Blog – Working Now and Then Working Now And Then 2019-11-11T21:48:00Z https://www.workingnowandthen.com/feed/atom/ WordPress admin http://workingnowandthen.com <![CDATA[CNN’s New Rules For Freelancers May Violate The Freelance Isn’t Free Act]]> https://www.workingnowandthen.com/blog// 2019-10-28T20:20:10Z 2019-10-28T20:19:07Z Genevieve Carlton, Ph.D. In May 2019, CNN announced that their freelancers must wait at least 90 days to receive payment for their work. Under the new “Net 90” plan, freelancers working for CNN will file an invoice and receive payment 90 days later. In New York City, this policy may violate the Freelance Isn’t Free... View Article

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Genevieve Carlton, Ph.D.

In May 2019, CNN announced that their freelancers must wait at least 90 days to receive payment for their work. Under the new “Net 90” plan, freelancers working for CNN will file an invoice and receive payment 90 days later. In New York City, this policy may violate the Freelance Isn’t Free Act, which guarantees timely payment for freelancers.

WarnerMedia Vice President Brad Ingram informed freelancers of the change in a memo. “We understand that the change in standard payment terms could impact your business,” Ingram wrote, “However, we are making this change to be better aligned with our corporate requirements.”

Under the new policy, freelancers will receive payment 90 days after sending an invoice.

Caitlin Pierce, executive director of Freelancers Union, says “Net 90 is NOT a reasonable payment term for people who must pay rent every 30 days.” Pierce adds, “CNN is effectively asking freelancers to finance the cash flow of a multi-billion dollar company by waiting one quarter of a year for payment.”

The policy goes against the stated goal of New York City’s Freelance Isn’t Free Act. The Freelance Isn’t Free Act, which went into effect on May 15, 2017, sets a 30-day payment standard for freelancers. According to the Act, if a contract does not include a payment date, clients must pay freelancers within 30 days of completing the contracted services. However, CNN’s Net 90 policy does not violate the law if freelancers sign a contract including the 90-day payment policy.

In its memo, CNN promised to issue new contracts with the Net 90 language as existing contracts expired. The policy of asking freelancers to sign contracts with extended payment dates is inconsistent with the intention, though not the letter, of the Freelance Isn’t Free Act, which provides legal protections for freelancers to receive payment in a timely manner. 

The Freelance Isn’t Free Act covers freelancers who perform $800 or more of work for a client in a four month period. Under the Act, freelancers can receive double damages for underpayment, nonpayment, or late payment. For example, a freelancer owed $5,000 on their contract who did not receive payment by the due date could receive $5,000 in damages, for a total of $10,000.

In the same memo, CNN announced a “process to get paid faster than 90 days” as part of an arrangement with Citi. If this process results in freelancers earning less than the contracted amount, it violates the Freelance Isn’t Free Act, which bars clients from offering freelancers less money in exchange for faster payment. 

The Freelance Isn’t Free Act also protects freelancers from acts of retaliation, including refusing to work with freelancers or threatening to blacklist freelancers who complain about not getting paid in a timely manner in violation of the act.

Freelancers who face underpayment, non-payment, or late payment can file a complaint with New York City’s Office of Labor Standards. Freelancers who take their case to court can receive double damages and attorney fees under the Freelance Isn’t Free Act. 

Are you a freelancer for CNN affected by the Net 90 policy? Reach out to employment lawyer Charles Joseph for a free consultation. Charles Joseph founded Working Now and Then and Joseph & Kirschenbaum, which has recovered more than $120 million for clients. 

Learn more about freelancer rights under the Freelance Isn’t Free Act and independent contractor rights in New York City.

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admin http://workingnowandthen.com <![CDATA[How to sue for wrongful termination in an at will state like New York or New Jersey?]]> https://www.workingnowandthen.com/blog// 2019-09-12T16:32:13Z 2019-09-12T16:32:13Z By Charles Joseph   Can you sue for wrongful termination in an at will state? If you’ve been fired, you may wonder whether you can file a lawsuit. In this blog post, I’ll explain how to sue for wrongful termination, even if you live in an at will state such as New York or New... View Article

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By Charles Joseph

 

Can you sue for wrongful termination in an at will state? If you’ve been fired, you may wonder whether you can file a lawsuit. In this blog post, I’ll explain how to sue for wrongful termination, even if you live in an at will state such as New York or New Jersey.

What’s an at will state? In “at will employment” states, employers can fire employees without demonstrating a “just cause.” That means you can be fired for a good reason, a bad reason, or no reason at all. 

However, even in at will states, employers cannot fire you for illegal reasons. If you’ve been fired for an illegal reason, you can sue for wrongful termination.

Let’s start with the legal definition of wrongful termination. First, employees only have a claim for wrongful termination if they’ve been fired for an illegal reason. Many assume that in an at will state, where employers can fire employees without just cause, it’s not possible to sue for wrongful termination. However, even in at will states, employers must follow employment laws. These laws offer protections from discrimination and retaliation. 

