Frequently Asked Questions
If you have been discriminated against on the job or sexually harassed in the workplace, if you have been denied your wages or overtime pay, or if you have been injured in an accident, assaulted or had your civil rights violated, then it is understandable that you want justice and likely have many questions about how you can proceed. Following are answers to some questions the attorneys at Kaupp & Feinberg frequently encounter as they help people like you with employment law, civil rights and personal injury matters in and around San Francisco and New York City.
We hope these questions and answers are helpful to you. If you have other questions, or if you need advice and assistance with a specific legal matter, contact Kaupp & Feinberg to speak with one of our compassionate and dedicated attorneys.
Can I sue my employer for employment discrimination, or do I need to file a claim with the government first?
In most cases, the first step is to file a charge (complaint) either with the United States Equal Employment Opportunity Commission (“EEOC”) or with the California Department of Fair Employment and Housing (“DFEH”). This requirement applies to cases brought under Title VII for race, color, national origin, religion, or sex discrimination; the Americans with Disabilities Act (“ADA”) for disability claims; the Age Discrimination in Employment Act (“ADEA”) for age discrimination claims; and other similar laws, including claims under the California Fair Employment and Housing Act or the Unruh Civil Rights Act. For claims under the Equal Pay Act, you can skip this step and go straight to court if you wish.
What does the EEOC or DFEH do with my complaint?
After they get some information from you, they will probably try to settle the complaint with the employer through negotiations or mediation. If that is unsuccessful, they may launch an investigation and then either prosecute the employer in court or issue you a “right to sue” letter. Once you have that letter, you can bring your own civil lawsuit against your boss for monetary damages.
Getting a “right to sue” letter does not mean that you have a good case or a bad case, or that the government found or didn’t find a violation of the law; it only means they have chosen not to pursue the matter further, and you are now free to do so on your own by filing a lawsuit.
How do I know whether to file with the EEOC or DFEH?
Many claims are covered by both state and federal laws, so either avenue would be appropriate. When both systems apply, it is possible to dual-file your charge with either agency in order to satisfy the administrative exhaustion requirement for both claims. EEOC and DFEH do cover some different types of discrimination, however, and timelines and procedures are different between the two. It may be beneficial in your case to file with one agency in particular, or with other agencies such as the San Francisco Human Rights Commission. Talk to an experienced employment discrimination attorney before you file a complaint to make sure you file in the most appropriate venue.
What types of employment discrimination are against the law in New York?
New York state law makes it illegal for an employer to discriminate on the basis of race, creed, color, national origin, sex, age (over 18), marital status, disability, sexual orientation, or prior arrest or conviction record. The law also makes it illegal to discriminate on the basis of a genetic predisposition or carrier status.
New York state law also provides broader protection for disabled employees than the similar federal statute, the Americans with Disabilities Act, because it defines disability more broadly, potentially including such conditions as obesity and stress-related illness within the definition of disability.
The New York City Human Rights Law, which applies only to those who work in New York City, makes it illegal for an employer to discriminate on the basis of actual or perceived race, creed, color, age, national origin, alienage or citizenship status, gender (including sexual harassment), sexual orientation, gender identity and expression, disability (including HIV/AIDS), status as victim of domestic violence, arrest or conviction record, marital status and retaliation.
New York City law also defines disability more broadly than federal law. The Human Rights Law defines disability as “any physical, medical, mental or psychological impairment, or a history or record of an impairment.”
What is my deadline to file a claim?
There are strict deadlines and time limits under New York, California and federal law. Please do not delay in calling to find out what time limitations apply to your case because missing a filing deadline could ruin any chance of recovery even on an otherwise successful claim. Please note that some time limits are as short as 90 days.
I was injured in an automobile accident when the other car ran through a stop sign and hit me, but their insurance company says they won’t pay because I was driving over the speed limit at the time. Can they do that?
Under California law, if you are considered to be partly at fault in causing an accident, any financial recovery you obtain in court will be reduced by the percentage of blame assigned to you by the judge or jury. You are not prohibited from seeking a recovery just because you may have been partly to blame, however. This is a trick the insurance company is trying to pull on you, which they wouldn’t do if you were represented by an experienced personal injury lawyer. Don’t let the other side decide you were to blame; talk to an attorney to find out how much compensation you are entitled to you for your injuries.
If I’m an undocumented immigrant, what are my rights to recover minimum wage and overtime?
Undocumented workers in California and New York are entitled to receive both the state minimum wage and overtime pay at one and half times the regular rate of pay for every hour worked over eight hours in one day or over 40 hours in a week.
If I’m an undocumented immigrant, does my immigration status have to be disclosed in litigation?
In addition to wage claims, undocumented immigrants may have the right to file a lawsuit in federal court to fight civil rights violations, or to file a claim against unlawful employment discrimination. You may also be able to sue to recover damages if you suffered a personal injury in a car accident, slip and fall, assault or other incidence of negligence or wrongful conduct. Your access to the courts is not limited by your immigration status. Furthermore, your immigration status may be protected from disclosure based on the nature of your claims. We have had success in opposing oppressive discovery requests and in preventing disclosure of immigration status.
If you want more information about your right to sue, or if you are concerned about how your immigration status may be affected if you do sue, contact an attorney for a confidential consultation. Our firm has experience in this area and would be happy to speak with you. Call us at (415) 896-4588 for a confidential consultation.
*Disclaimer: This is not legal advice. For legal advice, please consult an attorney.