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Tag Archives: Workplace Rights

Five Things You Need To Know About Marital Status Discrimination In New York

 

Discrimination on the basis of an employee’s marital status is prohibited under Section 296 of the New York State Human Rights Law and under Section 8-107(a) of the New York City Administrative Code. However, “marital status discrimination” might not be what you think it is – and the definition is different depending on whether you are looking at the State statute or the New York City statute.

  1. Under New York State Law, Marital Status Discrimination Is Not…

The decision to be aware of here is Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board, 51 N.Y. 2d 506 (1980), which went like this: Notwithstanding an employer’s anti-nepotism rule, an employee had worked under the supervision of her husband for approximately four years. When a new manager took over, he terminated the wife’s employment pursuant to the anti-nepotism rule. The New York State Court of Appeals concluded that the employer’s action was not marital status discrimination. How is this possible? Because, reasoned the Court, marital status is a question of whether the employee is married, single, widowed, separated, or divorced. Marital status has nothing to do with whom the employee is married to. The employee in Manhattan Pizza Hut was not fired because she was married, but because she was married to her supervisor.

The Manhattan Pizza Hut logic has carried into situations where a company refused to hire an applicant because her husband was already employed there (Matter of Campbell Plastics v. New York State Human Rights Appeal Board, 81 A.D. 2d 1991 (3rd Dept. 1981)) and to a denial of health insurance to an employee who has comparable coverage under a spouse’s insurance benefit (Police Ass’n v. NYS PERB, 126 A.D. 2d 824 (3rd Dept. 1987)). A corrections officer who married an inmate was discharged, not because of her status as “married,” but because she broke a rule against having a relationship with an inmate. Vega v. Dept. of Correctional Services, 186 A.D. 2d 340 (3rd Dept. 1992). In Cramer v. Newburgh Molded Products, 228 A.D. 2d 541 (2d Dept. 1996) an allegation that a plaintiff was terminated “because she was married to Joseph Cramer” did not survive a motion to dismiss because the termination was based on her being married “to Joseph Cramer” rather than simply on her being married. In McGrath v. Nassau Health Care Corp. , 217 F. Supp. 2d 319 (EDNY 2002), an employee who was sexually harassed did not additionally have a marital status discrimination claim even though her harasser made comments to the effect that she would be “stupid” to marry her fiancé, refused to give her time off to plan her wedding, told her she should not be sleeping with her husband, and tried to dissuade her from going through with the marriage during the wedding.

  1. Marital Status Discrimination Might Be…

In Kipper v. Doron Precision Systems, 194 A.D. 2d 855 (3rd Dept. 1993), an employee’s marital discrimination suit survived dismissal[1] because there was evidence his supervisor told him he was chosen for layoff because he would not experience financial hardships as severe as his married co-workers. The Kipper plaintiff was not laid off because of his involvement or non-involvement with anyone in particular, but because the employer considered him less vulnerable to financial hardship because he was single.[2]

  1. Meanwhile, in New York City…

Contrary to State Law, New York City’s marital status discrimination prohibition is given a “broader meaning than simply married or not married.” Morse v. Fidessa Corp., 165 A.D. 3d 61 (1st Dept. 2018). In direct contrast to the State Court of Appeals’ analysis of State Human Rights Law, the First Department has concluded that the “plain meaning” of marital status includes who the person is married to. In Fidessa, the First Department rejected the Manhattan Pizza Hut definition of “marital status” and specifically found that, under New York City Code, it also encompasses who is married (or not married) to whom.

Likewise, very recently, where a University rescinded its invitation to be part of a new institute following a professor’s divorce from another professor, the NYC marital discrimination suit survived summary judgment.[3] Karayiorgou v. Trustees of Columbia University, 2021 N.Y.  Slip. Op. 31044(U) (NY Co. January 14, 2021). Although factual issues of Karayiorgou remain to be determined, the Court noted strong evidence that the professor had been invited on the strength of her significant contributions to the scientific community, and that un-inviting her based on her ending her relationship with another professor not only constituted marital discrimination, but also smacked of gender bias in that the University’s arguments tried to downplay the plaintiff’s credentials and accomplishments.

