Yearly Archives: 2016

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Disability Discrimination: Man Claims He Was Secretly Fired After Getting Medical Leave

Disability Discrimination is unlawful.  If you have been fired, suspended or otherwise treated poorly at work because of your disability you should seek legal counsel.

Berlingieri Law, PLLC, represents individuals with disabilities.  Individuals who have faced discrimination or have been treated differently because their disability should consult with an employment attorney to better understand their rights.

After a large Florida based marketing company fired a disabled amputee for taking disability leave Berlingieri Law, PLLC brought a lawsuit in State Superior Court in Bridgeport, Connecticut on his behalf.  Instead of litigating the case in Superior Court the Florida based Marketing Company filed a motion to remove the case to the United States District Court for the District of Connecticut.  The case was removed to the federal District Court in Bridgeport.


See the full story as published in the Connecticut Law Tribune on December 5, 2016, below:

Man Claims He Was Secretly Fired After Getting Medical Leave _ Connecticut Law Tribune

New Overtime Rules go into Effect Dec. 2016

Obama gives Americans a raise. New rules to take effect in December 2016.

    Obama’s DOL changes to exemptions under the Fair Labor Standards Act will probably require employers to reclassify salaried employees and issue notices if employees are reclassified from exempt to non-exempt.

Accounting: documents, folders and calculator on the table

Accounting: documents, folders and calculator on the table

Today employers can classify employees who earn $455.00 per week ($23,660 per year) as exempt from receiving overtime as an administrative, executive, or professional under the FLSA. Although Employers in New York must pay at least $675.00 per week ($35,100 per year) in order to avoid paying overtime for a salaried employee. Also employees earning at least $100,000 per year are exempt from receiving overtime.

Coming December 1, 2016, employers will have to pay their employees more to “put them on salary” and avoid overtime. Employees considered administrative, professional or executive will only be exempt from overtime if they make at least $913.00 per week ($47,476 per year). Obama even gives a raise to highly compensated employee allowing those who make under $134,004 per year to be entitled to overtime. Not leaving future raises to chance, Obama – increases raises for years to come. These pay rate salaried thresholds are set to increase every three years after that, with the first increase taking effect on January 1, 2020.

New York’s Wage Theft Prevention Act (“WTPA”) requires employers to issue employees wage notices -and if they are salaried employees to classify them as exempt under one of the exemptions from overtime. The new DOL regulations on salaried employee overtime – will require employers to reclassify employees – if they do not meet the new requirements.

This may mean a raise for workers who employers seek to avoid paying overtime. On the other hand – employees who are no entitled to overtime may see an increase in wages from working 40 hours or more per week. Or employers can chose to end their employees home after 40 hours of work and give employees more time off. Either way its a win for employees.

if you have an employment law question or would like to speak with am attorney contact us!

On a Salary? – You may be entitled to more pay under new Obama rules


Employees on salary may be entitled to more money coming up in December 2016. – Contact an Employment Attorney to learn more.

blog post obama

On May 18, 2016, President Obama and Department of Labor Secretary Perez announced an update to the Department of Labor’s final rule on overtime regulations. This update which will become effective on December 1, 2016 and when implemented is supposed to allow an additional 4 million US worker’s to be entitled to overtime pay. The new updated final rule focuses on increasing the Overtime Exempt level for Executive, Administrative, and Professional workers to be exempt from overtime pay. By increasing the exempt overtime threshold which is currently at $23,660 to $47,476, more employees will not be eligible for overtime pay. Employers now have a decision to make for employees that make less the $47,476 a year to either pay them overtime pay (a time and half for any additional hours work over 40 hours a week) or raise that employee’s base salary to the new $47,476 threshold in order for that employee to be exempt from overtime pay. Another key provision of this update to the final rule sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to $134,004 from its current threshold of $100,000. This means that for highly compensated employees, they need to make at least $134,004 annually to be considered exempt from overtime pay (in addition to the other criteria that is unchanged by the new rule to be met to qualify as a highly compensated employee).

