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Wages and Hours
What is the Minimum Wage I Must Be Paid?
You must be paid at least $12.50 an hour for any work you do up to 40 hours a week. This rate is going to increase each year until it reaches $15.00; the annual increases are published on or before October 1. Generally, even if you get paid on a piece-rate basis, your pay must average at least the minimum wage for all hours worked in a given week. There are a few exceptions to this requirement: part-time babysitters, camp counselors, and food service workers.
Fast food employers are required to pay a higher minimum wage than the standard $12.50/hour. If you work at a fast-food restaurant, you must be paid at least $14.50 per hour. This will increase to $15.00/hour on July 7, 2021. If you are uncertain whether you are covered by the fast-food minimum wage, you can learn more about the criteria here.
If you work in a restaurant and regularly receive tips as part of your work, your total earnings cannot fall below the minimum wage. However, your employer may use the tips you receive up to $4.15/hour to adjust your cash wage. But in no case can your cash wage from the employer fall below $8.35/hour. For example, if you earn an average of $4.15/hour in tips, you must also receive an hourly rate of $8.35 to ensure a minimum of $12.50 for each hour worked; if you average $2.00/hour in tips, your cash wage must be at least $10.50; if you earn $6.00/hour in tips, your cash wage cannot fall below $8.35; in this case, your hourly earnings would be $14.35/hour; and so on.
To calculate the minimum wage for your industry, check out NY DOL’s wage calculator tool.
In general, farmworkers are also covered by the $12.50/hr minimum wage, as long as the total wages paid by the employer to all workers for the year is at least $3,000. Unlike workers in other sectors, farmworkers may be paid the minimum wage for work up to 60 hours per week. If you work more than 60 hours in one week, your employer must pay you 1½ your hourly wage. This is a complex area of labor regulation; for a complete description of farm labor rules, go to https://dol.ny.gov/
What is Overtime, and How Much Must I Be Paid?
If you work over 40 hours in a week, you must be paid 1 1/2 times your regular rate for each overtime hour. For example, if your regular rate is $10/hour, you must be paid $15 for each overtime hour. Certain employees, such as some salaried administrative, managerial, and professional employees, are exempt from the overtime pay requirement. Many of these salaried employees, however, are still entitled to overtime pay for working more than 40 hours in a week if they earn less than $937.50/week (equivalent to $48,750/year for a full-time worker). If you qualify as an administrative, managerial, or professional employee and are paid below this amount you are entitled to overtime pay. More information is available at https://dol.ny.gov/labor-standards-0.
What is “Comp Time”? Can My Employer Use It Instead of Paying Me Overtime?
Comp time (or “compensatory time”) is time off from work that is given instead of paying overtime wages. For most hourly employees working in the private sector, the granting of comp time in lieu of overtime pay (even at the employee’s request) is illegal. There are exceptions for public employees, subject to certain conditions. An excellent discussion of this subject may be found at: https://www.workplacefairness.org/comp-time#maincontent.
When Must I Be Paid?
Workers must be paid promptly. In most cases, this means every one or two weeks. Your pay must be for all time worked, including activities which employers sometimes claim are “off the clock” like cashing out after your shift ends, setting up machinery, learning jobs, or giving reports to workers on the next shift. Commission salespersons must be paid at least monthly and not later than the last day of the month following the month in which their commissions were earned. Generally, manual workers should be paid every week. For more information on this subject visit: https://labor.ny.gov/workerprotection.gov
How Can I Tell If I Am Being Paid What I Was Promised?
When you are hired for a new job your employer must give you a written notice stating your straight-time wage rate, overtime wage rate (if applicable), and regular payday. This notice must be given to you in English, and also in your primary language if it is not English. If you want to verify whether your employer is recording all your hours worked properly the US Department of Labor provides a convenient way to do this. They have a free app that allows you to easily record your hours worked for each shift. Then you can check this record with what your employer claims. For more information and instructions for downloading the app go to http://dol.gov/agencies/whd/timesheet-app.gov
What Can and Cannot Be Deducted From My Paycheck?
Most paychecks have some money deducted, and your employer must give you a written statement that tells you what’s been taken out. Social Security taxes (an amount based on the information you provide the employer on your tax withholding form), Short Term Disability Insurance (SDI), and any wage garnishments or court-ordered payments like child support, may be deducted. Paid Family Leave (PFL) contributions of 0.511% of your weekly wages may also be deducted, although you may opt-out if you plan to work too few hours to be eligible for PFL benefits. Other payments, for example, health insurance, union dues, pension, United Way, or 401(k) contributions, may be deducted but only if you have first authorized this in writing. In some cases (mainly hotel, restaurant, and farm workers), employers may also deduct money from your wages for meals and/or lodging; however, the amount deducted cannot be so much as to reduce your hourly pay to below the minimum wage. It is unlawful for your employer to demand kickbacks, to deduct payments for stolen or damaged property, deficient work, or cash register shortages. You cannot be required to pay the cost of buying or cleaning uniforms if doing so lowers your hourly rate below the minimum wage. If you are responsible for your own uniform maintenance beyond “wash and wear,” your employer must provide weekly uniform maintenance pay of $15.55 to workers who work over 30 hours per week and $12.30 to workers who work between 20 and 30 hours a week.
An employer may not pay different rates based on gender to employees who perform substantially similar work. The law does permit different rates of pay based on factors other than your gender such as length of service, quality of work, and quantity of work. Employers facing a claim of gender-based wage discrimination must prove that there are legitimate, non-discriminatory reasons for the wage differential, such as education, training, or experience. In 2019, New York State passed a salary history ban, prohibiting employers from asking a current employee or applicant for their salary history as a condition for either a promotion or an interview. It also makes it illegal for employers to penalize an applicant or current employee for not sharing salary history information or filing a complaint. An employer may, however, confirm wage or salary history only after a job offer with compensation is made. If you believe you are receiving a lesser wage or salary based on your gender, you are protected under the Equal Pay Act and should file a claim with the New York State Department of Human Rights by calling 607-721-8467 or going to https://dhr.ny.gov/complaint#contact.
Employers sometimes misclassify employees as independent contractors when in fact they are regular employees entitled to overtime, workers’ compensation, unemployment insurance, and available benefits. As a rule, you are an independent contractor only if you meet all the following qualifications: (1) work without regular direction; (2) are free to provide similar services to other clients; (3) work on a temporary basis; (4) are involved in an independent business, profession or occupation.
I Have An Internship, Should I Be Getting Paid?
Internships can be both paid and unpaid. If you are working at a paid internship, you must receive at least minimum wage, and your employer must provide overtime compensation for hours worked over forty hours in a workweek. Certain employers may be allowed to hire unpaid interns, depending on several factors. For more information on unpaid internships, please see these fact sheets on non-profit organizations and for-profit businesses.
Can My Boss Make Me Work Weekends and Night Shift?
Yes, you may be required to work hours that are inconvenient. If you are over 18, there are generally no restrictions on how many hours you may work in a day or week or which days you may or may not work. Most workers, however, are entitled to at least one day off (24 consecutive hours) each week. This includes farmworkers, though a farmworker can volunteer to work the 7th day in a week but must be paid time and a half for that day.
What About Breaks?
In general, there is no requirement that you be given a break or rest period. You must, however, receive an uninterrupted meal period of at least one-half hour if you work a shift of more than six hours. There is no legal requirement for the employer to pay for these meal periods.
How Much Vacation or Sick Leave is Required?
There is no requirement to pay sick days, vacation, personal leave, or holidays. Employers may provide these or they may be provided through a union contract. Employers must notify employees in writing or post the policies regarding these benefits in the workplace.
An important exception is the COVID-19 Paid Sick Leave Law, which provides guaranteed job protection and paid leave for employees who are unable to work while subject to a COVID-19 precautionary or mandatory order of quarantine (governor.ny.gov/paid-sick-leave-covid-19). For information on how to get a quarantine order, please visit https://www.governor.ny.gov/paid-sick-leave-covid-19.
How Much Should I be Paid for Days That I Was Called Into Work?
New York minimum wage laws require non-hospitality industry employers to pay employees call-in pay, also referred to as show up or reporting pay. If an employer requests or permits an employee to report for work on any given day, the employer must pay the employee for a minimum of four (4) hours of work or for the employee’s entire shift, whichever is less, at no less than the standard minimum wage. The employer must pay call-in pay regardless of whether the employee performs any work.
I Am An Immigrant Worker. Do These Laws and Regulations Apply To Me?
In a word, yes! All workers, including immigrants, documented or not, are covered by the same statutes. The NYS Division of Immigrant Affairs (877-466-9757) can help with immigrant worker issues. For other information please refer to the section in this Handbook titled “Immigrant Workers’ Rights.”
What Can I Do If I Have Not Been Paid What I Am Owed?
Contact the Tompkins County Workers’ Center as the issue of Wage Theft is an ongoing campaign of ours. You can also file an unpaid wage complaint with the NYS Department of Labor Division of Labor Standards. Complaint forms can be found at labor.ny.gov/formsdocs/wp/LS223.pdf and must be printed and mailed to the Division of Labor Standards, Harriman State Office Campus, Building 12, Room 266B, Albany, NY 12240. Call one of the phone numbers listed below for assistance, or reach out to the NYS DOL by phone at (518) 457-9000. TCWC can help you prepare and file your complaint.
- Tompkins County Workers’ Center: firstname.lastname@example.org or 607-269-0409
- NYS Division of Labor Standards: https://dol.ny.gov/contact-department-labor-1 or 518-457-9000
- Workplace Fairness: https://www.workplacefairness.org/payhours
- NYS Wage and Hour Laws: https://dol.ny.gov/labor-standards-0
- Legal Momentum: legalmomentum.org/legal-toolkit-womens-economic-equality
I Just Got Fired. Do I Have Any Rights to Fight the Termination?
