Charlie Sheen Sues for Mental Disability Discrimination

Charlie Sheen looks like someone with a serious mental problem. Mental health experts have diagnosed him as suffering from a "hypo maniac" psychological state.  Warner Brothers stated that Sheen is ill and admits firing him because of his crazy behavior.

If Sheen is mentally impaired, did Warner Brothers violate the disability discrimination laws by firing him?  Maybe Warner Brothers should have provided Sheen with an accommodation instead of terminating his employment agreement?   The disability discrimination laws cover mental illness and they  prohibit companies from firing people on account of their disability unless their disability renders them unable to perform the essential functions of their job.   

Could Warner Brothers have a problem here?  If Sheen can prove that he is disabled either with a mental illness or drug or alcohol addiction, he can then argue that Warner Brothers violated is rights by firing him.   Warner Brothers would then have to prove  that Sheen's behavior, a symptom of his illness, made it impossible for him to perform.    

Warner Brothers could also admit that Sheen was disabled but argue that he was fired for reasons unrelated to his illness.   Apparently Sheen insulted the staff, was insubordinate and difficult to work with.  But Sheen will no doubt claim that this behavior was the result of his illness.  It is a mess.  I suspect that Warner Brothers will enter into a confidential settlement agreement with Sheen and the matter will be quietly resolved.

What Sexual Harassment in New York Looks Like

Sexual harassment cases in New York can be based, in part, on certain non-sexual conduct.  A recent New York sexual harassment case called Kaytor v. Electric Boat Corp involved a combination of sexual and non-sexual conduct by an employees perverted boss. The court found that sexual harassment occurred even though not all of the conduct was sexual.  Here are some of the facts that the court relied upon:

- Sexually suggestive comments about her body and clothing.
- Leering at her and trying to smell her body.
- Said he wanted to see her dead and in a coffin.
- Threatened to kill her if she complained about him.
- Gave her a sexually suggestive gift (a pussy willow).
- As she was leaving for gynecologist appointment he said that her doctor was going where men would love to go.
- Threatened to choke her.

The court held that these facts add up to a classic sexually hostile work environment even though not all of the conduct was sexual.  The combination of sexual comments and threats of violence were illegal.   The Court cautioned other courts to resist dismissing sexual harassment cases because they usually involved questions of fact that only a jury can decide.  

If you think that you have might have a sexual harassment case, please contact us for a free evaluation and we will review your case to determine if  you a viable claim.  

Are IT and High Tech Workers Entitled to Overtime Pay in New York?

IT and high tech workers are often entitled to overtime pay, even if they are highly paid salaried employees.  IT employees who provide technical support to the company by repairing, maintaining, installing, moving, and supporting the operation's computer systems have recovered overtime pay.  

Job titles at companies vary widely and the title alone does not determine eligibility to overtime pay.  However, people with the following job titles have been awarded overtime pay: 

• Network Engineers
• Help Desk Workers
• Systems Analysts
• System Administrators
• Web Administrators
• Business or Systems Consultants
• Database Administrators
• Information Technology Consultants or Specialists

The ultimate decision about an IT workers right to overtime pay comes down to the kind of work that is performed.   IT workers who perform support functions and who are closely supervised, perform routine, repetitive tasks and who are required to follow company procedures and protocols in doing their work are entitled to overtime pay.  These IT workers often perform specific tasks such as updating and installing software and configure settings for existing systems and applications, and maintain, set up, move and otherwise configure computer hardware. 

IT workers who typically are not entitled to overtime pay in New York engage in higher level or creative work.  Generally, these IT workers operate independently without close supervision and address new problems each day or design and select new systems. Their work regularly involves designing or creating new systems or applications and they exercise significant independent discretion and have authority to make significant changes to the companies systems.  

If you are an IT or high tech worker and have a question about your right to overtime pay, please contact us for a free consultation where we will analyze your position and help you determine if you are entitled to overtime pay.  

