New Jersey Employment Lawyer Blog

Earlier this year, Novartis Pharmaceuticals Corporation agreed to a $99 million settlement of a class action overtime lawsuit brought by its sales representatives. The settlement is still subject to final approval by a judge. A final hearing to approve the settlement is scheduled for May 31, 2012. Novartis, an affiliate of Swiss drug maker Novartis AG, has its headquarters in East Hanover, New Jersey.

The overtime lawsuit against Novartis was filed in 2006 in a federal court in Manhattan. More than 7,000 current and former sales representatives joined the class action. They claim Novartis failed to pay them overtime, in violation of the Fair Labor Standard Act (FLSA). The FLSA is a federal law that requires companies to pay nonexempt employees time-and-a-half when they work more than 40 hours in a week.

Novartis settled the case before the United States Supreme Court could rule whether pharmaceutical companies are required to pay overtime to their salespeople in another similar lawsuit. Specifically, Christopher v. GlaxoSmithKline is an overtime lawsuit against GlaxoSmithKline which is currently on the Supreme Court's 2012 docket. The outcome of that case is likely to decide whether salespeople working for pharmaceutical companies are entitled to be paid time-and-a-half when they work overtime. The oral argument in Christopher is scheduled for April 16, 2012.

Companies often refuse to pay their employees overtime, either because they are unaware of the requirement, or because they do not realize the employee is entitled to it. But most employees, including both hourly and salaried employees, are entitled to overtime pay when they work more than 40 hours per week.

Continue reading "Novartis Settles Class Action Overtime Lawsuit for $99 Million" »

Earlier this year, a New Jersey Judge refused to file the terms of a settlement agreement in an overtime lawsuit under seal. Specifically, Judge Jose L. Linares of the United States District Court for the District of New Jersey ruled the employer had not overcome the strong presumption of public access to the terms of settlements in cases under the Fair Labor Standards Act ("FLSA"). The FLSA is a federal wage and hour law that requires employers to pay most "nonexempt" employees time-and-a-half when they work more than 40 hours in a work week.

The case, Brumley v. Camin Cargo Control, Inc., involved three separate collective action lawsuits against Camin Cargo Control, Inc. Between the three cases, 112 employees alleged Camin failed to properly pay them overtime wages in violation of the FLSA. Five of those employees also claimed the company retaliated against them in violation of the FLSA.

Last year, the parties agreed to settle the case for $3.9 million dollars, or an average of nearly $35,000 per plaintiff. As is typical in employment law cases, the Settlement Agreement included a confidentiality provision that required the parties to keep the terms of the settlement private. But since the FLSA required a judge to approve the settlement, the parties had to submit the Settlement Agreement to the Court for its approval. As a result, the employer filed a motion requesting permission to file the Settlement Agreement under seal.

But Judge Linares denied the defendant's motion to file the Settlement Agreement under seal. He explained that settlements under the FLSA are different from most other settlements. First, the public has an interest in seeing the terms of the settlement agreement so they can understand the reasons why the judge approved or rejected it. Second, the FLSA does not merely protect the rights of the individuals who bring claims under it. It also protects the separate public interest in "assuring that employees wages are fair and thus do not endanger 'the national health and well-being.'" As a result, he ruled there is a strong presumption that settlement agreements in FLSA cases should be publically available. He concluded that Camin failed to sufficiently rebut this presumption, and therefore denied its motion to file the settlement agreement under seal. You can view the Settlement Agreement here.

Continue reading "New Jersey Judge Refuses to Seal Settlement Agreement in Overtime Lawsuit" »

Recently, the United States Court of Appeals for the Second Circuit Court recently ruled that an employee who follows his supervisor's instruction to falsely report that he did not work any overtime hours still can pursue an overtime claim. It reversed a decision from the Western District of New York, which had dismissed the claim because it did not believe the employee could prove how many hours of overtime he had worked.

Greg Kuebel was a Retail Specialist for Black & Decker (U.S.) Inc. He filed class action lawsuit against Black & Decker, claiming the company's overtime pay practices violate the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). Specifically, Mr. Kuebel claims Black & Decker violated the law by failing to pay him for the overtime hours he worked but did not record on his timesheet -- in other words, his "off-the-clock" overtime hours.

