Bullying has been a hot button in the news for some time, often providing detailed descriptions of the devastation that school children experience when they are victims of bullying. A particular bullying incident involving a Massachusetts high school student, Phoebe Prince, led to national media headlines when she committed suicide in 2010. Bullying can also occur in the workplace, and the New York legislature has been considering a bill to address bullying as workplace harassment.

The name of the bill is the Healthy Workplace Bill. Research underlying the bill revealed that between 16 to 21% of employees directly experience health endangering workplace bullying, abuse, and harassment. This type of behavior is four times more prevalent than sexual harassment. The bill also states that such abusive behavior has detrimental effects on employees, such as:

• Feelings of shame and humiliation
• Stress
• Sleep loss
• Severe anxiety
• Depression
• Post-traumatic stress disorder
• Reduced immunity to infection
• Stress-related gastro-intestinal disorders
• Hypertension
• Pathophysiologic changes increasing risk of cardiovascular diseases

This harassment also adversely affects employers by causing:

• Reduced employee productivity and morale
• Higher turnover and absenteeism rates
• Significant increases in medical and workers’ comp claims

Currently, anti-discrimination laws do not protect against bullying because such laws only apply to discrimination against protected classes based on color, race, sex, religion, age, disability, etc.

What does the bill consider abusive behavior?

The bill defines abusive conduct as conduct with malice, taken against an employee by an employer or another workplace employee. It is behavior that a reasonable person would find to be hostile, offensive, and unrelated to the employer’s legitimate business interests. In considering whether such conduct is occurring, the trier of fact should weigh the severity, nature, and frequency of the conduct.

New York employment attorneys wait to see if the legislature will pass the bill. If it does, it will create a new definition for a hostile work environment in New York.

If you suffer from workplace discrimination, discuss your situation with a New York employment lawyer and find out how to protect your rights.

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An immigration bond is an amount an immigrant has to pay to be released from the immigration detention. The usual situation involving an immigration bond would unfold when asylum seekers I detained at the border and placed in detention pending credible fear interview. If an asylum seeker passes an interview, the government should either parole him/her into the US and release the person; or set an amount of bond to be paid; or will leave the question in the air. The bond is a security that an asylum seeker will come back to immigration court for future hearings. It will be returned to the person who is posting it only when the asylum seekers legalizes in the US.

The amount of the bond is the subject of the present article. Under the law, the bond can be set anywhere between $1500 to $25000 (typically). Even though online there are reports of very high bonds ($30K, 40$ and even $100k) those are atypical situations, and if I had to guess, I would say that some criminal charges were in the picture when those bonds were set.

So, when the court places a $25000 bond on a person whose family is making that much per year, it is obvious, that the immigrant will never be bonded out: the family will simply have no money to pay. This was recognized by the court of Southern District of New York in case of Celestin v. Decker, 17 Civ. 2419 (S.D.N.Y. June 14, 20 17):

setting bond in an amount a person cannot pay would essentially be a denial of bond,” and “[d]enial of bond not due to evidence that the immigrant poses a risk of flight or a risk of danger to the community contravenes the mandates and the logic of Lora . …”

As such, the Court of Western District of New York held that immigration judges have to consider immigrants’ ability to pay bond when setting the amount of bond. See Abdi, et al v. Nielsen, 2/9/18.

This was the law in the Western District of New York, at least before February 27, 2018, when the US Supreme Court stated that immigrants detained under Section 1226(b) do not have a right to bond hearings in case of prolonged detention. The US Supreme Court decision did not address the issue of the excessive bond, and there remains hope that at least in NY immigrants have a right to challenge excessive bonds in courts.

When applying for a bond, it is important to make an argument that the bond should be reasonable, as well as an argument that alternatives to bond should be considered.

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It is unfortunate when people are taken advantage of by their superiors in America. It is even more unfortunate when they believe they must put up with this abuse because they are afraid of being deported, jailed or otherwise retaliated specifically because of their immigration status.

