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Working For Tips At A Bar Or Restaurant In New York?

Know Your Rights Under the New York State Hospitality Industry Wage Order

By Susan T. McNeil, Esq.

On March 1, 2011, the New York Department of Labor implemented the Hospitality Industry Wage Order [“HIWO”]. The HIWO is a complex group of multifaceted provisions that establish a wide variety of wage and hour rules for the hospitality industry. This is the first installment of a series of blog posts aimed at helping hospitality workers understand their rights under the HIWO and how to figure out if their employer is playing by the rules. Up first is an explanation of which employers and employees are covered by the HIWO and an explanation of the interaction between the minimum wage and the “tip credit” used by many employers to offset wage costs.

 

Which employers must follow the Hospitality Industry Wage Order?

 

Every New York employer in the “hospitality industry” must abide by the HIWO. The hospitality industry is defined to include both “restaurants” and “hotels.” Restaurants include any eating or drinking establishment that prepares and offers food or beverage for human consumption either on its premises or by catering, banquet, box lunch, curb service or counter service.  The term hotel is broadly defined to include commercial hotels and motels, resorts, camps, and dude ranches, among other facilities.

 

What Hospitality Industry Workers are covered by the Hospitality Industry Wage Order?

 

“Food service workers” and “service employees” who are paid hourly and work for a covered restaurant or hotel, as described above, benefit from the HIWO. Under the HIWO, a food service worker is someone that serves food and drinks to guests and regularly receive tips. This includes servers, bartenders, and bussers.  A service employee, according to the HIWO, is someone that is not a food service worker but nonetheless customarily receives tips. This includes “to-go” expediters and host/hostess, but generally not delivery drivers. Other hourly restaurant employees, such as kitchen and maintenance staff, are considered “non-service employees,” and are not covered by the HIWO. Employees who work for the Federal, State or municipal government and those who work in an executive, administrative or professional capacity are not covered by the HIWO.

 

What is the “tip credit” and how does it affect my hourly rate of pay?

 

If you are a food service worker or a service employee working in the hospitality industry in the State of New York, you must be paid at least the minimum hourly wage for all time worked up to 40 hours per week. You become eligible for overtime pay at the rate of 1.5 times your regular hourly rate, be it the minimum hourly wage rate or otherwise, if your work week exceeds 40 hours. Effective December 31, 2020, the minimum wage in Long Island and Westchester County, New York is $14.00/hour, and $12.50/hour for the rest of the state except New York City [“NYC”] where the minimum wage is $15.00/hour.

 

The HIWO “tip credit” provision allows your employer to reduce its out-of-pocket wage expenditure by subsidizing your hourly wage rate with the tips you earn during your shift. It is important to understand that the tip credit does not relieve your employer from its obligation to pay you at least the minimum hourly wage for 40 hours of work in a week or from paying you 1.5 times your hourly rate for hours exceeding 40 during a work week.

 

Here is an example of how the tip credit works:

 

You currently work as a server at a restaurant on Long Island or in Westchester County earning the appropriate New York state minimum wage of $14.00/hour for each hour you work up to 40 hours in a week. Under the HIWO, your employer can pay you $9.35/hour and claim a tip credit of $4.65/hour to get you to the minimum hourly wage threshold of $14.00.  However, if your tips do not average out to $4.65/hour during your shift, your employer must cover the shortfall so that you earn the minimum hourly wage of $14.00. If business is slow and, as a result, tips earned during your shift do not average at $4.65/hour, your employer must make up the shortfall by reducing the tip credit and increasing your hourly rate from $9.35 so you earn minimum wage.

 

The same principle applies in the rest of New York State, but the amount of the allowable tip credit varies. In the remainder of New York, except NYC, the allowable tip credit is $4.15/hour provided you earn tips of at least that amount on average during your shift, so tips combined with the employer’s share of the minimum wage ($8.35/hour) gets you to the minimum wage of $12.50/hour.  In NYC, the allowable tip credit is $5.00/hour provided you earn tips of at least that amount, so tips combined with the employer’s share of the minimum wage ($10.00/hour) gets you to the minimum wage threshold of $15.00/hour.

 

Reviewing your weekly pay stub is the best way to determine if your employer is taking unfair advantage of the tip credit. If your gross wages ((hourly rate) x (hours worked) + tips for the week) divided by the number of hours worked is less than minimum wage, it is possible that your employer has violated the HIWO.