Black & Decker's official policy required Retail Specialists to accurately record their hours on timesheets that they submit to their managers. There was no official Black & Decker policy which prohibited Retail Specialists from working, recording, or being paid for overtime. However, Black & Decker expected its Retail Specialists to finish their work in a 40-hour work week.

Mr. Kuebel alleges it was impossible to finish all of his work in 40 hours per week, and as a result often worked overtime. However, he did not list any overtime on his timesheets, and therefore was not paid for his overtime hours. Mr. Kuebel explained that he falsified his timesheets because his supervisors instructed him not to record more than 40 hours of work per week because the company could not afford overtime. Mr. Kuebel testified that to the best of his memory he worked more than 40 hours almost every week, and averaged between 1 to 5 hours of overtime per week. After Mr. Kuebel told his supervisor that he had been falsifying his timesheets, Black & Decker fired him for poor performance, dishonesty, and falsification of company records.

In Kuebel v. Black & Decker Inc., the Court explained that to prove an overtime case under the FLSA, an employee has to prove he was not properly paid for working more than 40 hours in a work week, and his employer either actually knew it or should have known about it under the circumstances. To prove the amount of overtime pay to which he is entitled, an employee needs enough evidence to show the amount and extent of the overtime he worked. However, he does not have to prove the amount of overtime he worked with definiteness, and can prove his overtime hours through an inference. Accordingly, the Court ruled that when a company's time records are inaccurate or inadequate, the solution is not to penalize the employee by denying him any legal recovery.

To summarize, an employee can win an overtime case if (1) he proves he actually worked overtime and was not properly paid for it, and (2) he has enough evidence to show how much overtime he worked through a reasonable inference. An employee can meet this burden through estimates based on his own recollection. This can be true even when the employee admittedly falsified his own timesheets, at least where the employee's falsification was based on an instruction from a manager or supervisor. That is because it is the employer's duty to maintain accurate time records for its employees, and employers cannot delegate that duty to their employee. Once an employer knows or has reason to know an employee is working overtime, it cannot deny compensation simply because the employee failed to properly record or claim his overtime hours.

Continue reading "New York Employees Can Prove Overtime Claim Even if They Falsely Recorded Working No Overtime" »

On March 22, 2011, the United States Supreme Court ruled that the Fair Labor Standards Act of 1938 ("FLSA") prohibits employers from retaliating against employees who make oral complaints about violations of the FLSA. The FLSA is a federal law that sets minimum wages, maximum hours, and overtime pay requirements. It includes an antiretaliation provision which forbids employers from firing or otherwise discriminating against employees because they "filed any complaint" under the FLSA.

The case, Kasten v. Saint-Gobain Performance Plastics Corp., involves Kevin Kasten's lawsuit against his former employer, Saint-Gobain Performance Plastics Corporation. Mr. Kasten claimed Saint-Gobain fired him in retaliation for his verbal objections to the company's violation of the FLSA. Specifically, he repeatedly told his supervisor, several human resources representatives, and other Saint-Gobain officials that the company was violating the law by locating its time clocks in a place where employees could not get credit for the time they spent putting on and taking off their protective gear. In a separate lawsuit, Mr. Kasten proved that Saint-Gobain violated the FLSA because it was required to pay its employees for the time they spent "donning and doffing" their protective gear.

The Supreme Court found that Mr. Kasten is entitled to try to prove his retaliation case because "filing any complaint" under the FLSA can include making a verbal complaint to your employer. The Court noted that the word "filed" has different meanings in different contexts. Sometimes it implies something in writing, but in other contexts it can include verbal statements. It then considered that when Congress passed the FLSA, it recognized enforcement of the law was likely to depend on "information and complaints received from employees seeking to vindicate rights claimed to have been denied," and that the antiretaliation provision was intended to encourage employee to come forward by preventing employers from silencing them through "fear of economic retaliation." Accordingly, the Court concluded that Congress did not intend to limit the FLSA's antiretaliation protection to written complaints, since that would make it more difficult for illiterate, less educated, and overworked workers to complain. It also explained that limiting complaints to written complaints would prevent Government agencies from using hotlines, interviews, and other verbal complaint methods, and would discourage employees from using informal workplace grievance procedures.