Let it be known, that those who lack a legal immigration status are not only human beings like the rest of us, but are protected by the same laws in the United States as its citizens when it comes to Unfair Labor Practice Proceedings. The National Labor Relations Act is clear in its effect to protect all statutory employees, whatever their immigration status may be.

When an issue of immigration status is raised during the investigations or proceedings the NLRB (National Labor Relations Board) assigned representative in the Division of Operations-Management must be made aware of the possible implication of immigration status affecting the ability to litigate or settle a potential claim of unfair labor practices. The representative is not only required to provide technical assistance and discuss the possibility of additional remedies but will also determine whether interagency engagement will assist in litigation or settlement and coordinate the agency’s response to these issues. Thus, if the act is violated by an employer, the regional office in charge of investigating your claim will make its determination of said act regardless of current immigration status.

Most employers will try to raise the infamous defense “Company ABC was motivated by the need to comply with immigration laws,” do not falter. This is a scare tactic used by many employers to scare a complainant into withdrawing their complaint and never coming into contact with, or mentioning the companies name ever again.

The key word used in this defense is motivation. Motivation of termination, suspension, demotion, etc. If an employer was motivated by different reasons, such as asking to be compensated for overtime not paid, inquiring as to why your employer is paying you below minimum wage, declining sexual advances of your superior, etc., an employee may bring lawsuits based on other laws that protect employees from discrimination, such as Title VII or New York State Human Rights Laws.

It is important to know that for certain situations a person without valid immigration status may qualify for a T or U visa. The law provides protection for those who cooperate with the law enforcement and are not afraid to speak up. In addition, a prosecutorial discretion may also be available for those who act as plaintiffs or witnesses in employment discrimination litigation.

Moreover, a person with a temporary employment authorization (an asylee, a person in a conditional permanent resident status, a person on OPT) cannot be discriminated against either. Under the U.S. laws, an employer cannot require an employee to present specific documents to prove employment eligibility. An employee can choose from a list of acceptable documents, which ones to present. In a case when an employer demands specific documents: let’s say a U.S. passport or a permanent resident card, an employer can be punished by the U.S. government as it is discrimination based on alienage.

The post My Boss Or Supervisor Is Treating Me Unfairly At Work, But I Do Not Have A Legal Immigration Status. What Can I Do? appeared first on Immigration Lawyer NYC | Immigration Lawyer New York | NYC Attorney.

Sexual harassment in the workplace can be devastating, whether it is a supervisor asking you to go for drinks after work on multiple occasions, or in more serious cases the forcing of unwanted sexual acts from a supervisor. If you feel threatened or uncomfortable at work due to the advances of a co-worker, supervisor, or even an employee under your supervision you should not be afraid to come forward and confront management of the situation. If your management fails to act accordingly to your complaints you may have a valid claim for sexual harassment in the workplace under Title VII of the Civil Rights Act of 1964. No one should have to endure sexual harassment for fear of losing their job, loss of promotion or otherwise loss of benefits.

Now, sexual harassment is defined as the unwelcomed sexual advances, verbal or physical conduct of a sexual nature. These sexual advances can be broken down into two different categories:

1. Quid Pro Quo – This involves an employment decision, whether it involves keeping your job or getting a promotion at work, if your employer or supervisor forces you to decide between submission of the sexual act or loss of benefits in the workplace.

• Sexually explicit conduct.
• Inappropriate touching.
• Sexual innuendos, jokes or comments that make you feel uncomfortable.
• The displaying of pervasive and otherwise illicit or graphic sexual content in the workplace.
• Sexual assault.

2. Hostile work environment – When your work becomes intimidating, hostile and otherwise offensive. The behavior of your supervisor or co-workers makes it difficult to work within the workplace affecting your performance or creates a hostile, offensive or intimidating environment. For hostile work environment the courts will take into consideration:

• Whether the harasser was a supervisor or co-worker, if the behavior is exhibited by a co-worker, you complained about the behavior the management must provide an adequate remedy to the situation or face liability for the co-workers actions.
• If others joined in the harassment and if the harassment was directed at an individual or a group.
• The conduct must be hostile or patently offensive.
• How often this behavior is presented and whether it was verbal or physical.

