Archive for month: June, 2016

You go to work every day wondering whether you will be hit on, flirted with, or touched inappropriately. You know your status as an employee depends on how you respond to these sexual advances. But your job is off the books. Is there anything you can do about it? Can you file a sexual harassment claim if you are paid under the table? A hostile work environment can make every day a challenge, but if you are paid in cash you may face even bigger hurdles than your fully-employed counterparts. In today’s blog post, I will discuss the challenges faced by workers who get paid off the books in filing sexual harassment claims against their would-be employees.

Am I an Employee?

It may sound simple, but before you can file any kind of workplace discrimination claim, including sexual harassment, with the Equal Employment Opportunity Commission (EEOC), you usually have to first be an employee. Independent contractors, partners, and other non-employee workers are not covered, so many employers looking to avoid payroll taxes will claim their “under the table” workers are either independent contractors or volunteers.

Whether you are an employee or not depends on the specific facts in your workplace. The more control your boss has over when and how you do your job, the more likely you are to be considered an employee. Your official title, or whether you are paid off the books, isn’t necessarily as important as the work you do and the level of supervision you receive. Instead courts will consider a number of factors like:

• Who controls when, where, and how your work gets done?
• How much skill or expertise is required to do the work?
• Who supplies the equipment, tools, and materials to do the job?
• Do you work on-site or remotely?
• Can your boss assign you additional tasks?
• Does your supervisor dictate your working hours or the length of the job?
• How are you paid?
• Do you hire your own support staff?
• Is the work you do part of the employer’s regular business?
• Is your employer a business?
• Do you have your own business?
• Do you receive benefits?
• Does your employer pay taxes for your wages? (This can often work against “under the table” employees, but is only one factor among many.)
• Can your boss fire you?
• Do you and your boss consider you an employee?

Employee Protections Against Sexual Harassment

No matter whether you are paid cash or receive a W-2, as an employee, you are protected against sexual harassment in the workplace. That includes unwelcome sexual advances, requests for sexual favors, unwanted physical or verbal advances, and other sexual comments. Offensive remarks about a person’s sex are also grounds for a sexual harassment claim. But before you can file a lawsuit, the harassment must either result in an adverse employment decision (like firing or being passed over for promotion), or be frequent or severe enough to create a hostile work environment.

Special Challenges Facing “Under the Table” Employees

As with undocumented workers, employees who are paid cash face special challenges when they need to report sexual harassment. Just like with undocumented workers, employers will often use your status as a cash worker as a threat to keep you from reporting workplace discrimination and sexual harassment.

Your employer may withhold employee status unless you comply with their sexual advances. Refusal to hire is itself an adverse employment action, which may expose your employer to employment discrimination claims. However, bringing such a claim when you have been paid under the table may have unexpected and unwanted consequences.

Your employer may also threaten to report you for tax fraud if you come forward. While illegal immigrants face consequences from the Immigration and Naturalization Service (INS), cash workers could see trouble from the Internal Revenue Service (IRS). Failing to report employment income is illegal. The IRS penalizes employers who fail to disclose their employees and pay payroll taxes. But it also punishes employees who have undisclosed income under tax fraud statutes. Because of this, filing a claim for sexual harassment by an undisclosed employer can be complicated. You will need the help of an experienced employment discrimination attorney, and possibly a tax lawyer, to navigate the process and ensure that all your rights are protected. Without an attorney who understands the particular challenges “under the table” employees face, you could accidentally land yourself in hot water with the IRS.

Fight Back Against Sexual Harassment

It is always hard to stand up to sexual harassment in the workplace. But when you are a cash worker, the risks are even greater. At Eisenberg & Baum, our employment discrimination attorneys have years of experience dealing with all kinds of sexual harassment claims. We understand the complexities and care needed to handle “under the table” cases. If you feel like your employer has created a hostile workplace or is conditioning your employment on sexual conduct, contact us. We will meet with you and help you understand and fight for your rights as an employee.

You’ve watched people of the same or lesser experience get promoted while you stay in the same position. You always get the weekend shift while your colleagues get the weekend off. You got fired because your boss had to let someone go and she liked you least. There are countless examples of actions at work you might consider unfair. But does that mean you have a legal claim against your employer? Unfair treatment at work can be demoralizing, but not all acts you might consider unfair or inequitable are actually grounds for a lawsuit. In today’s posting, we’ll talk about some of the common types of unfair treatment at work that can lead to a lawsuit against your employer.

