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Wage Theft (Fair Labor Standards Act and New York Labor Law) Cases For Worker’s Rights

Berlingieri Law, PLLC is here for you – We Fight for Worker’s Rights and Victims of Wage Theft Across the USA – now in the Northern District of  California – for a case that started in NYC for Ex-employees were ordered to fake bar app’s popularity: suit

Story Published in April 207 about lawsuit on behalf of worker’s rights.

It’s fake brews.

Two employees of nightlife-rating app Bartrendr claim they were ordered to be pretend partygoers and post constantly in order to make the app seem popular.

The now-defunct app encouraged users to post comments on beers and bar scenes in real time.

The California bosses were so desperate to drum up business that they ordered workers to adopt “multiple pseudonyms or personas in order to give the application the appearance of more user interaction,” according to a lawsuit filed by Staci Spector, 47, and Lisa Garcia, 46.

They often worked more than 80 hours a week but were only paid $1,500 a month, they claim. Spector and Garcia were fired in May 2015 after complaining, they charge in a wrongful-termination suit filed in Manhattan Supreme Court.


Sex Discrimination Protects Sexual Orientation

The federal Second Circuit Court of Appeals reversed its prior decision.  Its 2018, sexual orientation is protected against discrimination in the workplace under federal law. A victory for equal rights advocates.

The Historic Case is Cited in Full Caption Below:


MELISSA ZARDA, co-independent executor of the estate of Donald Zarda, and WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants,
ALTITUDE EXPRESS, INC., doing business as SKYDIVE LONG ISLAND, and RAY MAYNARD, Defendants-Appellees.

Docket No. 15-3775.

United States Court of Appeals, Second Circuit

The Second Circuit that includes New York, Connecticut, Vermont,  now joins Indiana, Illinois, or Wisconsin, (7th. Cir.) with federal employment law that prohibits your employer from firing you for your sexual orientation.  This is problematic because while there is no such protection for those in Georgia, Alabama, and Florida and other states whose Courts have not ruled on the issues.  It should be noted that the Second Circuit overruled itself in a 10-3 decision En Banc (sitting as a full panel, including senior judges). The Three dissents were outdated and seemed out of step with the times, as it is 2018 and the scope of of Title VII protection to root out and “stamp out” employment discrimination was the legislative intent of the Civil Rights Act of 1964.

The Second Circuit’s majority opinion written for the by Chief Judge Robert Katzmann expanded the scope of Title VII of the Civil Rights Act of 1964—which prohibits sex discrimination in the workplace—protects gay employees. Insofar as “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” and that it is imperative to “identify the sexual orientation of a particular person,” an employer must “know the sex of the person and that of the people to whom he or she is attracted.”  The majority held:

Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.”

Whats Next?: SCOTUS Review-  –   The Circuit split is clear the Supreme Court will have its take on the issue and ultimately will most likely rule in favor of the Title VII expansion of the term “sex” to include “sexual orientation” under Title VII once and for all.

Zarda Attorney tweets below:

#metoo Reporting of Sexual Harassment increases in 2018

Victims of Sexual Harassment Are Reporting More in 2018.


New York State’s Paid Family Leave

If you have questions about paid family leave in New York, Contact an employment attorney.

As of January 1, 2018, most employees who work in New York State for private employers are eligible to take Paid Family Leave. If you are a public employee, your employer may choose to offer Paid Family Leave.

New York’s Paid Family Leave provides job-protected, paid time off so you can:

  • bond with a newly born, adopted or fostered child;
  • care for a close relative with a serious health condition; or
  • assist loved ones when a family member is deployed abroad on active military service.

You can continue your health insurance while on leave and are guaranteed the same or a comparable job after your leave ends. If you contribute to the cost of your health insurance, you must continue to pay your portion of the premium cost while on Paid Family Leave.


Paid Family Leave benefits phase in over four years. During 2018, you can take up to eight weeks of Paid Family Leave and receive 50% of your average weekly wage (AWW), capped at 50% of the New York State Average Weekly Wage (SAWW). Your AWW is the average of your last eight weeks of pay prior to starting Paid Family Leave. The SAWW is updated annually.

Paid Family Leave Benefits Examples for 2018

Worker’s average weekly wage Weekly PFL Benefit (2018)*
$600 $300
$1,000 $500
$2,000 $652.96

*The weekly PFL benefit is capped at 50% of the New York State average weekly wage, which is $652.96.

Benefits Increase Through 2021

Year Weeks of Leave Benefit
2018 8 weeks 50% of employee’s AWW, up to 50% of SAWW
2019 10 weeks 55% of employee’s AWW, up to 55% of SAWW
2020 10 weeks 60% of employee’s AWW, up to 60% of SAWW
2021 12 weeks 67% of employee’s AWW, up to 67% of SAWW

In 2018, the Paid Family Leave benefit is 50% of your average weekly wage, capped at 50% of the New York State Average Weekly Wage.

Example: An employee who makes $1,000 a week would receive a benefit of $500 a week (50% of $1,000). Another employee who makes $2,000 a week would receive a benefit of $652.96, because this employee is capped at one-half of New York State’s Average Weekly Wage —currently $1,305.92. Half of that amount is $652.96.