Never Meet with Your Boss at 4 p.m. on Friday

Today is Friday, a day in which many terminations take place, often late in the afternoon.   There is a great post today on the Workplace Fairness Blog about getting fired on Friday afternoon by Bob Rosner. It is worth a look. 

Not sure why companies think that Friday is the day to fire people, but it is.  I ran a search how to fire someone and a guide on Ehow says "It is best to wait until late in the afternoon, usually 3 or 4pm on a Friday, before terminating someone."

Why do you think Friday is a better day for doing the dirty work?   Do companies think it is better to give employees the weekend to deal with their termination?   

If you get that call to meet your boss on Friday afternoon, go in prepared.  Remember never to sign a separation agreement on the spot.   If they ask you sign a waiver or any kind of agreement during the termination meeting, don't do it.   Take the agreement home and review it.  If you have questions, call a law firm like ours.   We offer free consultations.   

 

 

 

 

Retaliation Protection for New York Financial Executives

The Dodd-Frank Act was passed last July in a belated attempt to curb corporate shenanigans on Wall Street. The goal of the Dodd-Frank Act is to prevent the corrupt and irrational behavior that wreaks havoc upon investors and the countries financial system. These lofty goals might make for good politics, but I doubt this law will transform the financial system. Laws don't work unless someone is willing to report the violations. For this law to really work, the financial executives who observe the violations need to feel comfortable reporting them. Fear of retaliation will deter many from reporting violations of the Act.

The Dodd-Frank Act contains a strong anti-retaliation provision in Section 1057 entitled "Employee Protection." This section prohibits a company from firing or taking any adverse against any who has -

(1) provided, caused to be provided, or is about to provide or cause to be provided, information to the employer, the Bureau, or any other State, local, or Federal, government authority or law enforcement agency relating to any violation of, or any act or omission that the employee reasonably believes to be a violation of, any provision of this title or any other provision of law that is subject to the jurisdiction of the Bureau, or any rule, order, standard, or prohibition prescribed by the Bureau;

(2) testified or will testify in any proceeding resulting from the administration or enforcement of any provision of this title or any other provision of law that is subject to the jurisdiction of the Bureau, or any rule, order, standard, or prohibition prescribed by the Bureau;

(3) filed, instituted, or caused to be filed or instituted any proceeding under any Federal consumer financial law; or

(4) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any law, rule, order, standard, or prohibition, subject to the jurisdiction of, or enforceable by, the Bureau.

If a financial executive or other employee is retaliated against for reporting a violation of the Dodd-Frank Act, they are required to file a complaint with the Secretary of Labor. The Secretary of Labor is required to investigate the matter and issue a ruling. The Secretary of Labor can order the reinstatement of the fired employee or make other orders to remedy the harm including an award of compensatory damages. If the Secretary of Labor does not take action within 210 days of the complaint, the aggrieved employee can file a case in federal court.

These anti-retaliation laws can produce excellent results in certain situations. If an employee can establish that they reported their employer for violating the Dodd-Frank Act (make sure your report of wrong doing is in writing) and that they were promptly fired, demoted or otherwise subject to adverse employment action, then a substantial recovery is likely. These can be great cases. In fact, retaliation case produce some of the best results for our clients.

If you believe that you have been retaliated against, please give us a call.  We have been representing executives in employment cases since 1999.  

Email Privacy at Work in New York

If you left your car keys at work, would your employer have the right to take your car out for a spin?   If you left your house keys at work, would your boss have the right to enter your home and rummage through your belongings?   No.

Likewise, if you leave your personal online email password at work, can your employer log onto your gmail or yahoo mail account?  The answer is no.  There is a law that protects your right to privacy in your online email accounts.

The law is called the Stored Communications Act.   This law makes it a crime for anyone to access your online email accounts without your permission.   It also creates a civil right of action to sue for damages, legal fees and even punitive damages.  

