Sexual Harassment in the Workplace
The following discussion concerns sexual harassment in the workplace which is illegal.
Many employees have been victims of sexual harassment by their bosses or co-workers but have often been afraid to do anything about it. This no longer needs to happen because there are laws that prohibit this conduct, and the company can be liable to employees for a large amount of money.
The law defines sexual harassment as behavior of a sexual nature that is unwelcome by the employee. Sexual harassment may involve one highly offensive incident or a series of smaller incidents. The law divides sexual harassment into two basic categories. The first category is when a supervisor asks for a sexual favor in exchange for something. For example, a supervisor tells a female employee that she will get a raise or a promotion if she provides a sexual favor. Another situation is when a supervisor threatens to fire or penalize an employee if she does not provide a sexual favor. The company is legally liable for sexual harassment even if the supervisor does not follow through with the promise or the threat.
The second category of sexual harassment is when a supervisor does not ask for a sexual favor in exchange for something, but instead creates a sexually hostile work environment. A hostile work environment is an offensive or intimidating work environment where the supervisor engages in conduct such as sexual jokes, teasing, discussions, offensive language, or inappropriate pictures. It is, of course, also sexual harassment if the boss touches the employee.
It is important to recognize that a company is liable for sexual harassment if it is committed against an employee not just a boss but by a co-worker. In that situation, the employee must inform the company such as the human resources department or a manager about the sexual harassment by a co-worker. If the company does not take action against the co-workers such as firing or disciplining him, then the company is liable to the employee and may have to pay large penalties.
All companies are required by law to maintain a policy prohibiting sexual harassment of all types and to communicate and enforce the policy. Most companies post the policy or put it in the employee handbook. The policy states that the conduct that is prohibited and gives the name of the manager in the company who is responsible for receiving complaints from employees who believe they have been sexually harassed. Generally, the company tries to keep the complaint and any investigation it does confidential. The company tries to make sure that the victim who complains is not retaliated against for making the complaint.
Because there have been many court cases in which companies have had to pay large sums of money to employees because of sexual harassment, most companies take complaints about sexual harassment by supervisors and co-workers very seriously. That is the reason many companies train their supervisors about the need to prevent sexual harassment and the need to monitor the conduct of their employees.
It is a good idea for an employee who feels that she is being sexually harassed to tell the supervisor or co-worker that he or she is not interested in engaging in any activity with that person or does not want to hear sexual comments. Remember that in order to file a lawsuit for sexual harassment, you need to establish that you were not happy about the conduct of the supervisor or co-worker. The employee needs to show that the conduct was unwelcome.
The company is also responsible to protect its employees against sexual harassment committed not by supervisors or co-workers but by third parties who interact with employees. These could be for example vendors, salespersons, consultants or technicians who are present at the workplace but who work for other companies.
If you feel you are a victim of sexual harassment in the workplace, you should keep notes of the incidents, and you should discuss the situation with a lawyer who specializes in labor law.
Mitchell Schley is an attorney who practices labor law in his offices in East Brunswick and New York City. Feel free to contact him if you have a question about this topic or any other labor law issue. He can be reached at 732-325-0318 or at www.schleylaw.com.
Layoff
The following article concerns the rights of an employee who is laid-off from his or her job.
Employers, of course, have the right to lay off employees when business is not good and the company cannot afford to keep all of its workers. The company will decide how many employees it needs to layoff and will make a list of names and inform these employees that they are being terminated. At this point, most employees believe there is nothing they could do about it because they think they are losing their job as part of a large group for legitimate business reasons. This may be true, but the employee must ask this question: There are many employees who do the same job as I do in my department, but the company is laying off perhaps only 25% of my department. Why was I selected by my manager to be on the layoff list and not another employee? Does the decision seem fair? Does it make sense? When the company makes up the list, they must comply with the law. According to New Jersey and federal law, an employer cannot select an employee to be laid-off because of the employee’s age, race, sex, national origin, religion or disability.
Let’s look at a simple example. A department is made up of 50 employees. Five of the employees are Hispanic. The company wants to lay off 8 workers from this department and tells the manager to make up a list. The manager is new. He was hired just 6 months ago. He makes up a layoff list which includes 4 Hispanic employees and 4 non-Hispanic employees. All 4 Hispanic employees are very good workers and are better workers than many of the non-Hispanic employees not on the list. Something seems wrong here. The Hispanic employees make up 10% of the department but make up 50% of the layoff list. The non-Hispanic employees make up 90% of the department but they make up only 50% of the layoff list. It looks like this new manager may not like to work with Hispanic workers and is using the layoff as a convenient way to get rid of them. This is against the law because an employer may not discriminate against employees because of their national origin.