  1. What About Other States?

Unfortunately, for the vast majority of employees,[4] federal discrimination law does not specifically prohibit discrimination on the basis of marital status. A survey of the 50 states’ laws on marital discrimination is beyond the scope of this article, so as always we strongly encourage you to consult with a qualified employment attorney in your jurisdiction.

  1. Wait, am I protected or not?

Short answer: Employees in New York City have relatively strong protections against marital status discrimination. Employees in New York State have protections that have been significantly limited by decisional law. Protections in other states depend on state and local laws and regulations. Bottom line, if you believe you have been discriminated against due to your marital status, the first thing you should do is contact an employment lawyer in your jurisdiction to see what kind of protections you might have, and what if anything can be done to protect your rights.

[1] Surviving a motion to dismiss just means that the case isn’t thrown out of court. It doesn’t mean he won.

[2] Notice anything about the breakdown between plaintiffs’ genders in Item #1 versus Item #2? Don’t try to hang your legal hat on it, but it may say something about what these decisions are trying to accomplish.

[3] Like a motion to dismiss, surviving summary judgment just means that the case isn’t thrown out of court. It doesn’t mean she won.

[4] Employees in the Federal Civil Service do have some protections under the Civil Service Reform Act of 1978, which includes marital status as a protected status.

Yes, Your Employer Has To Pay For Vaccination Time

 

On March 12 New York passed a law [link here] entitling New York workers to up to four hours of paid leave for COVID-19 vaccinations.  That is four hours per injection, which means if you get the Moderna or Pfizer injection, you get a total of two four-hour chunks of leave to get the shots.

Employers have to provide this leave in addition to other leave, which means they can’t make you use sick leave or New York State Paid Leave to cover your vaccine leave.

The leave must be paid at your regular rate.  Retaliation against employees who take vaccination leave is illegal.

The law amends New York Civil Service Law to add Section 159-c, which applies to public employees, and New York Labor Law to add 196-c, which applies to pretty much everyone else.

The law expires on December 31, 2022.

Get out there and get your “Fauci Ouchi!”

Talking About Your Case?  Let’s Talk About That.

 

Of course you want to take your story to the press. You feel you owe it to other employees to expose what has happened to you. It could be the trial of the century. Whether you want to explain it to TikTok, get hugs from Facebook, or rant on Twitter, the world needs to know what these people are doing to you, right?

 

Hold up!!!

 

Getting your story out may feel very satisfying in the short-term, but you may end up regretting the legal consequences later.

 

First, if you are pursuing legal action, or considering pursuing legal action, every word you say to the press or on social media could end up as evidence admissible in court – evidence you don’t want admitted. Plus, if your complaint uses the word “bluegreen” and your Facebook post says “turquoise,” the other side’s attorney is going to have a heyday with the perceived inconsistency. Even totally innocent statements can be twisted to contradict a key element of your claim, and your lawyer may not be able to untangle the mess.

 

Second, if you’re making allegations you can’t prove, the other side may be able to turn around and sue you for defamation. While in some states, statements made “in the course of litigation” may be privileged, the other side is going to have a mighty strong argument that allegations made on Twitter or in an email to a reporter aren’t made “in the course of litigation.”

 

Third, any time you speak you risk divulging confidential information. So if the employer thinks there is a confidentiality breach, you might find yourself getting sued for that breach.

 

Fourth, the employer might be willing to make a settlement offer – in return for a nondisclosure agreement. But an employer who is already paying lots of money to a PR firm to clean up the bad press you’ve created might not see a reason to pay you, too.

