Mediating, litigating, and addressing employment law claims arising from:

  1. Race, sex, disability discrimination
  2. Unpaid overtime / improperly exempt
  3. Severance agreements / Non-compete and Non-solicitation agreements / Employment agreements / Employer policies / Employer handbooks and Corrective Action Plans

V. Jonas Urba, Esq. has on-the-job industry experience in health care, higher education, banking, retail, and manufacturing.

Nationwide employment law experience:

  1. New York exclusively since 2011
  2. Over 20 years of litigation nationwide
  3. Inactive Mass. Bar member since 2008
  4. Licensed and actively practicing law since 1988
  • good standing in all jurisdictions

Admitted to Federal District Courts:

  1. Southern District of New York – 2014
  2. Eastern District of New York – 2015
  3. Admitted to 3 additional federal courts in which I no longer practice
  • good standing in all courts / active only in New York
  • Certified Fraud Examiner – 2011 (inactive)
  • Certified State Supreme Court Mediator – 2004 (inactive)

Race discrimination is a common employment law issue. Employers deny its existence, sometimes taking offense to its presence at their workplace. Some point to zero tolerance policies. But those don’t negate employee behavior. And New York State’s Executive Law prohibits discrimination based on race. Even if the discriminator is of the same race as the subject of the discrimination. Proof is often circumstantial; sometimes gathered in “bits and pieces”.

Because of sex discrimination can happen to anyone. The discriminator can be of the same or opposite sex. Physical attraction has nothing to do with it. Statements or acts degrading women or men are prohibited. These include the “b” word and the “s” word, both demeaning of women. The intended targets are irrelevant. No one can know who might be offended. Therefore, such language and conduct is inappropriate throughout New York. Employees have a duty to report offensive behavior and employers must investigate such complaints. Hostile workplaces are prevented by coordinated efforts of employers and employees.

Because of sex discrimination can happen to anyone!

Disability discrimination is here to stay. Unfortunately, this area continues to be misunderstood sometimes by those who treat such disabilities themselves. Many psychiatric and psychological conditions have stigmas. Employees are still reluctant to share and employers are often poorly trained regarding accommodations. The duty to engage in an interactive process is rather amorphous. Each case is handled individually and is very fact specific. New York has exceptions for employees whose conditions may prevent them from initiating the process.

Unpaid overtime still happens, even with employers we might least suspect. It often occurs with employees earning just below six figures. Their employers expect them to work long hours but deprive them of the discretion and independent judgment in their positions and don’t want to pay them overtime. These are misclassified exempt employees who have been paid salaries instead of hourly wages plus overtime. These employees are often highly skilled but may engage in some manual or repetitive labor or perform considerable clerical work. Their training is often on-the-job as opposed to formal, higher education. They usually do not have professional licenses or certifications. When examining what such an employee actually does we sometimes discover that regardless of their job title they are not performing the duties or have the responsibility associated with the job title they have been given. In New York, we can go back up to 6 years and recover liquidated damages plus costs and reasonable attorneys’ fees from the employer.

Unless employees discuss terms and conditions of employment equitable pay is unlikely.

Severance agreements are legal documents which no employee should sign without legal counsel. Employees generally waive essentially every claim they have in exchange for receiving compensation. Sometimes they unknowingly exercise the “employee choice” doctrine. They may or may not have agreed to a non-compete at some point during their employment. Employees possessing specialized skills need to be very careful. Some may correctly believe that the non-compete they accepted years ago was unenforceable. However, their acceptance of money now in exchange for affirming an otherwise unenforceable non-compete will usually convert that otherwise unenforceable provision into a valid and binding contract. Caveat emptor applies. Paying a few hundred to possibly five hundred dollars to have a thorough review by an employment lawyer before the employee signs such contracts is often money well spent.

Maybe all you want is “reasonable severance” from your employer. Is such an expectation reasonable?

