How To Avoid A Potential Pitfall For Disability Discrimination Claims

Employees that file (or intend to pursue) a claim for disability discrimination must be careful if they also file a claim for short-term, long-term or Social Security disability benefits.   The need for caution arises because the elements necessary to pursue a claim for disability discrimination require that the employee be able to perform their essential job duties, either with or without a reasonable accommodation.  As a result, some individuals seriously hurt their chances of pursuing a claim for disability discrimination (where the damages can be far greater) because they previously provided statements to support their claim for disability benefits that are inconsistent with the elements of a discrimination claim.   Before we discuss how to avoid this, let’s take a look at the background of the disability discrimination laws and standard short/long term disability benefit policies.

The Americans With Disabilities Act and New York State & City Law

The Americans with Disabilities Act is a federal law that generally prohibits discrimination against individuals with disabilities and requires an employer to attempt to accommodate employees that suffer from a disability.  Specifically, the ADA prohibits an employer from discriminating against “a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”  In order to be a “qualified individual” – and thus be able to pursue a claim for disability discrimination – an individual must be able to perform the essential functions of the position, either with or without reasonable accommodation.

While the New York State Human Rights Law is generally much broader than the ADA, the NYSHRL also requires that an individual be able to perform the functions of the position.  Specifically, the NYSHRL provides that:

[I]n all provisions of this article dealing with employment, the term [disability] shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

 Though the statutory language is different, the result is the same under the New York City Human Rights Law: 

In any case where the need for reasonable accommodation is placed in issue, it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job or enjoy the right or rights in question.

 As the above demonstrates, if you cannot perform the work at all (i.e., even with a reasonable accommodation) because you are totally disabled, then you fall outside of the protection of the ADA, the NYSHRL and the NYCHRL and your employer can lawfully terminate your employment.

Short-Term Disability Benefits

New York State’s Disability Law requires an employer to provide short term disability benefits to eligible employees (meaning those that meet certain length of service requirements) in the event of an off-the-job disability – the off-the-job limitation exists because injuries suffered on the job are covered by the Workers’ Compensation Law.  The Disability Law defines a “disability” as:

[T]he  inability  of an employee, as a result of injury or sickness [defined as an “accidental injury, disease, infection or illness or incapacitation as a result of being an organ  donor in a transplant operation” or pregnancy] not arising out of and in the course of an employment, to perform the regular duties of his employment or the duties of any other employment which his employer may offer him at his regular wages and which his injury or sickness does not prevent him from performing.

The Disability Law makes no mention of whether a reasonable accommodation would permit the employee to still perform the work.  Instead, in order to apply for short-term disability benefits, an employee need only have suffered an injury or illness that makes the employee unable to perform the regular duties of their position or any other position the employer might have (without regard to any accommodation) . (To give you an idea of the type of information you will need to provide, here is a sample short term disability claim form).  Notwithstanding this, you can still run into trouble if you or your doctor claim that you are totally disabled or unable to perform your regular job duties without some kind of an accommodation – and it is important to note that a short leave of absence is an example of an accommodation that you or your doctor could ask for.

Long-Term Disability Benefits

Unlike short-term disability benefits, employers are not required to provide their employees with short-term disability benefits.  Instead, these benefits are an insurance policy taken out by either the employer or the employee and are governed by the terms of the policy.  Because each policy can be different, you should review the terms of your policy carefully and seek the advice of an attorney with any questions.  With that in mind, most long term disability policies will not require you to be completely unable to work in order to be eligible for benefits.  However, as with an application for short-term disability benefits, both you and your medical provider should be very careful when submitting the paperwork for long-term disability benefits. (Here is a sample long term disability claim form).  Not only it is important not to overstate things, but it would also be advisable to consider whether there are any accommodations that your employment could make that would permit you to continue working and to reference such proposed accommodations in the long-term disability paperwork.  The one thing that you and your doctor want to avoid is certifying that you are completely unable to work for an extended period of time because, as discussed above, that may disqualify from you pursuing a discrimination claim.

Social Security Benefits

Social Security has adopted a much stricter definition of “disability” which requires that an individual be totally disabled in order to receive benefits.  The Social Security Administration will consider you “disabled” if: (i) you cannot do work that you did before, (ii) they decide that you cannot adjust to other work because of your medical condition and (iii) your disability is expected to last for at least one year or result in death.  Because of the SSA’s strict definition of “disability” it is much more difficult for you to apply for Social Security disability benefits and still pursue a claim of disability discrimination.

Case Law Discussing This Topic

Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999): In deciding whether an employee’s prior successful application for Social Security disability benefits barred him from pursuing a discrimination claim, the U.S. Supreme Court held that an employee’s pursuit of these benefits was not an automatic bar to an ADA claim, but stated that an employee “cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability application.  Rather, [an employee] must proffer a sufficient explanation” for any inconsistency in order to avoid the court dismissing their claims.

