What Damages Are Available From The EEOC?

As we have mentioned a few times in the past, the EEOC is responsible for enforcing a number of federal laws that prohibit discrimination and retaliation in the workplace.  These federal laws include:

  • Title VII of the Civil Rights Act of 1964 (“Title VII”), which makes it illegal to discriminate against an employee on the basis of race, color, religion, sex or national origin;
  • Pregnancy Discrimination Act (“PDA”), amended Title VII to prohibit discrimination against a woman because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth;
  • Equal Pay Act, makes it illegal to pay different wages to men and women that perform similar work;
  • Americans with Disabilities Act (“ADA”), makes it illegal for private employers to discriminate against or fail to accomodate employees with a disability;
  • Rehabilitation Act, similar to the ADA, but extends to the federal government;
  • Age Discrimination in Employment Act (“ADEA”), makes it illegal to discriminate against employees that are over age 40;
  • Genetic Information Nondiscrimination Act (“GINA”), makes it illegal to discriminate against employees because of genetic information.

It is important to note that the EEOC does not actually have the authority to issue an award of damages to an employee of private company that has been subjected to discrimination or retaliation in the workplace.  Instead, the EEOC is responsible for investigating complaints of discrimination and trying to resolve them through mediation.  When the EEOC finds evidence of discrimination and is unable to resolve the dispute, the EEOC can file a lawsuit on behalf of the individual.  However, it is extremely rare for the EEOC to file a lawsuit – in 2012, the EEOC received 99,412 charges of discrimination, but filed only 122 complaints in court.    Thus, the vast majority of discrimination lawsuits are pursued by individuals and their attorneys.

The answer to the question about damages though depends on the particular statute that has been violated because each statute may make different types of damages available to an employee that can prove that their employer violated the particular statute.

  • Title VII: Economic Damages (including reinstatement, back pay, and/or front pay), Compensatory Damages (for emotional distress or mental anguish), Punitive Damages and Attorneys’ Fees;
  • Pregnancy Discrimination Act: because the PDA only amends Title VII, the damages are the same as those listed above;
  • Equal Pay Act: Economic Damages (including back pay, reinstatement and/or front pay), Punitive Damages (limited to an amount equal to the amount of Economic Damages) and Attorneys’ Fees (N.B. the Equal Pay Act does not provide for Compensatory Damages);
  • ADA: same as Title VII; 
  • Rehabilitation Act: Economic Damages, Compensatory Damages, and Attorney Fees (NO Punitive Damages);
  • ADEA: same as Equal Pay Act;
  • GINA: same at Title VII.

As the above demonstrates, the remedies that may be available to you depend on the statute in question.  Also, it is important to keep in mind that state and city law provide additional levels of damages that often times exceed the damages permitted under federal law.  As a result, before you pursue a claim of discrimination, it is important that you meet with an attorney to discuss these and other issues.  If you would like to be connected with an attorney, please fill out the form below: 

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Am I Entitled to Severance If I Am Laid Off Or Fired?

The simple answer is no.  Neither federal law nor state law requires your employer to pay you severance if you are let go, no matter how long you worked there.  Despite this, many employers do pay severance.  Why?  Simple, they want you to sign the waiver and release that is tied to the severance so that you will not sue them later.

Employment Agreements & Severance Plans

The above does not apply if you have an employment contract that provides for severance in the event of a termination or if your employer has a severance plan (or other type plan that is meant to provide pay and/or benefits to employees that leave the company).  Employment contracts are enforceable under state law just like any other contract and severance plans are considered employee benefit plans and are protected by federal law (the Employee Retirement Income Security Act – aka ERISA).

Severance Agreement

Oftentimes employees are given a Severance Agreement when they are notified that they are being let go.   These agreements can be anywhere from 1-2 pages to 15 pages, depending on how much legal language the employer wants to put in there.  However, the critical language in any Severance Agreement is the waiver and/or release (sometimes it is also called an “Agreement Not To Sue”) – but whatever it is called, the effect is the same: to waive your right to sue your employer in the future in exchange for severance pay.  This is the important provision from the employer’s standpoint; if you sign the Severance Agreement you will be agreeing not to sue you employer for anything (with a few relatively unique exceptions).