Leave can be taken either all at once or in full-day increments. You may take the maximum time-off benefit in any given 52-week period. The 52-week clock starts on the first day you take Paid Family Leave.


Maternity & Paternity Leave

Whether you are expecting, fostering or adopting a child, you deserve to take time to care for your child without having to risk your economic security.

Caring for a Loved One

The time you spend caring for a loved one with a serious health condition is critical, whether it be a child, parent, parent-in-law, grandchild, grandparent, spouse or domestic partner.

Military Service

Paid Family Leave enables loved ones to spend time with those called to active military service and alleviates the pressure of working and caring for a child while a loved one is away.



Retaliation is Unlawful Report Sexual Harassment – #metoo

Report Sexual Harassment your employer cannot retaliate against you.

If you have experienced unwanted sexual contact or interactions with anyone at work.  There is no excuse for inappropriate behavior at work.

Reports of sexual harassment increase after recent allegations and scandals in political, entertainment and other powerful industries.

Free consultations for victims of sexual harassment or other workplace problems.

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Report Sexual Harassment At Work


If you experience workplace harassment or unwanted sexual advances call an employment lawyer today.

Berlingieri Law, PLLC can offer a free consultation regarding your case.

Sexual Harassment at the Workplace

As the recent sexual harassment scandals have came to light from Hollywood and powerful actors, executives and  producers reminds us that Sexual Harassment is alive and well.  Employees should report sexual harassment at the workplace. Consult with a workplace attorney if you are experiencing sexual harassment.

The  U.S. Equal Opportunity Employment Commission (EEOC) defines workplace sexual harassment as unwelcome sexual advances or conduct of a sexual nature which unreasonably interferes with the performance of a person’s job or creates an intimidating, hostile, or offensive work environment. Sexual harassment can range from persistent offensive sexual jokes to inappropriate touching to posting offensive material on a bulletin board. Sexual harassment at work is a serious problem and can happen to both women and men.


Both state and federal laws protect employees from sexual harassment at work. Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. While Title VII is the base level for sexual harassment claims, states have sexual harassment laws which may be even more strict. Check the laws of your state for more information.


This article will outline the two types of workplace sexual harassment, employer liability, and strategies and procedures to put an end to the behavior.


Types of Sexual Harassment


Under Title VII there are two recognized types of sexual harassment — 1) quid pro quo and 2) hostile work environment.


Under the quid pro quo form of harassment, a person in authority, usually a supervisor, demands that subordinates tolerate sexual harassment as a condition of getting or keeping a job or job benefit, including promotions and raises. A single instance of harassment is sufficient to sustain a quid pro quo claim (e.g., a superior demands you kiss her/him in order to keep your job), while a pattern of harassment is typically required to qualify as a hostile work environment.


Hostile work environment harassment is grounds for legal action when the conduct is unwelcome, based on sex, and severe or pervasive enough to create an abusive or offensive working environment. Elements which courts analyze in determining whether a hostile environment harassment claim is valid include:


Whether the conduct was verbal, physical, or both;

Frequency of the conduct;

Whether the conduct was hostile or patently offensive;

Whether the alleged harasser was a co-worker or supervisor;

Whether others joined in perpetrating the harassment; and

Whether the harassment was directed at more than one individual or singled out the victim.

In any sexual harassment case, the alleged victim will have to meet a subjective and objective standard. In other words, the plaintiff must show that:


he/she subjectively believed the conduct was hostile, abusive, or offensive; and

a reasonable person in the plaintiff’s position would objectively believe the conduct was hostile, abusive, or offensive.

Employer Liability


Only employers with 15 or more employees are subject to Title VII. For companies with fewer than 15 employees, state law governs — and most states have enacted laws covering such circumstances. If either quid pro quo or hostile work environment harassment can be proven, employers may be liable for compensatory (monetary loss, pain and suffering) and punitive damages. Liability may depend on who committed the harassment (superior or co-worker) and what action the company took to correct it.


If the harassment is committed by a superior and:


There is tangible employment action (firing, demoting, negative changes in assignments or responsibilities), the employer is liable.

The harassment is hostile work environment, then the employer is liable. The employer’s defense to liability is that it 1) exercised reasonable care to prevent the harassment and took prompt corrective action to stop it once made aware, and 2) the employee unreasonably refused to take advantage of the corrective measures.

If the harassment is committed by a coworker:


the employer is liable if it knew or should have known about the harassment, unless the employer took immediate corrective action.

Strategies to Stop the Harassment


With the above legal standards for sexual harassment at work in mind, victims of harassment also bear the burden of attempting to end it. There are several levels of escalation to employ in putting an end to workplace sexual harassment. First, you should personally try to end it. If that doesn’t work, look at your employee handbook or manual and see what policies the company has in place and take your complaint to that level. No matter what, you should document everything (each instance of harassment, what actions were take by superiors, etc.), as it will only add to the strength of your case.


Personally Inform the Harasser His Actions Are Offensive


While this is the most difficult act for victims of harassment, it is ultimately the most effective method of ending the behavior. The harasser may not even be aware that her/his behavior is offensive, and it is always best to “nip” it in the bud before inappropriate comments or jokes, left unchecked, turn into something uglier.


