Federal law prohibits employment discrimination because of race, color, national origin, legal alienage, sex, pregnancy, religion, age, disability and union activity. Employment Discrimination laws generally protect not only present employees, but also former employees and some people, like applicants for jobs, who never have been employees. Most state laws protect workers on the same grounds as federal law. Several state laws and some local laws also protect against discrimination because of marital status, sexual orientation or preference.Sexual Harassment Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. Sexual harassment can occur in a variety of circumstances, including but not limited to the following: - The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
- The harasser's conduct must be unwelcome.
- It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.
Discrimination based on Race, Color, Religion and/or National Origin Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color as well as national origin, sex, or religion. It is unlawful to discriminate against any employee or applicant for employment because of his/her race, color, religion and/or national origin in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. No one can be denied equal employment opportunity because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. Equal employment opportunity cannot be denied because of marriage or association with persons of a national origin group; membership or association with specific ethnic promotion groups; attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or a surname associated with a national origin group. Title VII prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. Title VII also prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related. Harassment on the basis of race, color and/or national origin violates Title VII. Ethnic slurs, racial "jokes," offensive or derogatory comments, or other verbal or physical conduct based on an individual's race, color, religion and/or national origin constitutes unlawful harassment if the conduct creates an intimidating, hostile, or offensive working environment, or interferes with the individual's work performance or employment opportunities Age Discrimination The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment -- including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government. Wrongful Termination When an employee is discharged, the first question is whether the employee is protected by a job security system, such as civil service, a collective bargaining agreement, academic tenure, or other promise of job security made by the employer. If the employee has job security, the employer must have good cause for discharge. Even if the employee is at-will and does not have job security, workers are still protected from termination for illegal reasons. There are many federal and state laws that make reasons for adverse employment action illegal. Discrimination because of race, color, religion, national origin, sex, age, or disability are all examples of illegal reasons for discharge that can be challenged. Legal Remedies The remedies for discrimination include what the law calls equitable as well as legal remedies. Equitable remedies include: - Lost back pay and future pay
- An order that the employee be reinstated
- An order to the employer to stop discriminating.
The federal statutes prohibiting discrimination now provide for a jury trial for claims of intentional discrimination and also provide legal remedies to compensate for the pain and suffering the victims of discrimination have suffered and punitive damages to punish particularly egregious discriminators. Compensatory and punitive damages are subject to caps depending on the size of the employer. While the victims of age discrimination cannot get punitive damages, the ADEA does provide for double damages when the employer's action is found to be willful. Fair Labor Standards Act Click here to view the Reference Guide to the Fair Labor Standards Act Q: What is the current minimum wage in New York State?
A: For covered employees, the New York State Minimum Wage rate is $7.15 per hour. This amount may be modified based upon a number of factors. For example, Food Service workers --waiters and waitresses -- who earn at least $2.55 per hour in tips may be paid at a minimum wage rate of $4.60 per hour. Different rates exist for other types of service employees, specified within a set of regulations called a "Wage Order", which addresses the unique aspects of each industry or occupation.The minimum wage for janitors in residential buildings is a per unit, rather than an hourly, rate. The current unit rate, for residential janitors earning less than $304.10 per week, is $4.80. In a payroll week, the amount paid to a piece-rate worker must average at least as much as the hourly state minimum wage.
Q: Is everyone covered by the minimum wage requirements?
A: Exceptions to the minimum wage requirements are: - Executives and administrators earning more than $536.10 per week
- Professionals
- Outside salespersons
- Taxicab drivers
- Government employees (However, certain non-teaching employees of BOCES are covered)
- Part-time babysitters
- Companions to the sick or elderly who live in their employer's home and whose principal duties do not include housework
- Ministers and members of religious orders
- Volunteers, learners, apprentices and students working in non-profit institutions
- Students obtaining vocational experience
- Independent Contractors - people who are in business for themselves - are not considered "employees" and are not covered by the minimum wage requirements.These are the major exclusions.
Q: What are the regulations regarding overtime?
A: Covered employees who work overtime must be paid at a rate that is one and one-half times their regular, "straight-time" hourly rate of pay. For non-residential employees, this overtime rate applies to all time over 40 hours in a payroll week.
For residential employees ("live-in" workers), this overtime rate applies to all time over 44 hours in a payroll week.
The overtime requirement is based on hours worked in a given payroll week. Thus, time and one-half, double-time -- or any amount higher than the agreed rate -- is not required simply because the work is performed after eight hours per day or on a Saturday or Sunday.
Some categories of employees are excluded from New York State's overtime provisions. These state exemptions from the requirement for overtime pay are identical to the federal overtime exemptions outlined in the Fair Labor Standards Act (FLSA), listed by the U.S. Department of Labor, Wage and Hour Division as: employees covered by a State Minimum Wage Order must be paid for overtime hours at one and one-half times the basic minimum wage of $7.15 per hour.
Where more than one level of government has jurisdiction, workers get the higher amount of pay Q: How many hours can an employer ask an employee to work?
A: There are no restrictions on the number of work hours per day, except for children under 18. Likewise, there are no restrictions on how early in the morning, or how late in the evening, an adult employee may work. In some industries and occupations, an employee must receive 24 hours of rest in each calendar week, for example, work in a factory, mercantile establishment, hotel, and restaurant (except resort/seasonal hotels and small, rural restaurants), as well as elevator operator, watchman, janitor or superintendent. Q: Must meal periods and "breaks" be provided to employees?
Meal periods are not counted as work time, thus employers need not pay for that time.Other "Breaks", such as for "rest periods" or "coffee breaks," are not required. If a break (of up to 20 minutes) is permitted, then it should be paid as working time. |top| Q: Must an employer pay employees for holidays, sick time and/or vacations?
A: Under the New York State Labor Law, payment for holidays, sick time or vacation -- i.e. payment for time not actually worked - is not required unless the employer has established a policy to grant such pay. When an employer does decide to create a benefit policy, that employer is free to impose any conditions they choose.
Fringe benefits may include reimbursement of expenses or tuition, health coverage, and payment for sick time, vacation, personal leave, and holidays. MINIMUM WAGE ACT (GENERAL EMPLOYMENT)
The General Industry Minimum Wage Act states that all employees in New York State, including most domestic workers, must be paid at least $7.15 per hour beginning January 1, 2007.
The basic rate may be modified by certain requirements set under regulations known as ““wage orders.”” These provisions of the minimum wage law cover jobs in the restaurant, hotel, and building service industry, and miscellaneous industries and occupations. They set an hourly rate plus overtime and allowances in four General Industry Wage Orders, based on meals and lodging supplied by an employer. Some industries make allowances for tips, thus they set a lower hourly rate. For example, food service workers may earn $4.60 per hour because their total compensation includes expected tips. When required uniforms are maintained by the worker, certain allowances also apply. Other service workers have a minimum rate of $5.40 per hour. There are also allowances for meals and lodging supplied by an employer. Employees treated in a completely outrageous way by their employers may be able to bring personal injury actions against the employer for the intentional infliction of mental distress. |