The legal implications of any Severance Agreement can be critical, so it is always important to take time to review the agreement and make sure that you are understand the rights that you are giving up.  Losing your job can be shocking in it’s own right, so make sure to ask for time to review your agreement.  Your employer may pressure you to sign right then and there, but ultimately they likely won’t force you to do so – in fact, if you are over age 40, you have to be given at least 21 days to review the agreement; even if you aren’t over age 40, they likely won’t force you to sign it because then they are opening themselves up to the argument that you were coerced into signing the agreement under duress.

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Common Questions About The FMLA

While there could be hundreds of different questions that you could have about the FMLA, I will try to answer a few of the most common questions below:

Is My Employer Required To Offer Me FMLA Leave If It Has Less Than 50 Employees?

No.  There are a number of requirements that must be met for your employer to be a “covered employer” for purposes of the FMLA; however, the main requirement is that your employer have at least 50 employees during the prior calendar year.  Some employers may try to play games and only count certain employees or locations; if you think your employer is trying to do that, you should consult with an attorney to determine whether your employer is covered by the FMLA.

Can My Employer Force Me To Use FMLA Leave?

Yes.  According to the  Dept. of Labor’s regulations, your employer is responsible for designating leave as FMLA-qualifying and giving notice of the designation to you.  Your employer can make this designation as soon as it has enough information to determine whether the leave is being taken for an FMLA-qualifying reason (e.g., for the birth/adoption of a child, serious health condition of you or your spouse/child/parent).  So if you are eligible for FMLA leave and taking a leave of absence for an FMLA-qualifying reason, your employer can unilaterally designate your leave as FMLA and  trigger the start of the 12 week period.

Does My Employer Have To Pay Me For FMLA Leave?

Generally, no.  FMLA leave is typically unpaid leave.  However, if you have accrued sick, vacation or other paid time off, you can choose to apply that accrued leave to your FMLA leave; however, your FMLA leave and paid leave will run at the same time and you will NOT be entitled to more than 12 weeks of FMLA leave.  Your employer can also require you to use your accrued time off during your FMLA leave – that means you can’t take FMLA leave and save your accrued time off for later unless your employer allows you to do so.  It is completely up to your employer whether to allow you to save your accrued time until  you return from FMLA leave.

Can My Employer Charge Me For My Health Insurance While On FMLA Leave?

Yes.  This only comes up when the FMLA leave is unpaid.  During FMLA leave, your employer is required to offer the health insurance on the same terms as when you were working.  If the leave is paid, your employer will deduct your share of the premiums from your paycheck – just as it does when you are not on FMLA leave.  When the leave is unpaid – and there is no paycheck to deduct the premiums from  – you are required to continue to pay your share of the health insurance premiums.

Does My Employer Have To Return Me To The Exact Same Position?

Yes and no; your employer can return you to your former position or an “equivalent position” – which the regulations define as “one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.”  Whether a position is truly an “equivalent position” can be a tricky question and will ultimately depend on the specific details of the two positions.

These are just the most common questions that we run into from employees regarding the FMLA.  If you have additional questions or would like assistance in finding an attorney that could help you with questions about the FMLA.  Please fill out the form below.

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What is the Difference Between the EEOC and the New York State Division of Human Rights?

The missions of the Equal Employment Opportunity Commission (EEOC) and New  York State Division of Human Rights (State Division) are very similar: both are responsible for enforcing laws that make it illegal to discriminate against employees in New York that are members certain protected classes and/or retaliate against employees that complain of discrimination.  But there are a number of important differences that are important to keep in mind if you are considering filing a complaint with either agency.