DeRosa v. National Envelope Corp., 595 F.3d 99 (2d Cir. 2010): In this decision, the federal appeals court in New York reversed a lower court dismissal of the case and found that the employee’s statements in his application for Social Security benefits did not contradict his position on the issue of whether he was able to fulfill the essential functions of his employment with reasonable accommodation.  In doing so, the court noted:

The statement “I am disabled” on an SSDI application should generally be taken as a statement that “I am disabled for the purposes of the Social Security Act.” The Social Security Act does not concern itself with reasonable accommodation.


It is important for you to be extremely careful in the information that you provide on your application for disability benefits if you also intend to pursue a claim for discrimination.  Certifying that you are completely disabled or unable to work in any capacity could prevent you from pursuing a discrimination claim.  At the very least, you can be assured that your employer will scour anything that you submit in the hopes that they can find something to use against you in a subsequent discrimination, so proceed cautiously.

If you have additional questions about this topic or would like to be connected with an attorney that can assist you in pursuing a discrimination claim, please contact us below:

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Paula Deen Probably Wishes She Settled That Employment Discrimination Lawsuit A Long Time Ago [UPDATED]

What we here have found interesting about all the controversy surrounding Paula Deen recently is that it all stems from an employment discrimination lawsuit filed by a former employee.  As a former attorney that has brought many of these types of cases before, I have been left wondering whether Deen and her attorneys regret not trying harder to settle this case before it became public and she lost most of her sponsors and TV contracts.  But first, let’s backtrack and take a look at the lawsuit and deposition that started this whole mess.

The Complaint: Lisa Jackson v. Paula Deen, et al.

The complaint against Deen and her brother (Bubba Hiers) is unremarkable in the context of the hundreds of similar lawsuits filed each day around the country.  Basically, the plaintiff alleges that she was an employee at one of Deen’s restaurants in Savannah, Georgia and was paid less than male colleagues and subjected to inappropriate sexual harassment (including crude jokes and pornography) and racial comments (though the plaintiff is white, she alleges that she was uncomfortable with racial comments).  What is interesting to note is the complaint (click here to download) only attributes a few comments to Deen and instead focuses primarily on Deen’s brother:

  • Paragraph 21 alleges that Deen said the following when the plaintiff was promoted to GM of the restaurant: “I am going to do something I have never done.  I am going to put a man in a woman’s job.”  (In her deposition, Deen denied ever saying this.)
  • Paragraph 61-62 alleges that, referring to plans for her brother’s wedding: “I want a true southern style plantation wedding” which she explained meant she wanted “a bunch of ni—rs to wear long-sleeve white shirts, black shorts and bow ties” but that she couldn’t do that “because the media would be on me about that.”

The remainder of the complaint includes allegations against other employees of the restaurant and Deen’s other employees.  While the overall allegations of the complaint are pretty salacious, the filing of the complaint didn’t generate a great deal of press (here and here are two articles) – at least nowhere near as much press as Deen’s deposition testimony.  Also, Deen didn’t lose any sponsorships or TV deals as a result of the filing of the complaint and that is probably because most people realize that anyone can say whatever they want in a complaint, but whether they can back it up is another story.

After the filing of the complaint (or before in many cases), there is usually some effort by both sides to settle the case.  All of these types cases boil down to money: how much is the defendant willing to pay to make this go away and avoid the potential financial and media exposure that comes with a public trial.  Here, it’s not clear from the docket whether there was any attempt to settle or mediate this case; instead, it appears that both sides dug their heels in for a very contentious litigation.  In fact, the docket for this case is one of the most heavily litigated for any single plaintiff case that I have ever seen – there was 200 separate documents filed with or by the court over a 13 month period – which is nearly unheard of.  So it looks like Deen’s attorneys took the approach that they would fight this tooth and nail (and probably spent over $1 million dollars in attorney time doing so), but one thing that they couldn’t avoid was Deen being deposed at which time the plaintiff’s attorney would have nearly unfettered access to ask her almost anything he wanted.

Paula Deen’s Deposition (Transcript)

Deen was deposed on May 17, 2013 for a little less than a full day.  Usually, the attorney for someone being deposed would spend at least a day or two preparing a witness for a deposition.  With someone of Deen’s stature who has much more to lose, you would probably want to spend the better part of a week preparing her for her deposition.  But in this case, it doesn’t seem like Deen had any preparation for her deposition.  Instead, it appears their strategy was to have Deen come in and try to use her trademark “Southern charm” to try to disarm the plaintiff’s attorney.  Had she been prepared, it’s unlikely that she would have offered any of the following:

Q: Have you ever used the N word yourself?

A: Yes, of course.

Q: In what context?

A: Well, it was probably when a black man burst into the bank that I was working at and put a gun to my head.

Q: And what did you say?

A: Well, I don’t remember, but the gun was dancing all around my temple… I didn’t — I didn’t feel real favorable towards him.

Q: Well, did you use the N word to him as he pointed a gun in your head at your face?

A: Absolutely not.

Q: Well, then, when did you use it?

A: Probably in telling my husband.

Q: Okay. Have you used it since then?

A: I’m sure I have, but it’s been a very long time.