However, the Supreme Court also recognized that it would not be fair to employers if the FLSA's antiretaliation provision applied when the employer did not have fair notice that the employee made a complaint that could subject the company to a retaliation claim. It therefore ruled that an oral complaint must have enough formality that the employer either understood or reasonably should have understood that the complaint was a business concern. In other words, a complaint is "filed" when a reasonable person would have understood that the employee put the employer on notice that he was asserting a right under the FLSA.

Continue reading "U.S. Supreme Court Rules FLSA Forbids Retaliation Against Employees Who Make Oral Complaints" »

On February 9, 2011, the United States Court of Appeals for the Third Circuit ruled that an arbitrator, rather than a judge, must decide whether an arbitration agreement allows the parties to have a class action arbitration. As a result, it reversed the District of New Jersey's decision which had ruled that the case must proceed to arbitration as individual claims, rather than as a class action.

I represent the plaintiffs in the case, Jose Ivan Vilches, Francis Sheehan, Jr., and Jack Costeria. They each worked for the Travelers Companies, Inc., and related companies as appraisers in New Jersey. They filed a lawsuit on behalf of themselves and other appraisers who worked for Travelers, seeking damages for unpaid overtime pay under the Fair Labor Standards Act (FLSA) and the New Jersey Wage & Hour Law (NJWHL).

When they began working for Travelers, Mr. Vilches, Mr. Sheehan and Mr. Costeria each signed agreements which require them to pursue their legal claims against Travelers through arbitration. Those agreements do not say, one way or the other, whether they can bring a class action in arbitration. Travelers later modified its arbitration policy to say that employees cannot bring class action cases. However, Mr. Vilches, Mr. Sheehan and Mr. Costeria never agreed to that new policy.

Last year, the District of New Jersey granted Travelers' motion to compel arbitration. The court also ruled that the plaintiffs were bound by the arbitration policy which prohibited them from bringing a class action.

But on appeal, in an unpublished opinion in Vilches v. Travelers Companies, Inc., the Third Circuit Court of Appeals ruled that the District Court should not have decided whether the arbitration agreement the plaintiffs agreed prohibited them from bringing a class action wage and hour case. Rather, since the question involves interpreting the arbitration agreement they signed when they were hired to determine whether that agreement permits class action arbitrations, the Third Circuit concluded that the arbitrator rather than a judge must answer that question. As a result, the Third Circuit reversed the lower court's ruling, and referred the case to arbitration to decide whether the case can proceed as a class action.

Continue reading "Third Circuit Reverses Decision Preventing Class Action Arbitration" »

Last Wednesday, a mascot who worked for the Scranton/Wilkes-Barre Yankees minor league team filed a federal lawsuit claiming the team violated the Fair Labor Standards Act ("FLSA") and state law because it failed to pay him for his overtime hours. Specifically, Brian Bonnor's lawsuit alleges the team improperly designated him as a "manager" to avoid paying him time-and-a-half when he worked more than 40 hours in a week.

Specifically, Mr. Bonnor, who was laid off by the New York Yankees' AAA affiliate in January, alleges he was paid a salary of $22,000 per year to dress up as the team's mascot, Champ, and make appearances at games and other events. However, his lawsuit claims he had no supervisory or managerial job duties. He also claims he sometimes worked 80-hour weeks, but the team never paid him for his overtime. The team denies it violated the law.

The FLSA is a federal wage and hour law. It requires employers to pay most employees time-and-a-half for their overtime hours unless they fall into specifically defined categories, including certain "executive," "administrative," and "professional" employees. Companies that violate the FLSA can be required to pay the employee not only for their unpaid overtime, but if the violation is "willful" they also can be required to pay double damages (called "liquidated damages"). An employee who wins a case under the FLSA also can recover his attorney's fees and litigation costs.

Continue reading "Minor League Yankees Play Hardball with Mascot's Overtime Pay" »

Starting on January 1, 2011, New York employees in the Hotel and Restaurant Industries have new rights and legal protections under New York's Hospitality Wage Order. While there are numerous changes to the law, the following describes some of the more noteworthy changes.

Changes to Minimum Wage
The new law makes it clear that tipped employees must receive at least $7.25 per hour between salary and tips, and reduces the maximum tip credit for food service workers from $2.60 per hour to $2.25 per hour. It also sets new minimum base wages (before tips) for service employees and chambermaids in resort hotels.

Employees Must Be Paid By the Hour
Under the Wage Order, employers in the Hotel and Restaurant Industries now are required to pay non-exempt employees by the hour, rather than based on salaries, weekly rates, day rates, or piece rates. This requirement does not apply to commissioned salespeople.

