BLAW Review Recording
FMLA

Unlike ADA, FMLA doesn’t start for a while. Doesn’t start initially – need to wait for a
period of time. There is a delay, need to work for a period of time before you can use.

Under FMLA (covers self, parent, child, sibling with serious health condition, foster care,
adoptions, military time), you took time off to take care of mom. PFL (NY state law, paid
family leave) - can take more time off to care for brother. State law covers brother.

#3 under FMLA. Can’t use PTO and then use FMLA. Employer has right to drain your
PTO at the same time you use FMLA.

PFL – can't use for your own serious health condition. Only for family.

T/F Morgan goes to employer and demand to use PTO first and not use FMLA. Can’t do
that fool. Again, employer can drain PTO at same time.
ADA

No time limit like FMLA. If you have a record of disability/one or more disabling life
activities, ADA in effect from the first day of employment to the end.

#3 under ADA. Under federal law, disability must be permanent (more than 6 months).
Under state law, disability can be less than 6 months.

#17 under ADA. Man files lawsuit under ADA against Waffle House. Waffle House
claims they can’t sue because of a contract an employee signed. EEOC can do more than
employee can do because EEOC didn’t sign contract with Waffle House.
TAA (Title 7, ADA, ADEA)

TAA. Need to go to EEOC first before filing a lawsuit. Must have an incident within 300
days of filing with EEOC. If filing a suit of hostile work environment under TAA, as long
as there is one incident within 300 days of filing, can look at past events (past 300 days)
to build a case.

Only time you get punitive and compensatory damages (high damage awards) are
through Title 7 and ADA (not ADEA).
ADEA

O’Connor prima facie case: Prima facie means you need to have enough evidence for the
case to move forward. If you are replaced by someone younger than you, but over 40,
argued you can’t file a suit (you don’t have prima facie). O’Connor case said it doesn’t
matter if the person that is replacing you is over or under 40. If they are younger than
you, you have a prima facie case. Plaintiff (the one filing a lawsuit) always has to be
older.

Smith vs. City of Jackson, disparate impact claims reasonable factor vs. business
necessity. Don't need to show business necessity. Need to just show reasonable goal for
disparate impact (lower standard).

Need to notify EEOC under ADA
Privacy

If you are going to do a background check on someone, you have to have their
permission under federal/state law.

Under NY law, the right to privacy means you can’t use your image or likeness without
their permission.

NY Law states you can’t discriminate against individuals engaging in certain activities
(I.e. political) in non-working hours. Dating is not protected.

Government employees are protected under 4th amendment for search and seizures.
Employees must prove 1. there is an expectation of privacy and 2. search was
unreasonable. The same protection does not apply to private employees.
Worker’s Compensation

You don’t get “pain and suffering” in worker’s comp.

Injury must arise out of and within scope of employment.

If you get hurt at work because of someone else’s negligence (another employee,
manager, etc.), your sole remedy is worker’s comp. You cannot sue for negligence.

If you assault someone at work, the victim gets workers comp. But because it’s an
assault, they can also sue you.
FLSA

Exempt from overtime – Executive/admin professional, salary employee that makes over
the threshold.

Entitled for overtime (non-exempt) - Hourly employee or salary employees (that don’t
meet threshold/don’t make enough money)

Boss calls employee to tell them they are closed for the day. Hourly/Non-exempt
employees don’t get paid (could get paid using their PTO day). Exempt/salary employees
get paid.

Exempt employees can get overtime if employer wants to give it to them (this is a gift).
This does not change their status to non-exempt.

In wage law, you receive liquidated damages (double what you lost) under federal OR
state law. You can’t receive liquidated damages under BOTH federal or state law.

If hourly employee is on their way to work and employer calls to tell them to not come
in, employee gets at most 4 hours. If employee was supposed to work for a full day, they
get 4 hours of wages. If employee was supposed to come in for 2 hours, they get 2 hours
of wages (at most 4 hours).

Jury duty. 11 of more employees, employer must pay $40 for first 3 days of work. Then
state pays. If employer continues to pay after day 3, state does not pay employee.

Summary judgement (pre-trial motion to throw case out). Meant to see if case meets
qualifications to continue to trial. Impossible to dismiss wage cases at summary
judgement because it’s a he said she said situation. Important for employer’s to keep
good bookkeeping.

Wage garnishments. Can garnish 10% of wages. Income execution must first serve it on
the sheriff. Sheriff then serves it on the judgement debtor. Debtor can do it voluntarily.
After 20 days, if debtor does not pay it off, employer then garnishes debtor’s wages.
Whoever gets income execution to sheriff first wins (not whoever goes to court first).
Title VII/Title 7

McDonnell Douglas vs Green: Outlines how to establish prima facie (based on first
impression, accepted as correct until proven otherwise) case for discrimination based on
disparate treatment (treated intentionally poorly). The importance of pretext. "The tennis
ball goes over the net three times." Complaintant sends ball over to defendant (employer).
Defendant send it back under "pretext" - saying it's a "lie." Complaintent sends it back to
defendant one last time.

Under McDonnell Douglas case for disparate treatment, if employer makes a case and
defends their position, the case is over. FALSE. Employee has first and last say.

Griggs vs Duke Power. Disparate Impact is actionable, not just disparate treatment. First
time parties may sue for discriminatory motive, but also discriminatory effect. Policy in
place that has discriminatory effect but wasn't intended to be. They are still liable.
Defendant (employer) must show business necessity (this is considered a high bar). Ex.
This policy that has a discriminatory effect is necessary for the business.

Ward Cove Packing Co. v Atonio (1989). Lowered standard from Griggs case.
Employers can defend disparate impact cases by showing a legitimate business goal.
Don't need to show business necessity but can demonstrate reasonable business goal.

Price Waterhouse vs Hopkins. In cases of mix motives (some good and some bad motive
for discrimination), employer is not liable if proven a non-discriminatory reason existed
along with a discriminatory reason and the same result would have been achieved.
However, the burden of proof is by clear and convincing evidence (75%), not by the
lower standard by a preponderance of the evidence (51%).

Morgan not able to prove he was fired because he belongs to a certain religious group.
Unable to prove it but Morgan was demoted because he filed a claim against him. This is
retaliation. Lost on underlying discrimination case but can still get all damages because
you can prove you were retaliated against.

Lewis v Chicago. USSC 2010. Importance of the SOL. SOL resets whenever you refer
back to document in question (ex. Kept using entrance exam for firefighters).

Don’t have to pregnant to be protected (just have to be perceived as pregnant). - applies
both federal and state law.
How to Sue

You have 300 days to file a case with EEOC.

NY Human Rights Division – 1 year to file administrative proceeding (action without
going to court). 3 years for sexual harassment.

State court you have 3 years.

Damages – see outline. Identical for federal and state damages (ADA). Punitive and
compensatory damages capped in federal court. Not capped in state court.

If you got to HR division/arbitration/go to trial and don’t like decision, you appeal to
appellate court. You can’t ask for another trial.

