NEW YORK and NEW JERSEY EMPLOYMENT ATTORNEYS ANSWERING YOUR SEXUAL HARASSMENT QUESTIONS / EMPLOYMENT DISCRIMINATION QUESTIONS

The attorneys at the Akin Law Group, serving New Jersey, New York, New York City, Manhattan, Brooklyn, Bronx, Queens, Staten Island and the surrounding boroughs including, Westchester and Long Island (Nassau and Suffolk), have extensive experience representing victims of sexual harassment, hostile work environment, employment discrimination in the workplace in addition to wage and hour violations (minimum wage, overtime and prevailing wage).

The employment attorneys at the Akin Law Group will answer your questions regarding issues you are having at work and/or with your employer.  The following are some frequently asked questions and answers about employment issues, sexual harassment, hostile work environment, discrimination at work, the EEOC, FMLA and wrongful termination / retaliation at work claims in general.   For your specific issue, please feel free to reach out to one of our employment attorneys for a confidential and free consultation by calling the Akin Law Group at (212) 825-1400.

Sexual harassment

Employment Discrimination

Wage and Hour Violations (FLSA)

General questions

Contact the attorneys you want on your side

If you are subjected to sexual harassment or a hostile environment at your workplace, call the Akin Law Group at (212) 825-1400 or contact the firm online for a free consultation. There is no attorney fee unless the firm recovers for you.


Questions about Sexual Harassment at work

What is sexual harassment?

Sexual harassment in New York and Sexual harassment in New Jersey is defined as any unwelcome sexual advances, requests for sexual favors, or other offensive verbal or physical conduct of a sexual nature. Sexual harassment at work can consist of vulgar language, curses, jokes of a sexual nature, sexual innuendos as well demands for sex, demands for dating in addition to actual touching or staring.

Although some acts constituting sexual harassment at work is obvious, like a man touching a woman’s breasts, a manager (man or woman) telling a subordinate employee he/she will only get that promotion if he/she agrees to have sex with the manager, or a manager demanding that a female employee “show some skin”, there are other indirect forms of sexual harassment as well. Some examples of indirect sexual harassment include a woman being called a bitch, a homosexual male being called a fairy or a lesbian being called a butch or a dyke. These terms are highly offensive and often used to create a sexually charged atmosphere.

Sexual harassment can be carried out by supervisors, bosses, coworkers, temporary workers, independent contractors, and clients just visiting a place of employment, and it includes verbal comments, unwanted behavior, touching, and more.

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Is an employer responsible for workplace harassment by a non-employee?

Employers may be responsible for sexual harassment by a non-employee such as independent contractors and even clients of the business if the employer or supervisor knew or should have known of the harassment and yet, failed to take immediate and appropriate action to protect the employee.  A manager constantly putting a female bookkeeper in a room with a client that is a sexual predator constantly touching or rubbing against the female bookkeeper will be liable for the acts of such a client.

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How bad must a hostile work environment get before I should complain?

Employees should notify the human resources department and/or a manager at the first instance that they feel they are being sexually harassed.  Although the Federal and State law requires the conduct to be severe and pervasive, even a single act maybe sufficient depending on the facts.  New York City and New Jersey provides additional protection and a lower threshold for words or acts to be deemed “Sexual Harassment”.

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 What constitutes sexual harassment?

As stated above, sexual harassment consists of any words, acts or conduct of a sexual nature that is unwelcome in the workplace.  These unwelcome words, acts and conduct are separated into two distinctive categories although they are both in violation of the law. The are two categories of of sexual harassment are classified as Quid Pro Quo and Hostile Work Environment. Although they are both significantly different, each type of sexual harassment occurring in the workplace is illegal. 

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  What is a hostile work environment claim?

From a sexual harassment standpoint, a hostile work environment claim resulting from any acts, words or conduct of a sexual nature that is unwelcome and otherwise offensive to such a degree that it prevents you from conducting your regular affairs at work. By way of an example, a man constantly staring at a co-worker (not necessarily at her breast or buttocks) may cause such reprehension preventing her from comfortably moving around the office and conducting her affairs; these unwelcome stares clearly cause a hostile work environment contaminating the work atmosphere with an unwanted sexual overtone.