What jumps out about the above is the cavalier nature that Deen admits that she has used the N-word in the past.  Rather than try to dance around the question, she openly admits it as if there could be no doubt that she had used the slur before – though the only time she specifically recalls using the slur is when she had a bad experience with a black person.  But Deen gets herself into trouble later even through the manner in which she denies using the N-word:

And I remember telling them about a restaurant that my husband and I had recently visited…. The whole entire wait staff was middle-aged black men, and they had on beautiful white jackets with a black bow tie. I mean, it was really impressive.  And I remember saying I would love to have servers like that, I said, but I would be afraid that somebody would misinterpret. . . .  That’s what made it so impressive.  These were professional. I’m not talking about somebody that’s been a waiter for two weeks. I’m talking about these were professional middle-aged men, that probably made a very, very good living … at this restaurant. They were trained. [I]t was the whole picture, the setting of the restaurant, the servers, their professionalism.

Here, Deen seems to think that because she believed these black servers were so “professional” that it was okay – almost like others refer to African-Americans that don’t fit their preconceived stereotype as articulate or “bright and clean.”  But Deen also misses the point because she thinks it okay to want an all black staff, as long as they are “professional.”  When Deen was also asked whether she used the N-word to refer to the all black staff at this restaurant, she responded, “No, because that’s not what these men were. They were professional black men doing a fabulous job.”  Deen’s response seems to indicate that she subscribes to the Chris Rock distinction between the N-word and other black people.

Deen then went on to explain that the “restaurant represented a certain era in America” when  black men and black women – who Deen admitted were slaves – waited on white people.  Deen tried to explain: “I did not mean anything derogatory by saying I loved their look and their professionalism.”  Whether intentionally racist or not, Deen’s explanation harkens back to the arguments that many use to defend the flying of the Confederate Flag.

Deen also gets herself into trouble when asked about racial jokes told by others:

Q: Does [your brother’s] sense of humor include telling jokes of a racial nature?

A: I’m sure those kind of jokes have been told. Every man I’ve ever come in contact with has one.

In an nutshell, Dean is saying that it’s okay to tell racial jokes because everyone does it.  This is an amazingly cavalier approach to take to discrimination, especially in the context of a race discrimination lawsuit and I am sure that her lawyer cringed when he heard this testimony as he sat next to her.  The simple fact is that this is probably the worst way that she could have defended against these allegations.

The Aftermath

On June 11, plaintiff’s counsel filed a copy of the deposition transcript in opposition to a motion that Deen’s counsel had made.  Once that deposition was filed with the court, it was a public document and anyone with a PACER – an account that lets you pay to view documents filed in federal court – could access the document.  While Deen’s attorneys initial tried to control the scandal, it soon spiraled out of control and was probably worsened when Deen failed to show up for an interview on The Today Show and instead released a series of her own apology videos.  Shortly thereafter, the Food Network announced that it would not be renewing its contract with Deen after 11 years.  Deen was then dropped in quick succession by QVC, Smithfield Foods, Walmart, and Caesar’s Entertainment.

How Deen Could Have Avoided This

At the end of the day, it’s not hard to see why these sponsors and corporations had to cut ties with Deen: any controversy like this is bad for business.  For these companies, there is such a thing as bad publicity and Deen had simply become nuclear.  While it’s always easier to play monday morning quarterback, it should have been obvious to Deen (and even more so to her attorneys) that she had much more to lose in this lawsuit then she had to gain by fighting it out.  I bet she wishes she could go back now and offer some type of settlement (even one in the mid-six figure range) to simply make this go away.

UPDATE (7/12/2013): Looks like Paula Deen realized what a mess her attorneys got her into and has hired new counsel:

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New York City Bans Discrimination Against The Unemployed

On June 11, New York City became the latest of a growing minority of jurisdictions to ban employment discrimination on the basis of an individual’s unemployment status.  The bill was passed by City Council then vetoed by Mayor Bloomberg, but Council overrode the veto in March.  The law amends the New York City Human Rights Law and generally bars employers from basing decisions related to hiring, compensation or other terms of employment on an applicant’s unemployment status – essentially adding unemployment to the list of protected classifications in New York City.  The law also bars employers from making current employment a application requirement (unless there is a “substantially job-related reason for doing so” – which seems unlikely for most professions).  While New York City wasn’t the first to pass this type of bill (Washington, D.C., New Jersey and Oregon have similar laws), this bill is recognized as the most far-reaching law barring discrimination because of an individual’s unemployment status.

To be covered by the new law, an individual must (i) not have a job, (ii) be available for work) and (iii) be seeking employment.  On the employer side, the law applies to all companies with four or more employees that operate within New York City (though the ban on advertising current employment as a qualification requirement applies to all companies, regardless of size).

While the law generally prohibits employers from basing hiring and other decisions on an applicant’s job status, there are a few exceptions:

  • An employer (or employment agency) may consider an applicant’s employment status if there is a substantially job-related reason for doing so.  (This is obviously pretty ambiguous, but it seems like it will be a tough requirement for most employers to meet.)  
  • An employer may inquire into the circumstances of an applicant’s separation from prior employment.
  • An employer may base compensation and other benefits on an applicant’s actual level of experience.
  • An employer may give priority to its current employees.

The law also imposes liability if a company’s seemingly neutral policy has a “disparate impact” on the unemployed.  That means that an applicant does not necessarily have to show that the employer intended to discriminate against the unemployed, just that the employer had a policy that statistically disfavored the unemployed.

