New York Employment Lawyer Blog

The New York Wage Theft Prevention Act (the "Act"), effective April 2011, amended the New York Labor Law ("NYLL") and increased the liquidated damages penalty for failure to pay wages from 25% of the wages found to be due, to 100% of the wages found to be due.

In Ji v. Belle World Beauty, Inc. (Aug. 24, 2011), nail technicians at a beauty salon sued their employer, alleging that the salon paid them a fixed amount per day regardless of the amount of time worked, refused to permit them to take breaks, and failed to properly compensate them for working overtime. After complaining to management, the salon terminated the Plaintiffs' employment. Although the Plaintiffs were terminated in 2007, they argued that the Act should be applied retroactively, and they should be entitled to recover a 100% liquidated damages award.

The New York Supreme Court (New York's trial court) agreed, holding that: a) the Act was a remedial statute; b) the Act did not impair any vested rights of the employer; and c) the Act did not create any new rights of recovery for the Plaintiffs. Therefore, the Court permitted the Plaintiffs to seek a 100% liquidated damages award for wages that their employer failed to pay before the Act took effect.

However, a few months earlier, in Wicaksono v. XYZ 48 Corp. (May 2, 2011), the Southern District of New York (New York federal court) held that the Act was not retroactive and, therefore, the liquidated damage provision applied only as it existed at the time of the employer's wage violations. In this case, four waiters sued their former employer for wage and hour violations under both the federal Fair Labor Standards Act ("FLSA") and the NYLL. Regarding the Plaintiffs' state law claim, the court held that the enhanced liquidated damages provision of the Act should not be applied retroactively, reasoning that "retroactive operation is not favored by [New York] courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it."

Due to this split between New York state and federal courts in the interpretation of the retroactive effect of the Act, employees alleging violations going back more than three years should consider filing their claims in state court where they can recover 100% liquidated damages going back six years, even where those claims accrued before April 2011.

If you believe that your employer is in violation of the FLSA and/or the NYLL by not properly compensating you, it's important to speak with a New York Wage and Hour attorney to accurately assess and determine all of your legal rights.

On April 29, 2011, in Cortes v. Foot Locker, Inc.pdf, the Southern District of New York denied, for the second time, Plaintiffs' motion for class certification of their New York State Labor Law ("NYSLL") claims pursuant to Rule 23 of the Federal Rule of Civil Procedure ("Rule 23").

In this case, Plaintiffs sued their employer alleging that the store managers continually altered their time sheets to decrease hours and thus meet corporate quotas. In January 2010, the Court conditionally certified the case as an opt-in collective action under the Fair Labor Standards Act ("FLSA"), but denied Plaintiffs' motion to certify their NYSLL claims as an opt-out class, pursuant to Rule 23.

While Rule 23 does not govern FLSA collective actions, it does govern NYSLL class action claims brought in federal court. The primary difference between a Rule 23 class action and an FLSA collective action is the manner in which a class is formed. In order to participate in an FLSA collective action, an employee who is not a named plaintiff must "opt-in" or affirmatively consent to litigation of his or her claims in the named lawsuit. A Rule 23 class action does not require consent of class members. Instead, all members of the class are included as parties to the action unless they "opt- out." To opt-out, a class member must expressly request exclusion and formally withdraw from the lawsuit. In addition, while the FLSA's statute of limitations is only two years (three years for "willful" violations), the NYSLL has a six-year statute of limitations.

When the Court conditionally certified the FLSA opt-in collective action, it permitted Plaintiffs to take discovery beyond the FLSA's statute of limitations and gave them permission to renew their motion for Rule 23 class certification only if they uncovered evidence showing that the Defendant had committed violations outside of the FLSA's statute of limitations.

However, after discovery, when Plaintiffs did in fact renew their motion, the Court renewed its denial of the Rule 23 certification, stating that, "certifying a Rule 23 class as to plaintiffs' state-law claims would lead to a significant expansion of the scope of fact discovery, which, in turn, would likely substantially delay trial on plaintiffs' claims arising under the [FLSA] . . . If an opt-out class were certified on the New York state labor law claims, the proofs on those claims would potentially overshadow and overwhelm the claims that arise under federal law, as to which I have already certified an opt-in collective action."

Unfortunately, this is not the first time that a court stressed the incompatibility of certifying a collective action under the FLSA and certifying a class action under Rule 23 in the same case. As such, it's so important for all New York employees to first consult with a New York wage and hour attorney before initiating a lawsuit for unpaid wages.

Pursuant to Title VII of the 1964 Civil Rights Act, "[e]very employer . . . shall post and keep posted in conspicuous places upon its premises where notices to employees, applicants for employment, and members are customarily posted a notice to be prepared or approved by the Commission setting forth excerpts from or, summaries of, the pertinent provisions of this subchapter and information pertinent to the filing of a complaint." Sec. 2000e-10.