Although some acts constituting sexual harassment at work is obvious, like a man touching a woman’s breasts, a manager (man or woman) telling a subordinate employee he/she will only get that promotion if he/she agrees to have sex with the manager, or a manager demanding that a female employee “show some skin”, there are other indirect forms of sexual harassment as well. Some examples of indirect sexual harassment include a woman being called a bitch, a homosexual male being called a fairy or a lesbian being called a butch or a dyke. These terms are highly offensive and often used to create a sexually charged atmosphere.

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  What is quid pro quo sexual harassment?

From a sexual harassment standpoint, a hostile work environment. Quid pro quo is a term in Latin which means you do something to get something in return. Quid pro quo sexual harassment usually occurs with a business owner, manager or supervisor making sexual demands upon a subordinate employee with the promise that the employee will obtain some benefit with his/her employment if he/she is willing to do a sexual act as demanded.  Even when an employee has agreed to or has in fact performed a sexual act as demanded he/she will still have a viable cause of action against the sexual predator; the employee’s past willingness to perform the sexual act because of the pressure and demand placed on her does not excuse the employer from demanding such a sexual act in the first instance. Although it is natural for a person that has been subjected to quid pro quo sexual harassment to feel embarrassed, she is  still protected by law and should contact a sexual harassment lawyer immediately.

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Is an employer liable for sexual harassment at work?

The employer is always liable when the sexual harassment is instigated by a supervisors, managers or the owner of the business. When the sexual harassment is from a subordinate or a co-worker, the employer will still be liable unless the employer can prove that he or she exercised reasonable care to prevent and promptly correct the harassing behavior, had the policy and procedure in effect to prevent sexual harassment, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities the employer provided.

When coworkers, customers or independent contractors prompted the sexual harassment, the employer is liable if it is negligent in addressing the problem. If the employer knew or reasonably should have known of the harassment and failed to take prompt and effective remedial action to end the harassment, the employer may be liable.

Remedial action usually requires prompt investigation and immediate corrective action while shielding the employee from the harasser. The employer’s action should be in proportion to the severity of the offense and must not be designed in any manner to retaliate against the employee for making the complaint.

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Questions about Employment Discrimination

What are the protected characteristic in Employment Discrimination matters?

An employer can’t make decisions (i.e. can’t discriminate against you) based on protected characteristic. Protected characteristics include:

  • Age (40 and older)
  • Race / Color
  • National origin
  • Gender / Sex
  • Religion
  • Disability
  • Pregnancy
  • Sexual orientation

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 Can my employer discriminate against me for my religious beliefs?

Employees are protected in the workplace from discrimination due to sincerely held religious beliefs.  In the event an employer is discriminating against an employee because of the employee’s sincere religious belief or discriminating because the employee does not agree with the employer’s religious views (the employee is an atheist or from a different religion), the discriminating must be immediately brought to the attention of Human Resources and/or management.

The employee facing discrimination may be entitled to a monetary award for the emotional suffering in addition to injunctive relief ending the religious discrimination, re-hiring of the employee if the employee was terminated in addition to attorneys fees, costs and expenses.

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 Does my employer have to accommodate me for my religious beliefs?

Employees are entitled to reasonable and necessary accommodations for the sincere religious beliefs that they hold, but there are exceptions. Courts use a two-step process to evaluate a claim of religious accommodation: An employee bears the initial burden of demonstrating what is called a “prima facie” case. The employee meets that burden by demonstrating that he or she:

  • Holds a sincere and genuine religious belief that requires certain accommodation
  • Has informed the employer of the issues and/or conflict at work regarding the request
  • Was discharged or otherwise faced discrimination by way of the request being denied

Once the employee establishes a prima facie case, the burden shifts to the employer to show that it cannot reasonably accommodate the employee without undue hardship in the conduct of its business. The reasonableness of an accommodation is determined on a case-by-case basis and must be addressed with an employment discrimination attorney.

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What must I prove in an employment discrimination case?