Let’s do a quick analysis which is part of every employment law claim. Firstly, no New York, private employer owes any “at will” employee severance pay. No New York Labor Law requires any private employer to pay anyone severance of any kind. Some employees insist that the employer’s handbook guarantees such pay. But those handbooks almost always state that they are subject to change with or without notice. Most handbooks include language that no contracts are created by their language. Employees sometimes argue that their signatures, acknowledging receipt of handbooks, created employment contracts in spite of language stating that “at will” employment relationships would not be altered. Rarely, if ever, does an employment handbook create an enforceable employment agreement. The handbook creates policies which, if followed, can support arguments that either side complied with its duties or obligations as printed within handbooks. Laws and legal requirements change. It’s not uncommon to see employee handbooks which have not been updated for years.

No one should sign a severance agreement unless lawyer reviewed first!

Employer handbooks are musts for all employers. Although the majority of our clients are employees we represent small employers as well. We think it makes us better advocates for both sides. It’s critical to understand an employer’s position with employment law issues. And the first place we turn is the employer’s handbook or policies. Occasionally, we discover that an employer has no handbook and that rarely benefits an employer. Policies are unwritten. Consistency of application among employees is uncertain. And the probability that discrimination played a part in an adverse employment action is much more likely. It may be much easier for an employee to allege a plausible theory for some type of discrimination complaint. Every employer should invest in drafting policies or handbooks.

Small businesses need employment lawyers too! The best lawyers help both sides.

Discrimination is rarely easy to prove.

Several months ago a potential client remarked: “but that’s gonna be really hard to prove.” Employment discrimination is rarely easy to prove. Title VII covers the broadest classes of protected employees. In New York, employers are prohibited from making employment decisions motivated by an employee’s membership within one or more protected classes including:

  1. Disability or Perceived Disability
  2. Sex, gender, sexual orientation, sex stereotyping, sexual harassment [hostile work environments can include other types of discrimination]
  3. Religion, religious accommodation
  4. National Origin or Color
  5. Pregnancy Discrimination
  6. Hostile Work Environment if motivated by an employee’s protected class membership
  7. Eight (8) or more years difference in ages might support an age discrimination charge if age was the “but for” factor of a specific employment action; which could include other protected class(es).

Most of us have seen or experienced conduct which looks like discrimination at work. Our judicial bodies, whether federal, state, or administrative law judges, limit hearing claims to those where plausible theories of discrimination are alleged. Without such limitations, employers and workplaces might disappear. We would all be self-employed.

Employment lawyer NY
New York Employment Lawyer

U.S. Supreme Court language:

“Title VII is not a general civility code.” Every employee or plaintiff bears the burden of proof. Uncivil workplaces are not necessarily ones operating against the law. No court can protect everyone from unpleasant workplaces nor do they try to do so. Courts protect employees from working in hostile or discriminatory job sites. Each year employment contracts, whether private or collective (union agreements), become more important.

We will talk with you. We need to get to know you a bit. This is all we do. A few minutes on the phone is often priceless. We will tell you what we think and we will help you see why we need to know the secrets. Because we can’t tell anyone your past secrets! Ever! Unless you authorize us to do so.

We serve the entire state of New York.

You might be here in Westchester County or Midtown New York City or in Albany, Buffalo, or Rochester. If we can’t help you we will try to direct you to a professional or an organization who can.

Are you being discriminated or retaliated against for protected workplace activity?

Lately, many calls are coming from employees whose supervisors are making their lives miserable. That is not necessarily illegal or improper.

We might ask you about your performance evaluations. How do they look?Do you have a history of adequate or above average performance?

If not, do you have a new manager or supervisor? Employers are allowed to change performance criteria and what they expect from employees. They may not discriminate against one or more protected classes of employees when doing so.

What protected classes of employees do you belong to? Title VII of the Civil Rights Act lists most of the classes as does the Americans with Disabilities Act and other federal, state, and local laws.

Are you being retaliated against because you complained of discrimination at work? Legal theories are best left for employment lawyers. But every employment matter should be handled as if it will eventually go to court. If it’s not handled that way, it may be very difficult to get it into that posture down the road when that becomes necessary.

And if you end up in court, make sure you have an employment lawyer on your side. Some employees think no big deal, I have settled claims before. An employment law claim is very unique. And employment settlement agreements are even more unique and complicated. Highly educated people sign documents without understanding the consequences of doing so.