Individuals that feel that they have been discriminated against because of their employment status may either file a complaint with the New York City Commission on Human Rights or file a complaint in court.  New York City is unique in providing individuals with what is known as a private right of act; opponents of the bill had hoped that enforcement would be limited to the filing a complaint with the Commission where they could have more control over the process.

If you believe that you may have been the victim of discrimination because you are unemployed and would like to be connected with an attorney that can help you, please fill out the form below and we will try to assist you in locating an attorney that can help you.

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Reverse Age Discrimination Is Illegal In New York

While the vast majority of instances of age discrimination more traditional forms of age discrimination (i.e., older employees being let go as part of a layoff or RIF), many people might be surprised by the number of times we hear from employees that are fired or let go (or simply paid less) because they are younger than some of their more senior colleagues.  “Reverse” age discrimination is discrimination against younger employees or favoring older employees for no other reason than their age.  (This should not be confused with an employer setting standards for a minimum level of experience, so long as it isn’t tied to a specific age).  As we explain below, reverse age discrimination is legal under federal law, but illegal under New York State’s and New York City’s anti-discrimination laws.

The Age Discrimination in Employment Act

In 1967, Congress enacted the Age Discrimination in Employment Act (ADEA) with the following explicit purpose:

[T]o promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.

To achieve this purpose, the ADEA makes it unlawful for an employer to do either of the following:

  1. To fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; or 
  2. To limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

HOWEVER, many people do not realize is that the ADEA only prohibits discrimination against employees over the age of 40.  The ADEA could not be more clear:

The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.

Thus, the ADEA does not prohibit discrimination against individuals under the age of 40.

U.S. Supreme Court Confirms Reverse Age Discrimination Does Not Violate ADEA

In General Dynamics Land Systems, Inc., v. Cline, the U.S. Supreme Court dismissed a claim by a group of employees ages 40 to 49 that their employer favored employees over age 50 when it eliminated its future obligation to pay retiree health benefits for any employee under 50 years old.  The plaintiffs in that case were still within the age range covered by the ADEA, yet the Supreme Court analyzed the “text, structure, purpose, and history of the ADEA, along with its relationship to other federal statutes,” and concluded that the “statute does not mean to stop an employer from favoring an older employee over a younger one.”  As a result, the ADEA is essentially a one-way street protecting older employees from discrimination while permitting an employer to discriminate in favor of these older employees.

Following the Supreme Court’s decision in General Dynamics, the EEOC amended its Regulations to state:  “Favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old.”

New York State and New York City Human Rights Laws

While it is clear that reverse age discrimination is permitted under federal law, the same DOES NOT hold true for the New York State Human Rights Law and the New York City Human Rights Law because these statutes limit age discrimination more broadly and are not limited to only those employees age 40 and above.

The NYSHRL makes it unlawful to discriminate against any individuals over the age of 18:

It shall be an unlawful discriminatory practice . . . [f]or an employer . . . to refuse to hire or employ or license or to bar or to terminate from employment an individual eighteen years of age or older, or to discriminate against such individual in promotion, compensation or in terms, conditions, or privileges of employment, because of such individual’s age.  (N.Y. Exec. Law § 296 (3-a))

Similarly, the NYCHRL makes it unlawful to discriminate against individuals on the basis of their age:

It shall be an unlawful discriminatory practice . . . [f] or an employer or an employee or agent thereof, because of the actual or perceived age . . . to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.

Because the NYCHRL was specifically intended to be “more protective than its federal and state law counterparts,” there is little doubt that the NYSHRL’s protections against reverse age discrimination apply with at least equal force under the NYCHRL.

While the above makes it clear that reverse age discrimination is illegal under New York State and New York City law – but legal under the federal ADEA – this is an issue that many attorneys do not always understand.  As a result, if you have any questions regarding whether you have been subjected to reverse age discrimination, it is important that you consult with an attorney that has extensive experience in this field.  If you would like our assistance in being connected with an attorney, please fill out the form below.

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Is It Legal To Discriminate Against Smokers?

Over the past few months, we have seen a number of articles about employers (mostly hospital and other medical businesses) announcing “Tobacco-Free” or “Non-Nicotine” hiring policies – meaning that that they will no longer hire smokers.  While we are not here to analyze the health and societal benefits of these policies, the enactment of these types of policies raise the question whether such policies are legal in New York City.  As readers of this blog know well, not all employment discrimination is unlawful; however, in the case of smokers, we have some good news because it is pretty clear that the law protects them against discrimination because of their status as a smoker.

New York Labor Law § 201-d

NYLL § 201-d(2)(b) makes it unlawful for an employer to discriminate against an individual/employee because of that individual’s “legal use of consumable products” during non-work hours.  In fact, as one court has recognized in a case unrelated to discrimination against smokers:

History tells us that one of the primary motivations [in enacting NYLL 201-d] was to protect smokers and users of tobacco products against the extensive vigilantism which their lawful leisure time recreational activity has invoked in recent years. The Governor, in his message in 1992 approving the legislation, wrote that the proposed statute properly “[s]trikes the difficult balance between the right to privacy in relation to non-working hours activities of individuals and the right of employers to regulate behavior which has an impact on the employee’s performance or on the employer’s business.” (Here is a link to the decision which contains that language).

