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Employment

1.         The One Rule Found in Every Employment Situation: The Employment-At-Will Doctrine

2.         Sometimes How You Say It Is More Important Than What You Say

3.         When Something Becomes Illegal Discrimination

4.         What is Harassment

5.         Retaliation: When An Employer Tries to Punish You

6.         Overtime

The One Rule Found in Every Employment Situation: The Employment-At-Will Doctrine

The Employment-At-Will Doctrine is a rule of law which has been around since before the American Revolution. In New York, it is the rule against which every other rule in the area of employment must be read. Everything else in employment law is really nothing more than an exception to this rule.  Nearly all of the significant exceptions to this rule are found in federal, state or local legislation.

In the law, exceptions are usually read narrowly. As a result, when trying to get out from under the Employment-At-Will Doctrine, you need to be pretty clear about how you fit into a recognized exception.

You can state the Employment-At-Will Doctrine in different ways. The most important way is that an employee can be fired at any time for any reason, even for no reason or for an erroneous or false reason, unless the reason violates an exception. Unless you fall into an exception, an employer does not have to have or give an employee a reason for firing the employee, and does not have to give the employee any advanced notice of termination.

The opposite of the Employment-At-Will Doctrine is the Covenant of Good Faith. California is the biggest Covenant state. In Covenant states, the law assumes that both employer and employee will act in good faith toward one another. That in part means that an employer will fire an employee only for cause, a technical term which nonetheless affords employees a level of protection from arbitrary firing.

In New York, the courts have generally said that employers have no obligation to act in good faith toward their employees. Think about what that means. It means that, technically, New York employers do not even have to be truthful or consistent with their employees. So, for example, an employer can legally say one thing in an employee manual, and then do something entirely different.

Another important implication of the Employment-At-Will Doctrine is that employers do not have to be fair or reasonable. They do not even have to be nice. Generally, if employees do not like the way they are being treated by an employer, their only option is to leave.

The Employment-At-Will Doctrine works both ways. As a result, employees do not have to give employers notice of their leaving. Employees can just walk out, for any reason, or even no reason at all. However, although there is nothing stopping an employee from walking out, there is also nothing requiring the employer to take back that employee.

These days, most employers give notice of termination, and will sometimes make a great effort, far more than required by law, to find and document a legitimate justification for terminating employees. The reason employers act this way in part is due to the exceptions to the Employment-At-Will Doctrine, but it also has to do with the economics of the job market. Employers do not want a reputation for arbitrarily firing employees. Why would an employee want to work for such an employer? Likewise, employees do not want a reputation for being unreliable. Who wants to hire an unreliable employee? If an employee or employer develops a bad reputation, that employee or employer will have problems in the marketplace, but not necessarily in the courtroom. Return to Top of Page.

Sometimes How You Say It Is More Important Than What You Say

Most employees these days know four powerful terms: discrimination, harassment, hostile work environment and retaliation. By using one or more of these terms, employees can often make their employers jump, but too often employees can lose important rights because they do not know what these words mean. Let me illustrate.

            Not long ago, an employee came to me looking for legal advise. She had brought a lawsuit against her former employer claiming discrimination, harassment and retaliation. She had been fired. When I reviewed her case, I quickly realized that she did not have any claim for discrimination, harassment or retaliation, but she had a very good Civil Service claim. By the time she got to me, too much time had elapsed for her to do anything about the Civil Service claim, and, by bringing and losing her lawsuit, she effectively foreclosed her later bringing up the Civil Service claim. She had simply used the wrong words to describe her claim to the court, and, as a result, she lost all of her rights.

Employees and employers often rely a dictionary or common usage definition of discrimination, harassment, hostile work environment and retaliation. But you need to understand that, under the dictionary or common usage meanings, discrimination, harassment, hostile work environment and retaliation are not illegal. Only certain forms of discrimination, harassment and retaliation are illegal, and a hostile work environment becomes illegal only under certain circumstances. Return to Top

When Something Becomes Illegal Discrimination

Whenever someone makes a choice between two things or two people, in a sense, there is discrimination. For example, two people are candidates for promotion. When one person gets the promotion, in a sense, one person has been discriminated for, and the other discriminated against. However, this alone does not mean there has been any illegal discrimination.

You get closer to understanding when discrimination is illegal if you define discrimination as being the act of disfavoring someone because of a personal characteristic. An example of this might involve a boss who refuses to hire anyone with curly hair. But refusing to hire someone because of curly hair, without more, still does not rise to the level of being illegal.

Disfavoring a person because of a personal characteristic becomes illegal if the personal characteristic is protected by legislation. Examples of legislation protecting personal characteristics include Title VII of the Civil Rights Act of 1964, a federal law, and the New York State Human Rights Law. Examples of personal characteristics protected by these two laws, as well as others, include race, religion, national origin, gender, age and disability.  