Federal employees start with he EEOC and end with the EEOC.
Sexual Harassment

Meritor Case: Hostile working environment is covered under Title 7.

Agency
1. Scope of Employment (means tort) and Scope of Authority (means contract).
Tort: A civil wrong. A wrongful act or an infringement of a right (other than under contract)
leading to civil legal liability. Can be intentional or unintentional (negligence – careless, not
acting like a reasonable person, not a crime).
Employer is liable for the intentional torts of the employee committed within the scope of
employment.
Ex. You were sold silver bar that was hollowed out and inside was replaced with something else.
This is fraud and intentional tort. You can sue employee and employer who wronged/harmed
you.
Criminal vs. Civil Law
Criminal Court Standard (Guilty): Must be found to be guilty beyond a reasonable doubt. Not
required to testify.
Civil Court Standard (Liable): A preponderance of the evidence. I, the plaintiff (the one bringing
the case, NY state), can prove my case by 51%. Can be forced to testify.
Criminal court standard is higher than civil court standard so no need for civil trial if found
guilty in criminal trial. If found not guilty in criminal trial, can sue in civil court.
Ex. Civil Action: False Imprisonment vs. Criminal Action: Kidnapping
2. Formed by contract or consensual.
3. Formed also by Courts: Mental Hygiene Law (Article 81) guardians of the person and
property – must be proven with clear and convincing evidence (75%). If a person is deemed
incapacitated, a guardian (agent) is appointed. Guardianship of the Property controls financial
matters (like a POA). Guardianship of the Person controls medical decisions and placement (like
a healthcare proxy). Healthcare proxy can't control placement (like putting them in a nursing
home). Court order guardianship can't be terminated. If can't find a family member, County Dept
of Social Services will become default guardian of person and property. Any advanced directives
(POA/Healthcare Proxy) are revoked once guardianship is given to someone.
Ex1. Dad is in a nursing home. You are an only child. You have no POA or Healthcare proxy.
Don't need guardianship of the person b/c already in a nursing home. And under NY Healthcare
Decision Act, you can make healthcare decisions. You have been paying his bills but you're
running out of money. Need to apply for Medicaid but can't because you don't have a POA. Need
guardianship of property to pay nursing home and handle Dad's finances.
Ex2. Dad living alone w/dementia in a house that is condemned (hoarder). No advanced
directives. Need to declare them incapacitated and then petition for release (Guardianship of
Property and Person). Need control of finances and place them in a home.
4. Scope of Authority: Binding principal in contract by express authority or apparent authority.
Agent can bind principal in contract if there is expressed authority. Apparent authority comes
from the principal and was not intended (appears that a person has authority).
5. Termination or Agency: Agent leaves or is fired but apparent authority can continue (bad
person rule); agent continues after death apparent authority can continue (bad person rule);
Principal is declared incompetent.
Ex. Apparent authority to buying/selling coins only. Not jewelry.
Agency created by law.
Agent – fiduciary of principal.
Power of Attorney - Power of Attorney is the form, Attorney-in-fact is the person with the
power. Can have multiple Attorney in fact. POA ceases upon death.
Problem w/POA: It can be revoked.
Healthcare Proxy – Can make medical decisions for them if they can't make it on their own.
Limitations can be placed. No co-healthcare agents (can't have two. Can have a primary and a
secondary). Can also be revoked. Cannot place someone into a nursing home.
New York State Family Healthcare Decision Act – Closest family members can make medical
decisions if you can't.
Healthcare Proxy Agent superior to closest family member (NY State Family Healthcare
Decision Act).
Must have Mental/Testamentary capacity to sign legal document.
You cannot designate a POA or Healthcare Proxy if you are incapacitated.
Terms
Agent – Someone who helps another.
Principal – Somone who hires an agent.
Contract – offeree and offerer. Each gives "consideration" to each other.
De minimis – too trivial or minor to merit consideration.
Dovetail – to fit together well.
Statute – Law
Incapacitated - You do not appreciate or understand your inability to provide for your needs.
Advanced Directive – Healthcare Proxy (medical decisions) & POA (financial decisions).
Directing in advance if you can't make decisions for yourself.
Net Available Monthly Income (NAMI) - All your income (social security, retirement, annuity).
It will be used to pay the nursing home. Medicaid then picks up the rest of the balance.
PARTNERSHIP ISSUES.
1. The Idiot Rule: To form a partnership, you are an idiot.
2. The JA Rule: If you are a partner, you are a jackass.
3. Definition of a Partnership: 2 or more in business for a profit. It cannot have a charitable
purpose alone, must be for profit. Can be a partner and not know it (receiving "profits" because
you lent someone money for the business).
"Jointly or severely liable." Anything under the partnership name (assets) can get nuked and
fuked. Everyone involved in a partnership can be sued. First collect partnership assets and then
individual partner assets.
4. Biggie Smalls Rule. Creditors not bound by partnership agreements. Partners might write an
agreement saying not all partners are liable. Doesn't matter – creditors can collect from all
partners.
5. DWT Rule. Dissolve, wind up, terminate. If partner leaves, dies, or goes bankrupt, must
dissolve partnership. Have a window of opportunity to wind up business (ex. If building a
building, can finish building). Then must liquidate all assets, pay creditors, anything left over is
paid to partners as profits.
6. LBD Rule (Leave, Bankrupt, Dies). Partner leaves, dies, or becomes bankrupt, partnership is
dissolved. Partnership always dissolved no matter what if a partner leaves, dies, or becomes
bankrupt. Terminate partnership is NOT dissolving partnership. DISSOLVING.
7. Make A Deal Rule. If there is no agreement, partners can make a deal with the estate of the
deceased partner/the trustee in bankruptcy to continue as a new partnership and not go out of
business. Can write an agreement that states start new partnership to avoid wind up and terminate
phase. You can make this deal before or after partnership dissolves. Deal can include pay out of
other partners, etc.
8. The DBA Rule. "Doing Business As" Register a DBA name to notify public person/business
entity is conducting business under a name other than legal name. Does the DBA form a
partnership? No. A partnership is formed when two or more people are in business for a profit.
9. Apparent authority. Know application of the rule. Each partner is a principal and agent to each
other. Partners can create apparent authority for actions related to the business or doing business
with someone who they've dealt with in the past and expressed authority was terminated.
10. "At will" and "For a term". At will: Can leave at your leisure. Or I can let you go at leisure.
No duration for partnership. Cannot sure partner for damages for leaving. For a term:
predetermined amount of time for partnership.
11. Capital.
LIMITED LIABILITY PARTNERSHIP
1. It takes 2 rule. Need 2 partners. Formed through Sec. Of State. Partnerships not formed
through Sec. Of State.
2. Liable for torts of those they supervise, not other limited partners. Tort of negligence
(accidents, didn't act reasonably, malpractice): Can sue doctor responsible for malpractice. Liable
for your own actions. Can't sue other doctors in LLP. Other doctors are protected from
negligence of others under LLP. Can sue LLP because employer is liable for torts of employee
committed within scope of employment. If nurse fucks up, can sue nurse, doctor involved, and
LLP.
3. Called a: LLP, Limited Liability Partnership, Registered Limited Liability Partnership, RLLP.
4. For professionals (doctors, lawyers, architects, dentists, etc.)
LIMITED LIABILITY COMPANY
1 Liability of members. Formed through Sec. Of State.
3. Called a LLC, Limited Liability Company.
4. Comprised of members: Non-professionals. Can be just one member.
Anyone who is negligent is liable: Employee, LLC member who was supervising negligently,
and LLC.
PROFESSIONAL SERVICE LIMITED LIBILITY COMPANY (not on test)
1.
Professionals only.
2.
Liable for those they supervise, not other
members.
3.
Called PLLC, LLC.
LIMITED PARTNERSHIP - not an LLP or partnership. It's a partnership with investors. Treat
as regular partnership for liability purposes except limited partners are not liable.
1.
General and limited partners. General partners
are treated the same as partners in a partnership
and cannot hide from their contracts or torts.
Limited partners are never liable unless they
make day to day decisions and are treated as
general partners. Limited partners are investors
only. General partners and partnership are
liable. Limited partners not liable.
***Everything is formed through Sec. Of State except partnerships and sole proprietorship.
CORPORATIONS
Owners of corporations = Shareholders
People who make the decisions = Board of Directors
Other officers = CEO, President, etc.
Employer is liable for torts of employee committed within scope of employment.
Whose liable? Ex. Person A is an employee, shareholder, president, and director. Caused an
accident and hurt people. Employee, shareholder (usually not but liable for own actions in this
case), president, director, and corporation (employer) is liable.
You're always liable for your own tort.
Ex1. Morgan is sole shareholder, director, president/CEO. Morgan signs contract in name of
corporation "X corporation by Morgan, CEO." Contract is breached, who can you sue?
Whoever signs the contract is liable – just the corporation.
Ex2. Morgan is the director, shareholder, and officer of a corporation. You commit negligence
and negligently install disco ball. Disco ball falls and hits someone. Who can you sue?
Sue employee who installed the disco ball – tort of negligence. Sue the corporation (the
employer) - employer liable for torts of employee. Can't sue Morgan because he is not the
employer.
Jurisdiction – You sue the defendant (person/entity) where they live and where they are born.
You can sue corporations in two places – where you were born and where you operate.
Ex1. Fight occurs in Ohio. Victim from CA. Aggressor/Defendant from NY. Victim can sue in
NY and Ohio. Cannot sue in CA (no jurisdiction).
Ex2. Morgan goes to CA and buys a surfboard. Take it back to NY and it breaks in half and
Morgan is injured. Morgan can't sue in NY but can sue in CA.
COURT STRUCTURE.
1. 94 District Courts (Trial Courts); 13 Circuit Court of Appeals (Appeals Court).
 Trial court tries cases. Appeals court reviews case and sees if appeal should be upheld
(did lower court make an error of law?)
2. State proceedings in federal court (exception to state law in state court & federal law in federal
court). You can sue in federal court on a state law if there is diversity (parties from two different
states) and $75,000 in issue.
3. Court of Appeals highest court in NYS. 4 Appellate Divisions below it.
 Supreme Court – highest trial court (boundary dispute, defamation, breach of contract,
divorce, etc. Does not take lower claims ~$5,000)
 Federal judge made a decision on a state claim. Does state judge need to follow that? Not
bound by federal judge, state judge is bound by appellate division and court of appeals
(two courts higher than judge, Morgan is below appellate division).
 Must only follow if from U.S. Supreme Court.
 Federal judge can put a "stay" in something the President is doing and put it in pending
until determined in court and put entire country on hold.
4. When do state courts have to follow federal court determinations?
5. When do federal courts have to follow state law determinations?
6. Supplemental jurisdiction. "You're already at the party, so can you bring along a date?" If you
walk into federal court with a federal claim, you can bring state claim at the same time. Federal
judge will hear both claims at the same time.
 Bring civil rights claim (federal claim) but also bring assault claim (state claim) to federal
court for being assaulted by police officer.
 Only time you can bring state claim to federal court: bring clear state claim with no
attachments to federal statutes (diversity & $75,000 in issue) or supplemental
jurisdiction.
 Ex1. Morgan sues on Title 7 violation in state court against employer. Does he need
diversity & $75,000 in issue? No. This is a federal statute. Diversity and $75,000 in issue
only needed for state law in federal court.
 Ex2. Moran has ADA violation (federal statute – American disability act) which he takes
to federal court to sue for $1 million. Defendant (employer) lives in a different state. Case
can be entertained. You do not need diversity for federal statute.
7. Go to federal court with federal statutes.
Ex1. Title 7 of 1964 Civil Rights Act is a federal statute. If you sue on 1964 Civil Rights Act,
will go in front of federal judge, not state judge.
County Court judges – for criminal matters in state law.
Federal Court judges – for criminal matters in federal law.
GENERAL CONCEPTS AND INITIAL EMPLOYMENT CONCENTS.
1. Statute of limitations understanding. For criminal and civil. Statute limits on when
you can sue.
 Tort of negligence – 3 year limit.
2. Independent contractors.
 General Contract principles as it relates to employment at will. Duty to mitigate contract
damages.
 Independent contractors don't get same rights/benefits as a general employee.
3. Summary judgment motion– pre-trial motion to throw case out. There is no issue of
fact or law that needs to be decided (can't prove by facts or legal law).