Yes and no. Union and many public-sector employees are protected by contracts or policies that prohibit discharge without just cause. Unionized workers should immediately seek the assistance of a union representative in the event of termination. Most non-union federal, state, and local government employees are covered by a variety of civil service laws that deal with the issue of unfair discharge. Private sector non-union jobs are different. New York is an “employment at will” state, meaning that a private-sector employer can pretty much discharge you for a good reason, a bad reason, or no reason at all, without you having any legal recourse against this. You can be fired even if you are the most senior employee, your performance is outstanding and your attendance is perfect. It may seem terribly unfair … and it is!
But They Violated the Procedures in the Employee Handbook!
Discharge in violation of either a written or implied contract of employment might entitle an employee to sue his employer for reinstatement and lost wages. In a few cases, employee manuals have been found to create an implied contract of employment. If your discharge violates the conditions cited in the manual, contact the Workers’ Center or consult an attorney.
I Think There Is An Issue of Discrimination Here
Employers may not discharge an employee because of his or her race, color, creed, religion, gender, sexual orientation, national origin, age, marital status, or disability. If you feel your termination was a discriminatory act as defined above, report it to the Tompkins County Office of Human Rights Commission, NYS Division of Human Rights or the US Equal Employment Opportunity Commission. You might also be able to initiate a private lawsuit. See chapter on “Discrimination” for more information.
What Other Circumstances Might Make the Termination Illegal?
If you were fired for being a whistleblower – meaning you reported illegal activity by your employer that may be harmful to public safety – or for refusing to engage in illegal activity at work, you should consult an attorney or reach out to the agency responsible for the type of misconduct you reported. If you are unsure of which agency to contact, you can find links to common examples at https://www.workplacefairness.org/whistleblowing.
If your firing was a result of your participation, on your own time, in lawful political or recreational activities, consult an attorney.
If your termination was due to your taking time off for medical or family reasons, the time you took off might be protected under the Family and Medical Leave Act (FMLA). See section on FMLA for more information.
If you were fired for “concerted action,” meaning engaging or talking with coworkers about pay, working conditions, or the need for a union, or complaining to the boss about pay or working conditions, you may be protected under the National Labor Relations Act (NLRA). For more information see the section on Your Right to Form a Union.
You may be fired for other reasons that could be considered wrongful termination. The Workers’ Center can help in assessing your particular circumstances and refer you to a competent employment attorney if appropriate.
I Was Fired While on Disability or Workers’ Compensation Leave!
Your employer cannot fire you because you filed a claim for disability or workers’ compensation benefits but can replace you if you are unable to work. Your job does not have to be held for you until you are able to return to work, unless your leave is covered under the FMLA, or you are covered by a union contract that may provide recall rights while you are on disability or workers’ compensation leave. Some public employees also have limited recall rights.
OK, My Termination was Legal but Still Unfair. What Can I Do?
Unionized employees clearly have an advantage in dealing with any termination – a just cause requirement, contractual rights, a grievance process, union representatives to assist, and the possibility of arbitration by a neutral third party. If you do not have a union, you may have to figure it out yourself and go it alone. In seeking to be reinstated, take a deep breath and remember to always keep your cool. Angry letters or outbursts will only confirm for the employer that they were justified in letting you go. You also need to make the appropriate response at the earliest possible moment – as soon as you receive notification of the termination.
First, go to the personnel or human resource department to find out the employer’s policy for handling employee complaints (grievances). Information on your employer’s complaint policy may also be found in your employee handbook. Follow this procedure and file a written complaint about the termination. Be brief and factual; avoid critical or harsh language.
Second, if there is no complaint policy, all is not lost. Find out who has the power to reinstate you, and go as high up in the chain of command as is reasonably possible. Request a private meeting to explain why you want to keep your job and why the employer needs you, and see if they can help. Be prepared to be flexible as well as confident. You may have to accept a transfer to another department (particularly if the termination was related to difficulties with a supervisor), or even a pay cut, or agree to return to work on a probationary basis (if alleged poor performance was the basis for termination).
Are Any “Fringe Benefits” Payable Upon Termination?
If your employer offers vacation time, you must be paid for all accrued but unused time if you decide to quit or are terminated. The only way you would not be paid for vacation time is if there is a written company policy that specifically forfeits your right to receive vacation pay. Your employer must have informed you, in writing, of any conditions that make this benefit null and void. In the absence of such a policy, the employer is required to pay the employee for all accrued vacation time. You can download a “Claim for Unpaid Wage Supplements” at: https://labor.ny.gov/LS223.pdf. Claims can also be submitted by mail to: Division of Labor Standards, State Office Campus, Building 12, Room 266B Albany, NY 12240.
- Tompkins County Workers’ Center: email@example.com or 607-269-0409
- NYS Division of Labor Standards: https://labor.ny.gov/labor-standards-contact or 518-457-9000
Health and Safety
Are There Any Laws Relating to Safety and Health on the Job?
Yes, OSHA (Occupational Safety and Health Administration) and PESH (NYS Public Employee Safety and Health) protect your right to a safe and healthy workplace. Your employer must provide a place of employment that is free of recognized hazards and must obey safety standards and regulations. These standards:
- Limit the amount of hazardous chemicals workers can be exposed to
- Mandate the use of certain safety practices and equipment
- Guarantee you the right to file a complaint and get an OSHA inspection
- Require employers to train workers about chemical and other hazards
- Protect workers against retaliation for raising safety concerns
Am I Entitled to Any Information About Chemicals I Work With?
Yes, OSHA’s Hazard Communication Standard (HazComm) says your employer must train you before you work with or are exposed to any chemical product. The training should inform you of the hazards, let you know how you can tell if you are overexposed, and tell you how you can protect yourself. Employers must also give you access to chemical information sheets, called Safety Data Sheets (SDS). All products must be clearly and properly labeled as well.
Am I Entitled to Any Other Health and Safety Information?
Yes, if your employer, OSHA, or someone hired by your employer conducts any workplace monitoring (testing the air for chemicals, testing noise levels, or measuring radiation), you have the right to get the results of such tests upon request. You also have the right to get any of your medical records kept by your employer, including all medical exams. Finally, OSHA requires most employers to post OSHA citations in the workplace and keep a yearly log of all reported work-related injuries and illnesses (OSHA 300 Log). You have a right to receive a copy of this log. To get any of this information, give your employer a dated, written request (keep a copy). If it is not provided within 15 days, you can file a complaint with OSHA.
What Should I Do If I am Concerned About a Safety Hazard?
Speak to your supervisor or employer about the situation, and ask them to rectify the hazard. If you have a Union, contact your Union steward. You can also request an OSHA inspector to come to your workplace if you believe hazardous conditions or violations exist. The best way to do this is to file a complaint with our OSHA Area office in Syracuse. The form to do this is online at https://osha.gov/workers/file-complaint. A written or electronic complaint form from an employee is the action most likely to result in an OSHA workplace inspection. The complaint form is simple and easy to complete. The Hazard Description and Hazard Location are the most important parts of the form. This may be the only information an OSHA inspector has. Thus, it is important to be as accurate and thorough as possible. Although the form must be signed, and contact information must be given so that the compliance officer can contact you, you can remain anonymous by checking the “do not reveal my name to my employer” box.
Can My Employer Retaliate Against Me?
You have a right to demand a safe work environment without fear of punishment. It is illegal for an employer to punish, discriminate or discipline any worker for raising or reporting health and safety problems or for participating in safety and health committees or OSHA inspections. If you feel there has been retaliation, file a complaint with OSHA within 30 days from the time of your employer’s action.
Can I Refuse Work That Might Put Me in Serious Danger?
OSHA does not sufficiently protect workers from refusing dangerous work. The required conditions to justify a refusal to work are rarely met, and workers can face a difficult decision – to work in a dangerous situation or to refuse to work and risk termination or discipline. The best thing to do if you face a serious safety hazard is to call the OSHA Imminent Danger Hotline at 800-321-OSHA (6742). Specify where you are working, the hazard, and your name and telephone number. If OSHA agrees that an imminent danger does exist (a danger involving a risk of death or serious physical harm immediately, such as working on unsafe scaffolding), they will send an inspector to the worksite immediately.
If you choose to refuse to perform the dangerous work your right to refuse unsafe work is protected if all of the following are met:
- You truly believe a danger exists
- A reasonable person would agree
- Not enough time to have OSHA inspect
- You ask your employer to correct the hazard or assign other work to you and indicate that you will not perform the work unless the hazard is corrected
- Your employer refuses to eliminate the danger
- You refuse to do the unsafe work but remain at the worksite until ordered to leave by the employer.
- If possible take a picture of the unsafe condition and contact your union rep if you are in a unionized workplace.
Is My Workplace Safe If We Are Meeting OSHA Standards?
Possibly not. For example, your employer may be meeting OSHA’s chemical exposure limits, but many chemicals have been proven to have health effects at or below the legal limits set by OSHA. Also, new chemicals are developed all the time for which no OSHA limits have been set. And OSHA does not cover all workplace hazards that exist, particularly ergonomic dangers such as back and repetitive strain injuries.
What Can I Do If I Think The Air In My Workplace Is Making Me Sick?
Inadequate or poorly maintained ventilation systems in many modern, highly-insulated buildings (with windows that don’t open!) may cause a host of respiratory ailments (like asthma) due to smoke, molds, and airborne viruses. Other indoor air quality (IAQ) hazards include asbestos, carbon monoxide, diesel exhaust, ozone, and radon gas. Unfortunately, OSHA has few standards governing indoor air quality. It is up to workers, individually and collectively, through their union or otherwise, to attempt to resolve IAQ problems by working with management to eliminate the source of contamination. You should inform your supervisor and union steward as soon as you suspect that you may be suffering from an illness related to poor air quality. Such an illness may be obvious if you feel better away from the workplace. Keep records—good documentation is essential should your illness progress to the point where you may be forced out of work and you need to file a workers’ compensation claim. Good sources of information on this subject include osha.gov/indoorairquality and https://epa.gov/iaq. Specific information for school employees (and useful for others) may be found at: https://epa.gov/iaq/schools.