 

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.

 

My Two Cents on Equal Pay Laws

By Diane Williamson

The gender wage gap refers to the difference in earnings between women and men. Experts have calculated this gap in different ways, but the varying calculations point to a consensus: women on average earn less than men, and the gap is wider for women of color. It is illegal to pay an employee who is a member of a protected class (like gender or race) less than other workers who perform substantially similar work, but enforcing equal pay laws is difficult.

The statistic that women make only 81 cents for every dollar a man makes is slightly misleading.[1] Yes, overall, the average pay for men and women differs to that extent—and the gap is even greater if you consider women of color compared to White men. Nevertheless, simply looking at averages does not tell us much about the causes. It might be that women choose to work fewer hours than men do or that our society does not value careers that are traditionally held by women as highly as careers traditionally held by men.

The more important statistic is the controlled gender pay gap, which was 98 cents for every dollar in 2020.[2] In other words, on average a woman makes 98 cents for every dollar a man makes—doing the same job. Of course, some careers have a greater controlled pay gap than others. (Oddly, female anesthesiologists suffer the greatest pay disparity compared to their male counterparts.)

Do not dismiss the importance of two cents! Over the course of her career, the median woman will earn almost a million dollars less than the median man performing the very same work. You can see why legislators, past and present, attempt to address this stubborn disparity.

At the federal level, in 1963, the minimum wage provision of the Fair Labor Standards Act was amended to include the Equal Pay Act (EPA). Congress’s purpose in enacting the EPA was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry, namely the fact that the wage structure of “many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.” S. Rep. No. 176, 88th Cong., 1st Sess. 1 (1963).

The solution adopted was quite simple in principle: to require that equal work be rewarded by equal wages. While there have been successful Equal Pay Act suits, especially because there is no need to show an intention to discriminate, in general it is difficult to show that the two jobs are “substantially equal.”

In evaluating whether one employee makes less money than others of the opposite sex for “substantially equal” work, a court will consider the required skills, effort, responsibility, and working conditions. The lesser paid employee often has trouble pointing to other employees whose jobs are similar enough. For example, one U.S. Court of Appeals decision found that professors in different departments at the same University did not perform “substantially equal” work.[3]

At the end of January, the Paycheck Fairness Act was introduced into the House of Representatives. The bill includes many proposals to strengthen the EPA. One of the most important is the broadening of the requirement that the two jobs be at the same “establishment.” Under the current law, “establishment” by and large means the same physical space, which excuses many cases of obvious pay disparity simply because the workers work at different locations. The Paycheck Fairness Act would broaden the definition of “establishment” to include locations within the same county.

Another important change would be a protection against retaliation for employees who discuss wage and salary rates. Common sense tells us that most employees cannot even consider bringing an EPA claim because they have no idea what their coworkers are paid. Arguably, a law that would put the onus on employers to be transparent in their pay practices would go even farther to resolve this problem.

Passing the Paycheck Fairness Act would help, but it would not eliminate the inherent difficulty imbedded in the EPA of demonstrating that two workers perform substantially equal work.

In New York, a trio of amendments passed in 2019 strengthened the state’s equal pay protections. More specifically, the amendments 1) prohibit wage discrimination based on any protected class, not just gender, 2) extend the equal pay law to protect public employees, and 3) ban employers from making an applicant provide salary history as a condition of employment.[4]

The controlled gender pay gap has not changed since 2016, but the uncontrolled pay gap—as wide as it is—seems to be shrinking every year. Hopefully, these legislative changes—as minor or technical as they may seem—will keep us moving in the right direction.

 

[1] https://www.payscale.com/data/gender-pay-gap

[2] https://www.payscale.com/data/gender-pay-gap

[3] Spencer v. Virginia State University, 919 F.3d 199, 204-5 (4th Cir. 2019)

[4] If passed, the Paycheck Fairness Act would also prohibit employers from inquiring about the wage history of an applicant. The logic is that if an applicant has experienced pay discrimination in the past, inquiries into wage history only repeat that discrepancy.