Title VII vs. the New York State Human Rights Law

We have touched on this issue briefly before, but there are a number of differences between the federal and state laws that prohibit discrimination in the workplace.  Federal law – in this case, Title VII of the Civil Rights Act of 1964, along with the Americans with Disabilities Act, and the Age Discrimination in Employment Act – prohibits discrimination on the following grounds: race, color, religion, sex/gender, national origin, age and disability.  The New York State Human Rights Law (NYSHRL) prohibits discrimination on these grounds along with the following additional grounds: sexual orientation, marital status, domestic violence victim status, arrest or conviction record, and predisposing genetic characteristics.  Thus, the NYSHRL is broader than federal law and, if you are discriminated against because you fall into one of those categories that are only protected by the NYSHRL, your only options are to file a complaint with the State Division or file a complaint in state court.

There is also an important difference in the damages that are available under federal and state law.  While federal law permits an individual that proves that they were subjected to discrimination to recover economic damages (including both back pay, front pay and any other monetary losses), compensatory damages (e.g. emotional distress), punitive damages, and attorneys’ fees, the NYSHRL is limited to economic damages and compensatory damages (as well as civil penalties that the State Division can order, but those are paid to the State Division and not the individual).  This means that the State Division cannot award you punitive damages or attorneys’ fees.  (However, this comes with the caveat that at least one federal court has permitted a plaintiff that prevailed at the State Division to file a claim to recover their attorneys’ fees under federal law).

The EEOC vs. the State Division

The biggest difference between the EEOC and the State Division (other than the above-outlined differences between federal and state law) is that the State Division is able to – and actually does – make an effort to investigate and resolve complaints that are filed with it.  Complaints filed with the EEOC tend to go years before they are actually investigated.  As a result, the EEOC has a huge backlog of cases which has been well reported – see here, here and here.  It also hasn’t helped that the EEOC’s Manhattan office was flooded in July 2012 when a pipe burst and then again by Hurricane Sandy in October 2012 which resulted in the loss of many files, among other problems.   Thus, it is not uncommon for cases to languish at the EEOC and see months or even years pass with little or no activity.

Conversely, the State Division has been doing a much better job of processing and investigating claims that are filed with it.  The State Division has 11 offices throughout New York State and has an unofficial mandate from the Governor to issue a preliminary decision within 180 days of a complaint being filed.  Usually this preliminary decision is based on a review of the complaint, the answer submitted by the employer and anything generated from the State Division’s investigation – which is typically limited to a fact-finding conference where the investigator asks questions of the complainant and any witnesses that the employer brings.  In this preliminary decision, the State Division will determine whether they have found probable cause that discrimination has occurred and, if so, will schedule a hearing for a few months later.  While a year could pass before anything happens with an EEOC charge, complaints filed with the State Division tend to be resolved or at least scheduled for a hearing within a year.   What typically tends to happen though is that an employee that receives a Probable Cause Determination from the State Division, rather than proceed to a hearing before the State Division, will then file a complaint in federal court (and include claims under federal law to obtain punitive damages and attorneys fees) and try to use the Probable Cause Determination as evidence to support their claim.  The main drawback to filing your complaint with the State Division, however, is that if the State Division finds that there is no evidence of discrimination (i.e., a No Probable Cause Determination), you will have very limited options in appealing that decision and it will be very difficult (but not impossible) to proceed with a claim.


As the above demonstrates, there are number of legal and practical differences between filing a complaint with the EEOC and the State Division.  Thus, before you file a complaint with either the EEOC or the State Division, you should sit down with an attorney and discuss the pros and cons of both to each potential course of action.  If you would like to be connected with an attorney, please fill out the form below: 

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Second Circuit Reaffirms Broad Application of New York City Human Rights Law

As we have mentioned in the past, the New York City Human Rights Law provides employees that work in New York City with some of the broadest anti-discrimination and anti-retaliation protection of any employment laws, far more than what is covered by federal and state laws.  Recently, the Second Circuit reaffirmed this point when it reversed a lower federal court decision dismissing an individual’s claims against her former employer.  The case is Mihalik v. Credit Agricole Cheuvreux North America, Inc. and the decision can be found here.