Thus, it is pretty clear that an employer cannot discriminate against employees/individuals that smoke.

Smoking Breaks

While the law makes it illegal for an employer to fire or refuse to hire an employee that smokes, the employer is not required to let an employee take smoking breaks.  First, it is important to note that NYLL §201-d only applies to the “legal use of consumable products” during non-work hours; it does not give an employee a right to smoke during work hours.  Second, New York law does not require an employer to allow hourly employees to take breaks (for any reason) other than an unpaid lunch break of at least 30 minutes if the employee’s shift is at least 6 hours, starts after 11AM and ends after 2PM.  (Here is a link to a decision from a state appellate court finding that an employee that was fired for taking smoking breaks in violation of the employer’s policy against hourly employees taking unpaid breaks was not entitled to unemployment benefits).  Third, no court has ever found nicotine or tobacco addiction to be a disability under the Americans with Disabilities Act (and thus, there would be no requirement to accommodate employees that smoke).  Thus, it is pretty clear that while an employer can’t fire you for smoking outside of the workplace, they also don’t have to let you take smoke breaks during the work day.

If you have any additional questions about this topic or would like to be connected with an attorney in the New York City area that may be able to help you, please contact us using the form below:

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I Am An Unpaid Intern, Should I Be Paid?

While the answer depends on the nature of your internship, the answer is yes, you probably should be paid for your “internship.”  There have always been unpaid interns, but the phenomenon has steadily increased over the past few years after the job market tanked and hasn’t recovered as quickly as the stock market.  As a result, many recent high school and college grads have been willing to work for free just to get the experience that could lead to a full-time job.  Regardless of the employees willingness to work for free, both federal and state minimum wage laws provide a very narrow exemption for interns that most unpaid internships simply cannot meet.

Dept. of Labor Test for Unpaid Internships

In order for an employee to qualify as an unpaid intern (and thus be exempt from the minimum wage requirement), the following 6 criteria MUST be met:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Requirements 1 through 4 will be the most difficult to meet for most unpaid interns working at “for profit” companies because the main reasons these companies hire these “interns” is so that they can get free labor.  For these companies, they are not employing these unpaid interns out of the kindness of heart.  To the contrary, the types of unpaid internships that will be covered under the rule are more like apprenticeships where the intern learns a particular skill under the supervision of the employer’s other employees.

The New York Dept. of Labor has adopted the same standards under the New York Labor Law, though they also add a number of other factors that must also be present for the internship to be exempt from the minimum wage laws of the NYLL.

Recent Federal Court Decision

A recent decision from the federal court in Manhattan highlights the difficulty that a for-profit employer will have in meeting the requirements for unpaid internships:

Considering the totality of the circumstances, [the interns] were classified improperly as unpaid interns and are “employees” covered by the FLSA and NYLL.  They worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training. The benefits they may have received -such as knowledge of how a production or accounting office functions or references for future jobs – are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer.  They received nothing approximating the education they would receive in an academic setting or vocational school. . . .  [The interns] do not fall within the narrow “trainee” exception to the FLSA’s broad coverage.

Because many employers tried to take advantage of many individuals willingness to work for free to get their foot in the door in their particular industry, this has been a huge problem – but with these decisions many employers will be correcting their payroll policies to at least offer interns a minimum wage.  If work as an unpaid intern, have additional questions or want to be put in touch with an attorney that can advise you on these questions, please contact us using this form: 

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What Is the Statute of Limitations For Employment Claims in New York?

A statute of limitations is the time period that an individual has to bring a lawsuit, either by filing the claim in court or with an administrative agency.  The answer to this question, however, depends on the type of claim and who the employer is and ranges anywhere from 45 days to 6 years.  Many of these statute of limitations periods overlap because the statutes that create the cause of action overlap, but here is a general list of the statute of limitations period for the most common types of employment claims:

Common Law Claims

Common law claims are those claims that are recognized by the courts, but are not created by any particular statute.  These claims tend to be more of the traditional types of claims that exist not because Congress or the state legislature wanted to create them, but because courts have recognized these types of claims to exist.  As a result, these generally fall into the category of breach of contract claims or tort claims (e.g., negligence or fraud).  The timeline to bring these claims usually starts running at the time of the injury or breach (or the discovery in the case of fraud).  The statute of limitations for these types of claims are as follows:

  • Breach of Contract (including claims for breach of implied covenant of good faith and fair dealing and promissory estoppel): 6 years
  • Defamation (includes both slander and libel): 1 year
  • Fraud (including fraudulent omission and fraudulent misrepresentation): 6 years from discovery of fraud
  • Unjust Enrichment: 3 years
  • Personal Injury: 3 years
  • Intentional Torts (e.g., assault, battery): 1 year
  • Negligence (including, among others, claims such as negligent infliction of emotional distress and negligent hiring): 3 years
  • Tortious Interference with Contractual or Prospective Business Relationships: 3 years

