in work.” N.Y. Lab. L §201-d(c). As such, an employee is subject to discipline for marijuana use during break time or a rest period during the workday, even if not on the clock.
- Employers retain their ability to discipline an employee who is “impaired” by marijuana while on the job. The MRTA defines the term “impaired” as when an “employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law.” However, the MRTA does not define “specific articulable symptoms,” and until the state releases interpretive guidance, employers are likely to define the term broadly.
- An employer does not violate N.Y. Lab. L. §201-d if its response to an employee’s recreational use of marijuana: 1) is required by state or federal law; or 2) if failing to do so would leave the employer in violation of federal law or lead to the loss of a federal contract or funding.
If you have questions about your workplace rights surrounding the legal use of marijuana, you should consider consulting an attorney.
This is the second installment of a series of blog posts aimed at helping hospitality workers understand their rights under the Hospitality Industry Wage Order [“HIWO”], a complex group of multifaceted provisions that establish a wide variety of wage and hour rules for the hospitality industry. This blog post will explain when a hospitality worker is entitled to receive extra compensation for maintaining a uniform.
Under HIWO, employers are generally required to pay “uniform maintenance pay” to help compensate an employee for the cost of maintaining a required uniform. 12 NYCRR §146-1.7. The weekly payment for uniform maintenance varies depending on where your workplace is located in the state, the number of hours you work each week, and in some localities, the number of employees on the payroll. For example, if you work in a restaurant in Syracuse, NY, your weekly uniform maintenance pay in 2021 will range from $7.45/week to $15.55/week, depending on the number of hours you work during the week. If you work at a restaurant in Manhattan with 11 or more employees, your weekly uniform maintenance pay in 2021 ranges from $8.90/week to $18.65/week, depending on the number of hours you work during the week.
There are exceptions to the general rule described above. So, before you demand compensation for maintaining your uniform, make sure your employer’s practice does not fall under one of these exceptions.
First, if your employer regularly launders your uniform free of charge, has an adequate supply of clean, properly fitting uniforms at the ready, and individually informs you in writing of the above, BUT you choose not to take advantage of this, you forfeit your right to receive uniform maintenance pay.
Second, your employer is not required to pay uniform maintenance pay when the required uniform is made of “wash and wear” material that can be laundered along with your own garments, provided you are given (at no cost to you) a sufficient number of uniforms consistent with the average number of days you work each week.
So, how many uniforms does an employer have to provide to avoid its uniform maintenance obligation?
This very question was explored by the court in Gregory v. Stewart’s Shops Corp., 2016 U.S. Dist. LEXIS 89576 (NDNY 2016). In this case, a hospitality industry employer’s policy of providing two or three uniforms to full-time employees was challenged by employees who claimed the HIWO required an employer to provide a number of “wash and wear” uniforms equal to the number of days per week an employee regularly worked. The employer argued that a sufficient number of uniforms did not require them to provide one uniform for each day of the week the employee generally worked. The court ruled in favor of the employer, reasoning that the authors of the HIWO had a chance to draft a bright-line rule such as one uniform for each day of the week the employee generally works, and they did not. Therefore, the subjective standard of a “sufficient number” is the rule.
Here is the take-a-way. If you work as a server five days a week your employer is not required to provide you with five “wash and wear” uniforms. Instead, your employer must provide you with a sufficient number of “wash and wear” uniforms, perhaps two or three. If you are working five days a week and are provided with only one or two required “wash and wear” uniforms, you are likely entitled to uniform maintenance pay. If you are required to wear a uniform and you must pay for the uniform(s), you are also likely entitled to uniform maintenance pay because, technically, your employer has not furnished a sufficient number of uniforms. Finally, if your required uniform is not of the “wash and wear” variety, you are likely entitled to uniform maintenance pay, regardless of the number of uniforms provided and the number of days you work each week.
If your employer is subject to the HIWO and you suspect a compliance issue, you should contact an attorney or the New York State Department of Labor.