Employers who fail to comply with this requirement may lose their right to a statute of limitations defense. In Wei Hong Zheng, et. al., v. Wong, et. al. (E.D.N.Y. 2009), an employee working in the restaurant of a hotel-casino in Atlantic City filed a complaint alleging that she had been discriminated against and fired because of her race, sex and/or national origin.

The statute of limitations for filing a complaint under Title VII is 300 days from the alleged discriminatory act. However, the employee in this case did not file her complaint until 364 days following her termination. The employer therefore filed a motion to dismiss on the ground that the Title VII claims were barred by the statute of limitations.

However, the employee argued that her claims were not barred because the employer failed to post the required Title VII notice and that, without the benefit of the mandatory notice, she was unaware of her rights under the law and did not learn of them until after she had consulted with an attorney.

The Eastern District of New York (New York federal court) found that the employer's failure to post the notice excused the two-month delay. The Court held that an employer's failure to post the required Title VII notices will equitably toll the 300-day limitations period until such time as the employee learns or reasonably should have learned of her rights through some other means.

Contact a New York City employment discrimination attorney to confirm that your company is complying with the mandatory notice requirements.

In New York, before someone can file a Title VII sexual harassment lawsuit in federal court, he or she must first file a charge (complaint) with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged discriminatory act(s). When analyzing a Title VII hostile work environment sexual harassment claim, courts will then usually only consider events that occurred within those 300 days. However, courts can consider incidents that occurred outside the statute of limitations as long as a sufficiently related act contributing to the hostile environment takes place within the statutory time period. The Second Circuit Court of Appeals (New York federal court) previously held, in Washington v. County of Rockland, that "under Title VII's continuing violation doctrine, if a plaintiff has experienced a continuous practice and policy of discrimination . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it."

As a New York employment discrimination lawyer, I recently happened to come across an interesting case that examined this principle - McGullam v. Cedar Graphics Inc. In this case, the Second Circuit held that a single remark made within the 300-day statute of limitations was not sufficiently related to prior time-barred instances of sexual harassment to sustain a new claim for sexual harassment.

Here, the plaintiff alleged that while employed in the production department of Cedar Graphics, she was regularly exposed to sexual comments and vulgar language by male co-workers and management. The plaintiff complained about the sexual harassment and, at her request, was transferred to a position in the company's estimating department, at which point, according to the plaintiff, the harassment ceased. Nonetheless, sometime following her transfer, the plaintiff overheard a conversation between some of the company's salesmen in which one referred to women as "chickies" and stated that one of his female friends was worth visiting only if he was going to have sex with her. Notably, these salesmen were not members of either the production department or the estimating department, and the plaintiff was not a participant in this conversation.

The plaintiff was ultimately terminated for unknown reasons and decided to file claims against the company for sexual harassment under New York law and Title VII. The only incident that occurred within the limitations period was the "chickies" conversation, and the Second Circuit found that this alone was not severe or pervasive enough to alter the conditions of her employment. As the court stated, "the chickies comments are too trivial to contribute to a Title VII hostile work environment claim. They were not obscene or lewd, or even sexually suggestive."

The Second Circuit also held that the "chickies" comments were not sufficiently related to the earlier conduct for numerous reasons, including that the employer transferred the plaintiff away from the department where she experienced harassment to a different department where she admitted she had no problem. In addition, the court found that the "chickies" comments occurred more than a year after her transfer and were not even directed toward or about the plaintiff. Lastly, the court found it relevant that the salesmen were neither a part of the earlier harassment nor members of either the estimating or production departments.

Disparate impact discrimination occurs when an employment policy or practice that may appear to be neutral on its face nonetheless adversely affects a particular protected group of employees or applicants. The statute of limitations is a cutoff point that protects employers from defending lawsuits for employment actions that were made years in the past. For Title VII claims, the rules require that a charge be filed with the Equal Employment Opportunity Commission (EEOC) within 300 days of the latest discriminatory act.

Just a few months ago, in Lewis v. City of Chicago, the United States Supreme Court held that a disparate impact employment discrimination charge is deemed timely if it is filed with the EEOC within 300 days of the discriminatory practice's application.

Let me explain. The City of Chicago had created a hiring list for its firefighters based on the results of a written exam taken more than two years earlier. A class of approximately 6,000 African American applicants who were not hired filed suit against the City claiming that the test had a disparate impact on minority candidates and therefore violated Title VII.

The City of Chicago claimed that if any discriminatory act occurred, it occurred at the time the test was administered and graded - more than 300 days earlier. The plaintiffs claimed that the discriminatory act occurred when the employment decisions were actually made. The U.S. Supreme Court agreed with the plaintiffs and held that a disparate impact employment discrimination charge filed with the EEOC within 300 days of a discriminatory practice's application will be deemed timely.

This means that test scores sitting in an applicant's or employee's file can form the basis of a new discrimination claim if those test scores are used as the basis for a new employment decision. Thus, if testing is being used to select potential employees, it's extremely important that these tests are reviewed by an employment discrimination attorney before any of the results are used in making employment decisions.