 

Fifth, you’ve heard of internet trolls. Internet backlash is real, vicious, and devastating, No matter how angelically you have behaved, some stranger out there may take devilish glee in throwing mud—or worse—at you.

 

What if the press contacted me?

 

All of the above applies, times 100. If the press contacted you then the last thing you want is to feed the fire at the same time you destroy your own case.

 

But the other side is saying terrible things about me!

 

Two points here:  First, if the other side is an employer, they can afford a lot more PR firm time than you can. Second, see above about all the ways a public statement can backfire. That said, if you have had a long talk with your attorney and your attorney has given you the go-ahead, preferably with a very careful set of rules about what you will and will not say, then it’s ok to respond to media attacks – but stick to the script. If you go off-message, you’re going to pay for a lot of legal hours while your lawyer cleans up the mess.

 

So mum’s the word?

 

Well, no. Your attorney may have some reasons for wanting to release measured statements. For example, if your matter involves a large group of people who may have experienced the same workplace violation, your lawyer may want to enlist the press in finding other victims. The same method can help locate witnesses. In some circumstances, the lawyer may even consider it useful to for you to give a statement.

 

Bottom line:  Whatever you do, if you want to win your suit, never speak to the press without consulting legal counsel first.

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.

 

 

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.

 

Update: Biden Reinstates Job Protections for Federal Civil Servants

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. 

In November this blog spread the word that President Trump signed an executive order that made it easier to terminate civil servants working for the federal government. There is good news for those of you impacted by this Trump policy shift.

On January 22, 2021, President Biden reversed the Trump administration’s executive order that targeted civil service workers by creating “Schedule F” employees, a new class of civil servants who could be hired or fired without regard to civil service rules. Biden’s executive order protects an employment merit system so that civil servants cannot be appointed and terminated for political purposes.

According to the Business of Federal Technology Journal, the Office of Management and Budget made moves to reclassify almost 90% of its workforce as Schedule F in the last days of President Trump’s administration. While the reclassifications had not yet taken place, their imminence suggests that the institutions of democratic government are weaker than we may have realized. These dueling executive orders remind us that we cannot take for granted our system in which government employees enforce the laws and not the power of elected officials. The government, like any workplace, functions best when its employees are evaluated on performance not on their allegiance to certain leaders.

The new executive order also reinstates union rights that were eliminated by the Trump administration executive orders, signed on March 28, 2018, which restricted collective bargaining and were the subject of several lawsuits and labor practice challenges.

The new executive order directs the Office of Personnel Management to instruct the President on recommendations for moving toward a $15 minimum wage for federal employees.

As stated in President Biden’s executive order: “It is also the policy of the United States to encourage union organizing and collective bargaining. The Federal Government should serve as a model employer.” These changes are a step in the right direction for workers.

Getting Fired in Turbulent Times

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.

It happens.  When the public is already highly-charged with emotion, employees get fired.  They get fired for good reasons, like getting caught being racist on camera or refusing to wear face masks.  They get fired for bad reasons, like reporting discrimination.  And they get fired for scary reasons, like getting arrested while engaging in peaceful protests. 

This post isn’t about how to not get arrested at a protest.[1]  If you are engaging in civil disobedience against state-sanctioned murder of people of color today, in all likelihood you have already weighed the pros and cons of making your voice heard versus being arrested for blocking traffic or disturbing the peace.  These are the choices every person has to make for themselves. 

This post is about what to do if your employer calls you on the carpet on Monday because they saw you protesting. Or because you got arrested.  Or because they saw your facebook page.

First, unless your employer is a Government agency, remember that you do not have first amendment rights in the workplace.[2]  In most cases, your employer can fire you for any reason or no reason at all. 

That said, pay attention to what the Employer says and does.  Is everyone who got arrested getting fired? Or just a subset, for instance, people of color or people from a particular nation?  Are some people getting lesser penalties, such as suspensions?  How about people who got arrested for counter-protesting? 