Hired for 12 month contract, fired at 10 month mark with no just cause. Tried hard to find
a job for two months but can't get one. Can sue for two months of damages.
4. New York Human Rights Law Section 296
 Applies to employers with 4 or more employees. So if it's less than 4, NY state human
rights law does not protect.
 Applies to sexual orientation, marital status, creed, gender identity, domestic violence,
disability, color, race, genetic predisposition and military status as protected classes.
 2016: Added familiar status - parents of children under 18 or in process of obtaining
custody of child under 18 or are pregnant.
 2022: Cannot disclose or release an employee’s personnel file in retaliation for opposing
discrimination practices or for filing a complaint or testifying in a proceeding.
 Sexual harassment claims now applies for employers with less than 4 employees. Just 1
employee needed to qualify for sexual harassment claims.
 April 12, 2018 Independent contractors, subcontractors and vendors are now protected in
NYL (NY law) on sexual harassment claims. Other human rights law claims do not apply
for independent contractors, subcontractors and vendors.
 Any questions regarding sexual harassment in NY law – employees always wins.
 2019 Race discrimination was expanded to include traits historically associated with race
including but not limited to hair, texture and protective hairstyles including braids, locks
and twists.
 2019 No adverse employment actions may be taken against employee because she or a
dependent family member makes a reproductive health care decision.
 Domestic violence victim includes the employee’s children. Can't discriminate employee
for taking time off from work, seeking medical attention, obtaining services from
domestic violence shelters, psychological counseling, obtaining legal services, assisting
in the persecution of the offense. The employee must try to accommodate the employer.
May charge time off to a leave bank. If no time, then no pay.
 2020 Employer cannot ask an employee their wage history. Employee may volunteer the
information and the employer can ask the employee their salary expectations. Employer
can ask salary expectations.
 NY Labor Law 201-d was recently amended to include protections for pre-employment
drug testing for cannabis.
 Marijuana users are protected for using during non-working hours.
 Federal law overrides state law for federal contractors or grants.
5. Title VII. Applies to employers with 15 or more employees. RRCNS (race, religion,
color, national origin, sex).
 IRCA: Protects against discrimination based on national origin in hiring, firing,
recruitment or referral.
6. ADEA. American Disability Act. Federal statute.
 Employers cannot ask disability related questions or require medical exams, even though
it may be job related, in the pre-offer stage.
 Post-offer, can ask but must ask everyone.
 When already in job, must be job-related and consistent with business necessity.
 No disability related questions are allowed until a conditional job offer of employment is
given; to all applicants for the same position; when an individual seeks a reasonable
accommodation; for affirmative action program or when there is objective proof she may
be unable to perform the job (safety risk).