And if you file a lawsuit in any court without being a member of the bar, good luck. Judges are good people. Many will try to help you. But they are no substitute for legal counsel nor will they have the time nor can they draft a plausible theory of recovery on your behalf. Most pro se, and even many represented employee, complaints are dismissed. The carefully drafted court decisions speak for themselves.

Employees have duties to tell their employers about workplace discrimination. Unless they did so employers might have no way to take corrective action.

Employees who file discrimination complaints do not insulate themselves from disciplinary action. Employers can continue to discipline employees for legitimate, non-discriminatory reasons even if discrimination occurred.

Employees need to give their employers, usually human resources departments, enough facts that the employer is on notice of race, religion, national origin, gender or other types of alleged discrimination to investigate. Employers do not have to guess or go on witch hunts to uncover discrimination. Describe the offensive language used, or offensive conduct to which the employee was exposed, for the discrimination to be investigated.

Remember that your best discrimination theory might not be one you or even your lawyer immediately recognized. Sometimes it takes hours of interviews before uncovering an employer’s true motivation.

Consult legal counsel before claiming discrimination on suspension if you did not complain in the past!

Many suspended employees call employment lawyers. Being suspended is a critical fact which should be disclosed to potential legal counsel! Suspended employees tend to be close to termination. Any analysis of potential discrimination for a suspended employee will be much different than for an employee with no formal disciplinary history. An employee’s failure to disclose their suspension up front can affect credibility.

Trying to use a discrimination complaint in defense of performance issues can backfire. Your employer has every right to discipline you for a legitimate, non-discriminatory reason regardless of whether or not you complained. Unless other members of the class or classes to which you belong received similarly bad treatment, which non-members were spared, start gathering your documentary evidence and witness contact information now.

Retaliation can occur after discrimination is reported; rarely after poor performance is noted.

Some warning signs at work.

Be on the lookout for corporate mergers and buyouts. Changes in management often trigger reductions in force. If you have always performed well and are suddenly rated lower for no apparent reason that could be a sign of a coming reduction in force (RIF).

Many New Yorkers work for the same employer for decades. That’s unusual for the USA. If that’s you, being out of the job search market for years may present challenges which you should prepare for as soon as possible.

Common Law is good law in New York.

The common law is broadly “the ancient unwritten law of England.” Most employees have some general familiarity with workplace laws written by New York’s and our federal legislatures. But it’s not uncommon for courts in New York State to refer to or adopt common law principles. In scenarios where no modern laws apply, common law principles often govern. Those doctrines apply even in workplaces.

Faithless Servant Doctrine, Master Servant Doctrine, and Duty of Loyalty to employers are good law in New York. It’s surprising how many employees and even attorneys are not aware of this.

Doctrine of Mitigation of Damages or Avoidable Consequences lives in NY.

A number of years ago we got a call from a lawyer who had been practicing law for 40 years. This attorney did not specialize or focus their practice on employment law matters. It quickly became clear that this attorney’s client had not been informed about the Doctrine of Mitigation of Damages. Since that attorney’s client had failed to keep looking for work after losing a job years prior, the wage loss damages, which every employee has the burden to prove at trial, was severely impaired by the attorney’s failure to notify an employee client.

Faithless Servant Doctrine.

We see this when new management takes over or a new supervisor shows up. Many employees believe that if they continue doing their jobs as usual, nothing bad can happen. Supervisors generally have the authority to change job titles, job duties, job assignments, and some even have the ability to make new policies. This should not shock employees but it does.

Sometimes employees call out management for conduct which looks and may be illegal. For example, pay practices. Employees have every right to file complaints, usually with human resources and sometimes with state or federal regulatory agencies. But employees can not conduct their own work stoppages, pickets, or disrupt any business unless they have complied with the NLRB’s guidelines for organizing labor or trying to bargain collectively. Such activities must be conducted on an employee’s own time even if an employee disputes an employer’s pay practices, which might be illegal.

Urba Law PLLC, 520 White Plains Rd., Ste. 500, Tarrytown, NY 10591