Statutory Claims

Statutory Claims are claims that are created by statute – meaning that the federal, state or city government decided to make certain types of conduct illegal and allow individuals to sue their employer if they violate those laws.  Below are the most common types of statutory claims:

  • Title VII of the Civil Rights Act of 1964 (includes claims for discrimination on the basis of race, color, religion, sex/gender/pregnancy or national origin and retaliation): 300 days to file with Equal Employment Opportunity Commission (EEOC)
  • Section 1981 (referring to 42 U.S.C. § 1981, which outlaws discrimination on the basis of race): 4 years
  • Section 1983 (referring to 42 U.S.C. § 1983, which creates a cause of action against state actors that deny any individual of any federally-protected right): 3 years
  • Americans with Disabilities Act (ADA): 300 days to file with EEOC
  • Age Discrimination in Employment Act (ADEA): 300 days to file with EEOC
  • Family Medical Leave Act (includes claims for both FMLA interference and retaliation claims): 2 years
  • Fair Labor Standards Act (includes minimum wage, overtime and retaliation claims): 2 years for most violations, 3 years if the court determines that the violation was “willful” violations
  • Sarbanes-Oxley Act (typically a retaliation claim): 180 days to file with OSHA
  • Dodd-Frank Act (like SOX, typically a retaliation claim): either 6 years from the date when the retaliation occurred OR 3 years after the date “facts material to the right of action are known or reasonably should have been known by the employee,” but not more than 10 years after the date of the violation
  • New York Labor Law (includes, among others, minimum wage, overtime and retaliation claims): 6 years
  • New York State Human Rights Law (includes claims for discrimination on the basis of race, color, creed, national origin, sex/gender, age, disability, sexual orientation, marital status, domestic violence victim status, arrest or conviction record, or an individual’s predisposing genetic characteristics): 3 years
  • New York City Human Rights Law (includes claims for discrimination on the discrimination on the basis of age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage/citizenship status): 3 years

Discrimination Complaints by Federal Employees

The complaint process for federal employees pursuing discrimination is completely different that the process for employees of state/local governments and the private sector.  The first step in this process is to contact the EEO Counselor for the agency that you work for within 45 days of the discrimination taking place.  From that point forward, there are a number of deadlines that are triggered by a number of other factors.  Given the tight deadlines, it is best for federal employees to contact an attorney as soon as possible.

Notice of Claim Requirement for Employees of New York State or City

Individuals that work for the State of New York or New York City (including the NYC Dept. of Education) must file a “notice of claim” within 90 days of the date on which the claim arose if they wish to pursue a claim under state or local law – both common law and statutory claims (though this requirement does not apply to claims under federal law).  The claim must be filed with the the agent or agency designated by the entity to receive these notices.  For example, all notice of claims against the City of New York must be filed with the Comptroller.  By the same token, claims against other city agencies (e.g., NYC Dept. of Education, NYC Housing Authority) must be filed with the agency itself.  While there is some debate as to whether claims under the NYSHRL are subject to the notice of claim requirement, the majority of courts have said that it does.

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What Is An Exempt Employee?

While “exempt” can have a number of different meanings (especially in the context of public and civil service employees), generally an “exempt” employee is one that is exempt from the minimum wage and/or overtime requirements of the Fair Labor Standards Act and New York Labor Law.  Both the FLSA and NYLL exempt certain classes of employees from the requirement that they be paid a minimum wage or overtime when they work more than 40 hours in a week.  There is a common misconception that employees are either “hourly” or “salary” and that if you are “hourly” you are entitled to overtime compensation and you are not if you are “salary,” but that is simply not the case (though an employee must be paid on a salary basis to qualify for many of the exemptions); instead, whether an employee falls under an exemption will depend on the nature of their job duties.  Below is a list of the exemptions under the FLSA and NYLL; if you do not fall under one of these exemptions, then you may be a non-exempt employee and should be paid overtime.