In practice, that means your employer cannot fire you for any illegal reason. Take, for example, workplace discrimination laws. You can’t be fired because of your race, gender, religion, disability status, age, or any other protected category. That means if your company let you go because you’re close to retirement age, you may have a wrongful termination case under age discrimination laws. Similarly, if you were fired because you got pregnant, you have protections under pregnancy discrimination laws

Many state laws, including in New York and New Jersey, provide even stronger workplace discrimination protections. For example, New York laws protect employees from firing because of their caregiver status or marital status. State laws also protect employees from wrongful termination because of their sexual orientation or gender identity.

In addition to discriminatory firings, employers cannot fire someone as a form of retaliation. For example, if you recently took leave under FMLA or NYSPFL, your employer cannot fire you for using your leave after you return to work. Similarly, employers cannot fire someone for requesting parental leave or medical leave.

Retaliation protections also cover employees who complain about discrimination or harassment. Take, for instance, an employee who files a complaint with HR about sexual harassment. A week later, her company fires her. Retaliation laws protect her from wrongful termination, meaning she can file a lawsuit against her employer. 

These retaliation protections also cover employees who complain about wage theft, act as a whistleblower in certain circumstances, or complain about being denied medical leave.

Many employees incorrectly assume that you can’t sue for wrongful termination in an at will state. However, if you’ve faced termination for an illegal reason, including discrimination or retaliation, you may have a lawsuit.

The statute of limitation varies on wrongful termination protections. In some instances, for example, the statute of limitations may be as short as 30 days, depending on the type of case. As a result, it’s critical to reach out to an employment lawyer as soon as possible. Most employment lawyers offer a free consultation to discuss your wrongful termination lawsuit. 

For more information, visit our FAQ on wrongful termination.

 

Charles Joseph has over two decades of experience in employment law and wrongful termination. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $120 million for clients.

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admin http://workingnowandthen.com <![CDATA[What New Jersey’s Powerful Anti-Wage Theft Law Means For Workers]]> https://www.workingnowandthen.com/blog// 2019-08-30T16:34:11Z 2019-08-28T21:37:32Z by Charles Joseph On August 6, 2019, New Jersey’s acting governor signed S1790 into law. The act includes stricter penalties for not paying wages and stronger protections for workers. What does the anti-wage theft law changes mean for workers in New Jersey? Wage theft, including minimum wage and overtime violations, costs American workers billions of... View Article

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by Charles Joseph

On August 6, 2019, New Jersey’s acting governor signed S1790 into law. The act includes stricter penalties for not paying wages and stronger protections for workers. What does the anti-wage theft law changes mean for workers in New Jersey?

Wage theft, including minimum wage and overtime violations, costs American workers billions of dollars each year. Low-wage workers alone lose an estimated $50 billion a year because of wage theft. In 2015-2016, the U.S. Department of Labor, states, and class action suits recovered a total of more than $2 billion in stolen wages, representing just a fraction of all unpaid wages. 

Stronger legislation, like New Jersey’s anti-wage theft law, means workers recover more of their unpaid wages. Acting Governor Sheila Oliver, who signed the bill into law, said, “We must ensure that every hardworking individual in New Jersey receives the wages they worked hard to earn.” 

New Jersey’s anti-wage theft law includes some of the strongest protections in the country. Victims of wage theft can now recover all the unpaid wages plus liquidated damages equivalent to 200% of the unpaid wages. The act also covers wages lost because of retaliation and attorney’s fees.

New Jersey workers can now file for wage theft for up to six years, extending the former two year statute of limitations.

The act also includes strong penalties for violators of the state’s Wage Payment Law. Employers who knowingly withhold wages from workers must pay fines of up to $10,000 or face imprisonment of up to 18 months. 

Employers who fail to pay wages within 30 days can also face fines, penalties of 20% of wages owed, and possible imprisonment. The act makes repeat violations of the law, described as a pattern of wage nonpayment, a crime in the third degree.

“Wage theft is immoral, intolerable and yet, far too common,” said Senator Loretta Weinberg. “More often than not, it is those at the lowest rungs of our socioeconomic ladder that are taken advantage of by their employer. It falls on us, therefore, to defend those who don’t generally have the means to defend themselves.” 

Weinberg, a co-sponsor of the bill, explains, “Giving employees greater power and protections is an important step in the path towards everyone earning a living wage.”

“The unscrupulous employers robbing the hard working people of New Jersey of their time and money need to face the consequences of their actions,” said Senator Linda Greenstein, also a co-sponsor of the bill. “When wage theft is apparent, there must be effective laws in place to protect the workers of our state and to punish the employers. Wage theft is a serious crime and it is about time that our laws reflect this.”

New Jersey’s new protections make it easier for workers to recover unpaid wages and create strong incentives for employers to pay their workers. Victims of wage theft can contact an employment lawyer for a free consultation to protect their rights.

The anti-wage theft law will go into effect on November 1, 2019. 

Charles Joseph has over two decades of experience in employment law and wage theft. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $120 million for clients.

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admin http://workingnowandthen.com <![CDATA[Working Now And Then Announces Undergraduate Scholarship]]> https://www.workingnowandthen.com/blog// 2019-08-13T23:02:25Z 2019-08-13T23:02:25Z Genevieve Carlton, Ph.D   Working Now and Then will award an undergraduate scholarship for the first time in December 2019. The Working Now and Then Undergraduate Scholarship will grant $1,000 to an undergraduate considering a career in employment law.  In 2019, Working Now and Then awarded its first scholarship, the Charles E. Joseph Employment Law... View Article

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Genevieve Carlton, Ph.D

 

Working Now and Then will award an undergraduate scholarship for the first time in December 2019. The Working Now and Then Undergraduate Scholarship will grant $1,000 to an undergraduate considering a career in employment law. 