Most companies today have policies stating that employees have no right to privacy in their emails or anything they do on a company computer system.   The law is clear that you do NOT have any right to privacy in your work email.  But you do have the the right to privacy in your personal online email accounts like gmail,  hotmail or yahoo mail even if you store your passwords at work.  If you access these personal email accounts from a company computer then your employer may have the right to view the emails you send and receive from your work computer - but they do not have the right to logon to these personal email accounts and view other emails.  

There is at least one published case in New York where a federal court fined an employer for accessing an employee's personal online email account.  In that case, the employee stored their login information on their work computer and the employer then logged onto the employee's gmail or yahoo mail accounts and obtained damaging information that the employer tried to use against the employee.   The employee sued the company back and the employer was not allowed to use the information that they obtained from the gmail and yahoo mail accounts and the employer was fined $4000.00 as well.  The case is Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008).

If you believe that your privacy rights at work have been violated, please give us a call.  We have been handling employee rights matters since 1999.   

Tough New Overtime Pay Law Coming to New York

New York employees who are owed overtime pay, will soon be able to collect twice the amount owed to them.  This new and improved overtime pay law takes effect on April 12, 2011.   The new law, called the New York State Wage Theft Protection Act, improves upon the old law in several ways outlined below.

1.  Harsh Penalties for Overtime Pay Violations  

The new law increases the penalty for overtime pay violations from 25% of the amount due to 100% of the amount due.  Under the old overtime pay law, a company could be fined up to 25% of the amount due.  For example, if a company owed an employee $1000 in unpaid overtime, the company could also be forced to pay a penalty of 25% or $250.00 in our example.  Under the new law, the penalty has been increased to 100% of the amount due.  In our example, the company would have to pay the employee the $1000 in unpaid overtime and another $1000 as a penalty.  This is a huge win for employees because they now can receive twice the amount due in overtime pay.  

If an employee wins in court and the company fails to pay within 90 days, then an additional fine of 15% is added on.  This new law is very tough on companies that attempt to skirt the overtime pay laws. 

 

2.  Criminal Penalties for Overtime Pay Violations

It is a crime to deprive employees of earned overtime pay.  If an employer is caught violating the overtime pay laws once, they can be charged with a misdemeanor and fined up to $20,000 or imprisoned for up to a year.   If they are caught a second time within six years, they can be charged with a felony.  Criminal penalties can also be imposed upon employers who fail to keep adequate pay records.    

3.  Anti-Retaliation Protection

Employers are prohibited from taking any kind of adverse action against employees who inquire about or complaint about their right to overtime pay.  Employers who retaliate against employees who complain about overtime pay violations can be fined up to $10,000 and forced to repay any lost wages to the subject employee and rehire any employee who is fired for complaining about overtime pay.  

4.  Wage Notices and Pay Statements

New York employers are already required to provide newly hired employees with wage notices that identify their rate of pay, the dates of pay and their overtime pay rate if they are not exempt.  The new law requires employers to explain the manner in which the employee is paid - i.e. by the hour, day, week, shift, commission or another basis.  The new law also requires employers to provide pay statements that designate the dates of work that the wages cover and the rate and basis of the pay as well as the applicable overtime pay rate and number of regular and overtime hours.  

5.  Summary

Recent studies have shown that New York City workers lose more than 1 Billion a year in unpaid overtime.  Overtime pay violations are rampant in New York and around the country.   Many companies just do not pay overtime unless they are forced to do it. This new law is a good step in the right direction.  It will give employees more power and more incentive to demand overtime pay.  

If you have a question about your right to overtime pay, please give us a call at 866 571 5010 or fill out the form on this page and we will respond within 24 hours.  

Age Discrimination in New York Tech Companies

Age discrimination in New York tech firms is rampant. A tech worker's career plateaus in their 30s and they are often pushed aside or out of the company in their 40 and 50s.

Once fired, older tech workers struggle to get back into the industry.  This is because most New York tech firms prefer young, inexperienced, low paid engineers. There is a perception that younger technology workers can pick up the new trends faster.  

Older tech workers, on the other hand, have to leave by 6 to get the kids to soccer practice and require double the pay and are perceived to be slower to learn new things.