I Am an Immigrant Worker. Do I Have the Same Workplace Health and Safety Protections?
Yes! Immigrant workers often face a higher risk of workplace injury and illness. All workers have an equal right to a safe and healthy workplace regardless of their immigration status.
Is There a Medical Facility That Can Help Determine If My Injury or Illness is Work-Related?
Yes, the Central New York Occupational Health Clinical Center specializes in diagnosing and treating occupational diseases, including those that may be related to indoor air quality. See “Getting Help” below for contact information.
- Tompkins County Workers’ Center: firstname.lastname@example.org or 607-269-0409
- OSHA: https://osha.gov/contact or 315-451-0808
- NYS DOSH Public Employee Safety & Health
- CNY Occupational Health Clinical Center: email@example.com or 315-432-8899
- Midstate COSH (Council for Occupational Safety & Health): firstname.lastname@example.org or 607-275-9560
- NYS Dept. of Labor Division of Safety and Health: https://labor.ny.gov/workerprotection.shtm
- Legal Momentum: https://legalmomentum.org/legal-toolkit-womens-economic-equality
Your Right to Form a Union
How Can A Union Help Me?
Working people from all walks of life join together in unions to gain rights, benefits, and a voice at work. Unions negotiate and usually obtain better pay, benefits, working conditions, and a say in how workers’ jobs get done. Almost all union contracts (also called Collective Bargaining Agreements, or CBAs) end the “employment at will” status for employees (see the section on Termination) by requiring that “just cause” be proven before a termination can be effective, thus lessening the insecurity, stress, and fear for workers.
What is a Union Contract?
The members of the union, usually with help from a union staff person, sit down with management to negotiate a legally binding contract. The contract sets the terms and conditions of your employment. It typically contains provisions relating to pay and benefits, discipline (prohibiting termination without just cause and establishing procedures for other disciplinary matters), and establishing a formal grievance-arbitration procedure for resolving complaints.
Am I Eligible to Join a Union?
Federal and state laws guarantee most employees the right to join together with other employees for the purpose of collective bargaining, negotiating their terms and conditions of employment, and, in the private sector, engaging in other concerted activities for mutual aid and protection. This includes the right to organize, join and support a union of their own choosing. In the private sector, supervisors, managers, and a few other kinds of employees are excluded from these protections. In 2020 NY passed the Farmworker Fair Labor Practices Act which mandates that farmworkers now have all of these same rights which they were previously denied. These rights are enforced in NY by the Public Employment Relations Board, not the NLRB. More information on this is at https://www.perb.ny.gov/resources-for-farm-laborers-and-agricultural-employers/
What Are “Concerted Activities?”
Workers have the right to engage in “concerted activities” even without the protection of an organized union. Concerted activities occur anytime two or more workers join together in an effort to improve working conditions. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. Examples might include two workers speaking to the boss about higher wages or one worker speaking on behalf of him or herself and others about more vacation time. You and your co-workers can engage in protected concerted activities whether or not you are in a union. It may, however, be useful to first consult with the Tompkins County Workers’ Center before engaging your boss on these issues. You can also file an unfair labor practice complaint with the National Labor Relations Board (NLRB) or, if you are a farmworker, with the NYS Public Employment Relations Board if an employer violates your right to concerted activity with or without a union. While any group of workers can engage in concerted activities, forming a union can give you and your fellow workers the full measure of legal protection and the Workers’ Center is available to assist with this process.
How Do I Go About Forming a Union at My Workplace?
An employer must recognize and bargain with a union chosen by a majority of the employees. There are many labor unions that can help. Many of them focus on a particular kind of industry or type of service, so contacting someone who understands your workplace is a good start. Contact the Workers’ Center or one of the unions listed below for guidance on this important first step.
What If My Employer Opposes Our Effort to Organize a Union?
The law says your employer cannot punish or discriminate against any worker because of union activity. The employer cannot fire, lay off, discipline, transfer or reassign employees because of their union support, nor even threaten to do any of those things. The employer cannot favor employees who don’t support the union over those who do in promotions, job assignments, wages, and other working conditions. Nor can the employer lay off employees or take away benefits or privileges employees already have in order to discourage union activity. You have the right to:
- Attend meetings to discuss joining a union
- Read, distribute and discuss union literature as long as you do this in non-work areas during non-work times, such as breaks or lunch hours
- Wear union buttons, T-shirts, stickers, hats, or other items on the job at most worksites
- Sign a card asking your employer to recognize and bargain with the union
- Sign petitions or file grievances related to wages, hours, working conditions, and other job issues (in the public sector, this activity must be part of an attempt to form a union)
- Ask other employees to support the union, to sign union cards or petitions, or to file grievances
Who Will Help If I Am Discriminated Against Union Activity?
In spite of your legally-protected right to form a union, some employers go to great lengths to prevent workers from organizing, including engaging in conduct that is in clear violation of labor law. If you think your employer has violated your right to join or support a union or to have a voice on the job, you can file charges with the NLRB (National Labor Relations Board) or PERB (New York State Public Employment Relations Board). Also, contact your Union or the Union you are trying to join. Charges with the NLRB must be filed within six months of the illegal action or conduct against you (within four months for PERB). Any person can file an initial charge with the NLRB about an unfair labor practice; you do not need to be an employee. To help your case, keep notes of any incidents such as employer threats, harassment, or punishment of workers trying to form a union. Include the time, date, place, description of the incident, who was involved, and the names of any witnesses. The NLRB and PERB can order your employer to stop interfering with employee rights and to provide back pay or reverse any action against workers for their union activity.
- Tompkins County Workers’ Center: email@example.com or 607-269-0409
- National Labor Relations Board: Albany Office 518-431-4155 or firstname.lastname@example.org
More Information About Individual Unions
- Workers United Upstate: Jaz Brisack, Organizer email@example.com or https://www.workersunitedupstate.org
- Painters’ DC #4, Cortland: https://www.dc4.org or 607-727-5208
- Frank Stento, Dir. of Business Development Fstento@dc4.org
- UAW Local 2300, Ithaca: firstname.lastname@example.org or 607-272-4108
- NYS United Teachers
- SEIU Local 200
Paid Family Leave and Sick Leave
The Paid Family Leave Act is a New York law that provides workers with both time-off and wage replacement benefits to care for family members or for the birth or adoption of a child. Passed in 2017, PFL is similar to the federal Family and Medical Leave Act (FMLA) but provides workers with benefit payments while FMLA leave does not. In addition, FMLA leave can be used to care for yourself after an injury or illness, while PFL leave may only be used to care for family members or for bonding time following the birth or adoption of a child. Paid Sick Leave (PSL) is also available to eligible employees through New York’s Paid Sick Leave law, which provides additional time-off to workers that is separate from the protections allotted by FMLA and PFL. Employers cannot prevent eligible employees from using FMLA, PFLA, or PSL leave, nor can they penalize them in any way for missing work for FMLA PFLA, or PSL-acceptable reasons.
What is PFL Leave?
PFL leave is when you have to be away from work to care for a child, spouse, or parent with a serious health condition. It also entitles you to take leave for childbirth, to care for a newborn or a recently adopted child, or a child placed in foster care with you. PFL provides wage replacement of 67% of your weekly wages, or 67% of the statewide average weekly wages (SAWW) if your average weekly wage exceeds the SAWW. Workers may take up to 12 weeks of PFL leave per year.
Am I Eligible for PFL Leave?
Most employees in New York State who work for private employers are eligible to take Paid Family Leave, with a few exceptions including rabbis, priests, licensed ministers, golf caddies, and teachers that work for a non-profit. In 2020, PFL eligibility was expanded to include farmworkers.
Employees who work for public employers may be covered for PFL if their employer has voluntarily opted to provide the benefit. Union-represented public employees may be covered if the benefit has been negotiated through collective bargaining. Self-employed individuals, including sole proprietors and self-employed independent contractors, can take advantage of New York Paid Family Leave by voluntarily opting in. For more information on how to opt-in as a self-employed worker, please visit paidfamilyleave.ny.gov/self-employed-individuals.
Unfortunately, independent contractors are not considered employees for the purposes of NYS’ Disability and Paid Family Leave Law, and thus are not guaranteed PFL coverage. Domestic workers hired by a private homeowner and who work 40 hours or more a week are required to be covered for PFL.
Covered full-time employees who regularly work 20 or more hours a week are eligible for PFL after 26 consecutive weeks of employment. Part-time employees who work less than 20 hours per week are eligible after working 175 days, which do not need to be consecutive. For more information on PFL benefits and eligibility, please visit paidfamilyleave.ny.gov/eligibility.
Workers who are not covered under New York’s Paid Family Leave Act may still be eligible for unpaid PSL or FMLA leave. Continue reading to learn more about eligibility for both programs.
What about Sick Leave?
In addition to PFL, employees can take time off under New York’s Paid Sick Leave law (PSL) for mental or physical illness, injury, or health condition, regardless of whether it has been diagnosed or requires medical care at the time of the request for leave; as well as for medical treatment or preventative care. Paid sick leave for eligible employees began accruing on September 30 at a rate of one hour for every 30 hours worked. Workers employed by large employers (i.e. with at least one hundred employees) are can get to up to 56 hours of paid sick leave per year, those working for employers with between five and ninety-nine employees or with a total income of at least $1 million can get up to 40 hours of paid sick leave, and all others can get up to 40 hours of paid sick leave per year.
How are Paid Family Leave (PFL) and the federal Family and Medical Leave Act (FMLA) different?
The federal Family and Medical Leave Act (FMLA) is a United States labor law that provides job-protected, unpaid leave for employees for qualified medical and family reasons. FMLA leave provides workers with unpaid time off to recover from a serious health condition, while PFL leave only applies to family care and bonding time with new children. While PFL applies to employers with 1 or more employees, FMLA only applies to employers with 50 or more employees.
If you experience an event that qualifies for leave under both FMLA and Paid Family Leave, and the employer is covered under both laws, the employer can require them to run concurrently. In order for the two types of leaves to run together, the employer must notify the employee that the leave qualifies for both FMLA and Paid Family Leave, and that it will be designated as such. To learn more about the differences between FMLA and PFL, visit paid family leave.ny.gov.