In 2019, Working Now and Then awarded its first scholarship, the Charles E. Joseph Employment Law Scholarship. Named for founder Charles Joseph, the scholarship supports law students planning to work as plaintiffs’ employment lawyers. 

Winner Hannah Begley, a Stanford Law student, says “I am extremely grateful to have received the Charles E. Joseph Employment Law Scholarship. It helped turn my dream of fighting for the rights of low-income workers into a reality.”

Working Now and Then published Begley’s essay, along with several honorable mentions, as part of its Law Students on Workers’ Rights series. After the success of the Charles E. Joseph Employment Law Scholarship, Joseph chose to expand his site’s scholarship opportunities.

“Employment law has been good to me,” Joseph relates, “and I want to encourage others, even in a small way, and let them know I care about what they are doing.” Joseph founded Joseph & Kirschenbaum LLC, a New York firm that fights for workers harmed by illegal employment and wage practices. Since 1997, Joseph & Kirschenbaum has recovered over $120 million for clients. 

The undergraduate scholarship accepts applications from students currently attending or accepted to an accredited college or university. Applicants provide a resume, unofficial transcripts, and a 750-word essay on the biggest challenges facing workers’ rights in the future. 

The scholarship committee, which includes Charles Joseph, will evaluate applicants based on their academic record, future career promise, and the persuasiveness of the essay. As with the Charles E. Joseph Employment Law Scholarship, the winning essay and honorable mentions will be published on the Working Now and Then site. 

The application form will be available on the Working Now and Then site until December 1, 2019. The winner will be notified by December 15, 2019.

For more information, visit Working Now and Then or the Working Now and Then Scholarships page.

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admin http://workingnowandthen.com <![CDATA[Sexual Harassment and the Future of Worker’s Rights]]> https://www.workingnowandthen.com/blog// 2019-08-12T18:11:44Z 2019-07-10T14:00:13Z What does the #MeToo Movement Mean for Employment Rights? By Jordan Kostelyk Law Students on Workers’ Rights Series The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the... View Article

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What does the #MeToo Movement Mean for Employment Rights?

By Jordan Kostelyk

Law Students on Workers’ Rights Series

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

The biggest future issue I foresee in worker’s rights is sexual harassment. I say this because people are done with hiding such acts. In the past, sexual harassment was something to not be discussed and even victims were often looked down upon. But even now change is occurring and all one has to do is look at famous movements like #MeToo. In this essay I plan to use legal cases as well as my personal experience to argue that sexual harassment represents the biggest future issue in worker’s rights.

In 2012 possibly the largest settlement in U.S. History in a sexual harassment case was reached. The case was Ani Chopourian v. Catholic Healthcare West. Chopourian had filed complaints with the company for two years that one of the surgeons had made sexual comments and touched her inappropriately. These complaints were filed to no avail until she finally went to court. A year earlier another major sexual harassment case had been won, Ashley Alford v. Aaron’s Rents, just like the above case the company did next to nothing to protect her until she was physically attacked by her manager. 

These two cases demonstrate to me that in the past, even if victims did report sexual harassment little was done and it was allowed to go on for years. Now as time is going on it is evident that if the company doesn’t care the courts certainly do care. I believe as people start to see the currently settled cases they will see that there is another avenue for them to find relief for these workplace abuses.

The second part to this is my personal experience. I have only been employed for the past four years and have been sexually harassed at three different jobs. And at two of the jobs I reported the abuse to the companies which was eventually settled. I have had a male supervisor ask me out on a date as well as a male supervisor who talked about marital problems. I have even had a male coworker touch my leg without my consent. However, what held me back from reporting was a fear of being ignored and that my complaints were not important. It was only through help of my mom that some of the sexual harassment was reported. I think that if this has happened to me in such a short period of time is greatly possible that it is happening all over the country. 

Also, if I felt that it was possibly unsafe to discuss such behavior than how many other people also kept things hidden? I firmly believe that it was a blessing that my harassment occurred during recent years. It occurred during a time when it was much safer to report to companies and they looked more seriously upon such behavior. But it is unfortunate for me to say that many people did not report their harassment during such times. And more often than not when they reported things they were told it was not important or that they were making a big deal out of nothing. The scariest part is that a lot of people fear losing their jobs. So the question is whether to report and lose your job or to keep quiet at a seemingly “small” cost?

As this revolution continues in the country and people continue to become braver to report sexual harassment that has occurred in their workplaces, I believe we will see an influx of cases. These are not things that will be recent they will be things that have gone on for years or even years ago but just now are coming to the surface. And that in combination with new occurrences will push cases forward. If workplaces continue to not place priority on sexual harassment or deny the severity then the only place to turn will be the justice system. Although, I see that with these movements companies are becoming more willing to place importance on such complaints it appears to be mostly out of self-preservation.