 

Seven Things LGBTQ Workers Need To Know About Protecting Title VII Rights

 

On June 15, 2020, the Supreme Court of the United States ruled in Bostock v. Clayton County, GA that Title VII protects LGBTQ employees from workplace discrimination.  Even in the midst of the pandemic shutdown and the murder of George Floyd, workers and workers’ rights activists took to the (virtual) streets in celebration. Social media was covered in rainbow flags and memes involving unicorns and RBG.  Bostock was a desperately-needed ray of sunshine that week.

 

It still is.

 

If you’re feeling like the magic is gone, it may be because Title VII rights are tough to assert—for workers in any protected class.  Here are some lessons from the trenches:

 

  1. Get a lawyer. A workers’ rights attorney can advise whether there’s something legally wrong in the workplace, what options you have for combatting it, and how much it will cost to combat.  While it’s possible you have the case of the century, more often an attorney is going to be helping you decide when to fight, when to walk away, and when to run… (cue Kenny Rogers…)

 

  1. Document like mad. Is your employer needlessly complicating a name change process?  Do your coworkers constantly misgender and dead-name?  Is health insurance paying for cancer-related mastectomies but not those for TGNC patients?  Are you being asked non-job related health questions?  Is someone obsessed with which bathroom you use?  Specific, real-time documentation is your talisman.  Write down dates, times, locations, witnesses, what happened, what was said, and the effect the incident had on you (e.g., high blood pressure, PTSD, shaky hands all afternoon, felt humiliated, etc.)  The more exactly you can remember the wording of any comments, the better.  Send this information to yourself on your personal email account (NOT your work account, please).  Your attorney will be grateful for this real-time documentation.

 

  1. Use the complaint process – with caution. This is where the advice of an attorney is indispensable.  Making an internal complaint is sometimes like painting a target on your own back.  But if you’re already wearing a target, making a complaint puts the employer on notice that it may be looking at some pretty gritty legal liability.  For some employers, that fear will spur them to make some positive changes.

 

  1. Use the complaint process – with precision. Get an attorney to review your complaint. (Don’t rely on a verbal complaint.  Just don’t.)  The words “My boss is acting inappropriately” do not have the same effect as “On September 1, 2020 at 11:45 am, Henry Frick followed me to the restroom and asked whether I was leaving the seat up or not. Joe Hill and Hattie Canty witnessed this incident. I felt sick to my stomach the rest of the afternoon. I consider this to be gender-based harassment.”  The words you use will have an enormous effect on the strength of your legal position.

 

  1. Don’t let other employees turn you into “Queer Google.” You are there to do a job.  Your coworkers’ non-work related curiosity, even if it is well-intentioned, will interfere with your productivity and get you into trouble.  It is not your job to educate your cis colleagues.  If they are asking invasive or impertinent questions, it’s worth a conversation with your attorney to decide how to handle it in a way that ensures your Title VII rights are protected.

 

  1. Don’t quit – unless your attorney, doctor, spouse, or career coach says to. If you quit, you may cut off your ability to recover monetary losses. Courts don’t like speculative damages in the first place, and it’s hard to argue you had any expectation of continued earnings if you were the one who cut off your own earnings by quitting. But if the job is affecting your health, relationships, or career – or if your attorney says you can’t fix the problem—you may need to consider your big picture priorities.

 

  1. Don’t rely on lists you read on the internet. Speak with an attorney.  You deserve the peace of mind that comes with understanding your new legal rights at work.

 

 

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.

Rooting Out Racism in the Workplace

By Diane Williamson

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. 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.

This month our office is taking part in the Racial Equity Challenge sponsored by the New York State Bar Association. Anyone can participate (no law degree required): https://nysba.org/racialequitychallenge/. In taking part in the Challenge, I have been thinking about different types of racism, e.g., systemic racism, implicit bias, etc. Sometimes from a white perspective, it seems like overt racism is largely over, but what better context than employment discrimination to make us realize that overt racism is still very much alive in the United States.

In 1964, with Title VII of the Civil Rights Act, the federal government made employment discrimination based on race (and color, religion, sex, and national origin) illegal. Nevertheless, studies show that racist employment practices still exist. Most people are familiar with the study that demonstrated that identical resumes were 50% more likely to get an interview when the name at the top sounded like a white person’s name instead of a black person’s name. A 2017 study found that racist hiring practices have changed little since 1990.

