Unfair hiring practices – jobs that are closed to people who “don’t fit”

It is unlawful to discriminate in hiring or interviewing policies.  The New York State Human Rights Law prohibits the “discriminatory practice” that involves an employer’s decision “to refuse to hire or employ or to bar … from employment.”  The New York City Human Rights Law is similar, and a commission that enforces it provides the following example: “An employer does not hire someone otherwise qualified because the applicant is pregnant and the employer assumes they will likely miss too much work after childbirth.”

Pregnancy and gender identity discrimination may be forms of prohibited sex and gender discrimination in New York.  The State and City prohibit “an employer or an employee or agent thereof, because of the actual or perceived . . . gender . . . of any person” from “discriminat[ing] against such person in compensation or in terms, conditions or privileges of employment.”

Labor Law section 239 requires that employers prohibit discrimination on the basis of race, sex, age, color, creed, or national origin.  It applies to service contracts and applies that a contractor, subcontractor, or any person acting on its behalf shall agree not to discriminate in hiring or in treatment, or intimidate, a qualified employee or potential employee on grounds of race, national origin, color, creed, age, sex or disability.  Being told that you “don’t fit” or are “not what we’re looking for” or “came to the wrong place” may be evidence, in the case of a qualified potential employee, of discriminatory hiring in violation of the Labor Law or Human Rights Law.

Timesheets or logs that don’t match time actually worked

Wage theft is a popular topic of news stories about Labor Law violations.  A recent analysis of public data by ProPublica determined that tens of thousands of New York workers may be victims of wage theft.  It occurs when off the clock work is required, tips are seized or distributed wrongly, overtime rules are ignored, or meal or rest breaks are denied.  Timesheets that mysteriously leave off the true hours worked, tip pools that do not accurately reflect what each tipped employee earned in tips, or reflect other violations can be evidence of wage theft.   

The role of wage orders.

The Commissioner of Labor has released a Minimum Wage Order for Miscellaneous Industries and Occupations.  This wage order clarifies a number of labor law violations, as other orders do for specific sectors like farm work or home health work.  For example, it is a violation to fail to pay a worker for split shifts, or shifts longer than 10 hours, with at least one hour of pay at the normal rate being due.  Also, employers should not deduct hours or sums from paychecks for such reasons as workers breaking equipment, spoiling food, being accused of missing cash in the register, or being late or violating employer rules.

Tip credits claimed against minimum wage of wrong workers

Tip credits may be used to make up the minimum wage of tipped employees.  However, some employees such as fast food workers are not subject to tip credit deductions from the cash minimum wage.  Also, tips must be properly documented and not improperly split or withheld.  As one court stated: “‘Under both the [federal minimum wage and overtime law] and the [NY Labor Law], the employer must show they complied with the tip credit requirements,’ and the laws ‘have slightly different requirements.’”

Denial of wages and benefits guaranteed by law or given to other workers

Some wages and benefits are available to every worker based on their role.  The most commonly discussed are the minimum wage, and the employer’s obligation to provide health insurance.  January 2024 saw New York workers win their “Fight for Fifteen” statewide, after New York City hit $15/hour for large employers in 2019, and Nassau and Suffolk counties hit $15 in Jan. 2022.  The minimum wage is intended to eliminate the fact that some workers do not enjoy a qualify of life that is needed for good health, productive work, and happiness.  However, it may not apply to certain noncommercial tasks, educational internships, course work or athletics in schools and colleges, child care or home care workers, independent contractors, and taxi drivers.  Sometimes, hours worked off the clock or that are not accurately reported on wage statements can be evidence of an employer’s intention not to pay the full minimum wage due.

Section 652 of the Labor Law contains minimum wages.  It states:

Every employer shall pay to each of its employees for each hour worked a wage of not less than:…

(a) New York City. (i) Large employers. Every employer of eleven or more employees shall pay to each of its employees for each hour worked in the city of New York a wage of not less than: …

$15.00 per hour on and after December 31, 2018, or, if greater, such other wage as may be established by federal law pursuant to 29 U.S.C. section 206 or its successors or such other wage as may be established in accordance with the provisions of this article….

(b) Remainder of downstate. Every employer shall pay to each of its employees for each hour worked in the counties of Nassau, Suffolk and Westchester a wage not less than: …

$14.00 per hour on and after December 31, 2020,

$15.00 per hour on and after December 31, 2021,

or, if greater, such other wage as may be established by federal law pursuant to 29 U.S.C. section 206 or its successors or such other wage as may be established in accordance with the provisions of this article.

(c) Remainder of state. Every employer shall pay to each of its employees for each hour worked outside of the city of New York and the counties of Nassau, Suffolk, and Westchester, a wage of not less than: …

$12.50 on and after December 31, 2020,

[increasing by about a dollar on Dec. 31, 2021 and again in Dec. 31, 2022, respectively.]