Stricter Regulations of Tips
Employers and employees in the Hotel and Restaurant Industries are allowed to share and pool tips, meaning combine all of the tips received before redistributing them to employees. However, employers must give employees advance written notice of their tip sharing and tip pooling policies. Employers who use tip pooling or sharing also must keep records of all of the tips they receive, and all of the tips they distribute to their employees. In addition, employers also must treat any special fee for a banquet, special function or package deal as a tip unless they clearly inform customers that the fee is not a gratuity and will not be distributed to employees.

New Requirements For Employee Meal Breaks
When an employee in the Hotel and Restaurant Industries has a work shift that is long enough that he or she is legally entitled to a meal break, the employer must either allow employees to bring their own food, or offer employees a meal at a cost of no more than $2.50, which is the legally required meal credit. Under a separate law, New York State Labor Law Section 162, most employees in New York who work more than a six hour shift that starts before 11 am and ends after 2 pm are entitled to take at least a half hour lunch period between 11 am and 2 pm.

Effective Date
Although the law went into effect on January 1, 2011, employers have until February 28 to make changes to their payroll and bookkeeping systems. However, by the first regular payday after March 1, 2011 employers must pay employees based on the new rules retroactively to January 1, 2011.

Continue reading "New Rights For New York Hotel and Restaurant Employees" »

On December 13, 2010, New York State Governor David A. Paterson signed the Wage Theft Prevention Act ("WTPA") into law. The WTPA is intended to help protect employees working in New York against violations of their wage and hour law rights.

The WTPA requires employers to provide information to employees about how they are being paid. For example, employers must notify employees, in writing, of:

1. Their rate and basis for their pay, such as whether they are paid by the hour, shift, day, week, salary, piece, commission, or otherwise;
2. Any allowances the employer claims as part of the employee's minimum wage, such as tip, meal, or lodging allowances; and
3. Their overtime rate, number of regular hours worked, and number of overtime hours worked for employees who are not exempt from overtime.

Employers must provide this information to employees when they are hired, and no later than February of each year thereafter. The information must be in English and the employee's primary language other than English when applicable. Employers also are required to have employees sign and date an acknowledgment confirming they received this information each time they provide it to them.

In addition, the WTPA requires New York State employers to (1) notify employees in writing about changes to their rate and basis of pay, allowances for overtime, or overtime rate; (2) provide that information with each paycheck or other payment of wages; and (3) keep contemporaneous, true, and accurate payroll records containing all of that information for at least 6 years. It also expands the antiretaliation provisions of New York's wage and hour laws. For example, employers cannot retaliate against employees who object in good faith about activities that they reasonably believe violate the WPTA.

In a press release about the WTPA, Governor Paterson said he is "proud to sign this legislation, which will combat misconduct by unscrupulous employers who fail to pay statutorily-mandated minimum wages and overtime." Similarly, the policy co-director for the National Employment Law Project, Annette Bernhardt, recognized that:

By enacting this critical legislation, New York joins a growing number of states nationwide . . . that are ramping up the fight against wage theft. By stiffening the penalties, protecting workers who come forward, and ensuring that unpaid wages are collected, the new law provides the tools we need to ensure justice for the hundreds of thousands of workers in New York who are impacted each year.

The WTPA will go into effect on April 12, 2011.

Continue reading "New York Passes Wage Theft Protection Act" »

Last week, the New Jersey Supreme Court ruled that each day an employee is paid a lower salary based on a past unlawful discriminatory decision is a separate violation of the New Jersey Law Against Discrimination (LAD). As a result, three tenured Seton Hall University professors can proceed with their age and gender discrimination lawsuit, even though (1) the alleged discriminatory decision was made more than two years before they filed the lawsuit, and (2) the LAD has a two-year statute of limitations.

Specifically, in Alexander v. Seton Hall University, three female professors who are over 60 years old sued Seton Hall and certain school officials. They claim they were paid less than their younger male colleagues. They largely based their claims on the University's 2004-2005 annual report, which shows that Seton Hall pays higher salaries to younger male faculty members than older female faculty members.