Here is another example. Many companies like to have younger workers rather than older workers but it is hard to fire older workers one at a time. So, some companies wait for a big layoff and then put many older workers on the list even if they are better than some younger employees who are not on the list. This is illegal because the law says that an employer may not discriminate against older workers. If you believe that you are being discriminated against, you should speak to a lawyer who specializes in employment law who can help you evaluate the situation.
When you are laid-off you should immediately file an unemployment insurance claim. Many people think they can wait to file and then get benefits back from the date of their layoff. This is not true. Your payments begin from the point you apply, so if you wait 3 weeks to file for unemployment insurance, you have lost 3 weeks of benefits. Many people also think that they cannot receive unemployment insurance benefits when they are receiving severance payments from their company. This is also not true. In most cases in New Jersey, laid-off employees are entitled to receive unemployment insurance benefits while they are also receiving severance payments. A laid-off worker can normally collect unemployment insurance benefits for up to 26 weeks. The normal maximum payment in New Jersey is $560 per week. You can file for unemployment insurance benefits on-line by going to the New Jersey Department of Labor website.
Mitchell Schley is an attorney who practices labor law at the Law Offices of Mitchell Schley, LLC, in East Brunswick and New York City. Feel free to contact him if you have a question about this article or any other labor law issue. He can be reached at 732-325-0318 or at www.schleylaw.com.
RIGHTS OF HOME HEALTH CARE AIDE WORKERS
Many Hispanic workers work as home health care aides and are frequently mistreated by being improperly paid for their work. You do not need to be a citizen, a green card holder, or have a work permit or other immigration “papers” to get paid the legally required minimum wage and overtime pay for your work. You are entitled to be paid correctly regardless of your immigration status.
Most home health care workers must be paid minimum wage and overtime pay. Minimum wage in New Jersey is $12.00 per hour and in New York City, it is $15.00 per hour. If a worker works more than 40 hours in a week, they are entitled to overtime pay which is one and a half times their regular rate of pay for each hour over 40. If overtime pay is due, the worker must receive it for every hour worked over 40 hours in a workweek.
Home care workers could be direct hires of an individual or family or they can be hired through a home health care agency. There are some exceptions to the minimum wage and overtime pay requirements for certain types of health aides. The type of work that the aide regularly does can affect whether or not the aide should be exempt from being paid minimum wage and overtime.
For example, there are certain exemptions to overtime pay for live-in home care workers. A live-in home care worker is entitled to minimum wage, but is not required to receive overtime pay in the following three special circumstances: (1) if they permanently live in the home of the person they are caring for seven days per week; (2) live there for extended periods of time, which is considered to be either five days a week for 120 hours or more; or (3) live in the home for five consecutive nights for less than 120 hours per week. A live-in worker does not have to be paid for time he or she spends eating or sleeping or other periods in which she has no duties to perform. When starting a new home care assignment it is very important to establish an agreement regarding a schedule concerning sleep time, meal breaks and other periods of off-duty time.
There are additional pay exemptions applicable to home health aides who provide companionship services. The companionship service exemption only applies if (1) the home care worker spends a maximum of 20% of the working time assisting with personal care such as bathing, dressing, toileting, grooming, cooking, cleaning, etc.; (2) the worker does not perform any medically related tasks that are usually done by a nurse; or (3) the worker does not perform any general household work for other members of the household besides the one that the worker is taking care of, such as laundry or cooking.
Also, some home care workers are paid a daily or weekly rate instead of an hourly wage rate. Just because an employee is compensated with a daily or weekly rate, and not an hourly wage rate, does not mean that employee is not entitled to overtime pay. All eligible employees are entitled to overtime pay. If you are not paid by the hour, in order to calculate your overtime pay rate, you divide your total weekly salary by the number of hours you worked in the week, which gives you your regular hourly rate. Then you multiply the hourly rate by 1.5 and multiply that times the number of hours over 40 that you worked in that week, which gives you the total overtime pay you are owed for that week.