1-a. Annual minimum wage from January 1, 2024 to December 31, 2026.

(a) New York city. Notwithstanding subdivision one of this section, every employer regardless of size shall pay to each of its employees for each hour worked in the city of New York a wage of not less than:

$16.00 on and after January 1, 2024,

(b) Remainder of downstate. Notwithstanding subdivision one of this section, every employer shall pay to each of its employees for each hour worked in the counties of Nassau, Suffolk, and Westchester, a wage of not less than:

$16.00 on and after January 1, 2024, …

(c) Remainder of state. Notwithstanding subdivision one of this section, every employer shall pay to each of its employees for each hour worked outside the city of New York and the counties of Nassau, Suffolk, and Westchester, a wage of not less than:

$15.00 on and after January 1, 2024, ….

In addition, section 160 of the Labor Law provides that an employee shall receive compensation for overtime at a wage rate of one and one-half times the employee’s regular rate.  New York law parallels many exemptions from overtime provided by federal law, the Fair Labor Standards Act.  An ordinary work day is eight hours, with hours more than that potentially being overtime. 

Labor Law section 191(1)(a) requires manual laborers to receive pay weekly, rather than biweekly.  In addition, section 198-c requires “clerical and other workers” – perhaps other than executives, professionals, or administrative staff – to receive pay at least semi-monthly.  Section 193 and 195 require essential disclosures to an employee of wage terms, conditions, deductions, and substantial changes in terms, conditions or deductions relating to pay.

Important benefits other than pay include health insurance, pensions and 401(k)’s, and worker’s compensation.  The Affordable Care Act or Obamacare famously included an employer mandate and an individual mandate, which was challenged under the U.S. Constitution but upheld as a tax before being eliminated in the Trump administration.  The employer mandate took effect in 2014 with an original exclusion of small employers of less than 50 full-time employees.  It was expected that the mandates and subsidies of Obamacare would increase the number of Americans with health insurance by 34 million.  Employees who lose their job also frequently have the right to continue their health care coverage by paying the premiums themselves, and while the federal law has an exemption for small employers, New York law limits the exemption.

The Worker’s Compensation Law has its own Chapter in New York’s Consolidated Laws.  It generally guarantees workers injured on the job a level of post-injury pay of between $150 per week and $1,125.46 per week, as a percentage of average weekly wage before a work-related injury, as an alternative to certain negligence and other tort claims by employees against employers.  It is a form of disability insurance whose premiums are owed by the employer, intended for the benefit of the injured employee.

Pensions and retirement fund contributions are very important, especially as the workforce ages with time.  Labor Law section 198-c makes it a violation for an employer to fail to provide benefits or wage supplements more than 30 days after they should be provided, but there is an exemption for certain professional, administrative, or executive positions that earn at least $900 per week ($1,400 starting on Mar. 13, 2024).  Federal law regulates the wrongful denial of benefits, and mismanagement of benefits plans, but victims of such conduct may be able to file suit in either state or federal court in New York without going to Washington, DC or their employer’s state of incorporation (or its headquarters).  A mass layoff targeting workers who are approaching retirement age is a recognized source of liability under federal pensions law.  As the U.S. Department of Labor explains, “If several plan participants are terminated, all of whom are at an age nearing full vesting, while younger persons, less experienced and less productive, are kept on the payroll, discrimination to prevent attainment of a benefit right may be indicated.”

Sick leave and family leave are another vital benefit.  Workers often need to care for their own health, particularly in this post-COVID era.  Many of them also have children, spouses, significant others, parents, or even siblings in need of assistance for medical or other reasons.  Labor Law section 196-b requires employers to allow employees who work for an individual or company with 100 or more employees to take around 56 hours of sick leave per year, accrued at around one hour or more per 30 hours worked, although smaller employers must provide 40 hours or arguably less.  These employee counts are nationwide. 

Vacation time does not have to be paid, but if an employer offers this benefit, and does not pay it, even in cases of accrued time earned by workers who are being terminated, this may be a violation.  The New York Department of Labor warns that without a written policy regarding forfeiture of vacation time, it should be paid to employees who are fired, or who resign.

Workplace safety is an obligation that benefits not only the employee but the public and often customers as well.  While federal law regulates many aspects of workplace and job safety, Labor Law sections 240 and 241 provide certain protections for building construction, repair, and demolition workers.  As with certain pension violations, workers may sue in court to obtain the correction of some workplace safety violations involving standards from the federal government. 