If penalties for similar conduct split along racial lines, then start writing.  Take copious notes.  Note what the employer says to you and what the employer’s security guards say while they’re escorting you out.  Write it all down.  It might or might not be evidence of discriminatory intent (let the lawyer sort that out). When you get home, write up your observations in an email and send them to yourself. 

Do’s

  • Do call your Union Rep.  If you’re in a Union, the “for cause” provision in your CBA is the strongest protection you have against politically-motivated terminations.
  • Do apply for unemployment benefits immediately. 
  • Do call your criminal defense attorney and let them know that you may be asking them to communicate with your employment law attorney.  (Your employment law attorney will probably need information such as whether you should be asserting the Fifth Amendment during any investigations by the State Division of Human Rights).
  • Do ask your defense attorney whether the conduct for which you were arrested was actually illegal or not.  In the State of New York, you are not supposed to be fired for engaging in legal off-duty conduct.[3]  So if you were actually not obstructing traffic or disturbing the peace, the employment law attorney needs to know that.
  • Do call an employment law attorney.
  • Do bring the employment law attorney your notes and any paperwork provided to you by the Employer.
  • Do tell the employment law attorney about any prior disciplinary actions taken against you during the course of your employment.  The employment law attorney may be able to neutralize the effect of those disciplines, but can’t do it without all the facts. 
  • Do bring the employment law attorney your notes about any previous discriminatory conduct or conduct that went negative after you reported discrimination.  The attorney needs names, dates, and witnesses for each incident, and will ask you very specific questions about what precisely was said at what point.

and Don’ts 

  • Don’t take anything from the employer’s premises other than your own belongings.  It is tempting to download all your emails and the files you were working on in an attempt to defend yourself.  Don’t do it.  That is the employer’s property and a vindictive employer will come after you for “stealing” it. 
  • Don’t send emails from your work account to your personal account.  Even if you’re not emailing yourself documents, it still “looks” like stealing, and it may give the employer an excuse to subpoena your personal devices.
  • Don’t sign anything.  If someone is trying to pressure you into signing a severance agreement immediately, it may mean that they sense they are subject to liability.
  • Don’t give the employer a reason to fire you.  Don’t talk back, use profanity, or engage in hostile or aggressive conduct.  Stay calm and observe everything around you. 
  • Don’t assume that the employer’s conduct is actionable.  Don’t assume it’s not actionable.  The employment law attorney is the expert.  Let that person figure out the legalities of what the employer did. 
  • Don’t let getting fired stand in the way of your continued activism.  You are doing the hard work that citizens have to do in a democracy.  And the other activists around you may know about jobs that don’t interfere with your work.

If you’re protesting today, your day job should be the last thing on your mind. Your primary concerns should be making your voice heard and staying safe.  But if work gets crazy on Monday morning, the above steps may help you protect your workplace rights.


[1] If you’re out there today protesting, please make sure you know how to identify protest monitors and legal observers, and have a safety plan.

[2] If your employer is a Government agency, you have limited First Amendment rights in the workplace, and only in very limited  circumstances will they protect you from being fired. 

[3] Note the words “supposed to.”  The reality of this prohibition is extremely messy and difficult to prove. 

COVID-19 In The New York Workplace – Part IX: Working From Home and Social Media

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.

It’s a familiar feeling. You’re on work time. You’ve been at it diligently all morning. You just reached a stopping point and need a break, but you don’t want to step away from the computer. So you hop on to Facebook, and there you see a post that you just have to reply to.

Regardless of whether you’re working from home or in the office (remember the office?) your social media activity is being monitored by your employer. Some employers install software on your work accounts so they can see when you stop working. Others just watch your Twitter account. You know all those coworkers you friended and followed?  They’re going to tell the boss what you said. If they don’t, their friends will tell.

So what gets you into trouble?