Lastly, the law requires home health care agencies to maintain accurate records of each employee’s daily and weekly hours worked per week, but many agencies do not do so. This makes it more difficult for employees to make a claim against their employer for unpaid wages. Therefore, it is important for each employee to keep their own records of the time they begin and end work each day in case the employee needs to make a claim for unpaid wages. The employee should also keep records of the total pay they receive each week, whether it is by check, cash or both.
It is a good idea to speak to a labor lawyer if you think you and your co-workers have not been paid properly.
Mitchell Schley is an attorney who practice labor law at the Law Offices of Mitchell Schley, LLC, in East Brunswick, New Jersey and New York City. He can be reached at 732-325-0318 or at www.schleylaw.com.
RIGHTS OF WORKERS IN THE CAR WASH INDUSTRY
Many Hispanic workers work at car washes, and are frequently mistreated by being improperly paid for their work. You do not need to be a citizen, a green card holder, or have immigration “papers” to get paid the legally required minimum wage and overtime pay for your work. You are entitled to be paid correctly regardless of your immigration status.
Minimum wage laws protect every employee, even if they receive tips as part of their wages. In New Jersey, employees, including those that work in car washes, are entitled to the full minimum wage of $12.00 per hour. In New York City, employees are entitled to the minimum wage of $15.00 per hour.
However, in New Jersey, but not in New York, employers are allowed to pay less than minimum wage to tipped car wash workers if those workers earn enough tips to make up the difference. This is called a “tip credit.” For example, if you are a car wash worker who works 40 hours per week and after earning tips, you only make $5.00 per hour, under New Jersey law, your employer is required to pay the difference of $7.00 per hour, that is, you are owed an additional $280.00 for the 40 hours you worked. Under federal law, your employer is required to pay you $2.13 per hour plus tips, but if this does not equal minimum wage, then your employer is required to pay you the difference. In New Jersey, your employer is required to pay you $4.13 per hour plus tips, but if this does not equal minimum wage, then your employer is required to pay you the difference. New York no longer has a tip credit in the car wash industry.
As a car wash worker, you are entitled to overtime pay if you work more than 40 hours per week. More than 70% of car wash workers work at least 60 hours per week, and 75% of those workers did not receive overtime pay, according to a study by WASH New York. For every hour you work over 40 hours in a week, your employer is required to pay you 1.5 times your regular hourly rate. For example, if you make $12.00 per hour and work 50 hours in a week, you are owed overtime pay for 10 hours that week. The overtime rate is calculated by multiplying your regular hourly rate of pay ($12.00 per hour) by 1.5, which equals $18.00 per hour. $18.00 per hour multiplied by the overtime hours you worked (10 hours), is $180.00. That means your employer will owe you an extra $180.00 for that workweek as overtime pay. Some employers give car wash workers a fixed salary no matter how many hours they work in week, but this can lead to violations of minimum wage and overtime laws.
Also, some employers require employees to perform additional work such as taking out garbage and cleaning floors, bathrooms and windows, without pay. For instance, some employers tell employees to “clock out” or “punch out” after their shift ends but still make them perform this type of cleaning work. Sometimes employers reduce pay of employees for breaks that are not taken. For example, the employer may say you have 30 minutes deducted from your paycheck for lunch each day, but keep you so busy you can only take five minutes for lunch. In that case, the employer must pay you for working through your lunch period. These things are illegal under New Jersey, New York and federal law. Your employer cannot require you to perform work without being compensated at least the minimum wage.
It is a good idea to speak to a labor lawyer if you think you and your co-workers have not been paid properly.
Mitchell Schley is an attorney who practice labor law at the Law Offices of Mitchell Schley, LLC, in East Brunswick, New Jersey and New York City. He can be reached at 732-325-0318 or at www.schleylaw.com.
The Rights of a Pregnant Employee
The following discussion concerns pregnancy discrimination which is illegal is every state.
Pregnancy discrimination occurs when a woman expecting a baby is fired, laid-off, not hired or otherwise denied employment benefits due to her pregnancy or intention to become pregnant. Common examples of pregnancy discrimination include not being hired because of a visible pregnancy, being let go after informing the employer of a pregnancy, being fired after a maternity leave, or receiving a pay reduction after a maternity leave. It is important to note that companies are required to provide the same amount of time-off and the same pay and benefits during a leave for pregnancy as it provides to employees for any other types of disability or medical condition. Any company health insurance plan must cover pregnancy in the same way that it covers other medical conditions.