In the landmark case Rogers v. EEOC, the Fifth Circuit Court of Appeals held that the practice of racially segregating patients in a doctor’s office could amount to discrimination in the terms, conditions, or privileges of employment, thereby violating Title VII. 454 F.2d 234 (5th Circ. 1971), cert. denied, 406 U.S. 957 (1972). The principal opinion in the case concluded that employment discrimination was not limited to the “isolated and distinguishable events” of “hiring, firing, and promoting.” Id., at 238. Rather, Title VII could also be violated by a work environment “heavily polluted with discrimination,” because of the deleterious effects of such an atmosphere on an employee’s well-being. Id.

Despite the recognition that racism at work could amount to unlawful discrimination, courts have been reluctant to hold that any and all displays of racism rise to the level of changing the workers “terms, conditions, or privileges of employment.”
In 1982, the Fifth Circuit stated that in order to be unlawful “a discriminatory and offensive work environment [must be] so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.” Vaughn v. Pool Offshore Co., 683 F.2d 922, 924 (5th Cir. 1982) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1981). Wow. It is crazy to think that previously workers were told by courts that racism in the workplace was not unlawful unless it completely destroyed their emotional and psychological stability.

In that case, the plaintiff failed in showing that the abusive work environment was unlawfully based on race regardless of the fact that he was called a “nigger,” “coon,” and “black boy” and a pool house nearby had “KKK Headquarters” written on it. Id. at 924. There were several other utterances of racial epithets and a workplace culture of violent hazing. Id. at 923. The court wrote that all the employees used similar racial epithets “without apparent hostility or racial animus.” Id. at 924. Basically, in 1982, the Fifth Circuit court ruled that using racial epithets in the workplace was normal.

Compare that 1982 case to one currently before the Supreme Court. Presently, the Supreme Court is being asked to consider whether a hostile work environment claim can survive summary judgment when there was racist graffiti (the N-word and two swastikas) and the plaintiff was called “boy” one time—potentially outside of the limitations period. Collier v. Dallas County, 3:17-CV-3362-D. (June 6, 2019 5th Cir.) Justice Kavanaugh in a DC Circuit Court opinion wrote that one instance of the N-word is severe enough to constitute racial harassment. Ayissi-Etoh v. Fanny Mae, 712 F.3d 572 (D.C. Cir. 2013). That being said, Justice Coney Barret ruled against summary judgment in a case with one utterance of the N-word. Terry Smith v. Illinois Department of Transportation (7th Cir. 2019). It is possible that racist graffiti is even more disturbing than a spoken utterance because the worker does not know who wrote the epithet, and the worker must endure it every day along with the knowledge that his coworkers seem to acquiesce to its presence. The Supreme Court decision in this case will help to determine the continued strength and relevance of the Civil Rights Act.

In some ways it seems that Title VII is not keeping up with society’s notions about the unacceptability of racism. Recently, a federal district court dismissed a complaint made by Whole Foods employees that the grocery store was selectively enforcing a dress code and penalizing employees who wore Black Lives Matter facemasks but not other employees who wore other slogans. Meanwhile, Taco Bell apologized for allegedly firing an employee for wearing a Black Lives Matter face mask, offering the longtime employee his job back. The latter reconciliation was due to a Facebook Live post and news coverage, not a court case.

While we do not yet know what effect the Supreme Court’s ruling in the above case will have on the federal discrimination standard, we can take some comfort in the fact that New York recently amended its discrimination law to make it easier to show that harassment is unlawful. Under the new standard, a plaintiff need not show that the harassment is severe or pervasive, but only that it altered the terms and conditions of employment. The employer can defend itself if the complained of conduct did not rise above the level of “petty slights or trivial inconveniences,” but it is hard to imagine that a coworker using a racial epithet could be construed as a “petty slight” in 2021.

Unfortunately, the changes to New York law have yet to be tested in court. We can only hope that our laws against discrimination will not permit racial epithets to persist in the workplace unpunished.

Ask A Worker’s Rights Attorney!

Law Books

The Satter Ruhlen Law Firm presents:

 

Ask A Worker’s Rights Attorney!

A webinar for workers.

Thursday, March 11, 2021 at 6:00 pm

 

Do you work in New York?  Do you have a question about your workplace rights?  This is your chance to ask an attorney about it.  One lawyer, six participants, eight minutes per participant (we’ll have a timer!)  Quick answers to your questions about wage and hour violations, discrimination, harassment, whistleblowing, unionizing, non-compete clauses, and other questions like “can they really do that to me?”