Prevailing wage laws protect “mechanics and laborers” – people who work with machines or their hands – pay that is typically earned for similar projects in the general area.  Labor Law section 231 governs prevailing wage requirements in building and infrastructure contracts  As the Appellate Division has made clear: “”In situations where the Labor Law requires the inclusion of a provision for payment of the prevailing wage in a labor contract between a [state or city] agency and a contractor, a contractual obligation is created in favor of the contractor’s employees, and an employee … possesses a common-law cause of action against the contractor to recover damages for breach of such a contractual obligation.”

The ability to take sufficient breaks during periods of lactation is guaranteed by the Labor Law.  Unless it would be an unreasonably long break from the point of view of the employer, New York Labor Law section 206-c requires lactation accommodations.  Under New York City law, there is no numerical restriction on the number of individual lactation breaks.

Other benefits and conditions of work violations involve treating workers differently with a prohibited effect or state of mind.  The Human Rights Law makes it an unlawful discriminatory practice for a supervisor, company, or agency “to discriminate against an individual in compensation or in terms of conditions or privileges of employment” on prohibited grounds such as race, age, sex, and the like.

Even a policy that seems to neutrally apply to all employees can be unlawful discrimination if it is experienced by more harshly by members of a protected group.  For example, the New York City Human Rights Commission gives the example of limiting break periods to 15 minutes: what may be reasonable for employees who are not pregnant may not be reasonable for pregnant workers.  An employer may commit “disparate impact discrimination if it fails to plead and prove that … an alternative policy or practice with less disparate impact is available to the covered entity and the covered entity fails to prove that such alternative policy or practice would not serve the covered entity as well” in achieving the business or agency goals of the employer.

Losing a job or getting laid off or furloughed

New York law also protects against discriminatory “discharges” from employment.  Terminations or layoffs should not be decided with discriminatory intent, or according to rules that seem neutral in theory but have an adverse impact on certain groups that could be avoided by better rules that protected an employer’s business or agency goals with a less destructive impact.  Reductions in force, furloughs, or layoffs may violate labor and employment law if discrimination is a reasonable inference from the way they are carried out, or if they were not intended to be discriminatory but involve rules or formulas that fall more heavily on women, racial or ethnic minorities, persons born in other countries, persons over age 40, etc.  In addition, it is a basic principle of New York law that a person should not be able to gain an unjust benefit from another person by misleading them about the situation, and that in every employment agreement there is an implied obligation by both employer and employee not to prevent the other party from carrying out the agreement and enjoying its benefits – in a “fundamental” way.

Retaliation for speaking out against discrimination or unlawful activity

Labor Law section 215 deals with banned acts of retaliation.  Retaliation may happen after the exercise of rights relating to wages, benefits, unemployment contributions, and similar topics.  As it states:

(a) No employer or his or her agent, or the officer or agent of any corporation, partnership, or limited liability company, or any other person, shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee (i) because such employee has made a complaint to his or her employer, or to the commissioner or his or her authorized representative, or to the attorney general or any other person, that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of this chapter, or any order issued by the commissioner (ii) because such employer or person believes that such employee has made a complaint to his or her employer, or to the commissioner or his or her authorized representative, or to the attorney general, or to any other person that the employer has violated any provision of this chapter, or any order issued by the commissioner (iii) because such employee has caused to be instituted or is about to institute a proceeding under or related to this chapter, or (iv) because such employee has provided information to the commissioner or his or her authorized representative or the attorney general, or (v) because such employee has testified or is about to testify in an investigation or proceeding under this chapter, or (vi) because such employee has otherwise exercised rights protected under this chapter, or (vii) because the employer has received an adverse determination from the commissioner involving the employee, or (viii) because such employee has used any legally protected absence pursuant to federal, local, or state law.

As used in this section, to threaten, penalize, or in any other manner discriminate or retaliate against any employee includes; threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member, as defined in subdivision two of section four hundred fifty-nine-a of the social services law, to a federal, state or local agency; or assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.

(b) … The commissioner may also order all appropriate relief including … ordering rehiring or reinstatement of the employee to his or her former position or an equivalent position, and an award of lost compensation or an award of front pay in lieu of reinstatement and an award of lost compensation. Liquidated damages shall be calculated as an amount not more than twenty thousand dollars.

In addition, wrongful termination often involves whistleblowers.  Whistleblowers – or workers who warn government agencies or certain other recipients of unlawful employer activity – are protected against termination, reduction in hours or benefits, transfers to less favorable positions or locations, or exclusion from promotions.  Labor Law section 740 regulates retaliation by an employer against a worker who warns against “a substantial and specific danger to public health or safety.”  Federal law governs other types of retaliation. 

Next steps

If you believe that Labor Law or other violations of the law have taken place in your workplace, you may benefit from consulting an attorney. It is important to know your rights when it comes to wage theft, pay and benefits discrimination, and retaliation for speaking out.  A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.