However, the trial court dismissed the case, ruling that since the allegedly discriminatory decision was made more than two years before the employees sued, their case was barred by the statute of limitations. That decision was affirmed by New Jersey's Appellate Division. Both courts relied on the United States Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which ruled that the statute of limitations for claims of discriminatory wages under federal law begins when the employer makes the discriminatory decision.

The Ledbetter decision was highly criticized because discriminatory decisions about salary impact employees long after the decisions are made, but employees frequently do not know they have been paid less than their coworkers until it is too late to sue. In response, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which makes it a separate violation of federal law each time a company pays an employee wages, benefits, or other compensation based on a previous discriminatory decision.

Fortunately, the New Jersey Supreme Court disagreed with the two lower courts. It noted that although it often looks at federal case law for guidance, it is not required to follow federal law when it interprets the LAD. Instead of following Ledbetter, it ruled that each payment of discriminatory wages is a separate violation of the LAD, and the two-year statute of limitations applies to each such violation.

Alexander makes it clear that it is possible to sue if you are receiving lower wages based on a past discriminatory decision. But it also makes it clear how important it is not to wait too long to assert your claim since you cannot recover damages for discriminatory wages you received more than two years before you file your lawsuit. Accordingly, it is highly recommended that you contact an employment lawyer as soon as you learn you are being paid less than your coworkers due to your age, gender, race, disability, or another unlawful factor.

Earlier this year, President Obama signed a law which requires employers to provide reasonable break time for nursing mothers. This new employment law right is part of the Patient Protection and Affordable Care Act. It amends the Fair Labor Standards Act of 1938 (FLSA), a federal law which requires employers to pay minimum wage to most employees, and overtime pay to most employees who work more than 40 hours per week.

The new law requires companies to give nursing mothers breaks each time the employee needs to express milk. It applies for up to one year after the birth of a child. However, employers are not required to pay employees during these breaks.

Employers also must give nursing mothers a place that is hidden from view and free from intrusion from other employees or the public. The law specifically says that the place cannot be a bathroom.

The law applies to all employers, but companies with fewer than 50 employees are not subject to the requirement if it would be an undue hardship. This means that the break time causes the company significant difficulty or expense, compared to the size, financial resources, nature, or structure of the company's business.

Starting on October 26, 2009, employers in New York State must give newly hired employees written notice of their regular hourly pay rate. For employees who are entitled to receive overtime pay, employers also must state their overtime rate. Employers also need to obtain written confirmation from new employees, confirming they received the required information.

These new requirements are an amendment to New York Labor Law Section 195(1). Their purpose is to "allow workers to determine whether their paychecks properly reflect the hourly wage rates their employers agreed to at the time of hiring, including the overtime rate." They are a response to the fact that many employees are only told their annual or weekly salary when they are hired, which makes it difficult to determine their hourly and overtime pay rates. The new law also should help minimize any confusion about whether employees are entitled to receive overtime pay, by requiring employers to address the issue up front.

More information regarding this new law is available here from the New York Department of Labor. The required form employers must provide to newly hired employees is available here.

If you work in New York or New Jersey and believe your employer violated your right to receive overtime pay, or another one of your rights as an employee, you should consider contacting an experienced employment lawyer .

Earlier today, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. The Act reverses the United States Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which requires an employee to bring a federal claim of pay discrimination in violation of the Title VII of the Civil Rights Act of 1964 (Title VII) within 180 days (or in some states, including New York and New Jersey, within 300 days) of the decision that caused the pay disparity.

In the Ledbetter case, the Supreme Court ruled that Lilly Ledbetter was outside of Title VII's filing deadline when she initiated her gender discrimination claim against Goodyear. Ms. Ledbetter was seeking damages because she was paid less than men in comparable positions at the company. The Supreme Court found that her claim was untimely because she did not file a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 180 days after the company's initial discriminatory decision, even though she was still underpaid due to the past discrimination in that her salary remained lower than her male coworkers.

The Ledbetter decision was highly criticized on the basis that employees usually do not know how much their coworkers are paid, making it difficult or impossible for them to determine that they are experiencing discriminating against with respect to their compensation. As a result, employees who have been underpaid because of their race, color, sex (gender), religion, national origin, or disability are unlikely to know about it until long after the 180 (or 300) day EEOC filing deadline.