CLICK HERE TO REGISTER

Space is limited, so sign up soon!*

Participants will receive a 10% discount on a one-hour consultation with the Satter Ruhlen Law Firm.

Please note that this webinar is for informational purposes and is not to be considered legal advice. Participation in the webinar does not create or imply an attorney-client relationship. If you would like a dedicated one-hour consultation with us, please contact 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.

*Registrations will be screened for employees’ protection.

 

Satter Ruhlen presents: Workplace Bullying CLE Feb. 25, 2021

One week to our Workplace Bullying CLE Presentation.  Hope you can join us!

Experiencing Workplace Discrimination? Take Action Sooner Than Later to Preserve Your Rights

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  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.

As the saying goes, time waits for no one. This includes individuals who have experienced discrimination in the workplace.

Under the New York State Human Rights Law [“NYSHRL”], it is unlawful for an employer to discriminate based on an individual’s age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or status as a victim of domestic violence. Your right to bring a discrimination claim against your employer for a violation of the NYSHRL is subject to time limits known as statutes of limitations. If you file your complaint after the expiration of the limitations period, you will likely find your claim will not be heard.

A discrimination complaint under the NYSHRL must be filed with the Division of Human Rights within one year of the last act of discrimination (or three years for gender-based discrimination). Alternatively, an employee can file suit directly in the New York State Supreme Court within three years from the last act of discrimination based on any status protected by NYSHRL. Be aware that the limitations period to bring an employment claim under Federal anti-discrimination law is significantly shorter. If you want to preserve your rights under Federal law, the charge of employment discrimination must be filed with the Federal Equal Opportunity Commission within 180 calendar days from the day the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency where you work enforces a law that prohibits employment discrimination on the same basis. This is the case for New Yorkers.

If you think you have waited too long to initiate an action against your employer, you may catch a break thanks to one of Governor Cuomo’s COVID-19 Disaster Emergency measures. Back on March 20, 2020, Cuomo’s Executive Order 202.8, tolled the statute of limitations contained in the CPLR and other “procedural law of the state” for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding. That order was extended monthly until Executive Order 202.67, dated October 5, 2020 affirmatively stated that there will be no more extensions after November 3, 2020. These Executive Orders may afford you additional time to bring your claim for employment discrimination.

If you believe you are a victim of employment discrimination and are contemplating legal action but have questions about whether your claim is time-barred, contact a lawyer to discuss your options.

The Disturbing Racial Realities Of Workplace Safety

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. 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.

Even before COVID-19, workplaces were deadly places for Black, Latinx, and Asian American Workers. The U.S. Bureau of Labor Statistics Census of Fatal Occupational Injuries, released on December 16, shows shocking disparities along racial lines in worker fatality increases between 2015 and 2019.

It’s bad enough that worker deaths across the board have risen by 10%. What is more frightening is that where white worker deaths have risen by 1.7%, Latinx workers have seen a 20% increase; Black worker deaths have increased by 28%, and Asian American deaths have risen by 59%. That’s not a typo. Fifty-nine percent more Asian American workers died in 2019 than in 2015.

In a statement released by the National Council for Occupational Safety and Health [“NCOSH”] on December 21, NCOSH co-executive director Jessica Martinez says “The answer lies in decades of racism and discrimination, with workers of color routinely being assigned to the dirtiest and most dangerous jobs.” The NCOSH statement notes that the BLS statistics do not account for COVID-19 deaths. Moreover, future statistics likely will not reflect the effect of COVID-19 on workplace fatalities because even though COVID-19 may be contracted at the workplace, death resulting from COVID-19 does not take place at work, so data collection will miss those fatalities. Meanwhile, the CDC reports that Black or African-American individuals are 2.8 times more likely than whites to die of COVID-19. 

On Day 1 of his new job, President Biden called upon OSHA to issue clear guidance on COVID-19 safety. OSHA responded with Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, issued January 29, 2021. The guidance does not contain any surprises; many workplaces have already implemented many of OSHA’s recommendations by enforcing physical distancing, installing barriers, instituting face mask requirements, and implementing cleaning and disinfection procedures.