If you fit the criteria of sexual harassment in the workplace, you must report the misconduct immediately. Not only do you want to protect yourself from future abuse, but, under the law if you fail to report the sexual misconduct it is deemed that you “liked” the behavior. This is a valid defense of your perpetrator and although you may be afraid to come forward, if you do not, you will waive your protection. For example, Sally is a secretary for John, every morning when John comes into work he slaps Sally on the buttocks and says “Go get ‘em today Sally.” Sally smirks and hurries over to sit down at her desk. A year goes by and Sally decides to tell John that she absolutely loathes the idea of him slapping her on the buttocks every morning before she heads to work and that it affects her work performance early in the morning. Although Sally was scared of losing her job for the past year, and she really did hate John’s behavior, Sally will most likely be unable to prevail in a law suit against John. John’s most likely defense will be “I had been exhibiting the same behavior for a year and Sally had never told me to stop, she like this, if she didn’t she would have said something a year ago. She is just upset because …” The only way Sally can prevail in this situation is if she told John to stop, and he continued with this sexual misbehavior.

The other major consequence of not reporting the sexual harassment is that the law places a time restraint on how far back you can report sexual harassment. In most incidents you have 180 days from the date of the incident to file your claim. Taking into consideration the hiring of an attorney, you will need to give the attorney ample time to present your case within this time restraint or “statute of limitation” preferably 30 days BEFORE the 180 days expire.

Title VII will also protect an employee who has complained of sexual harassment or discrimination from retaliation. If your employer retaliates against you by cutting your hours, changing your shift, or termination after you have complained of the harassment or discrimination you will have a valid claim of retaliation against your employer which is subject to punitive damages.

Many factors are considered when filing a claim of sexual harassment or discrimination. Consult an experienced attorney for best results. Alena Shautsova is an attorney practicing in Brooklyn, Queens, Manhattan, Bronx, Westchester, Nassau and Suffolk County. Consultation fees may be waived after a pre-screening of Office personnel for sexual harassment and discrimination cases. Call today, 917-885-2261 or email us your inquiry at office@shautsova.com.

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Majority of employment discrimination cases are filed in Federal courts, and hence the disclosure of the information by the both sides would be governed by the Federal Rules of Civil Procedure. Sometimes, a question of whether to file a case a state or federal court is a strategic one, as there are difference in statute of limitations; preferred forum; case law; and, of course, rules of evidence. Attorneys choose the filing forum, mostly, based on availability of attorney’s fees and statute of limitations.

After the parties exchanged pleadings, a stage of the case called discovery comes into play. Discovery is very important as it helps both sides to understand the case better, and often leads to settlements. In Federal courts, there is something called an automatic disclosure: basic information about the case that parties must exchange, often prior to the initial court conference. Then, the parties exchange discovery demands which usually consist of interrogatories (written questions that must be answered under the oath) and document demands.

While a party in federal court may pose only 25 written questions to its opponent; the state courts do not have such limitations. There is no limit for document demands in either state or federal court. Discovery should be tailored so that an asking party has an opportunity to clarify certain issues of her claim. A plaintiff in an employment case would probably want to see her personnel file together with the managers’ notes; records of similar employees who were or were not disciplined for the same actions; records of the company’s anti-discriminatory trainings; records of the company’s efforts to resolve the issues the plaintiff complained about (such us records of internal investigation)… The defense is usually seeking documents proving damages and mitigation of damages; as well as records of engagement in a protected activity: copies of employee’s previous complaints.

It is important to know that now all the information requested will be disclosed. It is so because the laws protect privacy and confidentiality of both sides of the process and limit discovery to relevant information.

In a state court, discovery stage may take years; in a Federal court it is usually controlled by a Magistrate judge and often is finalized within a year.