Facts of Mihalik’s Case

In this case, Mihalik alleged that, from the beginning of her employment, her manager (who was also the CEO) paid “special attention” to her, including: (i) asking her about her relationship status and whether she preferred older men or was a “cougar,” (ii) often commenting on her appearance by telling her she looked “sexy” or “promiscuous” and that she should “dress like that every day,” (iii) telling her that they should coordinate business travel arrangements so that they could “enjoy traveling together,” (iv) engaging in explicit sexual conversations in the workplace, and (v) propositioning her on at least two occasions.  Overall, Mihalik alleged that her manager’s conduct was typical of the boy’s club atmosphere which existed in the office.  For her part, Mihalek rejected her manager’s propositions and complained to a number of the company’s other employees.  Shortly thereafter, Mihalek was fired for “failing to complete an assignment.”

After she was fired, Mihalik filed a complaint in federal court asserting claims under the NYCHRL.  After the parties completed discovery, the court dismissed Mihalik’s complaint after analyzing her claims under the stricter federal standards as well as the more lenient NYCHRL standards.

2005 Amendments to the NYCHRL

In 2005, the New York City Council passed the Local Civil Rights Restoration Act which explicitly provided that courts had been construing the NYCHRL “too narrowly to ensure protection of the civil rights of all persons covered by the law” and “underscore[d] that the provisions of New York City’s Human Rights Law are to be construed independently from similar or identical provisions of New York state or federal statutes.”  Despite the plain language of the amendment, courts continued to erroneously apply the stricter state and federal standards to claims under the NYCHRL until a state appellate court explicitly rejected such an analysis of claims under the NYCHRL.

Second Circuit’s Decision

In reversing the district court’s dismissal of Mihalik’s complaint, the Second Circuit reiterated a few key points:

  • The NYCHRL is not a “general civility code” and will not provide a claim where an individual has an obnoxious or overbearing boss, instead, a plaintiff in a gender discrimination case must show that he or she was treated less well at least in part because of their gender;
  • In order for an employer to avoid a claim of discrimination, it must present evidence which establishes, as a matter of law, that discrimination played “no role” in the employer’s action;
  • Even a single comment that objectifies women made in circumstances where that comment would, for example, signal views about the role of women in the workplace may be actionable;
  • An employee is not required to show that the discrimination or harassment was “so severe or pervasive so as to alter the terms and conditions of employment” (as federal and state law require), instead the Second Circuit reiterated that “a focus on unequal treatment based on gender . . . is in fact the approach that is most faithful to the uniquely broad and remedial purposes of the local statute;”
  • “Even a poorly-performing employee is entitled to an environment free from sexual harassment” and “analysis of the NYCHRL must be guided by the need to make sure that discrimination plays no role in the workplace.”

While the Second Circuit’s decision doesn’t break any new legal ground, the decision reaffirms the broad application of the NYCHRL and to address the “uniquely broad and remedial purposes” of the NYCHRL.  The NYCHRL remains a powerful tool for employees in New York City to use to fight all types of discrimination in the workplace.

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Is A Verbal Employment Contract Enforceable In New York?

The general rule is that oral employment contracts are NOT enforceable in New York; instead, an employee will be an employee “at will” – meaning that your employment can be terminated for any or no reason with little or no notice.  So while your boss may like you and value your contributions to the company, it doesn’t mean anything if he or she tells you that you can work there “as long as you want,” “for a long time” or “forever.”  There is simply no guarantee that you will be employed for any period of time or that your job duties or salary couldn’t change at a moment’s notice.

Statute of Frauds

New York’s Statute of Frauds is a general law that requires that certain types of agreements be in writing.  While the Statute of Frauds has a number of provisions that apply to all contracts, the provision that is of particular importance here is the section that requires that any agreement that is not – or cannot – be performed within one year, must be in writing and signed by the party that it is being enforced against (in your case, your employer).  Courts have typically held that oral employment agreements that are open ended or for an undefined period of time violate the Statute of Frauds and, as a result, are unenforceable and the employee will be “at will.”

Conversely, if the oral employment agreement is meant to last for less than one year (which is likely rare), it can be enforceable if there is sufficient evidence that the parties have reached an agreement as to all the important terms.