NY Law: AIDS testing need written informed consent. What is a medical exam: medical
data is analyzed. Drug and alcohol questions.
7. Arrest records. An arrest is just an accusation and it not a conviction. Can't ask about
past arrests. Pending arrests are legal to ask regardless of the number of employees.
8. Genetic predisposition protected under federal law for employees with 15 or more
employees and NYS law. Cannot ask about genetic predisposition IAW federal and state
law.
9. Conviction records (N.Y. Law). Can be asked – even during interview process. This is
absent of local laws (some local laws prohibit this). Concerning employers with more
than 10 employees. There is no prohibition under federal law from doing a background
check. However, the EEOC states that such questions might violated Title VII if not
related to a business necessity. In addition, under the Fair Credit Reporting Act, a
background check that reveals a criminal history is considered a credit report and the
individual must be given notice with an opportunity to correct the report.
10. 1986 Immigration Reform and Control Act requires proof of identity and employment
eligibility. After a job offer if given, it is legal to ask if you can work in the US. Do not
ask if are you a US citizen or proof of eligibility to work in the US until after the job offer
is given (I9 form).
11. Fraud in the inducement. Fraud is a lie/tort (civil wrong). A lie about future
employment does not give grounds to fraud in the inducement. Exception: Damages must
be more than being fired. Damages can be quantified: time, wage, etc.
12. Defamation. Is not a crime. Two types: Liable (written) and slander (oral). Common
interest privilege, malice.
 New York Times v Sullivan: Differentiates between public vs private individual in
defamation cases. Public individual is someone who is well known in the
community/knowledge in community. Private individual is someone with no footprint in
the community. If you are a public figure, you must show malice (intentional or reckless
disregard for the truth) if you sue for defamation. Intentional means you knew it was
false. Reckless means you knew to a high degree it was false. For private individuals,
proving defamation is easier – all you need to show is that it was negligently made
(carelessly). Much lower standard.
 Defamation Per Se: If you say something bad/lie about someone's trade or business (but
that's more than an opinion but still false), it's known as defamation per se. No damages
are needed to prove it. Online reviews for a business is not defamation – this is just an
opinion.
 Common interest privilege: Must show malice (statement was recklessly made or made
with willful knowledge). Let's say landlord sues tenant for defamation for accusing the
landlord of a serious crime. Typically this would be a defamation per se and no damages
need to be proven to win the case. So the landlord would win. But the tenant only posted
this accusation on an online forum that only included the tenants (no one else can see it).
Since this accusation was only shared with people of common interest, the landlord must
now show malice.
13. Covenants not to compete: Clause in contract, usually upon hiring. It states that you will
not compete with employer upon leaving employment. States you will not work for
certain individuals/competing companies. While a contract is usually enforceable, this
one is not. Ex. New employer takes steps to avoid any overlap between previous position
and new position. New employer position new job so that it is different in area,
geographic location, and responsibility from previous job. New employer then narrowed
responsibility of new position during the first 12 months of employment (non-compete
ends in 12 months). Covenants not to compete are rarely enforceable in situations where
new employer took on all responsibilities from prior job to protect new employer.
Employee should not disclose propriety interests, trade secrets, confidential information,
solicit former co-workers to join new employer, use prior employer's e-mails, accounts,
customer information, etc. Employee should only take personal property when leaving
job and return all other property to former employer. Employer should refrain from
questioning about former coworkers, former employer's non-public information (strategic
plans). Requiring all employees to sign a restrictive covenant no matter the position or
job duties – would it way in favor of the employees' argument that it's unenforceable?
Yes, it would way in favor. It's too broad.
14. Non-Solicitation Agreements: Even more likely enforced than covenants not to
compete. You can work for whoever you want to work for but you can't go after customer
base for a certain period of time.
15. Employee Choice Doctrine: Always enforceable. Ex. Company will put portion of your
salary to a retirement fund. You can't access that money unless you work for the
company for at least 5 years. The employee leaves before that. It's the employees' choice.
16. Automatic Contract Renewal: If you have a contract for a term and it expires, it will
automatically renewal. Ex. You have a contract for a 3 year term. It passes 3 years and
employer tells them you can go. It you don't notify them prior to the expiration of the
term and they continue to work for you, they automatically get another 1 year term. You
can fire the employee but the employee can sue for damages if they can't get a job after.
17. BFOQ (Bona Fide Occupational Qualification): There are times where you can legally
discriminate. Ex. If you are a methodist church and need a methodist minister, you can
legally "discriminate."
18. Contract Right to the Employment Away: Start off with the premise that everything is
at will. In your contract of employment, you state that the employee cannot get fired until
they receive two warnings. You "watered down" the at will provision of contract.
19. Implied Covenant of Good Faith and Fair Dealing: Implied means it is understood
(doesn't have to be written). Covenant is a promise. This is for attorneys. Ex. Attorney A
complains about Attorney B for shady dealings. Attorney A brings it up to leadership and
they get fired. Attorney A sues for damages. It isn't written anywhere in the contract but
it's implied that Attorney A, Attorney B and the law firm because they are officers of the
court and they have an obligation to uphold the law. They are all bound by the same rule
to report wrongdoing.
20. Tyson v. Rooney: Mike Tyson and manager. Tyson fired Rooney and hired a new
manager. Rooney said he can't be fired as long as Tyson fights professionally – went to
trial. Federal judge threw jury verdict out (because he thought verdict sucked) and said
employment is at will. Then went to court of appeals for advice. They said manager is
right. Overturned. True or false: In every situation, when someone makes you a manager
for as long as you do something, does that make it "term of employment"? No, it depends
on the situation. Not "every" situation.
21. Whistleblowing Section 740: Must actually establish that there was a violation of the
law to the public at large and first disclose to the employer so she can correct. One year
SOL (statute of limitations). NY law is narrowed. Only applies if it can harm public
safety.
22. Whistleblowing Section 741: For health care providers only. SOL is 2 years. Reasonable
belief is good enough, health and safety to individual patients (can be individual, not just
public safety). Do not have to disclose first to employer if you would reasonably believe
that imminent health or safety risk.
23. 2023 Law cannot punish an employee for reporting an employers’ violations of the
federal or state labor law. Cannot be punished for taking time off for something covered.
Can't be punished for reporting employer for not giving them the time off protected by
the law. e.g. bone marrow leave (time off to donate bone marrow).
24. Constructive Discharge. Ex1. Individual quits because they are being discriminated.
Now they argue they are wrongly terminated. Ex2. You have a contract for a term, but
you quit before the end of term and now you are suing for breach of contract. Argument
is that you left because the conditions were intolerant. Summary: Employee quit but