The OSHA guidance is non-binding, meaning it contains recommended COVID-19 safety procedures, but so far no one is required to abide by the guidance.However, the Biden administration has ordered OSHA to consider issuing an Emergency Temporary Standard [“ETS”] no later than March 15, 2021. A standard, unlike guidance, is enforceable, and an employer may face consequences for not abiding by it. If OSHA follows Biden’s recommendation, the ETS will likely include many of the measures that appear in the current guidance.

Which is a good start. But workplace safety experts interviewed by Safety and Health Magazine say that racial disparities in workplace safety won’t go away without significant structural change, including measures to eliminate workplace harassment, training inequities, and barriers to advancement. Organizations all over the country – including the Satter Ruhlen Law Firm – are participating in diversity and racial equity programming designed to help employers and workers recognize and examine unconscious biases, remove recruitment barriers, understand the racist history behind familiar structures and processes, and improve workplace communication – especially the listening part, which the safety experts say is one of the major barriers to equitable workplace safety.

The key to whether OSHA’s initiatives eliminate racial disparities in workplace safety is not just in the implementation of long-overdue COVID-19 safety guidance. It will have to do with how hard we work together to make sure no one gets left out when that guidance is implemented.

If you believe your workplace is more dangerous due to discrimination, it’s not a bad idea to contact an employment law attorney admitted to practice in your jurisdiction.  The attorney will help you determine what actions make sense for you to take to get and stay safe.

Workplace Bullying—Is it illegal?

By Diane Williamson
Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. 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.

Are you being bullied at work?


Unfortunately, more often than not, the law will not offer protection or remedy if you find yourself in a toxic work environment resulting from bullying by your co-workers or managers. Indeed, there is no law against workplace bullying in New York, and, as court decisions indicate, the law does not create “a general civility code” for the workplace.


Nevertheless, there are some instances when workplace bullying may be illegal. The law may protect you if the bullying is targeted at you for a specific reason such as your race, gender, or other classification that is protected by the law. Under New York anti-discrimination law bullying is illegal if it is based on race, color, national origin, ethnicity, religion, veteran status, genetic makeup, disability, age, or sex, gender, sexual identity, familial status, marital status, and domestic violence victim status.


So, what might actionable bullying look like? Imagine an employee who is targeted because of her age or because she asked for a reasonable accommodation for a disability. Not all of the harassing behaviors need to make explicit reference to the protected characteristic in order for the bullying to count as discrimination. Also, a combination of bullying based on more than one of the protected categories counts as harassment. And the employee who complains about harassment need not be the intended recipient of the abusive communications—if the harassers are speaking derogatorily about someone else, those comments may still contribute to the hostility of the work environment. While the plaintiff must demonstrate that the harassment altered the terms and conditions of employment, the harassing behaviors might also take place outside of work—on social media, for example.


In 2019 New York updated its law that prohibits harassment to better prevent against all forms of discrimination at the workplace. Now New York law instructs courts to use a stricter standard. While courts should not consider “petty slights and offences” to be harassment, bullying that targets someone because of protected characteristics should be considered discrimination if it changes the terms and conditions of employment for the victim.


In addition to New York’s anti-discrimination laws, there are other laws that hypothetically could offer some relief for bullied employees. For example, bullying might be illegal if it is in retaliation for making a discrimination complaint, complaining about unsafe or illegal activity, making a wage and hour complaint, or because of lawful recreational or political activities conducted outside of work. Nevertheless, the law may be less likely to punish bullying for some these reasons.


If the bully’s behavior rises to the level of being “outrageous” and “intolerable in a civilized society,” you may have a claim for intentional infliction of emotional distress against the bully, or if you have been the victim of offensive touching or threatened touching, you may have a claim for civil battery or assault. If the workplace bullying causes stress that exceeds normal work stress and it causes you to be unable to work, you may also have a Workers’ Compensation claim. Of course, the only way to truly gauge whether your claim is likely to be successful is to speak with a lawyer.


If you are faced with regular bullying at work, it is a good idea to keep a record of your experiences. You will most likely forget the little details of the day-to-day harassment unless you write them down. If you send an email to yourself that recounts the events of the day (not on your work email), the record will also be time-stamped. It might be the case that you only come to realize later that the bullying is related to a protected characteristic. To be on the safe side, start documenting the bullying as soon as it starts on the chance that you may later realize that it is illegal. Plus, writing down the harassing behavior may help to delay your response and defuse a potentially volatile situation. Overall, take care of yourself and start applying for new jobs. Hopefully, a better situation is right around the corner.

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