What Is A Serious Health Condition Under The FMLA?
You are entitled to FMLA leave if you, your child, spouse, or parent have a serious health condition. Under the FMLA, a serious health condition is any illness, injury, impairment, or physical or mental condition which involves one or more of the following:
- a period of incapacity of more than three consecutive calendar days, also involving continuing treatment by a health care provider
- an overnight stay in a hospital and/or any follow-up treatment
- any period of incapacity because of pregnancy or for prenatal care
- any period of incapacity due to a chronic serious health condition, permanently disabling condition, or
- treatment for either a condition requiring multiple treatments to prevent a period of incapacity that would last more than three days
Can My Request to Go on Paid Family Leave Be Denied?
If the reason for the leave qualifies under the PFLA, and you are an eligible employee, your boss cannot deny it for any reason (production, your importance to the operation, etc.). Nor can you be told to perform light-duty work in lieu of medical leave. You can take the 12 weeks at one time, or at different times during the year, or even take it as partial days (say 1/2 day each week, or one day one week and two days the next week, say for treatment of a chronic condition). You can also take less than 12 weeks if that is all you need. The same rule applies to FMLA leave.
What Do I Need to Do to Get My Paid Family Leave?
You should provide at least 30 days’ notice if your need for PFL leave is foreseeable. If it is not foreseeable, give notice as soon as possible. You are required to inform your employer of the reason for the leave. For FMLA leave, you may be required to provide certification from a health care provider if the leave is due to a serious health condition. PSL, on the other hand, does not require notice within a specified time frame, you are entitled to take any time off you have accrued provided that there is a written or oral request made to your employer. Give your employer enough information, so they know it is protected under the PSL/PFLA/FMLA. For more information and to apply, please go to https://www.ny.gov/new-york-paid-sick-leave, https://www.paidfamilyleave.ny.gov/employees, or https://www.dol.gov/agencies/whd/fmla.
I Didn’t Know About My Rights to PSL/PFLA/FMLA Leave Until After I Was Out of Work!
Unfortunately, you may be out of luck. Employers are not required to pay employees for unused PSL, and your entitlement to PFL/FMLA leave may be denied if you fail to give proper notice. An exception: covered employers are required to notify employees in writing of FMLA benefits, rights, and obligations. A bulletin board poster and a description of the PFLA and FMLA in an employee handbook are typical examples of sufficient notice. Failure by your employer to do the above would entitle you to protection under the PFLA/FMLA even if you didn’t give timely notice of your leave. The best protection against PFL/FMLA denial is to know your rights—read the bulletin board at work and study your employee handbook.
If I Am Out for a Long Time, Can I Lose My Job and Benefits?
Whether you are out for a week or 12 weeks, upon your return, you must be restored to your former position (or to an equivalent position) with no loss of seniority or benefits. An “equivalent” position means that it must offer virtually identical pay, benefits, skills, and responsibilities. Your employer must also continue all your health benefits while you are out on leave.
Can I Be Penalized for Using PSL/PFL/FMLA Leave?
You cannot in any way be penalized or discriminated against for missing work if the leave is covered under PSL/PFL/FMLA. Absences under PSL/PFL/FMLA, therefore, cannot be used as points under an attendance policy, as a reason for denying a pay increase or promotion, as the basis for a poor evaluation, or in any other negative manner.
- Tompkins County Workers’ Center: email@example.com or 607-269-0409
- US Department of Labor (FMLA administration):
- Syracuse 315-448-0630
- NYS DOL
- Binghamton 607-778-6499
- NYS Department of Labor (PFL administration): https://www.paidfamilyleave.ny.gov
- US Department of Labor (FMLA administration) https://www.dol.gov/whd/fmla
- New York Paid Sick Leave: https://www.ny.gov/programs/new-york-paid-sick-leave
- Legal Momentum: https://www.legalmomentum.org/legal-toolkit-womens-economic-equality
What is Discriminatory Behavior by an Employer?
Discriminatory behavior is any differential treatment that is based on or related to your race, color, national origin, age, disability, gender, sexual orientation, pregnancy, creed, religion or citizenship. A recent amendment to New York’s Human Rights Law extended the legal definition of race, making it illegal for employers to discriminate against employees on the basis of “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” Differential treatment includes refusing to hire you, refusing to promote you, firing you, paying you differently, providing lesser or different working conditions or benefits, treating you differently in terms of job assignments, harassment, training, or layoffs, or treating you differently than other employees in any other way. You do not need to identify a similarly situated employee who was treated more favorably to establish that your employer discriminated against you. Supervisors may not harass or mistreat someone because of their age, gender, race, or any other group characteristic. Repeated jokes about age or race, for example, or excessive supervision or particularly harsh discipline may violate discrimination laws.
Moreover, both federal and state laws prohibit gender identity discrimination. In New York, an employer may not discriminate against an employee, either by misgendering or otherwise, regardless of their personal religious beliefs. Discrimination against transgender and non-binary workers (e.g. do not identify with the prevailing male-female gender paradigm) is one of the most common forms of discrimination in U.S. workplaces; 77% of transgender employees actively take steps to avoid discrimination at work (2015 U.S. Transgender Survey). However, gender discrimination also commonly occurs when individuals are simply perceived as not conforming to sex stereotypes.
Are All Employers Covered?
Under federal law, private and public employers with 15 or more employees are covered (20 or more for age discrimination). New York State law, however, extends this coverage to all employers regardless of how many people they employ. In 2019, New York passed HRL 296, which further provided unpaid interns, non-employees working under a contract (e.g. contractors, subcontractors, vendors, and consultants), and domestic workers the same protections against workplace harassment and discrimination as employees. The US Equal Employment Opportunity Commission and NYS Division of Human Rights investigate complaints and enforce anti-discrimination laws.
Does This Apply to Pregnancy Too?
Yes, the federal Pregnancy Discrimination Act prohibits employers from terminating, demoting, or disciplining a worker because of her pregnancy, childbirth, or related medical condition. As long as a pregnant woman can perform her job functions, an employer cannot refuse to hire her or prohibit her from working. If a worker is unable to perform a job because of the pregnancy, the employer must treat her the same as any other temporarily disabled worker – for example, by providing modified tasks, alternative assignments, disability leave, and return to work options.
Does This Apply to Immigrant Workers Too?
Discrimination laws protect all employees in the US regardless of their citizenship or work eligibility. Employers may no more discriminate against an “undocumented” worker than they may discriminate against any other employee. An employee born in a foreign country, appearing to be foreign, or having a foreign name or accent may not be treated differently than other employees.
Are There Questions in an Interview or Application That I Don’t Have to Answer?
Questions concerning age, race, religion, marital status, national origin, disability, and other personal characteristics are illegal. You cannot, for example, be asked:
Are you a United States citizen? (OK question: Are you authorized to work in the US?)
- Where were you born? Where were your parents born?
- What is your native language? (OK: What languages do you read, speak or write?)
- How old are you? (OK: Are you over 18?)
- When did you graduate from college?
- What is your marital status?
- Who lives with you? Do you plan to have a family?
- How many children do you have? What do you do for child care?
- What social organizations do you belong to? (OK: Do you belong to any groups that are relevant to your ability to perform this job?)
If I Think Discrimination is Occurring, What Should I Do?
- Keep a journal that includes incidents, dates, witnesses, and evidence – be as detailed as possible.
- Talk with co-workers about the discrimination – you may not be alone.
- Explain to your employer why you feel that you are being treated unfairly. If your employer has a complaint procedure, use it.
- If you are a union member, contact your steward or officer.
- Equal Employment Opportunity Commission: firstname.lastname@example.org or 800-669-4000
- NYS Division of Human Rights: email@example.com or 607-721-8467 or 315-428-4633
- Tompkins County Workers’ Center: firstname.lastname@example.org or 607-269-0409
- Workplace Fairness: https://www.workplacefairness.org/discrimination
- Equal Employment Opportunity Commission: https://www.eeoc.gov/employees
- NYS Division of Human Rights: https://www.dhr.ny.gov/law
- Legal Momentum: https://www.legalmomentum.org/legal-toolkit-womens-economic-equality
Breastfeeding Mothers' Bill of Rights
What is the Breastfeeding Mothers’ Bill of Rights?
The Breastfeeding Mothers’ Bill of Rights is a NY law that protects your right to make your own decision about breastfeeding. You have a right to breastfeed your baby at your place of employment or child daycare center in an environment that does not discourage breastfeeding or the provision of breast milk. For up to three years following childbirth, you have the right to take reasonable unpaid break time or to use paid break time or meal time each day so that you can express breast milk at work. Your employer must make reasonable efforts to provide a room or another location in close proximity to your work area, where you can express breast milk in private. Your employer may not discriminate against you based on your decision to express breast milk at work.
What Should I do if I am not Allowed to Take Breaks to Breastfeed?
If you gave birth within the last three years, you have the right to breastfeed in a designated space at your workplace. If your employer denies you this right, you can file a complaint with the New York State Division of Labor Standards by calling 1-888-52-LABOR or via email at LSAsk@labor.state.ny.
What is Harassment?
In 2019 New York State strengthened protections against workplace discrimination and harassment, including sexual harassment. The new law eliminates the restriction that harassment is “severe or pervasive” in order to be legally actionable, and now recognizes harassment to be any instance where an individual is subjected to inferior terms, conditions, or privileges of employment. Domestic workers are now also legally protected from workplace discrimination and harassment. Moreover, all non-disclosure agreements must allow employees to file a complaint of harassment or discrimination, and the statute of limitations for employment sexual harassment claims increased from one year to three years.
What is Sexual Harassment?
Sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- Your submission to or rejection of this conduct may affect whether you keep your job or get a promotion, a good job assignment, or some other job benefit.
- This behavior unreasonably interferes with your work performance or creates an intimidating, hostile or offensive working environment.