argue they were "fired" because conditions were so intolerable. Hard to prove.
25. Negligent Hiring. Hire someone without a background check and they hurt someone and
they have a record.
26. Blacklisting in New York for wanting to unionize. Not hiring individuals because they
belong to a union.
27. Warn Act (Worker's Adjustment and Retraining Notification): If there is going to be
a massive layoff, it applies as follows: New York Warn Act: 90 days notice and 50
employees; Federal Warn Act: 60 days notice and 100 employees.
28. Employer can terminate for a term employment in certain conditions (breaching
contract). Disloyal, insubordinate.
29. Faithless Servant Doctrine. Case law doctrine in NY. You have to be faithful to your
employer. If not, you have to forfeit all compensation from the moment you were
disloyal. Ex. Divert customers to another company for kickbacks, financial impropriety.
30. The Power and the Right to Discharge. If employment is at will, employer has the
power (you can always breach contract) and the right (because it's at will, you can't be
sued absent of any discrimination lawsuit, etc.) to terminate. If employment is for term,
employer has the power (always have this power) but not the right (can be sued for
damages, unless employer can prove employee breached contract).
31. 2019 NY Law: Cannot inquire about salary history of employee during interview process.
Employee can, of course, voluntarily disclose.
32. Summary judgement issues of fact or law.
33. Federal Speak Out Act of 2022: With respect to a sexual assault or sexual harassment
dispute, no nondisclosure or non-disparagement clause agreed to before the dispute arises
shall be judicially enforceable in instances where conduct is alleged to have violated
federal or state law. Signing an NDA that you won't talk about any sexual harassment
that happens to you before it happens, it can't be enforced.
34. Labor Law Section 194-b. Employees with 4 or more employees must include the range
of compensation for the job, promotion of transfer opportunity. Will expand on
discussion.
SEXUAL HARASSMENT - Covered under Title VII, included under "sex," therefore it
goes to federal court.
1. Hostile work environment. Intimidation, ridicule and insult from a reasonable person in the
victim’s position.
2. Quid Pro Quo. Only by supervisors.
3. Co-worker liability. Knew or should have known.
4. Meritor Savings Bank vs. Vinson. For there to be hostile work environment, it must be UPS
(Unwelcomed Pervasive and Severe). The fact that you volunteered in act does not mean..
5. Harris vs. Forklift Systems. RI (Ridicule and insult) is sufficiently severe. It's not a math test.
You don't need proof of psychological injury.
6. Faragher vs. Boca Raton (Federal). If there was a negative employment action against the
employee (victim of sexual harassment), employer is strictly liable (strict liability, no defense).
Conversely, if employer just commits SH and no negative action after, they are liable but with
defense. If you are harassed and something bad happens, employer is strictly liable. If nothing
happens, there is a way out.
7. Pennsylvania State Police vs. Suders. Constructive Discharge (they left because it was so
intolerable/no choice but to, so they quit but more or less they were "fired," hard to prove).
Constructive discharge is now considered a "negative employment action" (see above).
8. Vance vs. Ball State University. Must do more than just direct tasks to be a supervisor.
9. Customer Harassment: Knew or should have known.
10. Oncale vs. Sundowner Offshore Services. Same sex discrimination is also actionable under
Title VII.
11. Burlington Northern and Santa Fe Railway v. White. Not by name in exam. Retaliation
includes action; a job transfer or suspension even if there is no reduction in pay. Victim of SH
still has cause for action even if they are reinstated/receive back pay after being discriminated
against, transferred to another job, suspended with no pay, etc.
12. Sexual orientation discrimination was protected under New York statutory law and the
Second Circuit. Law change by the USSC in 2020. 2020 United States Supreme Court expanded
Title VII - Sexual orientation and transgender protected.
13. Transgender discrimination. Some federal courts saw this is a protected class, others did not.
Price Waterhouse vs. Hopkins was used to protect against gender stereotyping, sexual orientation
and transgender discrimination although only covered gender stereotyping. Transgender
discrimination is protected under NY law. 2020 USSC made transgender discrimination a
protected right under Title VII. PwC vs. Hopkins only covered gender stereotyping. However prior to changes in federal and state statutes, PwC vs. Hopkins case law was used to support
discrimination against sexual orientation and transgenders.
14. Sexual favoritism is a valid cause of action under Title VII.
15. Federal Rules of Evidence. Sexual behavior outside the workplace is not admissible in court.
What someone does/says at the bar has no relation to what someone does/says in the workplace.
16. New York State Law (different from Title VII (federal law), supervisors are liable under state
law but not federal law); Employers are strictly liable for the harassment of supervisors and
managers. The standard is knew or should have known for co-workers. Supervisors (different
from employers) are liable if: 1. they should have known or 2.they were aware and assisted or
3.failed to prevent or report or 4.retailiated.
 2018 changes: Arbitration, non-disclosure, revocation of non-disclosure agreements.
 2019 changes:
SOL (statute of limitations) change for Division of Human Rights is 3 years not one for sexual
harassment claims.
Shift of burden regarding severe or pervasive standard. Petty, slight or trivial is now the standard
for hostile working environment (use to be severe and pervasive, liable under title VII).
Faragher defense does not work under NY state law.
Punitive and compensatory damages and attorney fees. Rules regarding arbitration and nondisclosure prohibitions are expanded to all discrimination cases.
Federal court/Title 7 – percasive and severe
State Court – petty, slight, trivial
HOW TO SUE
1. 300 days to file and 90 days to sue after right to sue letter issued. If investigation not
completed within 180 days can request a right to sue letter. You can go beyond 300 days for a
hostile work environment case (need to prove severe and pervasive).
2. NYSHRD (Human Rights) Division: One year SOL and administrative convenience dismissal
(Sexual harassment is 3 year SOL). You don't need a lawyer to go to NYSHRD (for TAA). It's
an advantage to you. Not going to court, not open to public, no discovery. It's an administrative
determination if you are harmed or grieved.
letters. Must ask case be transferred to court before administrative hearing begins.
3. If you want to sue in state court, 3 year SOL.
4. If EEOC finds discrimination it enters into conciliation to settle the case. If parties do not
settle, a right to sue letter is issued or EEOC takes on case.
5. SOL: HWE (hostile work environment) evidence can go beyond 300 days; retaliation must be
within 300 days.
6. Damages for TITLE VII: Back pay, front pay, punitive damages, compensatory damages,
attorney fees. Under Title VII and ADA, caps on punitive or compensatory damages (most you
can get is $50,000 for 0-100 employees). Back pay and front pay are mitigated (must control
damages). Punitive and compensatory damages NOT CAPPED in New York.
7. Lilly Ledbetter Fair Pay Act. SOL on a discriminatory paycheck rests after each paycheck
applies to Title VII, PDA, ADEA and ADA. Allowed victims of pay discrimination to file a
complaint with the government against their employer within 180 days of their last paycheck.
8. Arbitration is good, less discovery, fewer court motions, not public, usually they are
experienced. Bad because rarely set aside absent fraud.
9. Arbitration is favored in New York but the parties must clearly agree to arbitrate. One bit of
the apple rule (can't have more than one hearing). Delay rule.
10. Releases can be set aside if person cannot act in reasonable manner and other person had
reason to know.