Which to me signifies that companies will do the least they feel they must to settle a person’s complaints. If you look at the cases with Alford and Chopourian, they were mostly given flowery talk each time they previously complained to their companies. Thus, as these cases demonstrate, sometimes talk is not enough and action is what needs to take place. This is an exciting time for worker’s rights. Previously we saw the fight for women to even be able to hold jobs, with the unspoken message that women should be so grateful to have a job that they should tolerate harassment. Now, we are pulling ourselves up by our bootstraps and looking for justice in unfair situations. We are unwilling to tolerate what shouldn’t be tolerated.

Reflections from Charles Joseph

Jordan Kostelyk brings together case law and her personal experience to ask how the #MeToo movement will shape workers’ rights. As she argues, the increased public attention means employers often take stronger stances against workplace sexual harassment. Similarly, state legislatures across the country have strengthened sexual harassment laws. Most notably, in June 2019, the New York legislature greatly expanded sexual harassment protections, including instituting a new standard for hostile work environments that benefit employees. Education remains an important part of protecting workers from sexual harassment, which is why Working Now and Then created a video with advice on proving workplace sexual harassment.

Jordan Kostelyk graduated from Central Washington University in 2018 with a law and justice major. She joins Seattle University School of Law as part of the class of 2022.

Charles Joseph has over two decades of experience in employment law. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $120 million for clients.

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admin http://workingnowandthen.com <![CDATA[Wage Inequity: The Threat to Workers’ Rights]]> https://www.workingnowandthen.com/blog// 2019-08-09T16:56:07Z 2019-07-03T20:34:10Z How to address the gender wage gap and the racial wage gap By Gabren Webb Law Students on Workers’ Rights Series The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law... View Article

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How to address the gender wage gap and the racial wage gap

By Gabren Webb

Law Students on Workers’ Rights Series

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

The notion that there is true equity in the United States of America holds no more validity than a work of ancient Greek mythology. Few misconceptions are as widespread as the belief that this country has taken significant strides towards equity over the past several decades. Admittedly, the confusion is understandable––certain groups of marginalized people are doing better now than they were in the past. However, it is crucial to analyze how these classes of people are progressing not in relation to themselves, but in relation to the other, more privileged classes. When seperate groups are compared, the disparities become incredibly evident.

One persistent and distinct type of inequity is found in employee compensation in the form of wages. The gender wage gap and racial wage gap are two persistent areas of disparity. Women are, on average, paid less than men when working the same job. Similarly, people of color are paid less than their white counterparts. Therefore, I believe that the most significant challenge facing workers’ rights in the future is discrimination leading to lack of equal pay for equal work.

On average, women make just 81.8% of what men do. In fact, women of all major racial groups earn less than men of their same group. A great deal of this gender wage gap can be explained by discrimination in compensation, recruitment, and hiring. Women often face difficulty breaking into male-dominated job markets, and they are generally afforded less opportunity for advancement than their male counterparts. While this gap is troubling, it is worth noting that the gender wage gap has been narrowing, albeit by a decreasing margin, since 1980.

Slightly more alarming is the racial wage gap. While the gender and racial wage gaps are both individually important, it is essential to recognize that their coexistence intensifies their impact. Consequently, the interaction of the effects of the racial and gender wage gaps puts women of color in a particularly unfortunate position. For instance, compared to White men, Black women make 65.3%, and Hispanic women make 61.6% of their earnings. Unlike the gender pay gap, however, the racial pay gap is not narrowing in any meaningful way. For instance, the pay gap between Black women and White men has narrowed by only 9 cents over the past 35 years. For Hispanic women and White men, the gap narrowed by just 5 cents in this same period.

This relatively consistent wage gap is appalling. It is worth noting that some of the racial wage gap can be explained by the fact that lower shares of Blacks and Hispanics have college educations, which lead to higher wages. However, when only analyzing those with bachelor’s degrees or beyond, college-educated Black and Hispanic men earn about 80% of the hourly wages of college-educated White men. Furthermore, college-educated Black and Hispanic women earn only about 70% of the hourly wages of college-educated white men.

For this, there is no more convincing explanation than pure discrimination. Closing the gender and racial wage gaps will require action from individuals, employers, and policymakers. As a Black woman and future lawyer, I hope to one day have the opportunity to play a role in the eradication of discriminatory pay practices. 

I believe that a significant part in this journey will involve bringing awareness to the public. Many are unaware of the magnitude of the disparities that exist when it comes to employee compensation, and understandably so. Wage data are largely kept secret in American society, and considered an inappropriate topic of conversation. Nonetheless, eliminating the gender and racial wage gaps will require an unprecedented level of transparency at the hands of both employers and employees. 

It will therefore require a strengthening of the laws prohibiting wage discrimination. The laws currently in place simply lack the ability to completely eradicate discriminatory pay practices as they are difficult to enforce and to prove violations.

The most detrimental social issues are those that are hiding in plain sight, undetected by many and therefore unchallenged by most. This is why I firmly believe that wage disparity is one of the biggest challenges to workers’ rights: it is essentially invisible, and its revelation requires engaging in uncomfortable conversations. Despite this, there must be a normalization of these sorts of conversations in order to effectively remove wage inequity from the workplace. I hope to eventually become a key player in this movement, and look forward to playing a role in building a more truly equitable America.