First, if your employer has a social media policy, follow it. For example, if the employer says “No Social Media During Work Hours,” that means no social media during work hours. Violating the social media policy can and will get you fired. Other policies allow you to use social media, but require you to refrain from discussing an employer or the employer’s products. Some of these policies are legal, and some are not. The problem is, to find out if a policy is legal, you might have to get fired first and then sue. That’s a mighty expensive way to get information. So unless you are working closely with an attorney (either your own or the Union’s) on the specifics of your case, it’s not a good idea to violate the employer’s social media policies.

Second, don’t publish confidential information. You know those cute pictures of your home office that you posted at the beginning of the shutdown?  Make sure you didn’t accidentally post a picture of your computer screen or confidential documents. Don’t publish pictures, names, or birthdates of patients or long term care facility residents. Don’t publish client info. Don’t publish financials, customer lists, social security numbers, passwords, code, or research results. Don’t publish the employer’s secret recipe for life-changing chocolate chip cookies if the employer is in the business of selling life-changing chocolate chip cookies. If it’s anything that the employer has any arguable interest in protecting, don’t publish it. You’ll get fired, and you might get sued.[1] 

Third, racism and sexism are quick and easy ways to get fired, whether or not they happen on social media. The distinguishing feature of social media is, once you’ve posted it, it’s out there forever. You can delete the post, but any clever 12-year-old can resuscitate it, take a screenshot, and will inevitably share it with the boss. Or the media will get hold of it, and the employer will know the next day. Bottom line: if you want to keep your job, don’t be racist or sexist at all, and that includes social media.

Wait, what about my First Amendment rights?

The First Amendment to the United States Constitution prohibits the government from interfering with your freedom of speech in certain circumstances. It does not prohibit private actors from taking actions against you because of what you said. So if you work for a private or not-for-profit entity, you don’t have first amendment rights in the workplace.

If you work for the government (including a state agency or subdivision), the question gets complicated. Theoretically a public employer can’t retaliate against you for posting about a matter of public concern. But if your post has to do with a matter of personal interest to you as an employee (for instance, because you don’t agree with how you are instructed to perform your job), then the post is not protected, even if it has some connection to a matter of public interest. Moreover, if the post presents a potential conflict of interest or interferes with the public employer’s ability to discharge its official duties, the protection is lost.

The difference between matters of public concern and matters of personal interest has spawned endless litigation, so for practical purposes the only way to know whether what you are posting is protected from a first amendment perspective is to lose your job and then litigate. As above, it’s an awfully expensive way to make a determination.

Isn’t there anything I can talk about online?

Yes. If you are complying with your employer’s social media policies, you’re probably ok posting pictures of your cat, your kids, tasteful funnies, and other non-offensive, non-work related matters. (But please use your common sense and don’t post anything that could endanger you or your loved ones.) 

You can also use social media to speak out about terms and conditions of employment if they affect other employees as well as you. That means that you probably won’t get away with complaining because the boss disciplined you for wearing the wrong polo shirt, but if the boss continually shorts your whole shift on overtime payments, you may be able to get away with commenting about that on social media. Don’t use vulgarity or threats when you’re doing it, or you can lose the protection.

New York State Labor Law protects lawful off-duty conduct, including off-duty political activities, among other legal off-duty activities. But there are serious limits to the law. Off-duty political activities are not protected if you’re using the employer’s equipment or accounts. This means if you are working from home on an employer-provided computer, your political activity on that computer is not protected, even if you engage in it after hours. Also, as discussed above, if you work for the government, don’t count on this law to protect your political activities even if you engage in them on your own equipment after your shift is over. Moreover, employers get a big break on New York’s lawful off-duty conduct rule:  If they have a good faith belief that they are acting in accordance with law, enforcing a workplace policy, or that the employee’s conduct is illegal, then there is no violation even if they are wrong.

Please remember that just because you’re not supposed to get fired doesn’t mean you won’t get fired. Some employers will terminate you anyway, forcing you to spend a lot of money on a lawsuit to get your job back or to recover your pay. This isn’t any different from what employers could do in the days before social media – it’s just that it can be easier to see what you’re doing because of social media.