The sexual harassment offender can be a man or a woman, a member of the opposite sex or a member of the same sex.
Can You Give Me Some Examples of Sexual Harassment?
Examples of behavior that may constitute sexual harassment include pressure for sexual favors; pornographic material left on your desk or work area; touching, “goosing,” patting, hugging; leering, whistling, catcalls or howling; using demeaning terms such as “sweetheart,” “babe” or “honey;” sexual teasing and jokes; posting cartoons, posters or drawings of a sexual or insulting nature; asking personal questions, telling lies or spreading rumors about your social or sex life; making sexual remarks or gestures and actual or attempted sexual assault. The harasser’s behavior must be unwelcome for the conduct to be considered harassment.
The harasser may be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee; and can be the same or the opposite sex of the victim. A victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
What Must My Employer Do If I Am Sexually Harassed?
Sexual harassment is illegal, and no worker should be forced to tolerate it. An employer must investigate sexual harassment complaints and take appropriate action to end the harassment. Prevention is the best policy: employers should clearly communicate to employees that sexual harassment will not be tolerated, should have an effective complaint process, and take immediate and appropriate action when an employee complains.
What Should I Do If I Am Sexually Harassed?
You are not required to directly inform the harasser that the conduct is unwelcome, but you should make sure that you, your union if you have one, or someone you designate lets management know about your complaint. You also should keep a written record of the harassment incidents. If your employer has a complaint procedure, you are required to use it.
I Filed a Complaint With My Employer, But Nothing Happened
Sexual harassment is illegal, and you may file employment discrimination charges with the EEOC (Equal Employment Opportunity Commission) or the NYS Division of Human Rights (DHR). EEOC charges must be filed within 300 days, though it’s preferable to file within 240 days. DHR charges must be filed within one year. You may file a charge as an individual or as part of a group (known as “class action”). You can also file a lawsuit in State Court for a violation of New York’s Human Rights Law. The lawsuit must be filed within three years.
- Equal Employment Opportunity Commission: email@example.com or 800-669-4000
- Tompkins County Office of Human Rights: 607-277-4080
- NYS Division of Human Rights: firstname.lastname@example.org or:
- Tompkins County Workers’ Center: email@example.com or 607-269-0409
- Workplace Fairness: https://www.workplacefairness.org/sexual-harassment
- Equal Employment Opportunity Commission: https://www.eeoc.gov/harassment
- Legal Momentum: https://www.legalmomentum.org/legal-toolkit-womens-economic-equality
Disability and Accommodation
The Americans With Disabilities Act (ADA) and the New York State Human Rights Law (HRL) protect persons with disabilities against discrimination in employment.
What is a Disability?
Under the ADA you have a disability if you have a physical or mental impairment that substantially limits you in one or more of your major life activities, such as hearing, speaking, walking, breathing, performing manual tasks, lifting, working, and caring for yourself. You are also covered if you have a record of a disability or are regarded by others as having a disability, even if you do not actually have one. Under the HRL, the definition of disability is broader, and you may be covered for a condition not covered by the ADA.
What Protection Does the ADA Provide Me, If I Have a Disability?
Both laws prohibit discrimination against individuals with disabilities – in job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. In addition, both laws require employers to provide reasonable accommodation so that the employee can perform the essential functions of the job (ADA) or perform the job in a reasonable manner (HRL).
Are All Employers Covered By These Laws?
The ADA covers private-sector employers with 15 or more employees and all state and local governments and employment agencies. The HRL covers employers with one or more employees.
What is the Reasonable Accommodation Requirement?
If you are or become disabled, your employer is required to make accommodations (changes to the work environment or the way jobs are done) so that you can still work. The accommodation must be reasonable and not impose an undue hardship on the employer (meaning requiring significant difficulty or expense). Employers, especially larger ones, typically have a hard time proving “undue hardship” since most accommodations are not expensive relative to their resources. Though the employer is required to provide the accommodation, you, the worker with a disability, must take the initiative in suggesting what change would make it possible to do the job or in getting the employer to help you figure out the appropriate accommodation.
Can You Give Some Examples of Reasonable Accommodations?
Each disabled worker and the employer can use their creativity or get outside help (see below) to figure out what is best, but here are a few examples:
- Making existing equipment usable—modifying the height of equipment or desks, installing telecommunications for the deaf or computer screen magnifiers
- Restructuring jobs—changing assignments, providing a reader or interpreter, modifying work schedules so regular medical treatment is possible, or permitting telecommuting for workers who may be homebound.
Can An Employer Ask About My Disability in a Job Interview?
If you are applying for a job, an employer cannot ask you if you are disabled, about the nature or severity of your disability or require you to take a medical exam. If an employer is aware of your disability, you may be asked to describe how you can perform the duties of the job and whether an accommodation would be needed. You may be required to take a medical exam after a job offer.
I Think I Am a Victim of Discrimination. What Should I Do?
Your right to be protected from disability discrimination is enforced by the US Equal Employment Opportunity Commission (EEOC) and the NYS Division of Human Rights. It is always a good idea to keep a written record of all incidents, including a description of the discrimination – what was said, time and place, and witnesses. Be as factual and specific as possible.
- Equal Employment Opportunity Commission: firstname.lastname@example.org or 800-669-4000
- NYS Division of Human Rights: email@example.com;ov or 607-721-8467
- TDD/TTY: 718-741-8300
- US Department of Justice, ADA Enforcement: 800-514-0301
- TDD/TTY 800-514-0383
- Job Accommodation Network: firstname.lastname@example.org or 800-232-9675
- TDD/TTY: 877-781-9403
- NYS Disability Advocate: mail@DRNY.org or 518-432-7861
- TDD/TTY 518-512-3448
Child labor violations are common; according to the CDC, in 2018, there were 22 deaths of workers under 18 years of age. Between 2012 and 2018, an estimated 3.2 million nonfatal injuries to young workers were treated in hospital emergency departments. Fortunately, there are both federal and state laws to protect young workers under 18 years old.
What Work Restrictions Apply to Teenagers?
If you are under 18, your boss cannot ask you to do the following:
- Use electric woodworking, lifting, slicing, or baking machines, or almost any power-driven machine
- Work in construction, including wrecking, demolition, roofing, excavation, or exterior painting from an elevated surface
- Work as a helper on a motor vehicle
- Work in any logging or mining operation
- Many other tasks that are restricted – contact one of the resources listed at the bottom for more information
If you are under 16, in addition to the jobs listed above, your boss cannot ask you to do the following:
- Work in a factory (except clerical in an enclosed office)
- Work with washing, grinding, cutting, slicing, pressing, or mixing machinery
- Clean, oil, wipe or adjust belts to machinery.
If you are under 14, all employment (including babysitting) is generally restricted, except for certain tasks like newspaper delivery and fruit or vegetable harvesting on a part-time, irregular basis. There are a few other exceptions as well.
What Restrictions as to Hours of Work Apply to Teenagers?
If you are 14 or 15, your boss cannot have you work:
- During school hours
- More than 3 hours on a school day or 8 hours on other days
- After 7 pm when school is in session
- After 9 pm in the summer
- More than 18 hours in a school week or 40 hours in a non-school week
If you are 16 or 17, your boss cannot have you work:
- More than 4 hours Monday through Thursday during school
- More than 8 hours on Friday, Saturday, Sunday, or holidays
- More than 28 hours in a school week or 48 hours when school is not in session
- Later than 10 pm when school is in session or later than midnight when school is out
If you are 16 or 17 years old, not in school, and have a full-time employment certificate, you may work the same number of hours as an adult worker. Until you turn 18, however, you are subject to the same restrictions listed above as to the kinds of work you are allowed to do.
What Wage Regulations Apply to Teenagers?
Like all workers, youths must be paid at least the minimum wage, currently $12.50/hour. In addition, youths must be paid for all the hours or parts of an hour they work and are entitled to overtime pay (one-half times their regular rate) for all hours worked over 40 per week.
Do Teenagers Have the Right to Join a Union?
Yes, there is no distinction between teenagers and any other worker when it comes to union rights. As all workers do, teens have the right to join together with other workers in concerted action in unions or otherwise to talk about and seek to improve their working conditions.
What Are Working Papers?
All young people under 18, including high school graduates and those who have left school, must obtain working papers (also called employment certificates or permits) before they may begin work. There are a few exceptions, including caddies, babysitters, and college students 16 years of age or over who are employed by a non-profit college. Working papers are issued by the local school system.
What Can I Do to Protect My Health and Safety on the Job?
To start with, remember that the legal restrictions on hours of work and the kind of work you are allowed to do are designed to help protect you from being hurt. Don’t do any potentially dangerous work that is prohibited by law or work long hours that will lead to fatigue—tired workers get injured! Be aware of your surroundings and identify hazards that may cause injury or illness, things like unguarded meat slicers or chemicals with hard-to-pronounce names. Your employer is required to provide training about any health or safety hazard you may encounter; make sure you are getting that training. If you have any questions or concerns, stop what you are doing and ask your supervisor. For more information, see the “Health and Safety” chapter elsewhere in this booklet.
Teen workers should be encouraged to contact an adult, such as a family member or teacher, if they are concerned about their safety at work, feel uncomfortable about anything happening at work (for example, sexual harassment or racial discrimination) or if they feel that child labor laws are being violated.
US Department of Labor: https://www.youthrules.dol.gov
NYS Department of Labor: https://www.labor.ny.gov/minors.shtm
Health & Safety Training for Youth Workers: https://www.midstatecosh.org/teens-lead-work
What is Workers’ Compensation?
Workers’ Compensation is a form of insurance paid for by your employer, which entitles you (or your estate) to certain payments if you are injured, become sick or die on the job.
When Am I Entitled to Workers’ Compensation?
If you are injured or become ill as a result of your work (or a pre-existing injury or illness becomes worse or flares up because of your work), you may be eligible for workers’ compensation benefits. These benefits are wholly paid by your employer’s insurance policy. You must, however, file a claim (using the C-3 Workers’ Compensation Board form) in a timely manner to start your case. You do not have to be a citizen to receive Workers’ Compensation. And under a new law passed in 2020 farmworkers in NYS are also entitled to this protection.