One of the main stages of the disclosure is examination before trial or depositions: verbal questions under oath with the court reporter present that opposing side through its counsel is asking the other side. Depositions play the key role in the discovery process: it is the first time the attorney for the opposing side may speak with the witness (even though with limitations) and may actually get a feel of the witness’ personality and candor. Questions at the depositions should be crafted carefully. For example: a question such as “What did your attorney tell you regarding this matter?” cannot be posed at all, and the witness have to decline answering it if it did, because communications between a client and an attorney are protected by the privilege. At the same time a question like “Did you consume any alcohol within the past 24 hours?” should not be regarded as offensive and is permissible because it helps to clarify if the witness’ ability to testify is impaired.

Discovery closes in a state court with filing of the note of issue and in federal court with pre-trial order.

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Thousands of US small and large business employ immigrants who the government calls “undocumented”. Those are men and women who earn their living and pay taxes but do not have a permit to work in the United State. They are not necessarily employed as agricultural or domestic workers. Quite often, they are highly educated professionals such as engineers or marketing directors who work as “consultants”.

Nevertheless, the reality is such that those “undocumented” comprise a significant part of the U.S. workforce, and the reality is such that many employers take advantage of their status by depriving them of Wage protections afforded to the “legal” employees by the U.S. Federal and State laws. For example, the FLSA (Federal Labor Standards Act) states that certain employer must pay employees overtime and minimum wages; and establishes quite severe penalties for employers in case the overtime and/or minimum wage are not paid. Many State laws provide the same or higher protections. At the same time, many employers, knowing that a worker is worried about his/her legal status ignore the laws. It usually happens when an employer claims that the employee is on salaried position, or when an employer simply fails to pay for each hour worked and/or overtime, spread of hours, etc.

After the U.S. Supreme Court’s decision in Hoffman Plastic Compounders, Inc. v. NLRB, 535 U.S. 137, 148-52 (2002) which held that undocumented workers that are terminated for union activity in violation of the National Labor Relations Act (NLRA) cannot recover back pay, many employers thought that they would be immune against other Federal laws forcing them to treat undocumented workers equally with those who have the work permit. (The Hoffman Court, citing Immigration Reform and Control Act of 1986 (IRCA), which penalizes the acts of undocumented workers and provides for significant penalties to companies that knowingly employ illegal immigrants, to disallow the use of the punitive provisions of the NLRA against an employer which would benefit any person who knowingly broke immigration law, reasoned that where an employee failed to disclose his undocumented status, he cannot later recover back pay after being fired for Union activities (a remedy available to those with work permit or U.S. citizens)).

The recent line of cases regarding the issue, however, proved them wrong. In the 11th Circuit case Lamonica, et al. v. Safe Hurricane Shutters, Inc., Case No. 11-15743 (March 7, 2013) the court explicitly held that not only employers are responsible for FLSA violations with regard to undocumented workers, but also that directors of corporations as well as officers can be held individually liable for those violations.

In addition, in recent case coming from California, 8^th Circuit, Elmer Lucas v. Jerusalem Café, LLC, No. 12-2170 (8^th Cir, July 2013) five undocumented workers worked in a café without getting paid minimum and overtime wages. The owners paid them in cash, fixed weekly rate, without regarding the hours actually worked. Subsequently, the workers sued the café and its managers. The jury found in the workers’ favor. In accordance with the jury’s verdict, the district court awarded $141,864.04 in actual damages for unpaid FLSA wages, $141,864.04 in liquidated damages based on the jury’s finding that the employers willfully failed to pay FLSA wages, $150,627.00 in legal fees, and $6,561.63 in expenses. The employers appealed, arguing that the FLSA does not protect undocumented workers. The Lucas court held that “[t]he FLSA does not allow employers to exploit any employee’s immigration status or to profit from hiring unauthorized aliens in violation of federal law.

Therefore, all undocumented workers who worked and were not paid must know that they are entitled to recovery of their unpaid wages. Employers are likewise must be aware that counting on worker’s dubious immigration status, will not safe them from the harsh penalties under the Federal laws.