Social media is a wonderful tool for keeping us together during the pandemic. Being wise about using this tool when working from home may save your job. 


[1] Many employers require employees to sign some kind of confidentiality agreement. You may have signed one when you started to work, or it may have been in a stack of documents you got one day. If you violate a confidentiality agreement, even inadvertently, it can mean enormous legal trouble. Try to keep track of what you’ve signed.

COVID-19 In The New York Workplace – Part VIII: 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.

UPDATE 4/14/20: After this post was published, OSHA released new guidance advising employers of Delivery Drivers to take measures such as staggering shifts, providing hand sanitizer and disinfectants, and requiring deliveries to be left at loading docks or other locations. Additionally, New York Governor Cuomo has signed a new executive order requiring employers of essential workers who are working with the public to provide face masks at no charge to the employee.

Our essential workers – nurses, grocery store workers, emergency service workers, custodians, farm workers, meat packers, etc. – are working dangerous jobs to keep us safe and fed these days. Not all employers are treating essential worker safety as their number one priority, as demonstrated by several highly publicized worker walkouts in recent weeks. What can workers do in the face of limited protection from dangerous conditions?

Short Answer:  ORGANIZE!

Already Belong To A Union?

If you are an essential worker in a unionized workplace, your Union is probably already negotiating with the employer to implement safety measures such as automatic paid leave for workers who may have been exposed and PPE for those who remain. But a Union can’t negotiate over conditions it doesn’t know about. If you are a unionized worker and you are concerned about the safety of your work situation, call your Union reps immediately.

Additionally, you should check with your Union reps to find out if there is a provision in the collective bargaining agreement [“CBA”] that gives you the ability to refuse dangerous work. In some situations, a unionized worker can get protection from unsafe working conditions under the language of the CBA. BE CAREFUL WITH THIS IDEA. This is not carte blanche to refuse work. You have even less protection if your CBA doesn’t cover a right to refuse dangerous work.

Your Union can probably get information that you can’t, for example, information about COVID-19 cases in your workplace. Health and safety are terms and conditions of employment, so the Union has the right to demand information it needs to help protect you from exposure. Be aware that an individual employee does not have the right to that info, and the Union’s legitimate request for info to protect its members is balanced by the employer’s legitimate interest in complying with the confidentiality provisions of the Americans with Disabilities Act. The specific circumstances of your situation will dictate what is disclosed. It’s extremely unlikely that an employer will reveal the name of a worker who has been diagnosed, but the Union may be able to get information that helps it protect coworkers at risk of exposure.

No Union?  You Still Have Some Rights.

If your workplace doesn’t have a Union, you may still be able to engage in something called “protected concerted activity” over certain workplace problems. We strongly recommend you make an appointment with an attorney to determine whether concerted activity will be protected in your situation.

To have this protection, you cannot be the only worker with a complaint. The protest must be over something that affects multiple workers. The best way to get the “protected concerted activity” protection is to join with several other workers in speaking out about the employer’s failure to provide safe working conditions.[1] Get names, phone numbers, and email addresses of coworkers who agree that something needs to be done. Make sure you are actually protected. If you are a private sector worker, or if you work for a municipality or public school district in the State of New York, then you can probably join with your co-workers and collectively refuse to perform unsafe work.[2]  Here are some pointers:

  • If there’s time, give the employer a chance to fix the problem. It’s possible the employer just hasn’t thought of the safety measure that you’re asking for. Some employers have no idea how their employees actually do what they do.If you need more breaks for handwashing, or your sneeze guard is at the wrong height, get together with some other workers and go visit the manager. Ask for it nicely. Document this conversation, including date, time, place, a chronological synopsis of what was said, who said it, and who was present.
  • If the situation is urgent: 
    • Don’t assume that just because you say something in front of other workers your activity is protected. Make sure to document that whatever you say or do is on behalf of, and coordinated with, your coworkers. If you walk out and picket, make sure there are other people walking and picketing with you.
    • Don’t use profanity or resort to nastiness to get your point across. Your activity is not protected if it is threatening, egregiously offensive, or false.
    • Do document date, time, place, what was said in chronological order, and who was present.
    • Do remember that just because the employer isn’t supposed to do it, doesn’t mean they won’t. You might get fired. If your activity is protected, you will be able to pursue your rights with the NLRB or NYSPERB, but it can take a while. If it’s a choice between your job and your life, you need to make the right decision for you.

What if you’re the only one?

Are you stuck working in an unsafe environment just because you’re the only one dealing with it?  Maybe not. OSHA does offer slightprotection for workers in truly unsafe situations. If you are truly in a life threatening situation, and if you seriously believe that you are in immediate danger, and if you have previously asked the employer to fix the problem, and if the employer failed to do so, and if you don’t have time to contact OSHA to request an inspection, then you might have individual protection under OSHA.

That’s a lot of “ifs.” 

Bottom line, ask your employer to fix the dangerous situation. Tell the employer you won’t do the task until the employer has fixed the problem. Stay at the worksite unless the employer tells you to leave. Document the heck out of this interaction (when, where, chronology of the conversation, what was said, who was there). If the employer sends you home or otherwise retaliates, call OSHA within 30 days of the retaliation. The number is 800-321-6742. Don’t delay this phone call. OSHA won’t help you more than 30 days out.

It’s tough enough to be an essential worker. But you may have some control over the safety of your workplace. It’s tricky, so call an attorney if you are thinking of taking one of these steps. Stay safe, everyone.


[1] Fair warning:  If you get fired because of engaging in protected concerted activity, you may still be able to get some relief, but it will take a long time for the National Labor Relations Board or New York State Public Employment Relations Board to get to your case, both because of the shutdown and because it normally takes a while to process and litigate claims.

[2] Other states may have laws that govern the protected concerted activity of their public sector workers. Always consult with an attorney to see if you have such protections.

COVID-19 In The New York Workplace – Part VII: Discrimination and Harassment

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.

Workplace discrimination and harassment against Asian Americans and Pacific Islanders is being fueled by xenophobic rhetoric about the COVID-19 virus.  Workers in these protected classes are facing everything from coworkers’ racist “jokes” to physical violence. 

No worker should be subjected to workplace discrimination or harassment on the basis of national origin or race at any time, and workplace hostility makes a coronavirus-affected workplace even more dangerous.  Fortunately, there are some steps that New York workers can take when faced with discrimination and harassment.

In the State of New York, the Division of Human Rights [“SDHR”] recently released a useful handout on COVID-19 related workplace discrimination. [1]  The handout describes a variety of examples of pandemic-related discrimination workers might face, including being sent home based on a perception that they are more susceptible to coronavirus because of their race, being discriminated against for wearing a face mask, and threats and harassment.  (Violence and threats of violence may be considered hate crimes, and it is appropriate to call 911 to address violence or threats.  It is also a good idea to call the New York State Hate Crimes Task Force at 1-888-392-3644.)

What can a worker do when faced with what appears to be race-based or national origin-based discrimination?  While there is no substitute for speaking with an attorney qualified to practice employment law in your jurisdiction, these are some pointers that can help you when you get to that conversation. 

