Anti-Bullying Law Protects Students in New York

As we embark on the beginning of another school year, some parents are dreading the possibility that their child may face bullying from other students. Parents seek always to protect their children from harm, but this is a situation where parents often feel powerless to intervene.
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However, New York City education lawyers know anti-bullying efforts here in New York and across the country have resulted in better, more streamlined response to bullying.

The 2014-2015 school year marks the third since enactment of New York's Dignity for All Students Act (NYDASA), and the second since a major amendment was made encompassing cyberbullying, how bullying investigations must be conducted and how school districts are required to respond.

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New York Special Education Advocates Help Resolve Disputes

September 29, 2014

Parents of special needs students face many unique and difficult challenges. Unfortunately, this is no different when working to ensure their child receives a fair and adequate public education, as required by law.
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Our special education attorneys in New York realize this fundamental right is often breached, as evidenced by the fact that the U.S. Department of Education several years ago gave New York one of the lowest ratings for special education services. School districts point to looming budget cuts and lack of qualified teachers. However, parents of special education students recognize this has become an excuse for districts to fail to meet their child's educational needs.

Even if parents don't have solid proof, a special education advocate can help sort through whether your child has an adequate Individual Education Plan (IEP), whether the school placement is appropriate and whether the district has been proactive in securing the necessary level of after-school tutoring and assistive technology that can help students with special needs.

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Age Discrimination Increasingly Prevalent in New York, Beyond

September 27, 2014

An executive order recently signed by President Barack Obama bars the federal government from accepting bids from contractors found liable for age discrimination. The order also bars companies with federal contracts from binding workers to arbitration agreements in age discrimination claims. olderworker.jpg

The idea, Obama later said, is not to penalize companies so much as emphasize the opportunity to follow good workplace practices and legal compliance.

While the order won't affect every company, it's worth noting 1 in 5 American workers are employed at a firm with a federal government contract. What's more, a 2010 Government Accountability Office report indicated contractors responsible for two-thirds of the biggest labor law violations went on to score federal contracts.This order serves to press companies to more carefully craft internal policies and also heightens awareness of the growing problem of age discrimination in the workplace.

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Disability Discrimination in New York City: An Ongoing, Uphill Battle

September 24, 2014

A food service worker, blind in one eye, says he was ridiculed by managers for being a "Cyclops." Another, who suffers from cerebral palsy and a rare condition that makes his nose abnormally large, was routinely mocked, his voice and mannerisms mimicked by higher-ups. These and several others claim evidence their high-profile New York City employer made sure they worked in less desirable, "back of the house" positions due to their disabilities, to ensure customers wouldn't see them. Another says he was transferred to another assignment when he complained of his co-workers' poor treatment.
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These kinds of actions in the workplace are not only cruel - they're illegal.

Disability discrimination is barred under the Americans with Disabilities Act (ADA), the 2008 ADA Amendment Act (which strengthened protections for disabled workers after years of U.S. Supreme Court decisions that narrowed them significantly), the Rehabilitation Act, and the New York State Human Rights Law, codified in N.Y. Exec. L. 290, which has definitions of disability that are even more inclusive.

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New York Gender Discrimination Displayed in Many Forms

September 21, 2014

A great deal of progress was made in the women's movement for equality in the workplace during the 1970s and 1980s.

However, it seems since the mid-1990s, that progress has sputtered, given that, among full-time employees, women earn 77 percent the salaries of their male counterparts. This is true even when we account for the fact that women tend to work in differing occupations, which pay less on the whole. womenworkers.jpg

When women who are as equally qualified as their male counterparts are systematically paid less, overlooked for promotions or given less desirable job assignments, this is unquestionably a form of gender discrimination, barred under Title VII of the Civil Rights Act of 1964.

However, there are many other manifestations of gender discrimination that may be more subtle and tougher to recognize. For example, the EEOC defines sexual harassment as a form of gender discrimination. Also, adverse actions taken on the basis of pregnancy and related conditions (i.e., childbirth recovery, nursing, etc.) are considered a form of gender discrimination, barred under provisions of the Pregnancy Discrimination Act of 1978, the Americans with Disabilities Act and portions of the Family Medical Leave Act. In some cases, targeting workers on the basis of weight or appearance could also be a form of gender discrimination if such action focuses solely on the female employees.