Another type of pregnancy discrimination occurs when the company tells a pregnant woman that she cannot continue to work. A pregnant employee is entitled to work if she wishes to do so as long as she can perform her job. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, the company cannot require her to remain on leave until the baby’s birth. The company is also required to offer a pregnant woman a reasonable accommodation which she requests so that she can continue to work. For example, the company would be required to temporarily offer a pregnant employee a job assignment that requires less lifting.
Some employers discriminate against pregnant women because they are afraid the employee will need time off or the employer is concerned that after the employee returns from maternity leave, she will need time off occasionally to take care of the baby.
The Family and Medical Leave Act (FMLA) is a federal law that requires most employers to allow an employee to take a leave of absence of up to 12 weeks before or after a baby is born. An employee who takes this leave is entitled to the same job and pay when they return to work. The federal law does not require the company to pay the employee during this leave but a New Jersey law does provide for some pay during a leave for the birth or care of a baby. An employer is not permitted to retaliate against an employee who requests time-off under the FMLA. For example, an employer may not discharge, demote or reduce the pay of an employee who uses FMLA leave. Employees can use the up to 12 weeks of leave at any time during the duration of the pregnancy and for one year after the birth of the child. New Jersey law provides for additional leave rights.
Many people believe that the FMLA only permits female employees’ time off in connection with a pregnancy. This is not true. The father is entitled to take FMLA leave from work to care for a newborn baby, and a husband is entitled to FMLA leave if needed to care for his pregnant spouse for medical reasons before the birth or after the birth.
If you believe you may have been discriminated against because of your pregnancy or denied rights under the Family and Medical Leave Act, you may wish to speak to an employment lawyer for assistance.
Mitchell Schley is an attorney who practices employment law in his office in East Brunswick, New Jersey and in New York. Feel free to contact him if you have a question about this column or any other employment law issue. He can be reached at 732-325-0318 or at mschley@schleylaw.com. Also see his website at www.schleylaw.com.
The Rights of Hispanic Workers to Minimum Wage and Overtime Pay
The following discussion concerns the rights of workers to be paid minimum wage and overtime pay by an employer. Many workers today do not receive proper pay for their work. This is called wage theft, which is illegal. A lawyer can help you obtain the pay you are owed from your existing employer or previous employer. You are entitled to unpaid wages whether you are paid in cash or by check. You are also entitled to unpaid wages even if you are an undocumented alien.
The most frequently cheated workers are as follows: restaurant workers, including waiters, busboys, kitchen staff and delivery workers, construction laborers, landscape laborers, car wash workers, factory workers, warehouse workers and nail salon workers. Many Hispanic workers do not know what the law is concerning minimum wage and overtime, and employers take advantage of employees.
In New Jersey, a worker must be paid the minimum wage, which is $12.00 per hour. The law also requires that if an employee works more than 8 hours a day or more than 40 hours in a week, he or she must be paid at a wage rate at one and a half times their regular hourly wage rate for every hour worked over 40 hours in a week. For example, if a worker works 45 hours in a week and their regular hourly wage rate is $12.00 per hour, they must be paid $18.00 per hour for the extra five hours.
Some employers try to avoid paying minimum wage and overtime pay by paying you the same amount every day or every week, regardless of how many hours you work. Most employees who are paid in this way believe that they are not entitled to minimum wage or overtime pay if they work more than 40 hours in a week. This is not true.
Some employers also illegally steal workers’ tips. Employees must be paid their own tips. Managers may not take part of your tips to pay themselves or others, such as kitchen staff or delivery workers.
Mitchell Schley is an attorney who practices labor law at the Law Offices of Mitchell Schley, LLC, in East Brunswick and New York City. He can be reached at 732-325-0318 or at www.schleylaw.com.
RIGHTS OF WORKERS IN THE RESTAURANT INDUSTRY
Many Hispanic workers work in restaurants as servers, cooks, bartenders, busboys, or cleaners. However, at often times, workers in the restaurant industry are taken advantage of by being improperly paid for their work.
Minimum wage laws protect every employee, even if they receive tips as part of their wages. In New Jersey, employees, including those that work in restaurants, are entitled to the full minimum wage of $12.00 per hour. However, employers are allowed to pay less than minimum wage to tipped restaurant workers, but only if those workers earn enough tips to make up the difference. This is called a “tip credit.” For example, if you are a waiter who works 40 hours per week and after earning tips, you only make $5.00 per hour, under New Jersey law, your employer is required to pay the difference of $7.00 per hour, that is, you are owed an additional $280.00 for the 40 hours you worked. Under federal law, your employer is required to pay you $2.13 per hour plus tips, but if this does not equal minimum wage, then your employer is required to pay you the difference also. Many employees in restaurants are denied this basic minimum wage.
