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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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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