Reflections from Charles Joseph

Gabren Webb sheds light on one of the hidden challenges to workers’ rights: wage discrimination. As Webb convincingly argues, wage disparities persist even when comparing people with the same education levels in the same positions. As a result, Webb points to workplace discrimination, particularly gender discrimination and race discrimination, to explain wage disparities. Wage discrimination remains a major problem for workers, though some legal protections, such as New York City’s salary history ban, try to limit wage inequity. Webb correctly points out that we need to both raise awareness and strengthen pay discrimination laws to address the problem.

Gabren Webb graduated from the University of Virginia with majors in economics and psychology. Webb joins New York University School of Law as part of the class of 2022.

Charles Joseph has over two decades of experience in employment law. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $120 million for clients.

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admin http://workingnowandthen.com <![CDATA[What New York’s Sweeping Employment Law Changes Mean For Workers]]> https://www.workingnowandthen.com/blog// 2019-08-09T17:03:16Z 2019-06-28T22:32:40Z by Charles Joseph On June 19, 2019, New York’s state legislature passed sweeping changes to the state’s employment laws. The updates include stronger protections against workplace discrimination and sexual harassment. What do these changes mean for workers in New York? The new law, expected to be signed by Governor Andrew Cuomo, significantly strengthens the state’s workplace... View Article

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by Charles Joseph

On June 19, 2019, New York’s state legislature passed sweeping changes to the state’s employment laws. The updates include stronger protections against workplace discrimination and sexual harassment. What do these changes mean for workers in New York?

The new law, expected to be signed by Governor Andrew Cuomo, significantly strengthens the state’s workplace protections. The changes dramatically update the New York State Human Rights Law (NYSHRL), expanding its legal safeguards and increasing the number of New York workers protected by the law. Senate Majority Leader Andrea Stewart-Cousin says, “This legislation works to close loopholes, extend the statute of limitations, and ensure that sexual harassment policies are clear for all employees across the public and private sector.”

The NYSHRL protects workers from discrimination or harassment based on age, gender, race, national origin, sexual orientation, disability, and other protected characteristics. The New York legislature enacted these sweeping changes to eliminate the “significant and unwarranted legal barriers” that stood in the way of workers seeking justice for employer wrongdoing. 

The changes bring the state’s workplace discrimination and sexual harassment laws in line with many of New York City’s protections in the NYCHRL, which remain some of the strongest in the nation. Most critically, the amendments eliminate the so-called “severe or pervasive” standard used by federal discrimination laws. Under the old law, harassment had to reach the level of severe or pervasive to violate the NYSHRL. The new law outlaws harassment that merely subjects employees to “inferior terms, conditions, or privileges of employment” because of their membership in a protected class, adopting New York City’s standard that harassment must go beyond “petty slights or trivial inconveniences.”

But the amended New York State law goes well beyond even the extraordinarily liberal provisions of New York City law, because far more workers will receive protections under the updated NYSHRL. First, while the old discrimination law only covered employers with four or more employees, the new protections apply to all employers (except the federal government), including licensing and employment agencies and labor unions, regardless of the number of employees. This means an individual who employs or contracts with a single worker is considered an “employer” under the law and can be liable under the NYSHRL. A similar expansion was made for victims of sexual harassment in a law enacted last year.

More striking yet, the discrimination laws now apply to workers not classified as employees, including 

  • independent contractors
  • domestic workers
  • consultants 
  • subcontractors 
  • vendors

The discrimination laws also apply to anyone else providing contracted services to an employer. In short, the number of people and situations covered by the new law is vastly larger than previously. 

This change to the NYSHRL protects an expansive group of workers besides traditional employees. Now, courts will hold employers liable for discrimination or sexual harassment if the employer or its agents knew––or should have known––about the discrimination or sexual harassment within the workplace against, not just employees, but nearly all workers. That greatly expands the anti-discrimination protections under the NYSHRL by covering essentially all service providers, rather than just those traditionally classified as employees. 

The state law’s expanded protections for independent contractors and freelancers builds on new legal safeguards enacted over the last few years. In 2017, New York City passed the Freelance Isn’t Free Act, which guarantees freelancers timely payment and offers double damages for nonpayment or late payment. In 2018, New York included independent contractors under the umbrella of laws protecting employees from sexual harassment. This year, the amended state law expands protections against employer discriminatory practices to specifically include independent contractors. 

The updated NYSHRL also expands the damages available for victims of sexual harassment and discrimination. Workers who successfully sue their private employers for discrimination or sexual harassment under the NYSHRL can now seek punitive damages and attorney’s fees, neither of which were allowed under the old law. Emotional distress awards are also available. The change will likely mean larger damage awards for victims of workplace harassment.

Also, once a sexual harassment or discrimination claim reaches the court, employers can no longer avoid liability by claiming the victim failed to use the employers’ complaint procedures. Now, victims who did not report harassment in the workplace for fear of retaliation can still protect their rights.

New York’s legislature orders courts to interpret the NYSHRL liberally in favor of the victimized worker. This places more power in the hands of the targets of discrimination and sexual harassment. Similarly, the law instructs courts to narrowly interpret any exemptions to the NYSHRL, further increasing the law’s power to protect workers. 

