As all of New York has begun to reopen from the COVID-19 closure, many people are now faced with either returning to work in these uncertain times or have been let go. As this is happening, current and former employees are faced with new questions, and uncertain legal rights. Some of the issues affecting returning employees are:
- Failure of your job to provide a safe working environment. Under the Occupation Health and Safety Administration (“OSHA”), your job must provide you with “a place of employment … free from recognized hazards … likely to cause death or serious physical harm.” If your employer is failing to take steps to ensure a safe working environment, you may have legal protection.
- Complaints about workplace safety. Under New York Law, if your employer takes action against you (firing you, suspending you, disciplining you), for raising or threatening to raise concerns about work place safety that could have an effect on public safety, you may be protected under New York State’s whistleblower laws.
- Unpaid wage claims. For workers covered under the overtime laws, your employer must pay you for all time that you worked. If you have been working remotely and your employer has not been properly tracking your hours, you may have a claim against them if they have failed to pay you all of the wages you earned, including time and half for any time you worked over 40 hours in a work week.
- Failure to provide reasonable accommodations for a known disability. For employees who suffer a disability, if there are reasonable accommodations that are necessary in order for you to perform the essential functions of your job, and you are able to do so with those accommodations, you may have legal recourse if your employer fails to provide those accommodations or otherwise engage in the interactive process of identifying a reasonable accommodation. For example, if you have underlying medical conditions that necessitate your working remotely, and you are able to perform all essential functions of your job in that manner, you may have a claim if your employer denies you such an accommodation request.
For those workers who have been furloughed, laid off or fired during this time, you may have protections as well.
- Discriminatory termination or layoffs. Just as you cannot be terminated due to your membership in a protected class (race, national origin, religion, gender, disability, age, amongst others), layoffs that have a disparate impact against members of a protected class as also illegal. While with group layoffs the most common issue is a disparate impact on older workers (those over the age of 40), any layoff that targets a group of protected individuals may be illegal.
- WARN Act claims. Under both the federal and state WARN acts, employers of a certain size (100 employees for federal, 50 employees for New York State) must provide advance notice of 60 to 90 days of mass layoffs. While there are exceptions for unforeseen business circumstances, neither the legislature nor the courts have provided any guidance as to whether the current situation applies.
If you believe that you are experiencing any of the above situations, or have questions about your rights, the attorneys at Ricotta & Marks, P.C. are here to help. To schedule a free consultation, call us at (347) 321-8895.