Importance of Written Agreements

As the above makes clear, if you want to be sure that you have an agreement for a specific period of time, you should make sure that you get the agreement in writing.  While many employers will be reluctant to do so, this is really the only way to ensure that you have an agreement that will be enforceable in court.  If you have additional questions about drafting, negotiating or enforcing a written agreement, it is important that you consult with an attorney that specializes in this area of the law.  If you would like to be connected with an attorney that may be able to help you, please contact us here.

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Can I File for Unemployment if I was Fired?

The general rule is that you are eligible for unemployment unless you quit your job without a good reason or were fired for engaging in “misconduct.”  Many people think that they can’t receive  unemployment if they are fired for any reason, but that is simply not the case.

While the Unemployment Insurance Law does not define “misconduct,” it is generally held to mean “any volitional [meaning ‘voluntary’ or ‘done of your own free will’] act or omission which is detrimental to an employer’s interests.”  This definition is still pretty broad, but courts have held that inefficiency, inadequate performance, inadvertent or ordinary negligence, and good faith errors in judgment do NOT meet the definition of “misconduct.”  Additionally, if your employer terminates you for something that you have done in the past that the employer knew about and did not fire you, the employer cannot later claim that it terminated you for this misconduct.  However, if you are fired for repeated absences or latenesses without a good reason, that is considered misconduct and you may be disqualified from receiving unemployment benefits.

With this in mind, it is important to remember that each case is unique and will depend on the specific facts and circumstances.  If you have questions about whether you are entitled to unemployment compensation, you should speak with an attorney.  If you would like to be connected with an attorney, please contact us here.

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Can My Boss Refuse To Let My Attorney Attend A Meeting?

Unless you are member of a labor union, it will be up to your employer whether you will be permitted to bring an attorney or other representative to any meeting, whether it be in response to a complaint you made or in order to discipline you for something.  For the most part, employers are unwilling to permit an employee to bring an attorney with them.  As an employee, you don’t have much choice; if you refuse to meet with them without an attorney or representative, you can be disciplined for insubordination or failing to cooperate with an investigation.

Labor Union’s and “Weingarten Rights”

The National Labor Relations Board and the U.S. Supreme Court have held that members of a labor union are entitled to have a union representative (not necessarily a lawyer) present for an investigatory interviews  – which is generally interpreted as (1) any meeting where management questions an employee to obtain information AND (2) the employee has a reasonable belief that discipline or other adverse consequences may result from the meeting.  If it is an investigatory interview, the employee can request union representation either before or at any point during the interview and the manager has three choices:

  1. Grant the request and delay questioning until the union rep arrives;
  2. Deny the request and end the interview; or
  3. Give the employee the choice of having the interview without representation or ending the interview.

If the manager denies the request and continues with the meeting, the employee can refuse to answer questions and the manager’s conduct may give rise to a separate unfair labor practice charge.

Non-Unionized Employees

If you are not a member of a labor union, it’s up to the employer and, as noted above, most employers refuse to permit an attorney to be present for the simple fact that there is nothing in it for them to allow an attorney to attend.  They also may fear that the attorney will attempt to disrupt the meeting or investigation.  If you are an employee that is being asked to meet with your manager and you have questions about what your rights are, you should consult with an attorney that can answer your questions.  If you would like to be connected with an attorney that may be able to assist you, contact us here.

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Can I Be Fired For Something I Post on Facebook or Twitter? [UPDATED]

Every week, it seems there is another story of someone being fired for something wrote on either Facebook or Twitter.  Because we believe it is our mission here to help educate the workers of New York City and because we don’t want to see more people lose their jobs, we recommend that employees exercise caution in the Facebook and Twitter usage.  The old saying, “Don’t say anything you wouldn’t want to see on the cover of the New York Times,” is just as true as ever in this age of social media.

