New York Employment Law

What’s the difference between bullying and illegal harassment?

Workplace bullying becomes illegal harassment when it’s based on a protected characteristic such as race, gender, age, religion, disability, or other categories protected by law.

General bullying or a hostile work environment that affects everyone equally, while unprofessional and harmful, may not be illegal under discrimination laws. However, New York has recently expanded workplace protections:

• • The New York State Human Rights Law has a lower threshold for proving harassment than federal law
  • NYC’s Human Rights Law is even more protective, making any harassment based on protected characteristics potentially actionable
  • As of 2022, the NYS Workplace Harassment Prevention Act covers all forms of workplace harassment, not just sexual harassment

If you’re experiencing severe workplace bullying, consult with an attorney to determine if it rises to the level of illegal conduct.

Should I report harassment to HR first before taking legal action?

While not always legally required, reporting harassment through your employer’s established channels is generally advisable for several reasons:

• • It gives your employer the opportunity to address and correct the situation
  • It creates a record of your complaint
  • It may be necessary to establish employer liability in certain cases
  • It can strengthen retaliation claims if you face adverse actions after reporting

However, there are situations where reporting internally first may not be advisable, such as when:

• • HR is directly involved in the harassment
  • Previous complaints have been ignored or resulted in retaliation
  • You have reason to believe reporting would worsen your situation
  • The harassment is severe or threatening your immediate safety

An employment attorney can help you determine the best reporting strategy for your specific circumstances.

Can I record workplace conversations in New York?

Yes, New York is a “one-party consent” state, which means you can legally record a conversation as long as you are a participant in that conversation. You do not need to inform other participants that they are being recorded.

However, consider these important caveats:

• • Company policies may prohibit recording workplace conversations (though such policies don’t make the recording illegal, they could potentially be grounds for discipline)
  • Recording conversations you’re not part of (like placing a recording device in a room) is illegal without the consent of at least one party
  • Federal wiretapping laws apply to interstate calls, and some states require all parties to consent to recording
  • Secret recordings may affect how your evidence is perceived later

While legal, recordings should be made thoughtfully and as part of a broader documentation strategy.

What overtime am I entitled to as a salaried employee?

Contrary to popular belief, being paid a salary doesn’t automatically mean you’re exempt from overtime. To be exempt from overtime requirements, you must:

1. 1. Be paid a salary (not hourly)
   2. Receive at least $1,125 per week ($58,500 annually) in the New York City, Nassau, Suffolk, and Westchester area (lower thresholds apply elsewhere in the state)
   3. Perform job duties that fall within specific exemption categories (executive, administrative, professional, computer, or outside sales)

If you don’t meet all three criteria, you’re likely entitled to overtime pay at 1.5 times your regular rate for hours worked beyond 40 in a workweek, regardless of being salaried.

Common misconceptions about salaried workers include:

• • Job titles don’t determine exempt status—actual job duties do
  • Being “salaried” alone doesn’t make you exempt
  • Employers cannot avoid overtime by simply classifying all employees as “managers”

Can my employer require me to work “off the clock”?

No. Under both federal (Fair Labor Standards Act) and New York state labor laws, employers must pay non-exempt employees for all hours worked, including:

• • Time spent preparing for work (putting on required uniforms or equipment)
  • Required training or meetings
  • Work performed during meal breaks
  • Time spent checking emails or taking calls outside regular hours
  • Travel time between work locations during the workday
  • Short breaks (5-20 minutes)

Common illegal “off-the-clock” practices include:

• • Automatic deduction of meal breaks even when you work through them
  • Requiring employees to arrive early or stay late without pay
  • Having employees finish tasks after clocking out
  • Asking employees to correct mistakes on their own time

If you’re being required to work off the clock, document the unpaid time and consider consulting with an employment attorney.

How do I calculate my correct overtime rate with bonuses?

When you receive non-discretionary bonuses (those promised in advance for meeting certain goals), they must be included in your “regular rate” calculation for overtime purposes. Here’s how to calculate it:

1. 1. Take your total earnings for the workweek (including bonuses)
   2. Divide by the total number of hours worked that week
   3. Multiply the result by 1.5 to get your overtime rate
   4. Multiply your overtime rate by the number of overtime hours worked
   5. Subtract what you’ve already been paid for those overtime hours
   6. The remainder is the additional overtime owed

For example:

• • $600 weekly salary + $100 production bonus = $700 total earnings
  • 50 hours worked (40 regular + 10 overtime)
  • Regular rate: $700 ÷ 50 = $14 per hour
  • Overtime premium: $14 × 0.5 = $7 per hour
  • Additional overtime due: $7 × 10 hours = $70

Employers frequently miscalculate overtime when bonuses are involved, resulting in significant underpayment over time.

What overtime am I entitled to as a salaried employee?