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Workplace discrimination is one of the most unpleasant and upsetting things that may happen to anyone. One may think that in 21 century most employers are aware of the consequences of singling out an employee based on sex, race, place of origin, disability or age. The reality, however, is much different and work harassment and hostile environment happen more often than one would think.

What do you need to know if you believe you became a victim of discrimination at work?

First of all, an employer must have notices at work place that would direct employees as to what to do if they believe they are a victim or they know of a victim of employment discrimination. Those notices must be posted at the place where employees ordinary gather and may see them such as a locker room dashboard, or community dashboard in the common kitchen area.

Second, depending on the size and location of the employer, you may be protected by New York City, New York State and/or Federal Laws. The New York City and New York State afford the widest range of available damage recovery and protect more classes of employees than Federal law. The size of the employer for the Federal protection must be at least 15 employees or more.

Third, for the employer’s liability to be actionable the employer either must know of the harasser’s actions and fail to undertake reasonable steps to prevent the discrimination; or the harassment must be by employee’s supervisor. The definition of who is a supervisor for the Employment Discrimination purposes has been changing, and in a recent U.S. Supreme Court decision it has been recognized that a supervisor can be only a person who the employer has empowered to take “tangible employment actions against the victim … such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” An employee who merely directs another employee’s work activities is not a supervisor. The Court’s decision in Vance v. Ball State Univ., No. 11-556, slip op. (June 24, 2013). Further, if a coworker is responsible for the alleged harassment, the employer is not held liable unless it was negligent in discovering or remedying the harassment. This ruling, however, does not affect the definition of a supervisor contained in other laws, and one should still consult with an attorney if he or she believes to be a victim of discrimination at work.

Lastly, one who became a victim of discrimination must complain to an appropriate authority in time in order to be able to claim and recover damages. The Statute of limitations or time afforded to an employee to complain about violations of his/her rights or file a lawsuit, is restrictive. Usually, the action must be undertaken within 300 days, but to be on a safe side, an employee should do to it as soon as 180 days of the act of discrimination (firing/ demoting/ disciplining, etc.) Some laws provide for a longer statute of limitations, but an employee must realize that if he/she fails to undertake an action within the shortest statute of limitations, almost always he/she will lose recovery of damages under one of the discrimination statutes. Procrastination is not your friend in this situation.

The Law Office of Alena Shautsova is an employment law firm serving clients in Brooklyn, New York City, Long Island, Manhattan, Queens, the Bronx and surrounding communities. If you have questions regarding discrimination at work call 917-885-2261.

The post Discrimination At Work: Who Is A “supervisor”? appeared first on Immigration Lawyer NYC | Immigration Lawyer New York | NYC Attorney.

New York State and City laws, as well as Federal ADEA (“Age Discrimination Employment Act”) protect workers from age discrimination: it is illegal to subject employees to harassment, disparate treatment and retaliation.

Different laws provide different frames of protections, with the New York City laws being the broadest. Also, the size of the employer will determine if the complainant can file in Federal or State court: if the employer has 20 and more employees it is “covered” by the ADEA Federal law; if at least 4 employees, it is subject to liability under NY State and/or City laws.

To have a successful “case” a person must demonstrate that (1) he/she belongs to a protected class (the ADEA protects employees over 40; while the State laws affords protection to everyone over 18); (2) he/she suffered an adverse employment action (harassment; demotion; suspension; denial of training; termination; etc.); (3) there exist a connection between the person’s age and adverse employment action; (4) the employer was motivated by an illegal reason to act/not to act towards the employee.

Although a person may go directly to State court, he/she might want to file a complaint with EEOC (“Equal Employment Opportunity Commission”) or NYSDHR (“New York State Division of Human Rights”) first. This will give employee and employer time to try to resolve the conflict and also, ensure that an employee will be able to file his/her complaint with Federal Court.

