Good pleading takes time. A domestic worker, “live-in nanny” and full-time student alleges not being paid 1 1/2 times her normal wage rate for regularly working 44 hours per week, being denied 1 rest day every 7 days, not being paid for 3 rest days each year, while subjected to sexually explicit comments about her body, her employer sneaking into her bed in an effort to have sex with her, being evicted, being threatened with deportation; her lawyer pleading an offensive, hostile, abusive workplace.

The case is Stoica v. Phipps and Phipps, Sup Ct, New York County, March 7, 2018, Lebovits, G., (No. 2018-31592, Index No. 153834/2017).

Unpaid overtime to domestic worker complaint, combined with hostile workplace allegations, survives motion to dismiss. Live-in nanny alleges that employer made sexually explicit comments about her body almost daily. Her employer sneaked into her bedroom and tried to sleep next to her. The employer tried to convince the domestic worker to have sex with him. The live-in nanny was also a full-time student. She objected to the offensive conduct. Her employer threatened her with deportation and evicted her from her residence, which was her employer’s home.

In addition to her claim of unpaid overtime to domestic worker, her complaint includes damages for “extreme mental anguish, emotional distress, anxiety, depression and humiliation” because of her employer’s conduct.

After the live-in nanny demanded her unpaid overtime and wages, unpaid rest days, her employer applied for an order of protection as a means to evict her. The court did not believe that the domestic worker posed a threat to her employer and denied the order of protection.

It is unclear whether defense counsel suggested the unsuccessful order of protection strategy instead of negotiating a resolution with the domestic worker. Defense counsel provided the court with an inadmissible affidavit which was rejected by the court. Defense counsel also argued that the live-in nanny’s testimony was inherently incredible. Credibility determinations are made during discovery and at trial. The court refused to rule on them.

In addition to domestic worker hostile workplace she brings 7 additional causes of action against her former employer. Most of those claims survive the motion to dismiss. It is common practice for employers of domestic workers to maintain poor time and attendance and employment records in general.

These defense strategies failed. Similar claims are never easy to defend. Early resolution is often a wise strategy. This case depicts why unless the plaintiff is extremely unsophisticated. This domestic worker was a full-time student. That may have been the most important factor for defense counsel to consider.

Assessing credibility as early as possible in every employment case is key. And nothing beats a well pled complaint with strong facts.


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