My Employer Says the Injury is My Fault, and I am Not Entitled to Any Benefits
Workers’ Compensation is a no-fault system. The issue of whom, if anyone, was at fault in causing the injury or illness is not considered. If you believe that the carelessness of a third-party contributed to your injury you have the additional option to bring a lawsuit to recover monetary damages. An attorney should be consulted to review any possible third-party legal action.
My Employer Says the Injury is Not Covered By Workers’ Comp
It is not up to the employer. File a claim. The Workers’ Compensation Board decides whether it is covered.
What Can I Get From Workers’ Compensation?
Workers’ Compensation provides two main benefits. First, it covers all costs for medical treatment and rehabilitation, including transportation. Second, it provides cash payments for lost wages if you are out for more than one week or if there is a permanent disability. Temporary cash benefits are about 2/3 of your gross wages, with the benefit level presently capped at $966.78/week. Workers’ compensation benefits are adjusted annually on July 1; maximum weekly benefits are 2/3 of the NYSAWW (New York State Average Weekly Wage). This payment figure will be recalculated annually and benefit levels adjusted accordingly. You pay no taxes on these benefits. Other benefits include additional money for permanent damage to a limb or for loss of hearing or eyesight a death benefit, and vocational rehabilitation/retraining. Cash benefits can continue for as long as your disability lasts; however, you may need to reapply for those benefits after a period of time—as long as ten years—depending on the severity of your injury or illness. Workers who are permanently and totally disabled are eligible for lifetime benefits. Once you have won a workers’ compensation award, you are entitled to prompt payment which is required within a minimum of 18 days after the employer receives notice of the injury. To file a prompt payment claim fill out the online consumer complaint form found at: dfs.ny.gov/insurance/provlhow.
I Got Hurt at Work. What Do I Do?
First, report your injury or illness as soon as possible to your supervisor or employer. (In any case you must do this within 30 days.) It’s best to do it before leaving work, so the employer can’t claim it happened at home. A co-worker can report it for you. Even if it seems minor, it could get worse, so report it. Make notes about what happened, which supervisor was told, and who witnessed the injury. Remember it is illegal for your employer to threaten, discipline or harass you for making such a report. Second, see a doctor as soon as possible, describe what happened and make sure they note that it happened at work. Tell the hospital or doctor’s billing staff this is a compensation case and to bill your employer’s insurance carrier. Besides notifying your employer and getting medical treatment, you must get a C-3 form from the Workers’ Compensation Board and file it to start your case.
Who Do I Go to for Medical Treatment?
Whatever physician you go to, make sure you carefully explain exactly how you were hurt or what at work might have caused your problem or illness. Because it is a Workers’ Compensation case, the doctor will send bills to your employer’s insurance carrier (the same applies to hospital or pharmacy charges, as well as travel costs). If your claim is challenged (controverted) by the insurance carrier, you may need to find a physician who has experience with workers’ compensation cases and is willing to advocate and testify for you if needed. If you have an occupational illness, the CNY Occupational Health Clinical Center, with a staff specializing in occupational medicine and a lot of experience with workers’ compensation, may be able to help. You may also be required to submit to an examination by a so-called “Independent Medical Examiner” if your case is contested by your employer or his insurance carrier and they request such an examination.
Do I Need A Lawyer?
Bear in mind that workers’ compensation rules and regulations are an extremely complex area of the law; anything more than a brief outline is well beyond the scope of this handbook. However, in general, you will only need a lawyer if your claim is challenged. It is important to retain an attorney who specializes in workers’ compensation law. Local attorneys with such expertise advertise in the Yellow Pages, or you can contact the Workers Center, county bar association, or legal aid society for a referral. The lawyer is only paid if you win the case and for the amount approved by the Workers’ Compensation Board. When you win a case, the fee is set by judges at the Workers’ Compensation Board and is not as high as other legal cases. The fee is paid directly by your employer’s insurance company out of your award; you get the balance. If you have any other questions about your case and do not have a lawyer, contact the NYS Advocate for Injured Workers (see below).
Are Any Other Benefits Available to Injured Workers?
If you are hurt on the job, disabled for more than a year and are permanently unable to return to work, you may also qualify for Social Security Disability benefits. If you think you may qualify, you should contact the Social Security Administration and, if necessary, consult an attorney who has expertise in Social Security cases. In the event of low or reduced family income, members of your family may become eligible for Medicaid. Additionally, if you are attempting to survive on cash benefits alone, your income may be low enough to qualify for the Supplemental Nutrition Assistance Program (SNAP). Medicaid and SNAP are administered by local social services departments.
Getting Help and More Information
NYS Workers’ Compensation Board Binghamton Office: (Tompkins, Cortland, Schuyler, Broome, Tioga, Chemung): 866-802-3604
Advocate for Injured Workers: 800-580-6665
Claimant Information Packets, C-3, and other claim forms: https://www.wcb.ny.gov
What is NYS Disability?
New York State Disability benefits are cash payments made to workers who suffer an off-the-job injury or illness. Covered employers are required to carry insurance that will provide a weekly benefit to temporarily disabled workers.
Do I Work For a Covered Employer?
Yes, in most cases, provided you’ve been on the job for at least four weeks. Some exceptions include government employees and certain employees of religious organizations or non-profit entities. For more information about disability benefits coverage, please visit: wcb.ny.gov/DisabilityBenefits.
Is There Any Cost to Employees for NYS Disability Insurance?
Maybe. Employers are not required to charge employees for NYS disability insurance coverage but may deduct no more than 60¢ a week to offset the cost of providing this benefit. Some employers also offer supplemental disability benefits (AFLAC is one example) at an additional cost. Such plans in conjunction with NYS Disability often replace all or nearly all of a worker’s lost wages.
What Benefits Will I Receive Under NYS Disability?
NYS Disability pays 50% of your average weekly wage, up to a maximum of $170/week. After a seven-day waiting period, benefits are paid for a maximum of twenty-six weeks. Unlike Workers’ Compensation, medical expenses are the responsibility of the claimant.
Can I Collect NYS Disability Benefits if I Am On Pregnancy or Maternity Leave?
Pregnancy and any related illness or complication is one of the medical conditions covered under the law. An employee is entitled to coverage only for the time when she is actually unable to work due to pregnancy or childbirth, which is typically 4-6 weeks before and 4-6 weeks after giving birth. An employee who becomes disabled earlier than 4-6 weeks prior to giving birth or continues to be unable to work more than 4-6 weeks after giving birth may have to submit additional medical documentation to support her claim.
What is the Difference Between Disability Benefits and Paid Family Leave?
While paid family leave is only available after birth (or adoption), an employee may be eligible for disability leave for prenatal conditions, provided they can provide medical paperwork to demonstrate need. You may not collect disability benefits and paid family leave benefits at the same time. Lastly, your combined total PFL and disability leave within the span of one year may not exceed 26 weeks.
I Am On FMLA Leave. Am I Eligible For NYS Disability?
Definitely! In fact, being on FMLA leave means your employer is obligated to maintain their share of the cost of your medical insurance, so your liability for medical expenses related to your disabling condition will be less. If you suffer an off-the-job injury or illness and expect to miss significant time from work, you should apply for FMLA leave if you are eligible, as well as submit a claim for NYS Disability. See “Family & Medical Leave,” elsewhere in this Handbook.
I Got Laid Off Last Month and Then Broke My Leg. Am I Still Eligible For NYS Disability?
Yes. You are eligible as long as you are collecting unemployment compensation, up to twenty-six weeks. You may not collect both unemployment and disability benefits at the same time.
Can My Employer Make Me Get a Medical Examination?
Yes, by the employer’s choice of a medical provider, but not more than once a week and at the employer’s expense.
OK, I Think I Am Eligible. How Do I File A Claim?
If you are presently employed or have been unemployed for four weeks or less, file a DB-450 claim form with your current or last employer. If you’ve been out of work for more than four weeks, file a DB-300 claim form and mail it to the address on the form. In either case, your health care provider must complete Part B of the form. The Workers’ Compensation Board administers NYS Disability claims, and forms are available online at wcb.ny.gov/Forms, or by calling the district office listed below.
NYS Workers’ Compensation Board: 877-632-4996
NYS Guide to Disability Benefits: https://www.wcb.ny.gov/disability-benefits-fact-sheet.pdf
I Just Lost My Job. Am I Eligible for Unemployment Benefits?
Yes, in most cases including farmworkers. There are some exceptions, which are detailed at labor.ny.gov/ui/dande/covered. If you worked for a covered employer, met certain earnings and work criteria for the previous 15 months, and were laid off from your job or fired for any reason except misconduct or committing a felony related to your employment, you should receive benefits. For example, you are entitled to benefits if you were fired for poor performance, attendance problems because of illness, or even just because your boss didn’t like you or wanted to hire his nephew. Benefits may be denied if you quit your last job without good cause. The Department of Labor (DOL) advises anyone with doubts about eligibility to collect UI benefits to still file a claim for benefits.
I Had Good Cause To Quit My Job. Can I Still Receive Benefits?
Maybe. If you quit for a good reason, for example, not receiving wages or being a victim of sexual harassment or illegal discrimination, you may be entitled to benefits. Each case is judged on its own merits, and it is likely that initially your claim would be denied. You would have to request a hearing to make your case—see the last paragraph of this section for further information. In any case, when in doubt just file your claim and let the Department of Labor decide.
How Do I File a Claim for Benefits?
You can get information at the NYSDOL Telephone Claims Center (see below), but you must apply by phone (call 888-209-8124) or online at labor.ny.gov/unemploymentassistance. File your claim in the first week that you have become unemployed. Information you will need includes your social security number, driver’s license number or other positive identification, your home address and phone number, and the names and addresses of all employers in the last 18 months. Be completely truthful in your application because a false statement may result in a denial of benefits. Once your claim is processed and approved, you will call or go online to the DOL website to claim benefits each week you are unemployed.