Under the new law, employers can no longer force employees into mandatory arbitration for discrimination and sexual harassment claims. Similarly, employers cannot force employees into non-disclosure agreements that ban them from speaking about sexual harassment or discrimination. That means victims of sexual harassment and discrimination will get their day in court. 

The updates to New York state’s laws mean stronger protections for workers in multiple ways. Victims of workplace sexual harassment, for example, will have three years to file their with the New York State Division of Human Rights. Discrimination claims, however, still must be filed with the agency within one year of the discriminatory act. Under existing law, workers have three years to file their discrimination and sexual harassment claims in court.

Some of the bill’s stronger employment protections go into effect immediately when Governor Cuomo signs the law, while others take effect 60 days or 180 days after signing. The new law’s expansion of the statute of limitations from one year to three years takes effect one year after signing.

For workers in New York, the employment law changes mean much stronger protections against workplace discrimination and sexual harassment. “With this legislation, employers across all sectors will be held accountable for addressing all forms of sexual harassment and discrimination in the workplace,” Senator Alessandra Biaggi says. 

The new NYSHRL will cover many more workers, offering protections for contractors and freelancers who were not previously protected. It also provides stronger enforcement and education mechanisms, including requiring employers to provide a notice of their sexual harassment prevention policies to all employees in their primary language, which they are to receive upon hiring and again during the employer’s annual sexual harassment training. 

When the law takes effect, workers will see immediate benefits from the sweeping new protections. 

Charles Joseph has over two decades of experience in employment law. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $120 million for clients.

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admin http://workingnowandthen.com <![CDATA[Wage Theft and the Exploitation of Disadvantaged Workers]]> https://www.workingnowandthen.com/blog// 2019-08-09T16:56:18Z 2019-06-26T14:00:36Z Laws must protect the rights and dignity of workers By Erica Dombrowski Law Students on Workers’ Rights Series The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the... View Article

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Laws must protect the rights and dignity of workers

By Erica Dombrowski

Law Students on Workers’ Rights Series

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

The biggest challenges facing workers rights in the future revolve around wage theft and the exploitation of disadvantaged groups. For centuries, the structure behind business has reflected that the higher the rank, the less work is necessary to reach the top levels of companies and corporations. Our society’s emphasis on top level earned positions is not misplaced. However, often times these positions are not achieved, but rather handed to members of a privileged class. When a member of a wealthy family is given a position they did not earn they will never truly represent the rights of workers. The disconnect between workers’ rights and those who choose to lessen those rights lies in profit motivated businesses.

Profit motivation is often placed above the rights and dignity of workers. Corporations such as Apple, Walmart, and Nike outsource jobs to avoid meeting regulations for workers rights set in the United States. Some of these violations are so horrific they qualify as violations of basic human rights. Profit motivation pushes the rights of workers and humans beneath the desire to become increasingly more profitable as a company. The biggest challenge facing workers’ rights in the future is the ability of corporations to bypass the regulations set in place for workers.

What good are workers’ rights in America if American companies bypass regulations by outsourcing labor to non regulated countries? Seemingly, there is no national viable solution to workers’ rights issues when outsourcing is available to corporations seeking to increase profit margins at the expense of human life and well being. The next step is to face worker exploitations internationally as a global community. However, international policies are often hard to enforce due to the intricacies of determining which countries pay the costs of enforcement. 

As an American worker you have little to no protection from corporations outsourcing jobs to avoid the legal standards they are bound to within our jurisdiction. Furthermore, as a worker in any country you are being subjected to unfair treatment by a foreign entity simply because your government does not protect you in the ways other countries do. This exploitation is the greatest injustice being perpetrated against workers globally today. Workers have no ability to protect themselves from this exploitation in countries with no regulations. As a global community we need to introduce standards and repercussions that can be enforced in all countries.

Another challenge faced by advocates of workers’ rights is wage theft. Wage theft is the act of employers reducing wages illegally for workers. Wage theft can come in many forms, such as misclassifying workers, not paying overtime, or paying employees less than minimum wage. Today, wage theft often comes in the form of legal non-paid positions that are often required by schools and graduate programs. Internships have become a new tool by which employers can exploit workers for profit.

Internships have become a vital part of resumes that are necessary for positions that require high levels of education. However, in order to be able to work an unpaid internship you must be able to sacrifice hours of your week to go towards unpaid work rather than paid work. For workers who cannot afford to sacrifice hours of their paid service, this creates a divide in who is able to benefit from internships. Internships should not be allowed to continue if they are unpaid because this labor should be protected, as it is for any other job.

Lastly, one of the other biggest challenges faced by workers today is the “tipping” system. It can be argued that the tipping system is another form of wage theft. In many states, employers under the federal Fair Labor Standards Act are able to pay far less than minimum wage in exchange for employees making tips. The tipping system is inherently flawed, because tips are not a requirement and should only be considered an additional sum of money awarded for exceptional service. However, in America we have a level of expectation surrounding tips that is calculated into living wages required by employers. A price should include the total cost of the service and leave tipping as a welcome gesture rather than a requirement. 

Tipping practices can benefit many employees, however it also harms many others. Tipping puts the responsibility of wages in the hands of accepted and anticipated gestures rather than on the employer. There is no guarantee or requirement for tips which means there is no guarantee of certain wages for employees. Tipping practices in America are one of the most immediate challenges faced by workers today.