When a personal characteristic is protected, and an employee sues an employer for discrimination, what the employee needs to prove is that the employer took an adverse action against the employee because of a protected characteristic possessed by the employee. For example, an employee who is white will need to convince a jury that the employer fired him at least in part because he is white. The because part is very important because it connects the action to the protected characteristic.

Although sometimes this same information might be used as some evidence supporting a finding of  discrimination, generally, it is not enough to prove that an employee was fired, and the employee is, for example, white. Logicians would say that an argument relying exclusively on the fact of firing and the fact of the race of the employee suffers from the fallacy of distribution, that is, the act of firing the employee does not necessarily follow from the fact that the employee is white. To prove the case, the employee usually needs to add something more, and that is proof of the motivation of the employer.

Proving motivation is hard, because it essentially requires getting into head of someone else. Employers will rarely admit that their motivation for an action was something they likely know is illegal. As a result, more often than not, employees need to prove discriminatory motive through circumstantial evidence, that is, by things the employer said or did that suggest, in this example, discrimination on the basis of race but which do not directly prove that discriminatory motive. This requires a very close look at the details of a workplace situation. A lot of times in discrimination cases, little comments and little actions by the employer turn out to be important. The case is often in the smallest details.

In some cases involving employers with a lot of employees, employees might be able to prove discrimination based on the impact of a seemingly non-discriminatory policy on a group of people having a particular protected characteristic. The policy might not directly go to a protected characteristic, but statistics might show that this policy seems to have a particular effect on persons with certain protected characteristics. For example, blacks are more likely to have curly hair. A policy excluding people with curly hair might have a statistically greater effect on blacks than people belonging to other races. If the statistics show this, the curly hair policy might be illegal. The law does this because the law does not want to allow employers to use seemingly legal policies as a way of hiding illegal discrimination.

This statistical approach to proving discrimination has historically been important. For example, this approach has been used to prove that tests given for positions like police officer or fire fighter were discriminatory because the tests tended to eliminate women or blacks from consideration at significantly greater rates than the tests excluded men or whites. The statistical approach has forced police and fire departments to take a closer look at what it takes to be a police officer or fire fighter, and has forced these employers to develop more accurate methods for testing for required abilities. The statistical approach does not necessarily lower standards. It does force employers to be clearer about standards. When employers undertake this process of clarification in good faith, it usually leads to a better qualified workforce.

The term discrimination is easy to confuse, and even law-makers use the term in inconsistent ways. For example, it is illegal for employers to fire employees because employees have made workers compensation claims or claims on employer sponsored health insurance plans. When an employer takes an adverse action because an employee has asserted a right, that is really retaliation, but the laws which make firing an employee for making a workers compensation or health insurance claim illegal call that conduct discrimination. Return to Top

What is Harassment

Harassment is a form of discrimination. As a result, harassment is illegal only when the harasser undertakes the conduct because someone has a personal characteristic which is protected by a particular piece of legislation. Harassment is illegal only if undertaken because of such characteristics as race, religion, national origin, gender, etc., but, generally, harassment is not illegal. So, if an employee cannot connect the harassment to a protected characteristic, the harassment is legal.

Although the anti-discrimination laws are not designed to make people act nice towards one another, the term harassment generally refers to mistreatment. In other words, if the boss, or a group of co-workers is nasty to an employee, that might be harassment. Generally, one or two instances of nastiness are not enough to prove harassment. Employees usually have to prove a pattern which makes working pretty much difficult, if not intolerable.

Sexual harassment (or harassment based on gender) does not have to be about sex. There does not have to be proof of inappropriate touching, obscene comments, or requests for sex, although courts use proof of such behavior to show that the behavior is motivated by gender. Harassment can still be sexual harassment if the conduct is simply nasty, but not necessarily sexual, provided there are indications that connect the behavior to the gender of the victim.

Although seen less frequently, men can be victims of sexual harassment as much as women, and the harassment can still be illegal even though the behavior comes from someone of the same gender. That is, men can sexually harass men, and women can sexually harass women, as long as there is proof that the harassment is motivated by the gender of the person suffering the harassment. But do not confuse that with harassment of a homosexual by heterosexuals (or a heterosexual by homosexuals), which would more likely be harassment based on sexual preference. Harassment based on sexual preference is generally not illegal, except if made illegal by a state or local law. New York State has only recently amended the Human Rights Law to prohibit discrimination based on sexual preference.

There are two types of harassment: hostile work environment and quid pro quo.  Quid pro quo harassment involves situations where a boss, for example, asks an current or potential employee for sexual favors in exchange for some sort of benefit, such as a job, promotion, transfer or pay increase.  If a harassment situation does not fall into the quid pro quo category, the harassment would be considered to be hostile work environment harassment.  Return to Top of Page

Retaliation: When An Employer Tries to Punish You

Retaliation comes up in two types of situations. The first involves an employee asserting a right which is protected in a fairly specific way by legislation. For example, an employer cannot fire (or undertake another adverse action against) an employee because the employee filed a workers compensation claim. That is because the New York State Workers Compensation Law has a provision which says that such conduct is illegal (and, to add to the confusion, calls it discrimination).