A Employee that faced discrimination at work must show that:

  • He/she was qualified and/or did in fact perform in an acceptable manner at work
  • He/she was discharged, not hired, or unfairly treated at work
  • The unfair treatment occurred because of a protected characteristic, such as age (over 40), gender, minority, disability, and so forth.
  • He/she was replaced by or treated differently from someone else
  • The employer’s proffered reason for discharging the employee or treating him/her differently was false and merely a pretext for the real discriminatory reason

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 In addition to hiring, what else is regulated by employment discrimination laws?

Laws regulate all aspects of work, including hiring, firing, promotions, job duties, wages, benefits, and reviews. Generally speaking, the employment laws do not require an employer to provide specific benefits, institute job review procedures, or draw up job descriptions. The employer is allowed to establish its own policies, as long as they are applied to all employees in a nondiscriminatory manner and as long as the policies do not discriminate against anyone because of a protected characteristic.

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 Are pregnant woman protected against employment discrimination?

Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The Pregnancy Discrimination Act, which is a federal statute, forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.  In addition to discrimination, it is also unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Furthermore, pregnant employees have additional rights under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor.

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 Can an employer discriminate against me because of my gender / sex?

Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person’s sex. Unless absolutely necessary (employer seeking an attendant for a woman’s bathroom may eliminate men applying for the job), gender cannot be taken into consideration in employment matters. It is of no significance that the person discriminating is of the same gender (male on male and female on female discrimination is also illegal).

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 Can an employer discriminate against me because of my race / color?

Employment discrimination based on race involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because he/she possesses personal characteristics associated with such a race (such as hair texture, skin color, or certain facial features). Employment discrimination based on color involves treating someone unfavorably because of skin color complexion; an example could be an African-American of a lighter complexion discriminating against another African-American who is of a darker complexion.

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 Can an employer discriminate against me because of my disability?

Disability discrimination at work involves an employer treating a qualified individual with a disability (an employee or an applicant) unfavorably because he/she has an actual or perceived disability. In addition, employers are precluded from treating an applicant or employee less favorably because he/she has a history of a disability (such as cancer, back injury etc., that is controlled) or because he/she is believed to have a physical or mental impairment that is either minor or not transitory (lasting six months or less). Employment discrimination laws requires the employer to provide reasonable accommodation for an employee or applicant with a disability, unless doing so would cause “undue hardship” (significant difficulty or expense).  Lastly, employment discrimination laws also protects people from discrimination based on their relationship with a person that has a disability. For example, it is illegal to discriminate against a woman because her husband has cancer.

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 Can an employer retaliate against me for filing an employment discrimination complaint?

Title VII of the Civil Rights Act, New York Executive Law, New York City Human Rights Law and the New Jersey Laws Against Discrimination all prohibit and severely sanction employers that retaliate against an employee for filing an employment discrimination complaint or a sexual harassment complaint. In addition to those actually filing the complaint, participant in an employment discrimination or sexual harassment at work matter, as a witness or otherwise, are protected from any type of retaliation by the employer.

Wage and Hour Violations

What is the minimum wage in New York?

This is a rather complex question to answer. Starting in 2017 New York State passed laws where the minimum wage varies depending on your location (NYC vs. upstate for example), the industry you are in and the size of the business. In New York City for example, the minimum wage in general is currently $10.50 per hour which is expected to increase to $12.00 as of January 1, 2018 for a small business. If the same business has 11 or more employees then the minimum wage is $11.00 per hour expected to increase to $13.00 as of January 1, 2018. In Downstate New York (Westchester, Nassau and Suffolk) the minimum wage is currently $10.00 per hour which is set to increase to $11.00 per hour as of January 1, 2018.

For more information on the minimum wage, please visit Minimum-Wage page under Practice-Areas on the home page or contact one of the wage and hour attorneys at the Akin Law Group at 212.825.1400.

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What is the minimum wage in New Jersey?

Effective January 1, 2017, the minimum wage in New Jersey is $8.44 per hour. This is significantly higher than the Federal minimum wage which is still remains at $7.25 per hour. As such, any employer conducting business in the state of New Jersey will be governed by the higher state minimum law standard.