At Will Employment

We should start by noting that employees in New York, like employees in most states, are considered to be employed “at will” by default. This means that an employee can generally be terminated from their job for any reason or no reason at all. Exceptions to this rule exist where specifically recognized under the law, such as where the termination violates an employment contract or a specific state or federal statute. While you may believe you have been fired from your job unreasonably or unfairly, unless your employer breached an employment contract or violated a specific law, you likely don’t have a legal claim.

Breach of Employment Contract

Although most states default to at-will employment, there are some situations in which the employer and employee enter into an agreement to govern the terms of their employment relationship, including the terms under which the employee may be fired. These are often used with executive level employees and, in addition to outlining the reasons for which an employee may be terminated, can include terms governing the employee’s pay and benefits, leave allowance, procedures for filing a grievance, and more. If an employer does not comply with the terms of the contract, for example by paying you less than required under the contract, you could have a breach of contract claim against your employer. Likewise, if you have an employment contract that specifically limits the reasons your employer can fire you, and your employer fires you for some reason not included in the agreement, you could have a wrongful termination claim.

Discrimination

Even if you do not have an employment contract in place, there may be other legal grounds for holding your employer accountable for unfair treatment. One of the most common areas of the law protecting employees from unfair treatment at work is in the area of employment discrimination. Federal and many state and local laws make it illegal for employers to discriminate against their employees on the basis of certain protected characteristics.

Federal laws prohibit discrimination on the basis of race, color, national origin, gender, pregnancy, age, religion, disability, and genetic information. State and local laws can protect an even broader group of workers from discrimination, like in New York where employers are also prohibited from discriminating against an employee on the basis of sexual orientation, marital status, gender identity, arrest and conviction record, military status or service, observance of Sabbath, political activities, unemployment status, and status as a victim of domestic violence. To learn more about discrimination claims in New York, read our recent blog posting entitled, “The Elements of an Employment Discrimination Claim in New York.”

Whistleblower Retaliation

Sometimes, unfair treatment at work can be a direct result of your decision to report illegal or unethical conduct by your employer. In that situation, your employer is retaliating against you, which can have the effect of discouraging you and other employees from stepping forward. Whistleblower laws have been enacted at the federal and state levels to help protect employees against retaliation when they report or take part in an investigation of certain types of activities. Reporting or assisting in an investigation of fraud, environmental violations, discrimination and other illegal activities by your employer or refusing to take part in an illegal activity can all trigger the protection of whistleblower laws.

Wage Claims

Employees in the United State also have some protections when it comes to their pay. The federal Fair Labor Standards Act establishes a minimum wage for covered workers in the United States. Some states, like New York, have established an even higher minimum wage. These laws also typically establish rules for overtime pay, requiring greater pay for overtime hours. Federal law and many state laws also require equal pay for equal work between men and women. Employers must compensate female and male employees equally where they are equally skilled and work in the same position. If you are not getting paid the basic wage required under the law, you can have a claim against your employer.

Are You Being Treated Unfairly at Work?

Not all unfair treatment at work is grounds for a lawsuit. Legal claims typically arise when the unfair treatment you’ve suffered violates a specific law, like federal and state discrimination and wage laws, or specific contract terms. If you have been treated unfairly at work and believe you may have a legal claim, contact Eisenberg & Baum. We have a group of very experienced employment discrimination attorneys who are ready to help you understand your claim and advise you of your rights under the law. Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we likely can help no matter where you are. In discrimination and retaliation cases, we offer free initial consultations and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

We’ve talked about many types of employment discrimination in past blog posts, from sexual harassment to discrimination against the deaf and hard of hearing. There are many other grounds for discrimination claims for employees in New York, though most of those grounds share the same general theories and elements. If you believe you’ve been the victim of discrimination in the workplace, but aren’t quite sure whether you have a legal claim, it’s best to first understand the basics of anti-discrimination law and what it protects to determine if your legal rights may have been violated. At Eisenberg & Baum, we have decades of experience handling employment discrimination claims of all sorts. In today’s post, we’ll talk about two of the more common theories of employment discrimination and the elements that are common to those theories under local, state and federal law. If, after reading this, you’d like to understand more about the law and how it might apply to your own situation, please contact us.

Types of Employment Discrimination Claims

There are a variety of federal, state and local laws that protect employees from discrimination at work here in New York. Federal anti-discrimination laws include Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act (ADA),and the Age Discrimination in Employment Act. New York State and New York City each have their own employment discrimination laws, known as “Human Rights Laws.”

We’ll focus on two of the more common theories of discrimination underlying these laws: disparate treatment and harassment. Disparate treatment claims arise when an employee is treated differently at work because of some protected characteristic. Harassment claims, on the other hand, typically arise when an employee suffers unwelcome conduct based on a protected characteristic and either the employee had to endure the conduct in order to keep their job or the conduct created a hostile work environment.