Contrary to popular belief, being paid a salary doesn’t automatically mean you’re exempt from overtime. To be exempt from overtime requirements, you must:

1. 1. Be paid a salary (not hourly)
   2. Receive at least $1,125 per week ($58,500 annually) in the New York City, Nassau, Suffolk, and Westchester area (lower thresholds apply elsewhere in the state)
   3. Perform job duties that fall within specific exemption categories (executive, administrative, professional, computer, or outside sales)

If you don’t meet all three criteria, you’re likely entitled to overtime pay at 1.5 times your regular rate for hours worked beyond 40 in a workweek, regardless of being salaried.

Common misconceptions about salaried workers include:

• • Job titles don’t determine exempt status—actual job duties do
  • Being “salaried” alone doesn’t make you exempt
  • Employers cannot avoid overtime by simply classifying all employees as “managers”

Can my employer require me to work “off the clock”?

No. Under both federal (Fair Labor Standards Act) and New York state labor laws, employers must pay non-exempt employees for all hours worked, including:

• • Time spent preparing for work (putting on required uniforms or equipment)
  • Required training or meetings
  • Work performed during meal breaks
  • Time spent checking emails or taking calls outside regular hours
  • Travel time between work locations during the workday
  • Short breaks (5-20 minutes)

Common illegal “off-the-clock” practices include:

• • Automatic deduction of meal breaks even when you work through them
  • Requiring employees to arrive early or stay late without pay
  • Having employees finish tasks after clocking out
  • Asking employees to correct mistakes on their own time

If you’re being required to work off the clock, document the unpaid time and consider consulting with an employment attorney.

How do I calculate my correct overtime rate with bonuses?

When you receive non-discretionary bonuses (those promised in advance for meeting certain goals), they must be included in your “regular rate” calculation for overtime purposes. Here’s how to calculate it:

1. 1. Take your total earnings for the workweek (including bonuses)
   2. Divide by the total number of hours worked that week
   3. Multiply the result by 1.5 to get your overtime rate
   4. Multiply your overtime rate by the number of overtime hours worked
   5. Subtract what you’ve already been paid for those overtime hours
   6. The remainder is the additional overtime owed

For example:

• • $600 weekly salary + $100 production bonus = $700 total earnings
  • 50 hours worked (40 regular + 10 overtime)
  • Regular rate: $700 ÷ 50 = $14 per hour
  • Overtime premium: $14 × 0.5 = $7 per hour
  • Additional overtime due: $7 × 10 hours = $70

Employers frequently miscalculate overtime when bonuses are involved, resulting in significant underpayment over time.

How long does an employment case typically take?

The timeline varies significantly based on the type of case and path to resolution:

Administrative Claims (filing with agencies like EEOC or NYS Division of Human Rights)

• • Initial investigation: 3-6 months
  • Full agency determination: 6-12+ months

Pre-Litigation Resolution

• • Demand letter and negotiation: 1-3 months
  • Severance negotiation: 2-4 weeks

Litigation

• • Filing to resolution: 1-3 years
  • Pre-trial phase (discovery): 6-12 months
  • Summary judgment phase: 3-6 months
  • Trial preparation and trial: 2-4 months
  • Appeals (if any): 1-2 additional years

Factors Affecting Timeline

• • Court backlog in your jurisdiction
  • Complexity of the legal issues
  • Number of parties involved
  • Willingness of parties to negotiate
  • Strategic decisions made by both sides

While some cases resolve quickly through negotiation, be prepared for a potentially lengthy process if litigation becomes necessary.

What’s the difference between a settlement and a verdict?

Settlement

• • Voluntary agreement between parties to resolve the dispute
  • Typically involves a payment and sometimes non-monetary terms
  • Requires no admission of wrongdoing by the employer
  • Usually includes confidentiality and non-disparagement provisions
  • Provides certainty of outcome and faster resolution
  • Often includes a release of all potential claims
  • Can occur at any point before, during, or even after trial

Verdict

• • Decision made by a judge or jury after a trial
  • Based on evidence and testimony presented in court
  • Establishes fault/liability for the specific claims
  • May be appealed by either party
  • Can establish precedent for future cases
  • Typically becomes public record
  • Takes longer to achieve but may result in larger awards in some cases

The vast majority of employment cases (over 95%) resolve through settlement rather than verdict, often because both sides prefer the certainty and privacy of settlement.

How much will hiring an attorney cost me?

At Dolce Law PLLC, we represent most employees on a contingency fee basis, meaning:

• • You pay no attorney fees upfront
  • You only pay if we recover money for you
  • Our fee is a percentage of the recovery (typically 33-40%)
  • If there’s no recovery, you owe no attorney fees

For certain matters like severance review or contract negotiations, we may offer:

• • Flat fees for specific services
  • Hourly rates with retainers
  • Hybrid fee arrangements

In addition to attorney fees, cases may involve costs such as:

• • Filing fees
  • Deposition expenses
  • Expert witness fees
  • Document production costs

During your initial consultation, we’ll discuss the fee arrangement that makes the most sense for your specific situation and provide a clear explanation of how costs will be handled in your case.

We believe that cost should not be a barrier to justice in the workplace, which is why we’ve structured our firm to make quality legal representation accessible to all workers.