Posting on Facebook or Twitter are treated the same as any other workplace discussions – only they can be preserved for all eternity.  As we have commented many times on our blog, New York is an at-will employment state, so your employer can terminate your employment for any or no reason – including because they didn’t like what you wrote on a social media website.  By the same token, if you call out sick and your boss sees that you are posting pictures from Mexico, he would be perfectly justified in firing you for improperly taking a sick day.  That being said, there is one growing area of protection for employees.

The NLRA’s Protection of Concerted Activity

There are certain times where your comments on a social media site can be considered protected activity which an employer cannot legally use as a basis to terminate your employment.  While the National Labor Relations Act is generally considered to protect employee’s rights to organize, join and participate in labor unions, the law goes much further than that and protects employees that engage in “concerted activity” – which is defined as two or more employees taking action for their mutual aid or protection regarding terms and conditions of employment.  Examples of concerted activity include:

  • two or more employees addressing their employer about improving their pay;
  • two or more employees discussing other work-related issues (e.g., safety concerns); or
  • an employee speaking to to an employer on behalf of one or more co-workers about improving workplace conditions.

So if your Facebook/Twitter posts can fit in one of the above categories, then you may be protected – but we suspect that the vast majority of people’s posts do not fall into these categories, so consider yourself warned.  Finally, here are some helpful tips from aol.com about posting on social media and not getting fired.

[UPDATE] Union Employees

The above does not necessarily apply to many members of labor unions that can only be terminated for “cause” – meaning that they are not “at-will” employees.  As a result, an employer can’t simply fire a unionized employee for something that they post on Facebook.  A recent case involving a N.Y.C. Department of Education teacher provides a good example of the protection provided to unionized employees.

According to court documents, Christine Rubino was a teacher at the P.S. 203 in Brooklyn who, after a bad day at work, vented on Facebook: “After today, I am thinking a field trip to the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS!  They are the devil’s spawn!”  Her post was an apparent reference to an incident the previous day where a student at another school drowned during a field trip.  A colleague reported Rubino to administrators and an investigation was conducted.  While Rubino initially said that a friend had written the posts – and her friend initially took the blame – she later recanted.  Rubino was then fired and an arbitrator upheld the termination, however, Rubino appealed and a judge reversed the decision, finding that the DOE’s punishment was too severe.  The DOE challenged the judge’s ruling, but an appellate court upheld it.  While the appellate court found that the comments were “clearly inappropriate,” the court noted that (i) Rubino was just venting to her Facebook friends after a bad day at work, (ii) the comments were not meant for the public, students or parents, and (iii) Rubino eventually admitted to making the comments and that they were improper.  [NYTimes]

Thus, the lesson to be learned here is that unionized employees have significantly more protection when it comes to posting on social media websites that “at-will” employees and that comments that are clearly inappropriate, vile and/or disgusting may not be sufficient “just cause” for termination – at least not in New York City.

If you have additional questions or if you have been fired from your job and would like to be connected with an attorney to discuss whether you were fired unlawfully, please contact us here.

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What is Sex Stereotype Discrimination?

As we noted in yesterday’s post, federal anti-discrimination laws do not prohibit an employer from discriminating on the basis of an employee’s sexual orientation – while New York State and City law do.  Despite Congress’s failure to enact such legislation, creative plaintiff’s attorneys have been advancing “sex stereotype” discrimination as an offshoot of gender discrimination that provides some protection against discrimination for gay and lesbian employees.  In a nutshell, this theory is based on the argument that discrimination against employees that fail to conform to certain gender stereotypes or fail to fit the employer’s mold of how a man or woman should act is gender discrimination.  For example, treating a gay employee differently because he isn’t “masculine enough” or referring to him as “girl” or “bitch” could constitute sex stereotype discrimination.  The same holds true for lesbian employees who are subjected to discrimination or comments because they don’t wear make-up or dresses.

While it is encouraging that the courts are expanding the definition of gender discrimination to provide some protection to gay and lesbian employees and the EEOC has included sex stereotyping within its definition of gender discrimination, all of this would not be necessary if Congress would simply pass legislation prohibiting discrimination in the workplace based on an employee’s sexual orientation.  While such a bill has repeatedly been introduced in Congress, it has not generated enough support to pass.

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