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Retaliation for Opposition to Discrimination: Standing Up for What's Right

September 18, 2014

Refusing to engage in or directly calling out an employer on behavior that is discriminatory can be a risky move. A worker who does, likely expects to be retaliated against, with job reassignments, demotions, pay cuts, heightened supervision, an increase in write-ups, unjustified poor performance reviews or just general negativity from supervisors.
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Because lawmakers recognized the risk assumed by those who oppose workplace discrimination, they took steps to protect them. In fact, the Americans with Disabilities Act extends specifically to these individuals, as does the New York State Human Rights Law. Also, Title VII of the Civil Rights Act contains an "opposition clause" that prohibits companies from lashing out against a worker who stands up against discrimination.

One recent example was seen in litigation filed by several food service workers at an upscale eatery in New York City, where several employees say they were subject to blatant harassment and discrimination on the basis of their disabilities and race. When one manager filed a formal complaint about the ill treatment of his co-workers, he was reportedly abruptly transferred to a different assignment on a less desirable shift. If the allegations proves true, it would be a classic example of retaliation for opposition to a discriminatory workplace.

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FMLA in NYC: Workers, Employers Must Know the Law

September 15, 2014

Under the federal Family and Medical Leave Act, workers at most businesses are entitled to take up to 12 weeks of unpaid leave annually to cope with an illness, care for a sick relative or bond with a newborn baby or adopted child.
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The problem, however, is that far too many companies are retaliating against workers for taking this time. These employees are being denied raises and promotions, re-assigned to less desirable positions and sometimes even laid off or fired.

This is despite the fact that employers are barred from retaliating against workers who take FMLA. It now seems workers are taking it upon themselves to become more educated about their rights under the statute, first enacted in 1993. The number of lawsuits alleging FMLA retaliation has spiked in recent years, according to the most recent figures released by the Administrative Office of the U.S. Courts.

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Steep Cost for Non-Compliance of New York Workers' Comp Laws

September 9, 2014

The New York State Legislature first passed the Workers' Compensation Law in 1914, and it served as a compromise between the interests of employers and employees. Where workers largely lost the right to sue their bosses for job-related negligence resulting in injury or illness, they also no longer had to prove the company was at-fault when filing a claim for compensation.
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As part of the deal, companies are required to maintain workers' compensation insurance, and to properly classify eligible workers. Historically, there have always been businesses that try to skirt the law in an effort to avoid the monthly insurance premiums or hefty claim pay-outs. However, other companies that aren't in compliance are likely not aware of it. Worker classification can be a confusing prospect, and businesses sometimes step afoul of the law without realizing it.

Regardless of the reason, if the state discovers a company is non-compliant with workers' compensation law, the consequences are likely to be severe, and may include criminal as well as civil penalties.

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New York City's Paid Sick Leave Law Protects Workers

September 9, 2014

As of July 30, 2014, most employers in New York City are required to extend up to 40 hours in paid leave time annually to workers who are sick. The law, one of the first of its kind in the country, is applicable not just to large institutions, but also to small businesses and non-profits. chemicalindustry1.jpg

While many companies do offer workers paid leave, along with other benefits, there are many industries where this is not the norm. Research by the Economic Policy Institute indicated 4 in 10 employers in the private sector do not provide paid medical leave, with low-wage workers in the service industries being the least likely to have this benefit. Others who commonly miss out include those who work in child care centers and nursing homes.

That means many workers feel compelled to come to work even when they are sick, risking the spread of diseases and further hampering workplace productivity.

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Federal and State Whistleblower Protections in New York

September 6, 2014

It can be incredibly difficult for an employee to make fraud allegations, or voice civil rights or safety concerns, about the company that pays him. Both state and federal legislators have long recognized this, as well as the fact that most of these situations would never come to light unless workers were assured they would be shielded from institutional backlash and retaliation. This is why we have whistleblower protection laws at both the state and federal level.
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Still, employees must proceed with extreme caution because if their action does not meet the specific criteria of protected activity, they may find it difficult to remedy any adverse impact on their career. Consultation with an experienced whistleblower attorney in New York City will be key to determining whether assertions will be protected. Additionally, per both the state and federal False Claims Acts, the worker who blows the whistle on government fraud may be entitle to a significant portion of the recovery via a qui tam lawsuit.