How Long Can I Receive Benefits?
Depending on the date you file (or filed) your original claim for unemployment benefits, you typically will receive benefits for as long as one “benefit year.” Generally, you will not receive more than 26 times your full weekly benefit rate. Under some circumstances, full benefits may be payable for more than 26 weeks – for example, if you are enrolled in an approved training program.
How Much Will I Receive?
For each full week’s unemployment, you will receive approximately one-half of your average gross weekly wages during the period used to calculate your benefit rate. The minimum weekly benefit rate is $104 and the maximum you may receive is $504. Unemployment benefits are taxable income.
Can My Benefits Be Cut or Stopped Once I Start Receiving Them?
Yes, if you do not do what is expected of you. What is expected is that you will actively look for work and keep a record of that search. You cannot refuse a job offer if it is for work you are trained to do and which pays the prevailing wage for that kind of work in your area. You may be required to travel a longer distance to get to a new job. You may not, however, be required to accept a job if travel involves an unreasonable distance or cost. You must be available and ready to work. For example, if you are sick or injured, caring for a sick relative, or otherwise unavailable, your benefits may be suspended or reduced.
Can I Get Help Looking For Work or Job Training?
Your local Department of Labor Career Center (labor.ny.gov/career-center-locator/) is the place to go to get answers to these questions. There you will find information and help with evaluating your job skills and interests, preparing resumes, tracking down job leads and using the internet and other resources to find employment. They can also help get you connected to a wide variety of state and federal job training programs and other educational opportunities.
I Complied With All the Requirements and My Benefit Claim Was Still Denied. Now What?
If you disagree with any ruling, you have 30 days after the determination is mailed to you to notify that office that you want a hearing before an administrative law judge (ALJ). You should request a hearing (in writing) if your claim is denied or your benefit is reduced, or if you think your boss is wrong about why you left employment, or there is a dispute about your length of employment, wage rate, or any other matter. Generally, the first hearing in the appeal process is held by telephone, in the form of a conference call between the ALJ, your employer and yourself. At the hearing, you and the employer may present evidence and have witnesses testify. You can also request the ALJ to subpoena necessary documents or witnesses. If you feel uncomfortable handling the case yourself, you may wish to contact one of the Legal Aid programs listed below or retain a lawyer with experience in such cases. The lawyer only gets paid if you win the case, and the Appeal Board must approve the fee.
Based on the evidence presented, the ALJ will decide whether you are entitled to benefits. If you disagree with the decision, you can appeal to the Appeal Board. You have 20 days after the decision is mailed to you to file an appeal.
What Changes to Unemployment Insurance have been Made During the Covid-19 Pandemic?
A number of important changes to unemployment insurance were made in 2020 as a result of the Covid-19 pandemic. For information specifically about filing for unemployment insurance during the pandemic, please visit: https://dol.ny.gov/coronavirus-aid-relief-and-economic-security-cares-act.
Getting Help and More Information
NYS DOL Unemployment FAQ: https://www.labor.ny.gov/ui/faq.shtm
If I Go for a Job Interview, Can I be Asked Anything About My Arrest Record?
No. The New York State Human Rights Law makes it illegal for most employers and licensing agencies (one exception: law enforcement jobs) to ask applicants to disclose or discuss any arrest that did not lead to a conviction. The same law prohibits public and private employers from denying a job or in any way discriminating because of any arrest that did not result in a conviction. As of 2019, prior arrests in New York that did not result in conviction are not included in rap sheets. If a prospective employer asks if you have ever been arrested and all of your arrests were dismissed, you can answer “no”.
OK, They Can’t Ask About My Arrests. What About Convictions?
It is legal for employers and licensing agencies to ask individuals about past convictions for criminal offenses. A guilty plea is the same as a conviction. In New York State a misdemeanor or felony conviction cannot be expunged from your record. You may, however, be eligible to apply for a Certificate of Relief from Disabilities or a Certificate of Good Conduct which restores certain rights. For more information on this view: parole.ny.gov/certrelief.
Can I Be Denied Employment Because of My Record of Convictions?
The New York State Corrections Law and the NYS Human Rights Law protect previously incarcerated individuals from being unfairly denied jobs or occupational licenses because of their convictions. It is illegal to deny anyone a job because of his or her past conviction(s) unless that person’s conviction(s) are “directly related” to the job in question, or hiring the person would create an “unreasonable risk” to the safety of people or property. In 2019, New York removed outright bans for people with prior convictions on all occupational licenses other than law enforcement and security.
Can I Be Fired if My Employer Learns About My Prior Convictions?
Under the New York State Human Rights Law (which also governs the issuance of occupational licenses), it is considered unlawful discrimination to fire a person from an existing job simply because the person has a criminal conviction history unless “granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific people or the general public.” However, a conviction that occurs during employment does not entitle the individual to these protections.
What do I do if an employer does not directly tell me that I was denied the job based on my criminal record, but I believe that that was the reason I was denied?
According to New York Law, you have the right to ask the employer for a letter explaining why it denied you the job. You can see a sample request here: reentry.net/ny/library/Sample_Letter_Request.
How Can I Tell If My Conviction is “Directly Related” to the Job?
An example of “directly related” would be a person who has a conviction for embezzlement and applies for a job as a bank teller. This individual’s conviction for embezzlement can be considered to be job-related in this instance but would not be if he/she were applying for a job as a machine operator. In practice, whether or not your conviction is so job-related as to justify a denial of employment must be determined on a case-by-case basis. Besides the relationship between the criminal offense and the job duties, other factors that would be considered include the seriousness of the offense, the time that has elapsed since the offense, evidence of rehabilitation, and so on.
Are There Any Federal Protections for People with Prior Convictions?
Since minorities are arrested and convicted at a greater rate than whites, courts have found that policies that deny jobs on the basis of arrests or criminal records have a racially discriminatory effect. In some cases, therefore, a refusal to hire on the basis of a criminal record may be illegal race discrimination under federal civil rights laws.
I Think I’ve Been Denied My Rights. What Can I Do?
If you feel you have been asked illegal pre-employment inquiries about arrests that did not result in a conviction or been denied jobs or occupational licenses because of such arrests, or believe you have been denied employment or occupational licenses because of a past criminal conviction(s), contact one of the agencies below. In some cases, you may also be entitled to file a lawsuit.
- Legal Assistance of Western NY: https://www.lawny.org/employment or 607-273-3667
- NYS Division of Human Rights: https://www.dhr.ny.gov/convictions or 607-721-8467
- Tompkins County Office of Human Rights: https://www.tompkinscountyny.gov/rights or 607-277-4080
- Offender Aid and Restoration: https://www.oartompkins.org/civil-liberties or 607-272-7885
- Reentry Net, Know Your Rights & Job Search Guides: https://www.reentry.net/ny/library
Legal Action Center Booklets:
- Criminal Records and Employment: Protecting Yourself from Discrimination
- Lowering Criminal Record Barriers: Certificates of Relief/Good Conduct and Record Sealing
New York Public Library Job Search Booklet:
I’m Concerned That My Personnel File May Contain a Lot of False Information About Me. What Can I Do?
Your personnel file typically contains information you know about or have given the employer including some personal information, workplace records like wages and hours, accrued benefits, and reprimands if you have them. In fact, however, there is not much control over what information employers can collect and keep about you if they want. This can include performance evaluations you haven’t seen, comments from coworkers or clients, references, almost anything really. There are no Federal or NYS laws giving you the right to access, make copies of, or contest what is in your personnel file. (Some other states do provide this right.) You can, and should, ask to see your personnel file, and many employers will allow you to do this and to make notes about what’s in it. But they are not required to comply. You may also want to request in writing that certain information in the file be kept confidential – health information or, perhaps, addresses and phone numbers (for example, if you are concerned about domestic violence). Again, there is no legal requirement that the employer complies with the request.
Can My Employer Spy On Me at Work?
An owner or manager of any premises cannot install or use a mirror, peephole, camera, video recorder, or other viewing devices to observe the interior of a fitting room, restroom, toilet, bathroom, washroom, or shower. Victims of unlawful observation have been allowed to sue for infliction of emotional distress. There are no laws, however, restricting video surveillance of other workplace locations, so an employer can install cameras covering areas of the workplace that are not covered by the above prohibition, such as hallways, lobbies, work areas, and parking lots. Employers are not allowed to spy on union activities.
Can My Employer Listen In On My Phone Calls or Check My Email?
Under the applicable Federal laws, the Electronic Communications Privacy Act of 1986 and the Stored Communications Act, an employer can monitor your phone conversations in most cases. If your employer states that personal phone calls are not allowed on company phones then any personal phone calls you make are subject to monitoring. The best way to ensure the privacy of your personal calls made at work is to use your own mobile phone. Generally, if an email system is used by your employer they own it and can review its contents. Messages sent within the company as well as those that are sent from your terminal to another company or from another company to you can be subject to monitoring by your employer. This includes web-based email accounts such as Gmail and Yahoo as well as instant messages. The same holds true for voice mail systems. In general, employees should not assume that these activities are private. Union contracts sometimes establish limits on an employer’s right to monitor. Public sector employees might have additional protections under the US and New York constitutions.
Can I Be Reprimanded Or Terminated Over What I Post On Social Media?
This is a complex area of case law but the brief answer is that it depends on your employer’s social media policy as well as the state that your employer operates in. In New York, the discipline of an employee for off-duty social media activity is prohibited unless it can be expressly demonstrated that damage was done to the company in some way. The National Labor Relations Board has recently issued a number of rulings regarding employer social media policies. Some guidelines provided by the board include the following:
Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
If you believe that you are being disciplined unfairly for your use of social media, contact the Tompkins County Workers’ Center. For very useful guidance one of the best resources on the web is Workplace Fairness, workplacefairness.org/social-network-computer-privacy-workplace#11.
Can My Employer Search My Desk or Personal Property?