It is important to know that there are deadlines for filing an action against your employer. Only in rare instances, a 6 or 7 year old abuse can still be “actionable” and punishable in court. For the most part, the law provides a three years Statute of Limitations for the State court action; and 300 days for the action which will be filed with the Federal court. However, in reality, in the last example the case must be filed within 240 days from the date of the violation. The filing deadlines are very technical and must be observed at all costs.

New York Employment Discrimination attorney Alena Shautsova is a principal at the Law Office of Alena Shautsova, a full service Employment Discrimination Law Firm in Brooklyn, New York. The author can be reached through www.shautsova.com or 917-885-2261 and encourages her readers to contact her with questions.

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Anthropology is the science that studies mankind in terms of physical and cultural development including biological characteristics, social customs and beliefs. As in many other scientific areas, scientists engage in fieldwork in remote and uncivilized locations. According to an article in American Association for the Advancement of Science (AAAS), the anthropologist authoring the study, Kathryn Clancy, discovered that more than 20 percent of female bio-anthropologists participating in the study had experienced physical sexual harassment or unwanted sexual contact. Most of the victims were female and their own colleagues were the main sources of sexual harassment, not the cultural communities involved in their study.

Clancy got the idea for the survey when she discovered a fellow female colleague had been traumatized by a rape in the field at the hands of another colleague who was her mentor. Under threat of ruining her career, the mentor had persuaded her to remain silent.

Through an online survey, Clancy obtained responses from 98 women and 23 men. The survey revealed the following:

• Verbal abuse based on inappropriate sexual remarks at field sites was frequent according to 30 percent of men and women surveyed
• Sixty-three percent of women and 39 percent of men experienced sexual remarks about physical beauty, cognitive sex differences or jokes
• Twenty-one percent of women and one out of 23 men experienced physical sexual harassment or unwanted sexual contact
• Sexual abuse ranged from subtle gender exclusion and inappropriate remarks about a woman’s body to groping and sexual assault
• Less than 20 percent of the abuse involved the community being studied at the field site and most of the abuse originated from researchers in higher professional positions than the colleague being victimized

The author also reported that female anthropologists do not come forward because of the adverse effect that “failing to complete and publish research, and/or loss of letters of recommendation” can have on their careers as scientists.

Despite the threats, it is your civil right to be free from sexual harassment in the work environment. If you are the victim of sexual harassment, find out how to protect your rights and discuss your situation with a New York discrimination lawyer.

The post Anthropologists Study the Prevalence of Sexual Harassment appeared first on Immigration Lawyer NYC | Immigration Lawyer New York | NYC Attorney.

When sexual harassment occurs and involves individuals in notable government positions, it generally creates quite a scandal and can become high profile in the news. Such is the case with Assemblyman Vito Lopez who was accused of sexual harassment by two female staff members. Both claimed that he kissed, groped and harassed them according to a New York Times article in August 2012. Five women interviewed by the New York Times described the office environment as one filled with unwanted advances by Mr. Lopez and others. The workplace culture was characterized by crude language and sexual pressure and workers were afraid of reprisals if they refused to go along with it.

Vito Lopez is 71 years of age and was the Chairman of the Brooklyn Democratic Party. After the alleged harassment incident became public, he tendered his resignation as chairman.

Attempts to keep the harassment claims quiet led to a secret settlement instead of a lawsuit being filed. However, the attempt at secrecy backfired resulting in even greater public outrage over the lack of disclosure and the fact that more than $100,000 in taxpayer’s money was used to pay the settlement. State Assembly Speaker Sheldon Silver handled the settlement, and when Governor Cuomo and other elected officials discovered it, they called for an investigation into how the Assembly handles sexual harassment claims.

While, Mr. Lopez relinquished his position as chairman, he refused to resign his Assembly member position and his constituency re-elected him in the November 2012 election.

The matter continues to be an issue before the Assembly Ethics Committee. In fact, the ethics violations involving the sexual harassment scandal recently came before the New York Legislature.

Anyone subjected to sexual harassment no matter how important or lofty the position of their superior has the right to take legal action. If you experience sexual harassment in the workplace, discuss your situation with a New York discrimination lawyer and find out about protecting your rights.

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