Further, the new update Final Rule has established mechanism that will automatically update the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption. Additionally, another new and important modification to the final rule is that employers are now allowed to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level in calculating base salary.
What does all this mean for the Employees? The Employers? Proponents of President Obama’s new rule to overtime pay say that this is a long overdue update to the old rule rewarding hard work with more compensation, and thus putting more money into the pockets of the middle class working employees. However, this new rule is also met with fierce opposition especially from the employers. Opponents of the new rule say that this update would effectively convert millions of salaried professional employees into hourly workers required to clock their time. This would force employers to have to incur additional expenditure to update their payroll systems to be able to track their employee’s hours. Employers contend that with the current state of business with high competition and “razer thin profit margins”, this new rule will fall short of its intended effect of increasing the income of the middle class employees. This is because, employers in order to meet the requirements of the new rule will offset the cost of these protections by cutting employees’ hours or by reducing their base wages or benefits. Also this, rule would incentivize employers to create more overtime exempt “managerial positions” which could create a more hierarchical employment structure and this increasing inefficiency. Nevertheless, whether this new update to the overtime regulation will ultimately improve the working middle class’s income or not is yet to be seen and only time will tell if the new rule will achieve its goal. But for now, be prepared for this significant change in employment law across the United States

Transgender bathrooms laws at work

Transgender workplace rights for bathroom use.


The Obama administration in 2016 declares that Title VII protects gender identity and extends anti-discrimination to transgender people.

Legal Protections for Transgender Employees in New York
Lawmakers in New York City recognize that “gender-based discrimination often leads to pariah status including the loss of a job, the loss of an apartment, and the refusal of service in public accommodations such as restaurants or stores.” A 1997 study of over five hundred trans people showed that 46-57% had experienced one or more acts of employment discrimination. There are legal solutions for transgender individuals who are victims of discrimination.

Legal Background
Title VII of the Civil Rights Act of 1964 protects employees from discrimination “because of . . . sex.” At first this was interpreted not to protect transgender people. However, in 1989, the Supreme Court held that Title VII protects employees from being discriminated against for failing to meet gender stereotypes. In this case, a woman was denied a promotion and told that to improve her chances next time, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court held that Title VII prohibits employers from penalizing employees for failing to be masculine or feminine enough. This reasoning applies to protect transgender individuals. Courts are now more likely to protect gender non-conforming people. A federal court recently said that a trans woman firefighter who transitioned on the job could not be pushed out of the department because she was expressing her female gender identity. The court said that “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior.” The Supreme Court has not clearly said whether transgender people are protected under Title VII. This is still a changing area of law and there are no guarantees.

New York State has a law like Title VII that prohibits discrimination on the basis of sex in employment. Courts have said that this law protects transgender people. New York state law also protects against disability discrimination. Gender identity disorder is one such protected disability.

New York City also has a human rights ordinance. This law prohibits discrimination on the basis of gender. The statute makes clear that discrimination against transgender people is against the law. Compliance Guidelines issued by the Commission on Human Rights makes clear that it can be discrimination for an employer to force a transgender person to use a bathroom or other sex-segregated facility that does not match their gender identity. There are also local ordinances protecting transgender individuals from discrimination on the basis of gender identity or expression in Albany, Buffalo, Ithaca, Rochester, Suffolk County, and Tompkins County..


Job Seekers with A Criminal Record Get a Second Chance At Employment with “The Fair Chance Act”

New York City “Bans The Box”

NYC Mayor De Blasio signs into law the “The Fair Chance Act” which prohibits employers from asking potential candidates about their criminal record prior to making the job offer.

Fair Chance Header


In June 2015, New York City Mayor Bill De Blasio signed into law legislation making discrimination prohibited against an individual seeking employment due to his or her criminal record. “The Fair Chance Act” prohibits employers from asking potential candidates about their criminal record prior to making a job offer. This means that employers during the advertisement of the job position, on the job application, or in the interview cannot ask potential candidates about their criminal record.

Once, the initial round of interview is completed, and the employer gives the candidate a conditional job offer, only then can the employer inquire about the candidate’s criminal record. The Fair Chance Act is intended to even the playing field by allowing the applicants to be evaluated on their qualifications first, before their criminal background can be evaluated in the hiring process. If, the employer does inquire about the candidate’s criminal record after offering conditional employment, then the candidate
must disclose all criminal convictions (excluding any arrests not convicted of or seal convictions). Further, at this stage, the employer can require the candidate to authorize a background check (refusal to consent is valid grounds to revoke the job offer).

Afterwards, and before the final employment decision, the employer must: (1) provide a copy of any background check conducted; (2) evaluate the candidate by considering specific factors (must be considered by an employer prior to deciding not to hire a candidate) and give the candidate a copy of the written evaluation; (3) hold the job open for at least three business days after communicating its decision to afford you a chance to respond. The employer in deciding to rescind the conditional job offer must show the specific factors existed that would make the candidate unsuitable for the position, and not just because he or she has a criminal record.