As a restaurant worker, you are also entitled to overtime pay if you work over 40 hours per week. For every hour you work over 40 hours in a week, your employer is required to pay you 1.5 times your regular hourly rate. For example, if you make $12.00 per hour and work 50 hours in a week, you are owed overtime pay for 10 hours that week. The overtime rate is calculated by multiplying your regular hourly rate of pay ($12.00 per hour) by 1.5, which equals $18.00 per hour. $18.00 per hour multiplied by the overtime hours you worked (10 hours), is $180.00. As such, your employer will owe you an extra $180.00 for that workweek as overtime pay. Some employers give restaurant workers a fixed salary no matter how many hours they work in week, but this can lead to violations of minimum wage and overtime laws.
Also, some employers require waiters and other restaurant employees to perform additional work such as taking out garbage, cleaning floors, tables, chairs, bars, windows, glassware, etc. without pay. For instance, some employers tell waiters or bartenders to “clock out” or “punch out” after their shift ends but still make them perform this type of cleaning work. This is illegal under New Jersey and federal law. Your employer cannot require you to perform such work without being compensated at least the minimum wage.
Lastly, a tipped employee is entitled to retain the tips he or she has earned. It is illegal for employers to take tips from an employee. However, New Jersey allows “tip pooling.” Employees who are required to share in a tip pool chip in a reasonable portion of their tips in the tip pool, which is then distributed equally among other tipped employees. The tip pool may not include supervisors, managers or cooks. Only employees that regularly receive tips are permitted to share in the tip pool.
It is a good idea to speak to a labor lawyer if you have concerns about any of these issues above.
Mitchell Schley is an attorney who practices labor law at the Law Offices of Mitchell Schley, LLC, in East Brunswick and New York City. He can be reached at 732-325-0318 or at www.schleylaw.com.
WORKPLACE RIGHTS IN THE CONSTRUCTION AND LANDSCAPING INDUSTRY
Many Hispanic workers in the United States work in the construction and landscaping industry and are improperly paid. In addition to the most-commonly known construction tasks, such as repair or renovation of commercial or residential structures and roadways, there are various other work activities that are considered part of the construction industry. For example, painting, landscaping, roofing, concrete work and installing floors are all considered construction work.
The federal Fair Labor Standards Act and the New Jersey Wage and Hour Law are laws that protect workers from being taking advantage of by requiring employers to pay its employees minimum wage and overtime pay for their work. These laws apply to workers in the construction and landscaping industry. In New Jersey, the minimum wage is $12.00 per hour. Therefore, you must be paid at least $12.00 per hour for 40 hours per week. For every hour worked over 40 in a week, you must be paid overtime pay of time-and-a-half, that is, at least $18.00 per hour. It is also illegal for your employer to pay you overtime only after 80 hours over a two week period because each workweek must be calculated individually.
It is common for employers in the construction and landscaping industry to try and pay you less than minimum wage or avoid overtime pay by paying you a daily or weekly rate regardless of how many hours you work. For instance, suppose you are to work 40 hours per week and you are paid only $300 for the week. If you divide $300 by 40 hours, you were only paid $7.50 per hour, which is below the New Jersey minimum wage rate of $12.00.
Sometimes an employer will ask an employee to agree not to receive overtime pay at time-and-a-half. This is illegal. The employer still must pay overtime pay. Also, employers are required to keep track of how many hours each employee works each day. If the employer does not keep track, then you should write down what time you started and ended work each day.
Landscape workers often load up work trucks and then drive to the first stop. Employers are required to pay for this time. Some employers don’t pay employees for a lunch break but then have the employee work through all or part of lunch. The employee must be paid for this time. Eating lunch while travelling to the next job site does not count as a lunch break and that travel time must be paid.
It is also important to know that you are entitled to minimum wage and overtime pay even if you are paid in cash and even if you are an undocumented immigrant. It is a good idea to contact a labor lawyer if you are unsure if you are being paid correctly or if you have questions about your pay.
Mitchell Schley is an attorney who practices labor law at the Law Offices of Mitchell Schley, LLC, in East Brunswick and New York City. He can be reached at 732-325-0318 or at www.schleylaw.com.