The Lilly Ledbetter Fair Pay Act amends both Title VII and the Americans with Disabilities Act of 1999 (ADA) by making it a separate violation of the law each time (1) a company adopts a discriminatory compensation decision or practice, (2) a company subjects an employee to a discriminatory compensation decision or practice, or (3) an employee is affected by a discriminatory compensation decision or practice, including each time an employee receives any wages, benefits, or other compensation that is at least in part the result of a discriminatory decision or practice.

Under the law, a new 180 (or 300) day period starts each time an individual is paid less due to his or her race, color, sex (gender), religion, national origin, or disability. In addition, the law permits an employee to prove damages resulting from pay discrimination for up to two years before the employee filed a charge of discrimination with the EEOC. The law is retroactive, applying to all covered discrimination that occurred on or after May 28, 2007, and to all claims that have been pending in the EEOC or in Court since that date.

As discussed in a previous article, the United States Senate voted in favor of the the Fair Pay Act on January 22, 2009. The House of Representatives voted in favor of the Act on January 27, 2009, paving the way for the President to sign it into law today.

Employee Rights Laws
Part 4: Overview of New York Employment Law Statutes

Part 1 - Overview of Federal Anti-Discrimination Employment Laws
Part 2 - Overview of Other Federal “Wrongful Termination” Employment Laws
Part 3 - Overview of New Jersey Employment Law Statutes

In most states, including New York, unless you have a written employment contract, are a member of a labor union, or are a civil service employee, you are probably an employee at will. Employment at will is the general principal that your company can fire you for any reason, or even for no reason at all. It also means you can quit your job for any reason.

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the fourth and final part of a four part series, looks at employee rights under New York State and New York City law. The first part of the series discusses some of the most important federal anti-discrimination laws . The second part describes many other important federal employment laws. Part three addresses many important exceptions to employment at will under New Jersey law.

New York State Employment Law Rights

The following is an overview of some of the most important New York State and New York City employment law rights. This is not intended to be a comprehensive list of all statutory New York employment laws, and that not every one of these law applies to every employee in New York. If you believe your rights have been violated, it is recommended that you contact a knowledgeable, dedicated and experienced New York employment lawyer.

New York State Employment Law Rights:

New York Human Rights Law

• Prohibits employment discrimination on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or certain criminal convictions.


• Makes it illegal for employers to harass employees on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, or marital status. This includes prohibiting sexual harassment.


• Prevents employers from forcing pregnant employees to take medical leaves, unless the pregnant employee cannot reasonably perform her job.


• Requires employers to provide reasonable accommodations to allow disabled employees to perform the essential functions of their jobs.


• Protects employees from retaliation for opposing an action prohibited by the New York Human Rights Law, or filing a complaint, testifying or assisting in a case pursuant to the New York Human Rights Law.

New York Wage and Hour Laws

• Established a higher minimum wage than the minimum required by the Fair Labor Standards Act. As of January 1, 2007, most employees working in New York State are entitled to receive at least $7.15 per hour.
• Requires employers in New York State to provide most employees who work at least 6 hours per day to at least thirty minutes for a meal break. Under certain circumstances, employees are legally entitled to a longer meal break.

New York Whistleblower Law - Labor §740

• Prohibits retaliation against employees who disclose, object to, or refuse to participate in actions that violate a law, rule, or regulation that presents a substantial, specific and imminent danger to public health or safety.

New York City Employment Law Statutes:

New York City Human Rights Law

• Makes it illegal for employers to discriminate against employees on the basis of race, age, gender, disability, gender identity, sexual orientation, marital status, partnership status, national origin, color, creed, alienage or citizenship status, arrest or conviction record, or status as a victim of domestic violence, stalking or sex offense.


• Prohibits employers from harassing employees because of their race, age, gender, disability, gender identity, sexual orientation, marital status, partnership status, national origin, color, creed, alienage or citizenship status, arrest or conviction record, or status as a victim of domestic violence, stalking or sex offense. This includes prohibiting sexual harassment.


• Protects individuals who oppose discrimination or harassment prohibited by the New York City Human Rights Law, or who assist an investigation pursuant to the New York City Human Rights Law, by prohibiting retaliation.

The attorneys of our employment and civil rights law firm, The Nirenberg Law Firm, LLC, are experienced at representing employees in New York State and New York City whose employment law rights have been violated.

If you are interested in receiving future articles from the New York & New Jersey Employment Law Blog, please subscribe to our free e-Newsletter.