11. New York Law: employees and supervisors can be held liable if they aided and abetted in the
discrimination and supervisors who witness discrimination and do nothing can be held liable.
Employers are strictly liable for the sexual harassment of high level managers.
12. TAA rule (Title VII ADA ADEA): If you have a complaint related to TAA, must first file
complaint to EEOC. EEOC has right to investigate/supeona documents/mediate/enter
conciliation. They can give you a right to sue letter, try to settle the case, or they'll take the case
for you. The importance of TAA and TA: Receive punitive and compensatory damages, ADEA:
Liquidated damages (double what you should have received or lost). This is all done in federal
court because TAA are federal statutes. You can't just sue, you have to file a complaint with
EEOC first. If you want to bypass EEOC filing, just go to state court. Title VII and ADA –
damages are the highest.
13. Federal employees rule: Start with EEOC. Federal employees that are sued will have their
hearing/trials with EEOC.
Once you get a decision in court for sueing, you can't go to a different court to sue. You can
appeal.
Summary Judgement: Can't have two hearings. Already had hearing before the arbitrator. Pretrial motion to dismiss the case because there is no issue of law or fact that needs to be decided.
A summary judgment is a decision made based on statements and evidence without going to
trial. It's a final decision by a judge and is designed to resolve a lawsuit before going to court.
Can choose hearing between arbitrator, court or adminstrative.
Arbitrator: an independent person or body officially appointed to settle a dispute.
SECTION 1981 CLAIMS AND TITLE VII
1. Let it go rule (stringent rules under Title VII don't apply
: No 15 employee rule; Section 1981 prohibits discrimination based on race or citizenship is
protected, private and state, NOT FEDERAL employees, no need to file with EEOC, no caps on
punitive or compensatory. Independent contractors can sue.
2. Title VII 15 or more employees. Only intentional discrimination.
3. McDonnell Douglas vs Green: Outlines how to establish a prima facie (based on first
impression, accepted as correct until proven otherwise) case for discrimination based on
disparate treatment (treated intentionally poorly). The importance of pretext. "The tennis ball
goes over the net three times." Complaintant sends ball over to defendant (employer). Defendant
send it back under "pretext" - saying it's a "lie." Complaintent sends it back to defendant one last
time.
4. Griggs vs Duke Power. Disparate Impact is actionable, not just disparate treatment. First time
parties may sue for discriminatory motive, but also discriminatory effect. Policy in place that has
discriminatory effect but wasn't intended to be. They are still liable. Defendant (employer) must
show business necessity (this is considered a high bar). Ex. This policy that has a discriminatory
effect is necessary for the business.
5. Disparate impact can be proven by statistics. No motive.
6. Ward Cove Packing Co. v Atonio (1989). Employers can defend disparate impact cases by a
showing of a legitimate business goal. Don't need to show business necessity, but can
demonstrate reasonable business goal.
7. Price Waterhouse vs Hopkins. In cases of mix motives (some good and some bad motive for
discrimination), employer is not liable if proven a non-discriminatory reason existed along with a
discriminatory reason and the same result would have been achieved. However, the burden of
proof is by clear and convincing evidence (75%), not by the lower standard by a preponderance
of the evidence (51%).
9. 1991 Civil Rights Act. Reinstated Griggs, allowed for jury trials, and in mix motive cases
employer still liable for at least back pay and attorney fees, allows for punitive and compensatory
damages.
Anything involving 1991 Civil Rights Acts – the answer is TRUE. Or All of the above.
10. Magerum vs City of Buffalo (2012). Fear of a lawsuit based on disparate impact cannot
protect you from liability.
11. Promotion cases must prove: Clearly better qualified.
12. Discrimination by association: Viable cause of action. Friend of someone being
discriminated against experienced retaliation.
13. Oppose discrimination: Viable cause of action. Crawford v. Metropolitan Government of
Nashville.
14. Retaliation cases.
15. Title VII: Religious accommodations must be met unless undue hardship. June 29, 2023 the
USSC clarified that an undue hardship exists only when the granting of the accommodation
would result in a substantial increased costs in relation to the business.
16. NY law: Undue hardship also applies.
17. Appearance discrimination: Legal so long as you place equal burdens on both sexes.
18. Lewis v Chicago. USSC 2010. Importance of the SOL. SOL resets whenever you refer back
to document in question (ex. entrance exam).
19. Pregnancy Discrimination Act 1978 amendment. Pregnant women do not have greater rights
but must be treated the same as non-pregnant employees
20. EEOC not bound by contract. Covered again in ADA section.
21. NYS Pregnancy discrimination law: need an undue hardship level to not accommodate a
person who is pregnant.
Perception of being pregnant is protected from discrimination in federal and state statute.
WAGE GARNISHMENTS
A legal procedure in which a person's earnings (wages, overtime, commission, royalty payments,
bonuses, trusts, etc.) are required by court order to be withheld by an employer for the payment
of a debt such as child support.
1. NYS: 10 percent of the gross. Can agree to levy less than 10 percent but only if there are no
other judgment creditors. Importance of the sheriff. The debtor is first given the opportunity to
make payments to the sheriff within 20 days and therefore avoids the employer being served
with the income execution. If the employer (garnishee) does not deduct payment a special
proceeding may be commenced against her for the money. Child support can be garnished at the
same time as well as federal back taxes – can have multiple deductions from income.
After judgement, need to get paid on judgement. Wage Garnishment is one way this can be
accomplished. Can pay 10% of income to pay off debt (can be less than 10% depending on
agreement employer and judgement creditor). No one is "prejudiced" is debtor only has one
income execution. If there is another income execution, then the parties are "prejudiced." They
are waiting in line for their money. Income execution is first delivered to the sheriff. Sheriff
delivers to judgment debtor, they have 20 days to voluntarily pay to sheriff. Removed employer
from getting involved. If debtor pays, income execution will not be delivered to employer. If
debtor does not pay, income execution will be delivered to employer. Then employer is
responsible to pay 10% of income to sheriff. If employer fails to do so, special proceeding may
commence against employer. Income execution served in order of when sheriff gets it.
FLSA (Fair Labor Standards Act) AND RELATED TOPICS.
1. Overtime and minimum wage. No compensatory or punitive damages. Under federal law, you
get overtime pay for over 40 hours a week. Salary, executive, administrative, learned
professionals (doctors, dentists, clergy, scientists) exempt from overtime. Salary must meet
minimum threshold to be exempt from overtime.
2. Exempt; Paid salary and are an EAP and your pay cannot be reduced in most cases. Nonexempt salaried and hourly employees do not have to be paid for hours not worked.
3. FLSA salary test paid more than $35,578 per year or $684 per week to be exempt and an AE
duties. Non-exempt can be salary or hourly. Exempt employee = exempt from overtime.
 Exempt must be paid full salary even if don’t work full week or work a partial day but
employer can charge PTO time.
 Exempt employee must be paid if they are ready, able and willing to work.
 If an exempt employee has a personal reason to take day off (illness) and has no PTO
time, do not have to pay employee but if the employee works part day must still be paid
for a full day.
 Employer can pay exempt employee overtime and this pay does not destroy her exempt
status.
 Non-exempt employees do not have to be paid if the employer closes the business.