If you are uncomfortable facing the harasser, write a short letter or email letting her/him know you want the behavior to stop. If you’re uncomfortable doing this, tell a supervisor. If you write a letter, make a copy. If you write an email, send it from a company email address. You’ll want to document every action that’s taken by you, along with the response.


Human Resources and Supervisors


If there is no lessening of the harassment after personal appeals to stop, then escalate your complaint to the next level. Be sure to follow all company protocols dealing with sexual harassment (and document everything to show that you took every action the company recommended). At each step, if you don’t get the proper response from management, continue escalating the complaint up the chain of command.


Write It Down


The reason for following company procedures and documenting everything is simple: if you don’t follow company procedures and give them a chance to stop the harassment, you will likely lose in court. So complain within the company, let them know about the situation, document it, and keep backups in files away somewhere safe away from the workplace.


Documentation does not end at keeping emails and memos to co-workers and supervisors. You should write down each instance of harassment as they happen. This includes specific information, in addition to date and time, such as the people involved, onlookers if any, their reactions, how the event made you feel and affected your work and general well being, etc. Keeping a journal of such events will strengthen your case and allow you to recall events clearly without worrying about forgetting or mis-remembering details.


Employer Retaliation is Illegal


Employers are prohibited from retaliating against employees who file complaints. While this may hold some comfort, employees know that in the real world retaliation in some form may occur. Therefore, it would be wise to get a copy of your personnel file before you file a complaint. If you have this in hand, you’ll have documentation of positive past work performance and evaluations in the event that the company retaliates by demoting or transferring you while claiming you have a poor track record. In these litigious days, the wisest move is to expect the worst (a lawsuit to settle your claim) and prepare accordingly.


Government Intervention


In order to file a civil lawsuit under Title VII, you will first have to send your complaint to the EEOC, the federal agency that enforces Title VII. Only after the EEOC investigates and no settlement is forthcoming can you file a Title VII lawsuit. State agencies may have different policies, so be sure to investigate those further. Make sure to file your claim before any federal or state statutes of limitation expire.


Have a Local Attorney Evaluate Your Harassment Claim for Free


A male coworker has made what sounds to you like a sexual innuendo, but you can’t be sure. However, this same individual has made similarly inappropriate comments toward women in the past. Is it harassment? And if so, do you have a strong enough case to file a claim? It’s not always so easy to make this determination, but an experienced attorney can help. Get a head-start today by having a local employment law attorney evaluate your potential claim at no charge.


Disability Discrimination

Employers cannot discriminate against you for your disability.  If you think that you have been discriminated against because of your disability and your employer acted against you because of your disability contact an employment lawyer today!

If you get hurt you may be disabled and unable to work.

You should complain to your employer about their mistreatment of you and your disability.

Mental illness is a disability You should inform your employer about your disability.  Contact an employment lawyer from Berlingieri Law today for a free consultation.

Berlingieri Law, PLLC (Traffic Law)

Check out Berlingieri Law, PLLC’s new website







Berlingieri Law, PLLC’s new Traffic Law division seeks to serve individuals in need of representation with traffic tickets and summonses issued for violations of the vehicle and traffic law.    Attorney Berlingieri handles all areas of traffic law. Contact him today if you’ve received a traffic ticket for:




Speeding | Reckless driving | Failure to stop | Following too closely | Driving without a license | Improper cellphone use





Depending on your ticket, you may not even be required to appear in court. If you do have to go to court, your attorney will stand by you every step of the way. Attorney Berlingieri also represents commercial drivers and truck drivers, so call today to take care of your traffic ticket.




Employer Fires Employee for Attending Political Protest

A Berkeley, California restaurant terminates an employee for his political beliefs after learning he attended a political protest in Charlottesville, Virginia.

Employee’s free speech are not always protected. Employers can fire employees at will.  There is little to no protection for those who attend these rallies and have no other protected class.

Is participating in a political protest protected activity?  IF the protest is a bout a protected class – for both sides.   The protests could be considered defensible under Title VII simply because it has to do with a protected characteristic  A few local governments maintain protections for employees’ political affiliations, including in Washington, D.C., Puerto Rico, the Virgin Islands and Wisconsin. But political views are not a protected class under federal Title VII civil rights protections, unlike factors such as race, sex or religion.

More firings could follow, as a Twitter page “Yes You’re Racist” has attempted to name and shame the white nationalists who attended the rally Friday night and Saturday.

This public shaming of those involved in the protest comes shortly after a Google engineer was terminated by the tech giant for a controversial memo that, among other things, decried the company’s diversity efforts and said women were not biologically suited for the technology industry.

Employers trying to decide how to cope with a white supremacist or someone holding other discriminatory views have to consider their jurisdiction and the nature of the employee’s speech and affiliation.

Government employees do have a right to free speech, but are limited in terms of what they can say in the workplace. Workers at private employers have less leeway under the law to say whatever they please.


Employees should think twice before attending these type of violent protests on both sides of the issues because it could lead to termination if the employer finds out.