Two UC Berkley professors just published a book that documents this phenomenon.  The book, "Chips and Change" cites Bureau of Labor and Census data for the semiconductor industry and found that salaries rose sharply for engineers in their 30s but that the increases slowed in their 40s and began dropping in their 50s and beyond. See the article in Techcrunch, "Silicon Vally's Dark Secret: It's All About Age."

The tech industry denies overtly shopping for young engineers. A Microsoft employee, for example, "acknowledged that the vast majority of new Microsoft employees are young, but said that this is so because older workers tend to go into more senior jobs and there are fewer of those positions to begin with. It was all about hiring the best and brightest, he said; age and nationality are not important."  Sure. 

I have represented a lot of older high tech workers in age discrimination cases. They often settle for high value. In fact, age discrimination cases are known to produce some of the highest verdicts and settlement.  Companies generally do not want these cases going to trial before sympathetic juries. 

New York age discrimination cases tend to settle for higher values because age discrimination victims often endure longer periods of unemployment.  Many senior technology workers are highly paid, but once they lose their job it can take years to find comparable employment.   

Please see our New York Age Discrimination section for more information.   We have been handling New York age discrimination cases since 1999.  In you need help with an age discrimination matter, call us or fill out the FREE CASE REVIEW form to the left.  

New York Severance Pay Guide

A severance package is designed to ease your transition out of the company.    Your employer wants to make sure you leave quietly and you want to obtain a cushion to hold yourself over until you find a new job.   This guide will identify the important considerations in a severance package and help you evaluate and possibly improve your severance package.  

1.     Understand the Quid Pro Quo

The quid pro quo of a contract is the heart of the deal – the exchange of value.   In reviewing your severance package, you need to understand what you are getting and what you are giving up.  In most severance packages, you will be receiving a payment of money, possibly some health care coverage, stock options, and other things of value in exchange for your promise to leave the company and waive your right to sue them for anything or say anything bad about them.  That is usually the quid pro quo of a severance package.   Make sure you understand exactly what you are getting and what you are giving up. 

2.     The Money

Most every severance package contains a promise to pay money.   Typically, the money is paid out as salary over a period of time.  For example, your severance agreement might say that you will receive your salary for three months after your last day in the office.  The money component of a severance agreement is almost always discussed in terms or weeks or months of a person’s salary.   Be sure to check your agreement so you understand how much money is being paid to you.   Remember, you can always ask for more money.   If your severance package states that you will receive three additional months of salary after you leave, you can always ask them to increase the offer from three months to six months.   You don’t need a reason for asking for more.  But if the company asks why you want more money, you can say that you need more because you expect that it will take you more time to find a job. 

3.     Health Benefits

Your employer will be required to offer you COBRA benefits.  COBRA refers to a federal law (Consolidated Omnibus Budget Reconciliation Act of 1985) that requires companies to offer health insurance to terminated employees for 18 months at the corporate rate.   For example, if you currently receive health benefits that cost $500 a month through your employer, your company is required under COBRA to offer this same health insurance policy to you at the same price of $500 a month for 18 months.   Many severance packages include an offer to make your COBRA payments for a period of time or simply continue your existing health benefits for a period of time and defer the start of the COBRA period.  Check your severance package to see if your company has offered to either extend your health benefits or make any of your COBRA payments.  Remember that you can ask your employer to help make these payments for you as part of the severance package.

4.      Unemployment Benefits

If you are about to lose your job, you are probably very interested in obtaining unemployment benefits.   Typically, a person is only entitled to unemployment benefits if they are laid off due to a lack of work.   A person who is terminated for cause or quits is not entitled to benefits.  It is not uncommon for companies to challenge a former employee’s request for unemployment benefits on the ground that the employee was fired for cause or poor performance.   You can make sure this does not happen to you by including the right language in your severance package.  Obtain an agreement that your employer will not contest your right to unemployment benefits.   In order to do this, add a sentence to your agreement with language similar to this:  “It is agreed that [You] had been laid off for lack of work  (or restructuring or downsizing etc…) and that [You] is entitled to receive unemployment benefits and X Company agrees that it will not contest any claim for unemployment benefits requested by [You].”