Reflections from Charles Joseph

Erica Dombrowski identifies several critical factors affecting workers’ rights by bringing a global perspective, showing how outsourcing can leave workers with no legal protections. Exploitative labor practices hit vulnerable workers the hardest, often leaving them with few protections. Similarly, wage theft often targets disadvantaged workers, including tipped employees who rely on gratuities to earn a living. I’ve seen firsthand how wage theft affects restaurant workers, for example, as tip theft takes money out of the pockets of servers. Without stronger worker protections, many of the exploitative practices Dombrowski identifies will unfortunately continue. 

Erica Dombrowski graduated from the University of Buffalo in 2018 with a degree in political science. Dombrowski joins the University at Buffalo School of Law as part of the class of 2022 and plans to advocate for people with disabilities as a lawyer.

Charles Joseph has over two decades of experience in employment law. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $120 million for clients.

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admin http://workingnowandthen.com <![CDATA[The Federal Arbitration Act and Labor Protections]]> https://www.workingnowandthen.com/blog// 2019-08-09T16:56:28Z 2019-06-12T15:59:08Z Recent Supreme Court decisions threaten workers’ rights By Kimberly Holdiman Law Students on Workers’ Rights Series The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What... View Article

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Recent Supreme Court decisions threaten workers’ rights

By Kimberly Holdiman

Law Students on Workers’ Rights Series

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

While many aspects of the modern era and current economic realities affect employment law and workers’ rights, the Supreme Court’s repeated application of the Federal Arbitration Act (FAA) to employment and labor law affect individual workers ability to enforce their rights more than any other law.

In fact, the Supreme Court has noted that because of their presumption in favor of arbitration, arbitration today is a cornerstone remedy for civil cases. While the FAA seems to exclude employment contracts, the Supreme Court has held that this exclusion applies only to interstate transportation workers. This application has had a snowball effect in recent years, allowing employers to require employees to submit any and all labor and employment law claims to arbitration.

While the Supreme Court’s decisions are predicated on the agreement of employees to these contract clauses, few employees have the leverage to be able to negotiate or the knowledge to do so. This alone has many negative impacts on employee’s rights including: a lowered ability to utilize public opinion against employers due to the fact that arbitration proceedings are rarely published; potentially higher upfront transactional costs; and most importantly, limited access to judicial review for decisions and an inability to bring class action claims.

The FAA itself describes very limited or narrow grounds for judicial review of arbitration decisions that have little or nothing to do with an arbitrator’s misapplication of the law. While several circuits suggest other common law grounds for review, few courts have been favorable toward overturning the decisions of arbitrators.

As a result, when worker claims are sent to arbitration that is often their exclusive remedy. In a society wherein almost all judicial district provide cases at least one guaranteed review of an initial decision, this limitation inherent in arbitration cuts employees off from a meaningful root to vindicate their rights. Many arbitrators are paid by employers, or have an established relationship with the employer which while not rising to the level of “evident impartiality,” creates a gloss of unfairness from an employee’s perspective.

Coupled with an inability to have these decisions reviewed, employees can feel that arbitration is a dead-end for their rights. Further, the modern trend favoring arbitration in the employment context also limits employees’ ability to ban together to bring suit against their employer. The ability to bring a class action suit allows employees, who generally have less means than their employer to pay legal fees, to pool resources with other employees. As a result, small infringement on employee’s rights can still be vindicated by the employees.

However, the Supreme Court sees no problem where an employer requires employees to agree that all claims will be submitted to individual arbitration, rather than a class arbitration. Further, in a recent decision the court announced that where an arbitration clause is silent as to rather or not it allows class arbitration, it is interpreted to allow only individual arbitration. This decision is another in a long line of court cases chipping away at employee’s ability to vindicate their rights.

While employee rights have been greatly expanded since the Great Depression with the passage of federal laws such as Title VII, the National Labor Relations Act , the Fair Labor Standards Act, the Americans with Disabilities Act, the Family Medical Leave Act and other state laws, workers are likely to find such rights difficult to enforce where the employer requires such claims be submitted to arbitration. While arbitrators may of course uphold the employees’ rights the same as a court, they are not bound to do so the same a judicial officer is required to, nor is there the same grounds for review when they fail. Furthermore, the forum of arbitration greatly limits an employee’s ability to vindicate their rights in the first place do the potentially higher upfront costs, and inability to bring class arbitration claims.

Reflections from Charles Joseph

Kimberly Holdiman builds a solid case for the harmful effects of forced arbitration on workers’ rights, particularly the inability to bring class action suits. For many wage theft violations, including violations of the minimum wage or overtime wages, individual employees simply cannot afford the high cost of arbitration based on a relatively low amount of wages owed. The ability to join together in class action suits gives employees greater power and curbs employment violations like wage theft. Similarly, the Supreme Court opening the door to forced arbitration agreements makes it harder for workers to protect their rights against workplace discrimination and sexual harassment. In the current environment, employees may find it easier to bring cases under state and local laws.

Kimberly Holdiman is a law student at Gonzaga University School of Law. She earned the CALI Award for LRW I and ranked on the Dean’s List for 2017-2018. Holdiman will graduate with her juris doctorate in 2020.