Under most anti-discrimination laws, an employer cannot take an adverse action against an employee, such as firing the employee, because the employee made a complaint of discrimination. This is true even in situations where the employer in fact did not discriminate against the employee. As long as the employee has a good faith belief that discrimination has taken place, the making of a complaint, either to the employer or a government entity, is protected. There have been more than a few court cases where the employee lost the discrimination case, but won the retaliation case.  Some lawyers believe it is actually easier to prove a retaliation claim than a discrimination claim.

Not all rights are protected from retaliation. For example, your right to vote for the political candidate of your choice is protected by certain laws, but, if you work in the private sector, you could legally be fired if the boss thought you voted for the wrong candidate. On the other hand, if you worked for a government entity, your being fired under these circumstances would probably be illegal.

The other situation where retaliation comes up is where one employee decides to help another employee assert a right protected by law. For example, one employee makes a complaint of discrimination, and another employee testifies in support of the first employee. The employer may not take an adverse action against the second employee simply because that employee helped the first.

A closely related situation involves an employee saying something about potentially discriminatory practice. For example, a non-Hispanic employee believes a manager refuses to hire Hispanic applicants. The employee reports the belief to the human resources department, which starts an investigation. The manager cannot legally punish that employee for the report to human resources.

The reporting of discrimination sounds a lot like whistleblowing, and, in a sense, it is. But not all forms of whistleblowing are protected. In fact, in New York State, the laws protecting whistleblowing are very weak.

The term whistleblowing generally refers to the reporting of potentially improper conduct, often but not necessarily illegal conduct, to a higher authority. That authority can be a government entity, but could just as well include a higher level person with authority in a company, or another department within a company.

In New York, to be protected, whistleblowing generally needs to be about conduct threatening public safety. Otherwise, whistleblowing in New York is not protected conduct, unless you can fit the reporting into another law, such as the anti-discrimination or anti-retaliation laws.

Retaliatory conduct can take many forms, including termination, or demotion. It may even take the form of harassment. In most cases involving harassment, it can be nearly impossible to separate discriminatory harassment (the mistreatment motivated by a personal characteristic which caused an employee to complain) from retaliatory harassment (the mistreatment, usually increasing in severity, the employee gets after complaining). Return to Top

Overtime

The Fair Labor Standards Act (FSLA): (1) established a national minimum wage; (2) established a basic work week of 40 hours; and (3) began to require employers to pay employees time-and-one-half for work exceeding 40 hours in a week.

The FSLA creates two broad categories of employees, exempt and non-exempt. Non-exempts are entitled to overtime. Employees are non-exempt unless employers can show that particular employees are exempt. Nearly all non-exempt employees are covered by FSLA.

Exempt employees, who are not entitled to overtime, might include outside sales people, managers and professionals, including doctors and lawyers. However, even exempt employees become non-exempt if employers treat them like non-exempts. If an employer, for example, docks pay from an exempt employee because the employee arrived late or left early, or took some time off during the day, the employee could become eligible for overtime.

Employers sometimes try to illegally avoid paying overtime. Some will make hourly employees salaried employees, but, if the employee does the work of a non-exempt position, that employee will continue to be entitled to overtime. For example, an administrative assistant who continues largely to type, file and answer telephones is still a clerical employee entitled to overtime.

Some employers, looking to save on more than just overtime, will try to make employees independent contractors. An independent contractor is someone running an independent business. If the employer continues to treat a supposed independent contractor like an employee, there is a good chance that employee will continue to be entitled to overtime, as well as other benefits of employment. For example, if an employer makes a programmer an independent contractor, but requires the programmer to get to work at a certain time and stay until certain time, and dictates to the programmer what work should be done when, that programmer is really an employee, and might be entitled to overtime.

Employees can sue employers for usually two years, but sometimes as much as three years, of unpaid overtime. If successfully sued, employers almost automatically become liable for twice the unpaid overtime. If the employees can show a willful violation, the employer could become liable for three times the unpaid overtime. The employer could also become liable for the costs of the attorneys for the employees, as well as the costs incurred by the employees in recovering the unpaid overtime.

Usually, the person who sues another must prove the amount claimed to be owed. In a lawsuit involving overtime, this general rule would seem to require employees to prove the number of unpaid overtime hours. But, when employers fail to pay overtime, employers often fail to keep records, and employees rarely keep track of time. If there are no records, how do employees prove overtime?

The FLSA creates a special exception to the general rule concerning proof. Because employers have an obligation under FSLA to keep track of the hours of non-exempt employees, courts allow employees to estimate overtime hours. Unless the employer can come up with a better estimate based on records the employer should have kept the estimate the employees becomes the basis for calculating overtime. Return to Top of Page