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What is the Fair Labor Standards Act (FLSA)?

The Federal Fair Labor Standards Act is a statute enacted in 1938 (29 U.S. Code § 206 – 2016) which is similar to the New York Labor Law and the New Jersey Wage and Hour Laws which state that  “[e]very employer shall pay to each of his employees” a Minimum Wage established by law. Any employer that pays less than the minimum wage will be liable to the employee for the wage that was withheld and an amount equal to the underpayment as liquidated damages, in addition to interest and attorneys fees.  the FLSA was enacted to allow unskilled workers to earn a higher wage to increase their standard of living. However, since both New York and New Jersey minimum wage statutes command a higher salary, employers in New York and New Jersey are bound to pay a rate even higher than that mandated by the FLSA.

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Am I supposed to get overtime?

The answer to this question is not so simple. Both State and Federal wage laws require employees working in excess of 40 hour in a given week to be paid overtime which is a rate equal to one-and-one-half the regular hourly rate. In New York for example, someone that earns $10.50 per hour in regular wages would be entitled to $15.75 per hour in overtime wages for working in excess of 40 hours per week. However, not everyone is entitled to overtime; there are exceptions. The Minimum Wage laws exempt employees who work in a bona fide executive capacity or professional capacity from the overtime pay.  To see if your specific circumstances merit overtime pay, you should consult with one of the wage and hour attorneys at the Akin Law Group.

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What is the Prevailing Wage Rate in New York?

Before this question can be answered, we have to understand the concept of a “Prevailing Wage.”  Workers, Laborers and Mechanics employed on a public work project must receive not less than the prevailing rate of wage and benefits for the classification of work performed by each upon such public work. Pursuant to Labor Law §220 the New York State Department of Labor (and in New York City, the Comptroller) promulgates this schedule solely for Workers, Laborers and Mechanics engaged by private contractors on New York public work contracts.  The prevailing rate of wages are determined on July 1 of each year and are effective until June 30th of the following year.  Depending on your time/term of employment, you must check the applicable Prevailing Wage rate schedule.

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What is the Prevailing Wage Rate in New Jersey?

In New Jersey, the Prevailing Wage Rate Determinations list the wage and fringe benefit rates based on collective bargaining agreements established for a particular craft or trade on the locality in which the public work is performed. The rates vary by county and statewide and by the type of work performed. The official Prevailing Wage Determinations are set by the New Jersey Department of Labor and Workforce Development, Division of Wage and Hour Compliance, Public Contracts Section, for specific projects by request of the contracting Public Entity. These Prevailing Wages are job and location specific and as such, must be viewed for each claimant separately.

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Who is supposed to be paid the Prevailing Wage?

Regardless of whether you work in New York or New Jersey, and regardless of whether you are in a union or not, you are supposed to be paid the Prevailing Wage depending on your  trade or occupancy as a contractor if you are employed on “public works projects” performing construction, repair or maintenance work on City or State owned projects.  Both, contractors and sub-contractors must pay the prevailing rate of wage and is applicable for laborers, workers and mechanics.   Employees are not permitted to work more than 8 hours per day or five days per week except in case of an “extraordinary emergency.” Rest periods of 20 minutes or less are considered time worked and cannot be deducted from an employee’s time card.

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Are Prevailing Wage employees entitled to overtime?

Employees must be paid overtime in the event they work in excess of 8 hours in a given day, or 40 hours in a week. Employees that work in excess of 8 hours must be paid overtime even if they do not work in excess of 40 hours (differentiated from minimum wage / overtime laws). Overtime rates are no less than one and one-half times the basic hourly rate, which is separately listed in the Prevailing Wage schedule.

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Are Prevailing Wage employees entitled to holiday pay?

Overtime holiday pay is a premium pay that is required for work performed by Prevailing Wage employees on specified holidays and only required where the employee actually performs work on such holidays. These holidays are listed under the “Overtime Pay” section listing for each classification. Legal holidays that fall on weekends are observed on either Friday or Monday. All work performed on either day shall be at the double time rate (not the overtime rate of one and one-half ).