  • Document the incident meticulously.  Write down what happened, who saw it happen, when it happened (date and time), who was hostile or discriminatory, who was the victim, where it happened, and the order in which things happened.  Note:  Discrimination/harassment that is not connected to your protected class is not illegal.  Don’t clutter up your documentation with incidents involving “equal opportunity” nastiness that you can’t show is connected to your protected class – it’s not fair, but it won’t get you anywhere.  This update from the SDHR includes a list of classes that are protected in the State of New York.
  • Think about the effect of the incident.  Has your safety been compromised?  Has the incident made it impossible for you to do your job (for instance, has your equipment been damaged or have you been denied access to key resources?) Do you need to see a mental health provider to deal with the emotional effects of the incident?  Has the incident affected your finances? Do you have a certificate or license that could be affected?
  • If the incident is one of a series of nasty events, document who, what, where, when, and how each incident occurred. 
  • Once you have written down all the information, send it in an email to yourself using your PERSONAL EMAIL ACCOUNT.  Email is a great tool for combating workplace discrimination, because an email message is automatically date-stamped and time-stamped.  However, IT’S ALMOST NEVER A GOOD IDEA SEND AN EMAIL FROM YOUR WORK ADDRESS TO YOUR PERSONAL EMAIL.  The employer can track that, and will use it against you.
  • If the incident physically prevents you from being able to do your job, has caused you to seek mental health treatment, has affected your finances, or is one of a series of ongoing events, have a look at your employer’s discrimination and harassment policy.  Figure out how and to whom to report the incident(s). 
  • Write a complete, succinct timeline of the discrimination and harassment.  Start with the oldest incident.  For each incident, include:
    • Date
    • Time
    • Place
    • Harasser Name
    • Harassee Name
    • Names of any witnesses
    • Photos, memos, videos, recordings
    • What happened, in chronological order
    • Its effect on you
  • Make a complaint pursuant to the employer’s discrimination and harassment policies.  Include your timeline in the complaint.  If the employer uses a complaint form, attach the timeline to the form. Send the complaint in a way that you can easily track. Don’t assume that a hand-delivered document or something sent via inter-office mail is going to be acknowledged or followed up on. Here are some trackable ways to send a complaint:
    • Send an email and request a “read” receipt
    • Send a fax and get a fax confirmation receipt
    • Send it via certified mail and track it through the post office
  • Carefully document everything that happens after you make your complaint, in the same manner you used to document the original incident(s). 
  • Once you’ve made a complaint, buckle your seatbelt.  The workplace is about to get very complicated for you.  People may stop talking to you – they’ve been ordered to do so, because now you are considered a litigation risk.  You may be put on paid leave pending the employer’s investigation, or you may be temporarily moved to a new assignment.  The ostensible reason for the change is to protect you from the harasser.  The real reason is because the employer is afraid someone will do something to you that will give you additional grounds for a lawsuit.  If the change affects your pay, call an attorney.
  • The employer will probably perform some kind of investigation.  You probably won’t get a copy of the report.  You may not even be informed of the results of the investigation.  
  • Once the employer’s investigation is complete, one of three things will likely happen:  a) the harasser will be removed, either losing his job or put in a place where he doesn’t have contact with you; b) nothing will change, except that now your coworkers might be afraid to talk to you; or c) you’ll experience workplace retaliation (i.e., even more nasty conduct with you as the target.)  Depending on how sophisticated the employer is, the retaliation may or may not be actionable.  Just continue to document everything that happens to you.
  • If you’ve hit a wall with the employer’s investigation and option (b) or (c) has occurred, that’s a good time to speak with an attorney and determine whether it makes sense to pursue the claim with the SDHR, the federal EEOC, or in another forum. 
  • CALL AN ATTORNEY.  It doesn’t matter if you call Satter Ruhlen Law Firm or another firm.  Just get in touch with someone with expertise in your jurisdiction who can tell you if any or all of the above pointers are a good idea.  It is well worth the consultation fee to determine what your rights might be in the workplace.

Workplace discrimination and harassment is intolerable under any circumstance.  In a workplace affected by coronavirus, it is extremely dangerous.  Ultimately you have to decide whether and how to fight it, but know that it is illegal and are laws to protect you. 


[1] This blog posts focuses on New York State Human Rights Law, but the EEOC has also issued a statement with links to its guidance on national origin and race discrimination. 

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