Charles Joseph has over two decades of experience in employment law. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $120 million for clients.

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admin http://workingnowandthen.com <![CDATA[Contract Labor and Workers’ Rights]]> https://www.workingnowandthen.com/blog// 2019-08-09T16:56:38Z 2019-06-05T20:58:04Z Will the Changing Economy Leave Employment Rights Behind? By Wesley B. Hazen Law Students on Workers’ Rights Series The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the... View Article

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Will the Changing Economy Leave Employment Rights Behind?

By Wesley B. Hazen

Law Students on Workers’ Rights Series

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

 

Technological innovations are not only playing a perpetual role in the lives of consumers and everyday citizens, they are also profoundly affecting the rights of workers. From the average employee working in a supermarket or restaurant to doctors, legal professionals, and engineers on into the self-employment sector, the changing economy threatens employment rights.

I see two tremendous challenges facing workers’ rights in the future: the rate of job creation or replacement in comparison to positions that are becoming obsolete and the recent trend to classify more individuals being paid to perform work on behalf of a company as “contractors” instead of “employees.” In particular, the increase in contract or contingent labor, which offers numerous advantages to a company and their profit margins, undermines worker protections.

The rate at which replacement jobs or new jobs are being created is failing to keep pace with technological advances, which cause many positions to become obsolete. Although there is a concrete desire for balance when it comes to cost and revenue, businesses seem to be ramping up processes for improving efficiency through technological means. In doing so, they deplete their labor force to only what is necessary to ensure the continuation of business.

This is evident in the fast food industry, where companies such as McDonalds have implemented touch screen technology in recent years, allowing customers to place orders themselves. In addition, several customer service industries let customers pay using a card reader. This includes supermarkets that offer “self-checkout” cashiering stations, which require one or two employees to monitor multiple stations where customers scan, bag, and pay for their items, as well as cashierless stores courtesy of Amazon.

Low level positions are not the only ones affected by this shift, however. The transportation industry is on the verge of transformation with self-driving vehicles and semi-trucks as well as various transformations being developed for the medical, legal, and other upper tier occupations. This decrease in newly created traditional positions may contribute to the benefit of the second worker’s rights challenge through an influx in the “gig economy.”

Second, classifying an individual as a contractor and not as an employee provides ample benefits to companies including not having to follow minimum wage guidelines, contribute to social security taxes, and provide physical accommodations for the contractors to carry out their work. Although there are some short-term perks to the contractor such as having access to pre-tax income immediately and schedule flexibility, the cons outnumber the pros.

The “gig economy” encompasses one-third of workers in the United States, totaling 57 million individuals according to an August 2018 Forbes article. Many of these positions allow new companies to edge their way into larger markets. The prospect of sharing has plowed ahead by way of home sharing through companies such as AirBNB, ground transportation through Lyft and Uber, and even into delivery services ranging from grocery delivery by companies like Instacart and Amazon Now and delivery of prepared foods through Grubhub, DoorDash, and UberEats.

Convenience is a key aspect in each of these services. No longer does one need to call for hotel reservations, contact a taxi cab company, maneuver public transportation in a city, or even leave the comforts of their own home to retrieve groceries or dinner. All that one needs is an application on their smartphone. With this convenience and the high usage by everyday Americans ranging from college students and families to the elderly, there is a clear need for individuals to operate personal vehicles as Uber or Lyft drivers, own or rent a home or apartment to rent out a room or the entire location through AirBNB, or utilize a personal car or bicycle to complete delivery orders.

These individuals are often initially classified as contract labor by the companies. However, there have been calls for them to be properly classified as employees. Very recently, a development backing the corporate standing of “contract labor” was announced through a memo released by the Department of Labor defining an unidentified companies’ operatives as “contractors” and not “employees.” Although it is one unidentified company, it has implications to support the standing of other companies which utilize individuals they classify as “contract workers” in future developments and is a redirection of the ideals surrounding these practices during the Obama Administration.

Although there are other numerous challenges which will undoubtedly influence workers’ rights in the future, I see these two as significant to many workers and their rights regarding their ability to make a livable income. The advancement of technology coinciding with the recent tendency to classify labor forces as “contract labor” are serious threats to workers and their rights in the near and distant future.

Reflections from Charles Joseph

In his discussion of the changing economy, Wesley Hazen aptly predicts that these trends will likely only increase in the future. As more employers rely on independent contractors, workers lose their federal protections under sexual harassment laws and workplace discrimination laws. However, as Hazen notes, misclassification of independent contractors does provide a legal remedy: independent contractors can sue their employer for back pay and lost wages. Local laws offer another remedy. In New York City, for example, the Freelance Isn’t Free Act offers wage protections for freelancers, including double damages for underpayment, nonpayment, and late payment. Unfortunately, without significant legal action, millions of independent contractors will face wage theft in the future.

 

Wesley Hazen holds a master’s in criminology from the University of Cambridge and a bachelor’s in criminal justice from New Mexico State University. The recipient of a Gates Cambridge Scholarship, Hazen joins the University of Oklahoma College of Law as part of the class of 2022.

Charles Joseph has over two decades of experience in employment law. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $120 million for clients.

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