5.     Exercise Your Vested Stock Options

If you were provided stock options, make sure you have an opportunity to exercise them.  Typically a departing employee will have 90 days to exercise vested stock options before they expire. But make sure this is clearly stated in your severance agreement and you can ask to extend the 90-day period. 

6.     Accelerate the Vesting Schedule for Unvested Options or Equity Grants

Executive compensation often comes in the form of unvested stock or options.  For example, a company may offer an executive 300 shares of company stock and the shares will vest over three years.   If you have unvested equity or options, you can ask your company accelerate the vesting date so they vest before you leave the company.  

7.     Convert Outplace Services into Cash

Companies often offer outplace services to departing employees.   If you don’t feel that the outplacement service will provide a benefit, then ask your company to provide you with the cash value of these services.

8.     Vacation Pay

Some companies allow an employee’s unused vacation time to accrue over time.   Check your company policy manual or ask a human resources representative about this and if your have accrued vacation time, ask to have it paid in cash or ask to stay on the company payroll until the vacation time is used up. 

9.      Determine Why You Were Let Go

You may have leverage to negotiate a much better severance package if your employment was terminated illegally.  Your termination may be illegal if you were let go for any of the following reasons:  age if you are over 40, gender, race, religion, national origin, sexual orientation, disability or serious illness, sick family members, pregnancy, jury service, or for complaining about sex harassment, employment discrimination or failure to pay overtime.  If any of these factors are at play, you may have grounds to substantially increase your severance package.  If you sign your severance agreement, you will waive your rights permanently.   If you believe that you were unlawfully terminated, you should contact us immediately.  Call us at 866-571-5010 or fill out the TELL US ABOUT YOUR CASE form to the right.

Calculating Your Overtime Pay in New York

It is easy to calculate your overtime pay in New York.  

First, determine if you're paid by the hour or by salary. 

Hourly Employees

1. Determine your overtime pay rate by multiplying your regular hourly pay rate by 1.5.   For example, if you are normally paid $30.00 per hour, multiply this by 1.5.  In this case, the result would be 45 (30 x 1.5 = 45).  This is your overtime pay rate, often referred to as "time-and-a-half."  
2. Determine your weekly overtime hours by subtracting 40 from your weekly total.  For example, if you worked 52 hours, you have 12 overtime hours (52 - 40 = 12).  
3. Determine your total overtime earnings for the week by multiplying your overtime pay rate by your overtime hours. The calculation in our example is:  12 hours x $45/hour = $540.  

Salaried Employees

Many salaried employees are entitled to overtime pay. 

Here is how to determine your overtime pay if you are salaried:

1. Determine your weekly salary.  If your salary is annualized, simply divide your annual salary by 52. For example, if your annual salary is $50,000, divide this by 52 (50,000/52 = $961.53 per week).
2. Determine your premium rate.  Your overtime premium rate is the extra amount that is added on to your regular hourly rate.  This is a two step process.  First, determine your regular hourly rate by dividing your weekly salary by the number of hours worked that week.  In our example, the weekly salary is $961.53 and if 50 hours were worked that week, divide 961.53 by 50 (961.53/50 = 19.23).  $19.23 is the regular hourly rate for that week.   Your hourly rate will change each week based on the hours worked.  Second, divide your regular hourly rate in half.  In our example, 19.23/2 = 9.61.  The overtime premium rate in our example is $9.61 per hour. 
3. Determine the total overtime pay due for that week by multiplying your overtime premium rate by the number of overtime hours worked.   In our example, 50 hours were worked that week and this means that 10 of those are overtime hours (50 - 40 = 10).   The total overtime pay earned that week is  $96.10 (10 x $9.61 = $96.10).  

If you have questions about overtime pay, please give us a call or use our FREE OVERTIME CASE REVIEW.