Employee Rights Laws Part 2: Overview of Other Federal “Wrongful Termination” Employment Laws

In most states, including New York and New Jersey, unless you have a written employment contract, are a member of a labor union, or are a civil service employee, you are probably an employee at will. Employment at will is the general principal that your company can fire you for any reason, or even for no reason at all. It also means you can quit your job for any reason.

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the second part of a four part series, discusses many other important federal “wrongful termination” laws. The first part of the series discusses some of the most important federal anti-discrimination laws. Part three addresses some of the most important exceptions to employment at will under New Jersey law. Part four reviews employee rights laws under New York State and New York City law.

Overview of Other Federal Employment Laws

The following is an overview of some of the most important federal “wrongful termination” employment statutes other than anti-discrimination laws. This is not intended to be a comprehensive list of all such laws. It is also important to understand that not every federal employment law applies to every employee. If you believe your employment law rights have been violated, it is recommended that you contact a knowledgeable, dedicated and experienced employment lawyer.

Civil Rights Act of 1881 (Section 1983)

• Provides a remedy for an individual if someone acting on behalf of the state or local government has violated their civil rights under the United States Constitution.


• Protects constitutional rights including the right to freedom of speech, freedom of association, freedom of religion, freedom from unreasonable search and seizure, due process of law, and equal protection of law.


• Prohibits individuals action on behalf of a state from discriminating on the basis of race, gender, religion, and disability status, including prohibiting employment discrimination and harassment.

Consolidated Omnibus Budget Reconciliation Actof 1985 (COBRA)

• Entitles covered employees and their families to continue health coverage for a period after certain qualifying events, such as when the employee loses his or her job. Ordinarily, the period of continued coverage is up to 18 months. Health insurance continuation coverage under COBRA is at the employee’s cost.

Employee Retirement Income Security Act of 1974 (ERISA)

• Sets minimum standards for most private employer’s pension and health insurance plans.


• Requires employers to provide certain information regarding the features and funding of certain pension and health insurance plans.


• Requires a grievance and appeal process for certain employee benefit plans.

Fair Labor Standards Act of 1938 (FLSA)

• Requires companies to pay most non-exempt employees time and a half for each overtime hour, meaning more than 40 hours worked in a week.


• Sets a minimum wage for most jobs. As of July 24, 2008, the federal minimum wage is $6.55 per hour. The federal minimum wage will increase to $7.25 per hour on July 24, 2009. Many states, including both New York and New Jersey, have established minimum wages that are higher than the minimum required by the FLSA.

Family and Medical Leave Act of 1993 (FMLA)

• Entitles qualified employees to take up to a total of 12 weeks off per 12 month period for:
  
  
  1. his or her own serious health condition,
  
  
  2. the serious health condition of a member of the employee’s immediate family (meaning a spouse, child or parent),
  
  
  3. the birth of the employee’s client, or the placement of a child through adoption or foster care, or
  
  
  4. caring for a child who is less than one year old.

• Protects employees who take FMLA leaves, by entitling them to return their jobs, or an equivalent position, at the end of their leaves.


• Makes it illegal for an employer to retaliate against an employee who took an FMLA leave, or to otherwise interfere with an employee’s rights under the FMLA.

Health Insurance Portability and Accountability Act of 1996 (HIPAA)

• Provides protection for employees who have preexisting medical conditions.


• Prohibits employers from discriminating against employees and other covered dependents based on their health status.

Sarbanes-Oxley Act of 2002

• Prohibits brokers and dealers involved in investment banking from retaliating against securities analyst employees whose research reports make adverse, negative, or unfavorable conclusions about the company.


• Provides whistleblower protection to employees of publically traded companies by prohibiting retaliation, discrimination and harassment against:
  1. Employees who assist with certain investigations into violations of the Sarbanes-Oxley Act, Securities and Exchange Commission (SEC) rules and regulations, or other federal laws relating to fraud against shareholder; and
  
  
  2. Employees who file, testify, or otherwise participate in a proceeding alleging a violation of the Sarbanes-Oxley Act, SEC rules and regulations, or other federal laws relating to fraud against shareholders.

The employment lawyers at the law firm of Nirenberg Law Firm, are experienced at representing employees in New York and New Jersey whose federal employment law rights have been violated.

If you are interested in receiving future articles from the New York & New Jersey Employment Law Blog, please subscribe to our free e-Newsletter.