What is classified as whistleblowing activity? There are 17 federal statutes that contain provisions for whistleblower protections, and protections are extended through the Occupational Safety and Health Administration (OSHA). These are: the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Asbestos Hazard Emergency Response Act, the International Safe Container Act, the Energy Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, the AIR21 Act, the Sarbanes-Oxley Act, the Pipeline Safety Improvement Act, the Federal Rail Safety Act, the National Transit Systems Security Act and the Consumer Product Safety Improvement Act.

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Employment Retaliation: Know When - and How - to Fight Back

September 3, 2014

It can be difficult for a worker to stand up against discrimination by an employer, especially when there is a strong likelihood the company will respond with retaliation.
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When an employer engages discrimination, retaliation is often used to damage an accuser's credibility, as well as serve as a warning to anyone else who might come forward.

The Equal Employment Opportunity Commission defines retaliation as occurring when an employer or labor organization takes some kind of adverse action against a covered individual because he or she engaged in protected activity. Proving a claim of employment retaliation in New York City means all three of these elements must be present.

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New York Employers: Beware Costly Non-Compliance With Prevailing Wage

Employers contracted to complete a public work project must become informed of local and state prevailing wage law, as the cost of non-compliance is steep. Because fines and penalties are calculated on a per-day basis, a month-long project can result in 30 separate violations. usadollarbills.jpg

From January 2014 through July 2014, the New York City comptroller's office said it has assessed $4 million in prevailing wage violations, plus an additional $250,000 in penalties paid to the city.

There are similar rules for companies that secure federal government contracts, under the Davis-Bacon Act. That measure applies to contractors and subcontractors working on federally-funded or assisted contracts of more than $2,000 for construction, alteration or repair of public buildings or public works. In addition, companies that land federal contracts in excess of $100,000 must pay laborers, mechanics and guards time-and-one-half the regular rate of pay for any hours worked over 40.

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New York Prevailing Wage: Are You Being Paid Fairly?

Under New York's prevailing wage law, private contractors who are awarded public contracts for construction or maintenance of a public project must pay workers according to the approved prevailing wage schedule, set forth by either the State Department of Labor or the New York City Office of the Comptroller.
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The purpose of a prevailing wage is twofold: The first is to ensure workers have a decent quality of life. The second is to assure the construction of and services within a government-owned facility are of high quality.

Workers covered under this statute are most often those in building, construction and service trades, which could include everything from gardeners to janitors. The amount of pay is based on the local collective bargaining agreement with at least a third of the trade union membership for each jurisdiction. That means the wage schedules vary on a county-by-county basis. Based on the current schedule, a Class C janitor in New York County would be entitled to a current prevailing wage of $23.35 an hour, whereas a janitor in Nassau can expect to receive a prevailing wage of $12.32 hourly.

Those employed in trades are increasingly becoming educated on employer obligations under this law, and in turn have received compensation in cases where companies failed to pay workers appropriately. While current laws don't generally allow workers to sue their employer for prevailing wage violations, many have found that hiring an experienced prevailing wage attorney has resulted in the facilitation of formal complaints with relevant government agencies, which in turn remedy the situation by requiring back-pay and future compliance.

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Understanding New York Overtime Rights: A Workers' Guide

A number of successful New York wage-and-hour lawsuits have made headlines recently, after the courts determined companies failed to comply with the state's strict overtime requirements.
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These cases are indicative of a growing trend in employment litigation, where the laws have become more strict and employees are increasingly more educated about their rights.

New York Labor Law and the federal Fair Labor Standards Act requires companies to pay time-and-a-half for any hours over 40 in a regular work week to non-exempt employees. Current minimum wage in the state is $8, until Dec. 31, 2014, when it increases to $8.75. It will increase again the following December to $9 hourly.

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New York Labor Law Violations: Don't Risk Your Business

Over the last two decades, the Federal Judicial Center reports the number of wage-and-hour lawsuits filed nationally has spiked by 430 percent. In New York, the number is expected to climb even higher in response to a bill passed by the New York legislature in June 2014.
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The measure, A08106C/S05885-B, was drafted for the purpose of bolstering the New York Wage Theft Prevention Act, as well as other provisions of the state's labor law. The action does ease some requirements for employers, but it imposes heftier penalties for violations - particularly for repeat offenders - and allows for successor employer liability, something that didn't before exist.

Because wage and hour theft law in New York has become increasingly complex, and the penalties for breaking the law ever more severe, it's important that business leaders take the time to become educated about their obligations and potential consequences for violations.

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