The following a list of legal holidays listed under “Holiday Codes” in the Prevailing Wage Schedule:

  • Labor Day
  • Memorial Day
  • July 4th
  • New Year’s
  • Thanksgiving
  • Christmas
  • Lincoln’s Birthday
  • Washington’s Birthday
  • Veterans Day
  • Good Friday
  • Election Day
  • Presidential Election Day
  • ½ day on Presidential Election Day
  • Day after Thanksgiving
  • ½ day before Thanksgiving
  • ½ day before New Years
  • Martin Luther King, Jr. Day
  • Memorial Day

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 Can my employer pay me in cash / off the books?

It is illegal for employers to pay workers/employees “off the books” or “under the table.”  Although this may initially look appealing to an employee, the real benefit is to the employer and the real harm is to the employee. While the employer avoids paying payroll taxes, the employee loses unemployment benefits, loses social security credits, may be denied worker’s compensation benefits in the event of an injury and often will have detrimental affects to the employees credit rating when the employee is unable to prove wages. Often, employers that violate the labor laws by paying employees off the books also violate other laws by denying these employees other benefits such as overtime pay and sick-leave. Most employers that violate the law in this regard also fail to provide the employees with pay notice violations and wage statement violations, each of which has a penalty that is capped at $5,000 per employee.

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 Does my employer have to give me vacation pay and sick pay?

In New York City employers are required to provide each employee that works in excess of 80 hours per calendar year with up to 40 hours of sick leave.  The sick leaves must accrue at a rate of at least one hour of sick time for every 30 hours worked up to a maximum of 40 hours. For business with 5 or more employees the sick leave must be with pay. For employers with 4 or fewer employees, the sick leave must be granted, but it need not be paid.  Furthermore, an employer cannot require the employee to provide medical documentation unless the employee is out for more than three consecutive workdays, which the employee has 7 days to provide.

Although employers are not obligated to provide vacation pay, if employers do promise vacation pay to employees, it must be provided as agreed. It is important to note however, employers are not required to pay earned vacation upon separation if they have language in their policies notifying employees that  earned vacation pay is Employers are not required to pay earned vacation upon separation if they have language in their policies notifying employees they earned vacation pay is forfeited upon termination or resignation from employment.

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  What is the New York State Paid Family Leave Program?

Starting January 1, 2018, the New York State Paid Family Leave Program will provide New Yorkers job-protected, paid leave to bond with a new child, care for a loved one with a serious health condition or to help relieve family pressures when someone is called to active military service.  Employees are also guaranteed to be able to return to their job and continue their health insurance.

Pursuant to the Paid Family Leave Program employees may take the maximum benefit length in any given 52-week period. The maximum benefit is eight weeks during the first year, 10 weeks during the second and third years, and 12 weeks the fourth and subsequent years.

Virtually every full-time and part-time private employee in New York State will be eligible for Paid Family Leave. Participation in the program is not optional for employees. Employees with a regular schedule of 20 or more hours per week are eligible after 26 weeks of employment. Employees with a regular schedule of less than 20 hours per week are eligible after 175 days worked.

General questions

Can my case be settled without litigation/without a trial?

Yes. We may be able to negotiate your case or settle it through mediation. As experienced New York sexual harassment and discrimination attorneys, the Akin Law Group always explores the possibility of mediation while preparing for litigation.

Although most workplaces have grievance policies in place to deal with sexual harassment issues, often, these policies do not prevent a person from sexually harassing another.

If you have been the victim of sexual harassment, you should seek the advice of the experienced sexual harassment attorneys at the Akin Law Group, PLLC. They can advise you about your options for recourse, including:

  • Mediation (for a settlement before litigation) or
  • Initiating a sexual harassment lawsuit

The Akin Law Group, PLLC strives to achieve the best possible resolution for each client’s case. Working diligently to bring about fair settlement awards for clients or to litigate for a just verdict; the firm’s attorneys are highly experienced in employment law and have in-depth knowledge of federal, state and New York City local laws. We build a strong case for each client, highlighting the essential facts while maintaining a personalized and discreet approach.

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