No minimum pay requirement for doctors, lawyers, teachers or outside sales
representatives in NY (primarily works away from employer’s business).
 NYS level higher depending on location in state. NYS salary threshold is higher than the
federal threshold. $58,511 for NYC Nassau, Suffolk, Westchester and $51,480 all others.
NY law; non-exempt employees are paid 4 hours, or are paid less if regular work shift is
less than 4 hours, if called into work and sent home Called Call In Pay.
 If manager told employee to not come in, but employee came in and manager sent her
home/doors locked, don't owe money. Need to tell them with ample time/before they
commute to work. If you don't notify them/don't tell them in advance, you owe them their
money.
 Employee A is exempt employee under NY/Federal law. Boss paid him overtime
anyway. It's okay because it's a gift. "Employee A lost exempt status." FALSE.
 Boss decides to take the day off, tells everyone not to come in. Employee B still gets paid
because they are exempt (salary employee). Employee C does not get paid (non-exempt)
because she is an hourly employee. Employee C can use a PTO day but if they don't
have any, they don't get paid.
 Exempt employee decides to take day off. He doesn't have PTO so he won't get paid. Few
times exempt employee doesn't get paid.
 Non-exempt employee gets call on their drive to work to not come in, they still get paid 4
hours (NY law). Only time they get paid less than 4 hours is because they were originally
only coming in for X amount of hours.
4. Minimum wage depends on location in the state.
5. Cannot bargain away rights.
6. Both NY and FLSA: Liquidated damages (double the lost wages) are awarded in addition to
lost wages unless mistake was done in good faith. Only received liquidated damages once under
federal or state law. Entitled to attorney fees, liquidated damages, unpaid wages, and
prejudgment interest.
Ex. Wage claims. Diplomat's employee claimed "slave like" conditions, and that they were owed
overtime. Sued them under federal and state statute. State minimum wage is higher so damages
from state will be higher than FLSA. Determined liable under state and federal, but can't double
dip in both damages/duplicate damages for same conduct. She was only entitled to state
liquidated damages.
NYS law - If you work more than 10 hours in a day, you have to pay double wage for every hour
after that (for non-exempt).
In a wage claim, burden of proof is low for employees (can use testimonies). Burden then shifts
to employer to prove employee was properly compensated.
7. FLSA: SOL 2 years, 3 years if willful. NYS 6 years for unpaid wages.
8. Can bring private lawsuit. "Under FLSA, EEOC/Labor Dept needs to be notified before bring
a private lawsuit" FALSE. Only under TAA, EEOC needs to be notified.
9. On call time is compensable (for non-exempt), if not free to do your own personal activities.
10. Breaks less than 20 minutes or meals less than 30 minutes are compensable (non-exempt
only).
11. Travel time out of town for one day or more than one day (non-exempt). Only paid for time
normally worked.
12. Jury duty leave is protected. Witness leave in criminal trials is protected.
13. Jury duty pay. If 11 or more employees in NY, employer pays $40 for first 3 days. After that,
the state pays. You are not paid twice by employer and state. One or the other.
14. Time off to vote. 3 hours off to vote at the beginning or end of the shift. Not clear if you can
charge PTO bank. No proof needed to show you voted or that you are registered.
15. Day off from work: white collar no, some blue collar yes. One day a week.
16. Comp Time (compensatory time): Public employees only, don't get overtime. Comp time in
place of overtime (just time off).
Not related to comp time: Non-exempt gets 1.5 hour pay after 40 hours/week.
17. Burden of proof on record keeping is on the employer.
18. Equal Pay Act 1963 amendment to FLSA. No EEOC notification. Not being paid equal wage
based on gender. Don't need to prove intent to discriminate.
19. Spread of hours regulation. One hour for working over 10 hours for min wage employ.
20. Unauthorized overtime is compensated.
21. Equal Pay Act: “It’s a dream”. Applies to all employees regardless of number. Rules on
intent. Employer is limited in defenses that can be used. NY has an equal pay act too that’s easier
for the employee compared to the federal law. Exceptions for seniority, merit system, education
training, experience, system that measures quality or quality. 2019 pay equality in New York
was extended to all protected classes under the HRL so long as performing substantially equal
work.
WORKERS’ COMPENSATION
Employee should report injury ASAP and employer should respond quickly. The more employee
waits to report, the more suspect they are.
 Must arise out of and within the scope of employment.
 Includes unintentional torts and intentional torts.
 Only time you can sue under worker's comp. Can sue for intentional tort – employee
assaulted you. Can also collect worker's comp if the assault arose out of and within the
scope of employment.
 Employee is injured at work due to another person's negligence. Sole remedy is to
collect worker's comp, can't sue.
 Employee is assaulted at work would receive workers comp and can sue.
 Not entitled to damages for pain and suffering under worker's comp.
 Disqualifying behavior includes horseplay in violation of workplace enforced rules,
intoxication, injury on lunch hour off premises.
 Non disqualifying behavior examples.
 Cannot sue co-employee for negligence.
Injured at work. Can't sue company but can sue machine company. Machine company can sue
company for not training employee properly.
PRIVACY REALTED ISSUES
1. May 7, 2022 must notify - mandatory notice (upon hiring) of monitoring of emails, phone
calls, computer usage, phone calls of all private employers in New York. Private employees
only. Social media not protected.
2. Government employees (only) have 4th amendment protections against unreasonable searches
and seizures. 4th Amendment violation: expectation of privacy + unreasonable search (must have
both). Expectation of privacy (private office with door, exclusive access to computer, employer
had no policies/procedures on privacy). Search should be narrowly tailored – not looking for
other misconduct, only searching for information related to original reason for search.
3. Labor Law section 201 d. recreational activities including sports, games, hobbies, exercise,
reading and viewing of television, consumable products including cannabis, membership in a
union, political activities, all protected during non-working hours. Dating not protected.
4. Investigations by third party credit agencies must have consent.
5. Personality tests are generally legal.
6. Personnel files. Employer's property. Employee has no right to personnel files on themselves.
Employee can look at it for a lawsuit (during discovery).
7. Email.
8. Right to Privacy in New York. NY cannot use person’s likeness/image without their
permission.
AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)
 40 or older protected. 20 or more employees.
 1996 O’Connor v Consolidated Coin Caterers Corp. Importance of prima facie –
complaintant has to be over 40 or older. It doesn't matter what age accused is – use to be
that other person had to be ...
Employee makes minimally sufficient claim. Employer must defend (legitimate defense),
employee defends against employer's argument (the ball goes over the net three times).
 Only Older workers can sue under ADEA. Not by name on test, 2003 USSC General