  • Administrative Exemption: To qualify for this exemption, an employee must be paid on a salary basis and their primary duty must both be directly related to the management or general business operations of the company (e.g., finance, accounting, insurance, quality control, human resources, compliance and other similar activities) and involve the exercise of discretion and independent judgment with respect to matters of significance.  The administrative exemption is one that many employers tend to overuse because they think more employees fall under this definition than actually do.
  • Executive Exemption (oftentimes referred to as the Managerial Exemption): To qualify for this exemption, an employee must be paid on a salary basis and their primary duty must involve managing two or more full-time employees within a specific department or subdivision.  To be considered a manager, an employee must have the ability to hire or fire employees (or at least their recommendation must be given considerable weight).
  • Learned Professional Exemption: To qualify for this exemption, an employee must be paid on a salary basis and their primary duty must be the performance of work requiring advanced knowledge in the field of science or learning customarily acquired through a prolonged course of study – think law, medicine, accounting, actuarial computation, engineering, architecture, teaching, and pharmacy to name a few.
  • Creative Professional Exemption: To qualify for this exemption, an employee must be paid on a salary basis and must perform work that requires “invention, imagination, originality, or talent is a recognized field of artistic or creative endeavor” (e.g., music, writing, acting, graphic arts, journalism, to name a few).
  • Highly Compensated Employee Exemption: An employee will qualify for this exemption if they are paid an annual salary of more than $100,000 and perform any of the duties that fall under the administrative, executive or professional exemptions – the difference being that the employee need only perform one of these duties, it doesn’t have to be their primary duty.
  • Computer Employee Exemption: To be eligible for this exemption, an employee must be paid on a salary basis and employed as a computer systems analyst, computer programmer, software engineer or other similar position and performs work related to the design, development and application of computer systems and programs.
  • Outside Sales Exemption:   To qualify for this exemption, an employee’s primary duty must be “making sales” or “obtaining orders for contracts” and must customarily and regularly work outside of the company’s offices.  The best example of this type of work is a traveling salesperson; conversely, an employee that only performs a minimal amount of sales – think of a driver that also does sales work – does not qualify for the exemption.
  • Commissioned Sales Exemption: Employees that work for a retail or service establishment qualify under this exemption if their regular rate of pay (including commissions) exceeds 1.5 times the minimum wage (or $10.88) and the commissions paid to the employee make up more than half of the total earnings for a given period.  This is a relatively easy buden for most retail establishments to meet, so most sales employees will meet the requirements so long as their commissions make up more than 50% of their total earnings.
  • Motor Carrier Exemption:  Drivers, loaders and mechanics whose duties affect the interstate transportation of people or goods are exempt from the overtime wage laws; however, there is a “small vehicle exception” that may apply to drivers of smaller (i.e., less than 10,000 lbs. or 8 passengers).
  • Other Exempt Employees: For a number of other reasons (often political reasons), Congress exempted a number of other classes of workers from the FLSA (and New York largely follows the lead of the federal government with respect to exemptions):  farmworkers, seasonal and recreational employees, salesman and mechanics employed by car dealerships, airline employees, occasional babysitters, home health care aids or companions, railroad employees, taxicab drivers.  For a more detailed list, review this information from the U.S. Dept. of Labor.

The determination of whether an employee is properly classified as either exempt or non-exempt, can be complicated and requires a detailed review of all the facts and circumstances surrounding the employee’s work for their employer.  As a result, if you have additional questions, it is important for you to speak with an attorney.  If you would like our assistance in connecting  with an attorney, please fill out the form below.  

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What Types of Retaliation Are Illegal in New York?

The term “whistleblower” gets thrown around a lot these days, but one of the more common misperceptions by employees is the erroneous assumption that all retaliation by an employer is illegal.  That is simply not the case, even if the retaliation is completely unfair.  To put it simply, the law isn’t fair.  Instead, federal, state and city law only make certain types of retaliation illegal.  So if your boss is retaliating against you because you skipped his birthday party or is just a mean person, you have our utmost sympathy, but there is nothing illegal about that.  The purpose of this post is to try to clear up some of he misconceptions that exist and highlight many of the most common types of illegal retaliation.

Anti-Discrimination and Anti-Retaliation

As you know from prior posts, federal, state and city law prohibit discrimination against a number of different classes of individuals.  These laws also go one step further and make it illegal for an employer to retaliate against an employee that either complains of unlawful discrimination (and it must be unlawful discrimination – see our previous post for a discussion about what types of employment discrimination are illegal in New York City) or assists in someone else’s complaint.  The first type of protected activity is sometimes referred to as “opposition clause” activity and is pretty straightforward: your employer can’t retaliate against you because you complained of unlawful discrimination.  The second type of protected activity is what is known as “participation clause” activity and extends to anyone who testifies, assists or participates in any manner in someone else’s complaint or an employer’s investigation.  So even if you did not complain, but were a witness (or even the person that first received the complaint), you are protected by federal, state and local law and cannot be subjected to retaliation by your employer for this reason.

It is also important to keep in mind that an employer cannot retaliate against individuals who have a close association with someone that either complains or participates in a complaint.  That means that if you and your spouse work for the same employer and your spouse complains of discrimination, your employer cannot take it out on you and get away with it.  While the U.S. Supreme Court protects those who have a “close family relationship” to a person that has engaged in protected activity, it is less clear whether such protection will extend to friends or other types of acquaintances (but it is safe to assume that the answer is probably not).

Complaints About Wage Violations or Pay Practices

Both the Fair Labor Standards Act and the New York Labor Law prohibit discrimination against employees that have complained (or assisted others in filing a complaint) about a violation of the overtime or minimum wages laws.  Additionally, because the NYLL is much broader than the FLSA – for example the NYLL requires that employees be paid at least twice a month and limits the types of deductions that an employer can take from an employee’s pay – the NYLL provides additional protection to employees that complain about their employer’s pay practices.