Private sector employees in New York generally have no protections against searches of their lockers, desks or work areas. Your employer may notify you that all personal belongings, such as briefcases and handbags, are subject to search. Generally, all information stored on a work computer, including websites visited, amount of keystrokes per hour, and idle time on the computer is subject to monitoring by the employer. Your employer cannot open or read a sealed letter or private communication to you. If the search is done in an extremely abusive manner, you might have a claim for intentional infliction of emotional distress. Public sector employees might have additional protections under the US and New York constitutions.
Can An Employer Get My Credit History or Get Information about My Lifestyle?
The Fair Credit Reporting Act (FCRA) does not allow an employer to ask an outside agency, such as a detective agency or credit bureau, to investigate and report on your personal characteristics, lifestyle, character, general reputation, or credit standing unless the employer has first notified you in writing that such a report might be obtained and you have given your advance written consent to the investigation. Also, you must be furnished with clear written notice of your rights under the FCRA. If an employer intends to take adverse action against you, such as refusing to hire you or firing you, based on the report, the employer must first give you a copy of the report. You have additional rights under the FCRA. The FCRA is enforced by the Federal Trade Commission. Victims of FCRA violations are allowed to file a lawsuit.
Can An Employer Conduct Mandatory Drug Testing?
If you work in the private sector in New York, you have little protection against mandatory, indiscriminate or inaccurate drug tests, even if there is no good reason for your employer to suspect drug usage. In general, the employment-at-will doctrine (see the chapter on Termination) is given more weight than your right to privacy. If you work in the public sector, blanket testing of entire workforces is generally not permitted. In certain circumstances, however, such as where the law requires it, or there is an issue of public safety, random drug testing is permissible.
Can An Employer Make Me Take a Lie Detector Test?
For private-sector employees, generally, the answer is no. The Employee Polygraph Protection Act (EPPA) prohibits private-sector employers from asking or requiring an employee to take any kind of lie detector test and from taking any adverse action against an employee for refusing to take a lie detector test. Under a limited exception involving investigations of economic loss, an employer may ask, but not require, an employee to take a polygraph test, and the employer is required to first provide the employee with written notice of his or her rights under the EPPA as well as other information about the examination. There are a few other exceptions under the EPPA regarding the use of polygraphs. Although New York does not have a general law covering lie detectors or polygraphs, the use of “psychological stress evaluators” (PSE’s) is strictly prohibited. PSE’s are devices that supposedly measure truthfulness based on voice fluctuations or vocal stress. An employer cannot even request or suggest that an employee or prospective employee undergo a PSE test. An employer who violates the prohibitions regarding PSE’s commits a misdemeanor and can be sued by the victim.
Can An Employer Find Out My Genetic Information?
Under New York’s Human Rights Law, an employer cannot request, require, or administer a genetic test to a person as a condition of employment, and an employer cannot obtain an individual’s genetic test results. However, an employer can require a specific genetic test if it is directly related to an occupational environment where an employee or applicant with a particular genetic abnormality might be at increased risk. Written informed consent must be given before a genetic test can be performed.
Can An Employer Make Me Take a “Personality” or “Honesty” Test?
Most likely yes. Tests that supposedly measure an applicant’s or employee’s personality or “honesty” are becoming more common, but there are no specific federal or New York laws regarding their use. These are usually paper and pencil tests, but sometimes they are given over the internet or by telephone, with responses to be given by touchtone. If the use of these tests causes a disproportionate number of persons in categories protected by the anti-discrimination laws to be excluded from jobs, their use might be unlawful. See the section on Discrimination for a listing of agencies that might be able to provide more information.
Can I Be Fired for My Political Activities?
Under New York law, an employer generally cannot fire or otherwise discriminate against an employee because of the person’s legal political activities outside of working hours, off of the employer’s premises, and when such activities do not involve the use of the employer’s equipment or property. Somewhat different rules apply to public sector employees, who also are covered by the free speech provisions of the US and New York Constitutions. Public sector employees may also have additional constitutional and statutory protections.
- NY Civil Liberties Union (Central New York Chapter): email@example.com or 315-471-2821
- Tompkins County Workers’ Center: TCWRH@TCworkerscenter.org or 607-269-0409
- National Workrights Institute: https://www.workrights.org/index.html
- Workplace Fairness: https://www.workplacefairness.org/surveillance
- Legal Momentum: https://www.legalmomentum.org/legal-toolkit-womens-economic-equality
Immigrant labor is sometimes exploited by employers who take advantage of those for whom English might not be spoken as a first language. Additionally, many immigrant workers, documented and undocumented, may have a fear of losing their ability to work in the United States and thus avoid government regulatory agencies.
As An Immigrant Worker, Do Wage and Hour Laws Apply to Me?
Yes, all workers whether undocumented or documented immigrant are covered by the same labor standards in New York State including the right to a minimum wage, overtime pay, breaks, tips, and other forms of wages. All workers who are injured on the job are eligible for Workers’ Compensation and are protected by Health and Safety laws. (See sections on these areas)
As An Immigrant Worker Can I Collect Unemployment Insurance?
It depends on immigration status. A worker who is lawfully present in the United States to work or who has been lawfully admitted for permanent residence in the United States is eligible to collect Unemployment Insurance under the same conditions as United States citizens. However, an undocumented worker may not collect benefits. To collect unemployment insurance, workers must be both “able to work” and “available for work.” Because undocumented workers are not legally “available for work” they cannot collect unemployment insurance.
Is it Legal to be Fired Simply Because English Is Not My First Language?
No, it is illegal for an employer to ask if English is your first language in an interview. Similarly, it is illegal to be fired later on if an employer discovers that English is not your first language.
My Employer Offers Safety Training, But Not In My First Language.
Federal law for occupational safety and health requires that training must be offered in the language the employee understands the best. The Occupational Safety and Health Administration (OSHA) estimates that language barriers are a contributing factor in 25 percent of job-related accidents.
As An Immigrant Worker Can I Join And/Or Organize A Labor Union?
Yes, you have the right to engage in protected organizing and collective action as defined by the National Labor Relations Act, including the right to bring a charge against your employer. Immigration status is not relevant in establishing whether a worker can vote in a union election, belong to a union/bargaining unit, or engage in proceedings challenging the result of a union election. The NLRB, in addition, could seek deferral of immigration action and/or seek visa remedies (such as U and T visas) for workers or witnesses in appropriate cases.
However, even though firing any worker for union activity is illegal, undocumented workers who are fired for such activity do not have the right to be reinstated to their jobs or receive backpay – two of the most common remedies awarded to other workers whose employers violate the NLRA.
As An Undocumented Worker Do I Run Any Risks If I Choose To File A Claim Against My Employer?
Yes. The greatest risk in filing an employment claim as an undocumented worker is that your employer may retaliate against you. Retaliation means that your employer takes or threatens to take some employment action against you or reports or threatens to report you to Immigration and Customs Enforcement (ICE), US Customs. A 2019 New York Bill reinforced protections for immigrant workers by providing penalties for discrimination or retaliation against immigrant employees. Ultimately, retaliation is illegal and employers who retaliate against you because you complained about their unlawful working conditions are breaking the law a second time.
The risk of retaliation is one faced by all employees, documented and undocumented, who raise a legal complaint against their employer. However, undocumented workers face an even greater risk when their employers retaliate against them by reporting them to ICE. Even if you file a retaliation claim against your employer for reporting you to ICE, you are not protected from ICE, because in general ICE is allowed to follow up on the employer’s report. If you are thinking about filing discrimination, workers’ compensation, wage and hour, or health and safety claim against your employer and are worried that your undocumented status might be used against you in retaliation, contact the Tompkins County Workers’ Center to speak with an advocate who can properly assist you.
In thinking about how to proceed with your decision to make a claim, you should consider whether or not you have previously received threats from your employer; whether your employer knows that you are undocumented; whether your employer has ever reported or threatened to report any of your co-workers who enforced their rights or disagreed with the employer; and whether or not you believe that your employer may be vindictive enough to report you. In any case, you should never discuss your immigration status at work or carry false documents with you. You should also seek legal advice before disclosing to anyone whether your documents are false.
Getting Help and More Information
- Tompkins County Workers’ Center: firstname.lastname@example.org or 607-269-0409
- NYS DOL Division of Immigrant Policies & Affairs: https://www.labor.ny.gov/immigrants or 877-466-9757
- Workplace Fairness:
- For Domestic Workers:
- NYS Domestic Workers Bill of Rights: https://www.labor.ny.gov/domestic-workers or 888-392-3644
- Legal Momentum: https://www.legalmomentum.org/legal-toolkit-womens-economic-equality
This is the 4th edition of the Workers’ Rights Handbook, and the first that is online. First published in 2003 by the Cortland Workers’ Rights Board, it remains true to its mission of providing comprehensive yet concise information about workplace rights in New York.
In dealing with thousands of calls from aggrieved, angry, and frightened workers over the years, we have been struck by how little public awareness there is of the rights of workers, alarmed at how regularly employers treat employees disrespectfully and unfairly and surprised that workers do not have access to a single handbook providing a summary of workplace rights in NY. We hope we have succeeded in producing such a resource.
By far the best defense against employers who are driven to trade worker rights for profit or who have low ethical standards or bad intentions is to organize a union at your workplace, which will help greatly to ensure dignity and rights at work.
If you don’t have a union, there are still things you can do to assert your right to be treated fairly. We have tried to clarify above what you need to know and do. This is a guide only. It is not meant to give legal advice concerning the specific conduct of an employer or the actions of any public or private agency. If you have additional questions contact the Tompkins County Workers’ Center or the various resources provided in each section.
This updated online Workers’ Rights Handbook owes much to the many hours of dedicated volunteer work of Cecilia Faringer-Perez. Her research, writing, editing, and web skills made it all possible. Carl Feuer also contributed, as did Tom Joyce of Midstate COSH. Of course, we have only stood on the broad shoulders of those, particularly Ron Powell, Linda Smith, Mark Keith, and Jim McCauley, who helped make earlier editions possible.