Dynamics Land Systems Inc. vs Cline. The person must be older to be hurt, even if
everyone is over 40. 47 year old cannot sue against someone that is 58 years old – only
older can sue. Younger (but over 40) cannot sue someone older.
 Reverse discrimination claims are viable in NY.
 Not by name on test, USSC 2005, Smith vs. City of Jackson, disparate impact claims
reasonable factor vs. business necessity. Don't need to show business necessity. Need to
just show reasonable goal for disparate impact (lower standard).
 Older Workers Benefit Protection Act: A waiver to give up rights to sue under the ADEA
must include additional consideration over and about severance package and time is
allowed to revoke acceptance.
 Need to notify EEOC first within 300 days. Recent 2nd circuit case expands relevant time
to file ADEA claims for hostile working environment. 1 action for hostile work
environment within 300 days can justify looking past the 300 days for more related cases
of hostile work environment (to make a viable claim).
 Liquidated damages if willful, not compensatory or punitive (Title 7 + ADA only) and
attorney fees.
AMERICANS WITH DISABILITIES ACT (ADA)
No time limit.
FALSE. The ADA and FMLA are not triggered until a substantial time period has passed, then
both statutes are triggered and employee rights are engaged.
1. Questions regarding medical conditions can be asked only after a conditional job offer is given
unless likely will need accommodation (blind).
2. Has an association provision (disabled spouse or work at a HIV clinic cannot refuse to hire or
fire because the person’s known association with an individual with a disability).
3. Physical or mental impairment that limits one or more major life activities or is regarded as
disabled or record of disability. Not entitled to take time off to care for a relative who is sick, that
is the FMLA. No minimum time of period working like FMLA. Temporary ailments are not
covered. Must be permanent disability more than 6 months. NY Can be less than 6 months.
Under NY law and ADA, any disability or impairment must be permanent – FALSE.
4. 15 or more employees.
5. Must provide a reasonable accommodation to employees to perform the essential functions of
the job unless an undue hardship (expense). Examples of accommodations, working at home,
allowing to arrive late to work, moving hostess to cashier after breaking her leg,
6. Right to sue letter needed from EEOC: remember TAA which includes the PDA.
7. Must be qualified and disabled.
8. Employer does not have to reallocate major job functions to another employee.
9. Even if disabled the employer can argue that there is no reasonable accommodation.
10. Understand laws concerning current and past alcoholics and current and past drug users.
Before conditional offer, when can these questions be asked?
11. Medical exams may be administered after employment only with a business necessity.
Disability questions can be asked AFTER conditional offer, as long as everyone is asked the
same questions.
12. Can refuse to hire someone if they are a threat to themselves or another.
14. Compensatory and punitive damages are awarded.
15. 2008 amendments expanded what is a disability (eating, seeing, immune system, reaching.
17. Waffle House case principle. Since EEOC took case, arbitration not binding. An agreement
to use arbitration is not binding on the EEOC. EEOC is bound by contractual terms between
employer and employee if they assume responsibility for the litigation – FALSE.
18. Effective June27,2023: The Pregnancy Workers Fairness Act. Federal Law. ADA style
protections are now extended to pregnant workers. Applies to 15 or more employees. Reasonable
accommodations must be provided to employees and applicants who have temporary limitations
because of pregnancy, childbirth or related medical conditions.
19. Federal PUMP ACT mandates reasonable break time to and a private space to pump milk to
one year after birth. Area cannot be a bathroom. Applies to exempt and non-exempt employees.
Employers with fewer than 50 employees are exempt if it would create an undue hardship.
20. NYL: Express milk up to 3 years. Must grant refrigeration for storage if you provide to
employees for other purposes.
FAMILY MEDICAL LEAVE ACT
1. Must be employed 12 months and worked 1250 hours during the previous year. 12 weeks off.
Time used for your own serious health condition of a child, spouse or parent, military exigency
leave (ceremonies, legal obligations), 26 weeks for military caregiver leave for an injury to
spouse, child, parent. Also can use for the birth or adoption of a child. Some courts hold that
vacation and holiday time can be used to reach the 12 month requirement.
2. Employer must employ 50 or more employees within a 75 mile radius.
3. FMLA time can be used at the same time as paid leave OR the paid leave can be saved for
later. If someone is requesting FMLA, employer has right to charge PTO at the same time.
TRUE.
4. Do not calculate FMLA time from the beginning of the year. Instead, once an employee uses
12 weeks of leave, make the employee have to wait another year to take additional leave.
5. Can sue first in federal court or go to EEOC but no EEOC notification is required. No EEOC
notification required. Can sue first or notify.
6. Intermittent and reduced leave must be taken so as not to disrupt the employers operations and
can transfer an employee to another position while taking.
7. Cannot bargain away FMLA or FLSA rights.
8. State and federal employees are covered.
9. Can give exempt employees overtime still are exempt.
11. NY Paid Family Leave. 12 weeks off. PFL. Public and Private. Eligible if employee must
work for 26 weeks consecutive weeks if they work 20 or more hours per week and the law does
away with size of the employer requirement. Includes serious health condition similar of:
domestic partners, siblings, adopted siblings, step-siblings (effective January 1, 2023), parent in
laws, parents, children, grandchildren, grandparents spouse, an adoption, birth of a new born
child or foster child. Domestic workers are treated as employees also. Does not cover an
employee’s own serious health condition (but FMLA does). Also covers active duty employment
of a spouse, child, parent, domestic partner. 2021. Employees taking paid Family leave will
receive up to 67% of their average weekly wage up to a cap of 67% of the current Statewide
average weekly wage of $1,688.19 which means the maximum weekly benefit is $1,131.08.
Don't get paid for FMLA. NYL: Part-time employees qualify after working for 175 days. Can
take up to 12 weeks. Paid by employee through payroll deductions. Cannot reduce the
employee’s sick time.
12. Attorney fees are awarded under FMLA and liquidated damages.
13. Employees have successfully argued that they need ADA accommodations after FMLA time
runs out. Narrow exception, not entitled to job back if they job would have been terminated
anyway due to economic reasons or the employee is out of time.
14. After employee returns, she must be reinstated to same or equivalent position.
15. Employee must give 30 days notice of leave if practical (birth of child).
16. NY PSL (Paid Sick Leave) is available for individuals who need time off and are sick.
Numbers of hours available depends on the number of employees and the annual income of the
business.
Take time off for serious health condition for mom. And then for serious health condition for
brother. Can use FMLA for mom. I'm out of paid/unpaid/sick time. Can use NY Paid Family
Leave for brother. Double dipping.