New York State Gets Tough on Sexual Harassment with Expansion of Law Allowing Law Suits to Proceed against Companies of Any Size

New York Governor signs amendments to New York Human Rights Law to allow sexual harassment suits against employer regardless of the number of employees employed by the company.


Governor Andrew Cuomo on October 21, 2015 signed an amendment to the New York State Human Rights Law, which went into effect January 19. 2016 expanding the ability for employees to bring sexual harassment suits against their employers. This amendment S.2/A.5360 amends N.Y. Exec. Law § 292 to allow sexual harassment suits against employers regardless of the number of employees employed by the company. Before this amendment, employers with fewer than four employees were excluded from the definition of “employer” and thus could not be liable to a sexual harassment suite by their employees.

Sexual Harassment at work

This new amendment will help those employees working for small companies who have been subjected to sexual harassment in their workplace find redress, where they previously could not. Employees of any company, no matter how big or small, should not be subjected to sexual harassment and if they are, then employers should be held accountable and liable to sexual harassment suits and now thanks to this new amendment, employees of smaller companies are afforded these protections that their counterparts in larger companies have enjoyed for so long.


Pay Equality for Women is a Top Priority in New York State with New Amendments to New York Equal Pay Laws

NYS Governor signs amendments to New York Equal Pay Laws to help achieve pay equality between men and women.womansday_march_equal_pay

On October 21, 2015, NY Governor Andrew Cuomo signed legislation, which amended the New York State’s Human Rights Law and New York Labor Law to expand protections available to employees. These amendments became effective January 19, 2016.

New York’s equal pay law (N.Y. Lab. Law §§ 194, 198), which before January 19, 2016 allowed employers to justify a pay difference between employees of opposite genders based on a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or “any other factor other than sex,” has been amended. The new amendment removes the “any other factor other than sex,” exception and replaces it with narrower language that allows a pay differential to be based on “a bona fide factor other than sex, such as education, training, or experience.” The new amendment’s “bona fide factor” must be “job-related with respect to the position in question” and consistent with business necessity. The new amendment also bans employers from retaliating against employees for discussing their wages with one another.

However, employers may, establish reasonable time, place and manner prohibitions on such discussions. Further this amendment provides for additional “liquidated” damages of up to 300% (as opposed to 100% prior to amendment) of the wages due in cases where an employer is unable to prove that it acted in good faith when violating the law.

cuomo equal pay

Caregivers are Protected from Discrimination Under New 2016 Law in NYC

Mayor Bill de Blasio expands New York City Human Rights Law to include Caregivers as a protected category against employment discrimination.

On January 5, 2016, Mayor Bill de Blasio signed into law expanding The New York City Human Rights Law (“NYCHRL”) to include adding “caregiver status” as an additional protected category for which employment discrimination is prohibited. This change in the NYCHRL will go into effect beginning May 4, 2016 and prohibits employment discrimination against employees caring for a minor child or an individual with a disability.

NYCHRL prohibits employment discrimination on the basis of a number of protected characteristics, such as race, creed, color, national origin, gender, age, disability, marital status, partnership status, sexual orientation, alienage, and citizenship status. The NYCHRL applies to employers with four or more employees. With this new amendment, to the NYCHRL, has defined “caregiver” is defined as “a person who provides direct and ongoing care for a minor child or care recipient.” The “Care recipient” is defined as “a person with a disability who: (i) is a covered relative, or a person who resides in the caregiver’s household; and (ii) relies on the caregiver for medical care or to meet the needs of daily living.” New York City Commission on Human Rights (“NYCCHR”) has defined “Covered relatives” under the amendment to include spouses, domestic partners, parents, siblings, grandchildren, grandparents, biological, adopted and foster children or parents of the caregiver’s spouse or domestic partner, or any individuals in a familial relationship with the caregiver. This broad definition of “covered relatives” have not been interpreted by the NYCCHR therefore it is possible that a covered relative could include almost every member of the employee’s family.

The NYCCHR is expressly authorized to adopt rules to implement the amendment’s provisions and a violation of the NYCHRL is a civil penalty of a maximum of $50,000, with additional penalties of up to $100 per day for each day that the violation continues.