Disparate Treatment Claims

To prove an employment discrimination claim based on the disparate treatment theory, the employee will need to demonstrate two key things:

1. They are a member of a protected class, and
2. Their employer took some adverse employment action against them because of that protected characteristic.

Protected Classes

Federal, state and local anti-discrimination laws protect against particular types of discrimination based on specific classes and characteristics. Title VII of the federal Civil Rights Act, for instance, protects employees from discrimination based on their sex, race, color, national origin, and religion. The ADA protects employees from discrimination based on a “disability,” which under the law can include any physical or mental impairment that substantially limits a major life activity, such as deafness. New York State and New York City Human Rights Laws protect many of the same classes and characteristics as federal laws, but also extend to others characteristics not covered under federal law including sexual orientation, marital status, gender identity, arrest and conviction record, military status or service, observance of Sabbath, political activities, unemployment status, and status as a victim of domestic violence. Any employee claiming they were treated unfairly under anti-discrimination laws will need to demonstrate their status under a category protected from discrimination under one of these laws.

Adverse Action

The next step for a plaintiff in a disparate treatment case is providing some evidence that they faced adverse employment action as a result of their membership in the protected class. Adverse action could include an active decision by the employer, such as firing or demoting an employee, or a passive decision such as not hiring a job applicant or passing an employee over for promotion.

The employee must provide some evidence linking the employment action to the employee’s protected characteristic. The evidence could be direct (for example, an employee’s manager telling her that the company has a policy of not promoting women) or, as is often the case, circumstantial. Circumstantial evidence, as the name suggests, is evidence from which you can infer an element of a claim based on the circumstances. In the context of a disparate treatment case, circumstantial evidence could include evidence that the employer treated similarly situated employees that weren’t part of the protected class more favorably (for example, men were promoted while women of similar ability were not).

Once an employee can provide evidence of the link between the adverse action they suffered and their protected characteristic, the burden then shifts to the employer to provide some legitimate reason for taking the employment action. This is a fairly low hurdle for the employer because they don’t necessarily need to prove they didn’t discriminate against the employee, they just need to produce some evidence of a non-discriminatory reason for their action. For example, the employer might argue the employee was not fully qualified for the job or promotion. If an employer is able to produce some evidence of a legitimate reason for the adverse action, then the employee will need to counter the employer’s claim with evidence that the true reason for the adverse action was discriminatory. The judge or jury will ultimately weigh the evidence provided by the parties and decide who should prevail.

Harassment Claims

Another common basis for employment discrimination claims is harassment. Generally, to prevail under a harassment theory of discrimination, an employee must be able to show:

1. They were subjected to unwelcome conduct
2. as a result of their membership in a protected class, and
3. they had to endure the conduct in order to keep their job or the conduct created a hostile work environment.

We’ll discuss each of these elements briefly below. For a more thorough discussion of harassment claims, check out our posting entitled, “Definition of Harassment.”

Unwelcome Conduct

The unwelcome conduct contributing to the harassment can be physical, verbal or some combination of conduct, and can be carried out by supervisors, co-workers or third parties like customers and vendors. The employee must show not only that such harassing conduct occurred, but also that they did not consider it welcome. In other words, consensual conduct between willing participants cannot be grounds for a harassment claim.

Protected Classes

The protected classes we talk about in the context of harassment clai
ms are the same as we discussed above in the context of disparate treatment claims. Like a disparate treatment claim, an employee claiming harassment under federal law or New York State or City law must show a link between the unwanted conduct and the employee’s membership in the protected class. In some cases, that link between harassment and a protected characteristic will be very apparent, such as in a sexual harassment case where a male supervisor requires a female employee to engage in sexual acts. In other situations, the link between the harassment and the protected characteristic may be less obvious and require more evidence of the harasser’s intent.

Severe and Pervasive

Finally, in order to recover on a harassment claim under federal or New York State laws, the employee must show that the harassing conduct was either a condition of continued employment or was so severe or pervasive that it created an environment a reasonable person would find intimidating, hostile, or abusive (also known as a hostile work environment). Typically, in order to meet the severe and pervasive requirement, an employee would need to show a pattern of harassment, though that’s not always the case. A single incident could theoretically be egregious enough to meet this requirement. Note, the New York City Human Rights Law does not include this requirement for harassment claims.

Get More Information

If you believe you have been discriminated against at work, please contact us. We can discuss the merits of your case and advise you on your next steps. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.