New York’s Whistleblower Statute – NYLL §§ 740 & 741 

Unlike other states (New Jersey for example), New York does not have a strong whistleblower statute that protects employees that report illegal activity to their employer (unless of course the illegal activity falls under the above- and below-referenced areas).  Instead, New York’s primary whistleblower statute (NYLL § 740) only applies to employees that reports or objects to is illegal AND “creates a substantial and specific danger to the public health or safety.”  In interpreting this statutes, courts have dismissed claims regarding reports that posed a substantial risk to specific individuals and held that this statute was intended to protect the public at large from major disasters and, as a result, have applied it narrowly.  Similarly, in order to pursue a claim under this statute, an employee must do more than simply show that they had a reasonable belief that they were reporting illegal conduct (as many other anti-retaliation statutes provide), but must present proof of an actual violation of the law which can be difficult to do and may actually prevent concerned employee from reporting complaints to their bosses.

NYLL § 741 is slightly broader than § 741, but it applies solely to health care employers and protects any employee that reports conduct that he or she reasonably believes constitutes “improper quality of patient care.”  While this provides some additional protection to employees in the health care field, overall it is clear that this does not cover the vast number of employees in New York that report potentially unlawful conduct to their employer.

Sarbanes-Oxley and Dodd-Frank

Both Sarbanes-Oxley (more formerly known as the Public Company Accounting Reform and Investor Protection Act) and Dodd-Frank (Wall Street Reform and Consumer Protection Act) were passed, in part, to make it easier for employees of public companies to report potential fraud or violations of federal securities regulations both internally and to the SEC to avoid scandals like Enron or Lehman Brothers.  SOX applies only to public companies (meaning those traded on public exchanges like the New York Stock Exchange or NASDAQ and their subsidiaries) and protects employees that report (either internally or externally) what they reasonably believe to be a violation of federal securities law or any SEC regulation.  As the Congress creates additional securities laws and the SEC continues to regulate public company, the areas that fall under SOX and Dodd-Frank will only increase.

Family Medical Leave Act

In addition to protecting an employee’s right to take up to 12 weeks of leave to treat their own or a family member’s medical condition, the FMLA also prohibits an employer from retaliating against an employee that has taken or plans to take FMLA leave.  This type of retaliation can take many forms, for example, refusing to reinstate an employee from FMLA leave, terminating their employment while out on or shortly after a return from FMLA leave, or terminating their employment before a planned FMLA leave starts.  If you have notified your employer that you plan to take FMLA leave or have recently taken leave, you should pay close attention to any changes at work because this type of retaliation is often very subtle.

Political, Recreational or Union Activities

New York Labor Law § 201-d prohibits an employer from discriminating against employees who engage in a number of activities during non-work hours.  These protected activities include political activities, the use of consumable products (e.g., alcohol or cigarettes), legal recreational activities, union membership and union activities.  These provisions are pretty broad and there is not a great deal of court decisions interpreting these provisions, so there is a lot of gray area here, but one thing that courts have made clear is that romantic relationships do not fall under the definition of protected “recreational activity.”


Because the above is meant to only illustrate the most common types of employment retaliation, if you have any concerns about whether you have been subjected to retaliation at work, you should speak with an attorney.  If you have additional questions or would like to be connected with an attorney that might be able to assist you, contact us below.

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Can My Employer Force Me To Take A Drug Test?

Generally, the answer is yes and your employer can terminate you if you fail the drug test.

Legal Background

The United States Supreme Court first upheld the right of an employer – in this case the federal government – to drug test employees in “safety sensitive positions” without any reason for suspicion in the cases of Skinner v. Railway Labor Executives Association (1989) and National Treasury Employees v. Von Raab (1989).  Because these cases involved the federal government as the employer, the arguments about the legality of the drug test centered on whether the Fourth Amendment’s protection against unreasonable searches and seizures had been violated.  It is important to keep in mind that the Fourth Amendment DOES NOT APPLY to private sector employers.  Similarly, New York state and city law both permit businesses  to conduct random or suspicionless drug testing of its employees.  See N.Y.C.R.R. § 466.11(h)(6)(ii); N.Y.C. Admin. Code § 8-107(15)(c).  Thus, private employers in New York are specifically permitted to drug test employees for any position.

Employment At-Will And The FMLA/ADA

As we have noted in the past, unless an employee has an employment contract, employment in New York is “at-will” and an employer can terminate an employee for any or no reason, including refusing to take a drug test or testing positive for drugs (illegal or otherwise).  However, the Family Medical Leave Act or Americans with Disabilities Act may provide some protection.

  • FMLA: The FMLA protects employees who suffer from serious medical conditions, which includes receiving treatment for drug abuse; however, the FMLA specifically permits an employer that has an established policy against illegal drug use to discipline (including terminate) employees that violate that policy.  That means that if your employer has a policy against illegal drug use and you violate that policy, your employer can terminate your employment regardless of whether you have requested or gone out on FMLA leave.
  • ADA: The ADA specifically excludes individuals that currently engage in the use of illegal drugs from the definition of an “individual with a disability;” however, the it does prohibit discrimination against individuals that (i) have been successfully rehabilitated and who are no longer engaged in the use of illegal drugs or (ii) are currently participating in a rehab program and no longer engages in the use of illegal drugs.  The ADA would not, however, protect an individual that fails a drug test and then goes into rehab (state and city law in are agreement with the ADA on this point).

As with most employment law issues, your legal rights will depend heavily on the facts or your specific case and it is important that you discuss your situation with an attorney.  If you would like to be connected with an attorney, fill out the form below.  


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