Areas Of Practice
Not every hassle at work is something you can sue for: not even every unfair termination. The law only protects lousy employment actions that are motivated, at least in part, by a violation of your specific legal rights. These vary by location, but in New York City, for example, you can't be fired for your gender race, your age (though it is LEGAL to fire someone because he makes too much), your sexual orientation, gender identity, disability, ethnicity, national origin, reasonable use of sick leave, religion, military service, and even your arrest record. The law also protects you from complaining about being discriminated against. When someone complains and then is fired because of it, that's retaliation and retaliation is illegal. Of course most employers will lie before they say they discriminated, but you can still prove it. No case is a slam dunk in this area of law, but I love to play detective, and I'm looking for the best cases where is at least some evidence of treating someone differently because of a protected characteristic. If that was really a motive, dig in and you can often find employers playing cover up - making paper records before or after their wrongdoing, and coming up with ridiculous excuses. For me it is manna from heaven when I can expose that.
Sexual harassment is sex discrimination. Not every nasty boss can be sued for "harassment" in the general sense, even if she is consistently unpleasant - the harassment must be based on your sex, race, ethnicity, etcetera, in order for it to be the basis for a lawsuit. If you can't link the harassment to illegal motive, then you are just plain out of luck.
Disability Discrimination is illegal and requires an employer to make accommodations to disabled people who can perform their jobs with such changes to a job function. A simple example would be giving a person in a wheelchair a ramp to get to work, or giving a deaf person an amplification device for a telephone. Again, no one can be retaliated against for asking for such accommodations. Employers are sometimes resistant; one I remember wouldn't even move the desk of a person who used a walker so that she could more easily get to the bathroom. They wanted to get rid of her, but it their actions were illegal. A failure to discuss and then provide reasonable accommodations when they are not burdensome is a basis for a disability-discrimination lawsuit.
The Family and Medical Leave Act (FMLA) also requires most employers to give most employees up to twelve unpaid weeks of leave per year to care for the employee’s own, or a family member’s serious health condition. The FMLA applies only to employers who have at least fifty employees, and only to employees who have been employed by the employer for at least one year, and who have worked a minimum number of hours for the previous year’s employment. New York City has its own leave law, which is more generous.
The economy has improved, but reductions in force to save money for the company continue and were always common. Businesses have always been looking to increase profits by letting people go, and shipping jobs overseas. They are allowed to do that unless the decision madeare made illegally. Why are older people more often the ones who get sacked? If you were "downsized" - and especially if you were a "downsizing of one", and someone less qualified did not get sacked, or was hired afterward, you might have a claim for discrimination on the basis of age, or some other protected characteristic. At a minimum, if, as part of staff reductions, if your company offers a severance package and asks you to sign away your right to sue, speak to a lawyer first. You may be successful in getting your former employer to enhance the severance - either on your own, or with the assistance of an attorney.
There is a law called USERRA (the Uniformed Services Employment and Reemployment Rights Act), and it provides employment and reemployment rights for members of the uniformed services, including veterans and members of the Reserve and National Guard. Under USERRA, service members who leave their civilian jobs for military service can take a leave of absence for military service with the knowledge that they will be able to return to their jobs with the same pay, benefits, and status they would have attained had they not been away on duty. Employers hate that; many just don't like the employee telling them what they have to do. USERRA also prohibits any form of discrimination on the basis of military service.
I have represented hundreds of clients in these different areas.
Protecting Victims of Police Misconduct
The law gives you the right to sue the City or State based on the misconduct of rogue police officers. Did you know that your right to remain silent means that if a cop asks you a question and you ignore it and walk away, you are exercising your legal rights and if the cop arrests you because of that, he or she is liable. If, for example, you were arrested and there was no probable cause – a legitimate reason based on some evidence – to take you into custody, you can bring suit against the police officer and usually the governmental entity that was his or her employer. Cases under this area of the law include false arrest, police brutality (excessive force during an arrest) and malicious prosecution.
In New York City, police brutality is a given, previously eclipsed only by excessive stops, searches and bogus arrests. The Civilian Complaint Review Board (CCRB) so very rarely sides with complainants and in the rare cases in which it does, the Police Commissioner has the right to overrule it. The best way to protect your rights if the police have illegally detained you or abused you physically is to get a lawyer. The CCRB can help in collecting evidence, but if you think it will cause the officer to lose his or her job, you are probably mistaken. Even after police officers are successfully sued by private citizens, they are kept on the force. The common refrain is that it is only the few police officers who are guilty of misconduct - the vast majority serve us well. If that were so, there would not be so much police misconduct because the "good" police officers would tell on the bad ones. That never happens.
Lawsuits against Lawyers
Yes, in a rare case, I sue lawyers. Earlier in my career, I sought these cases; now I am here only when someone has undeniable evidence that his lawyers messed up and harmed the client's case. The vast majority of lawyers are competent and ethical, but an undeniable minority is not, and do not take to heart the trust that is the basis for the attorney-client relationship. Also, mistakes happen. Some otherwise good and ethical lawyers make mess up as does everyone. Sometimes these mistakes harm the client and the lawyer must be held responsible. I don't take these cases lightly, and only when I believe the misfeasance is undeniable. You've heard of medical malpractice, but there is also something called legal malpractice; it involves, usually, a situation where a client entrusts an attorney to take her case, and because the lawyer does something wrong, the client loses. A simple example is a person who has a lawsuit against a third party, goes to a lawyer, and then the lawyer doesn’t file the lawsuit on time. When that happens, the lawyer is responsible for the client’s damages that he would gotten in the original lawsuit. A lawyer might also give awful advice and cause the client to incur a tax burden that would not otherwise be incurred. I litigated a case like that with a significant settlement. Another case I litigated involved a home buyer’s attorney’s failure to disclose a financial relationship with the seller that resulted in the attorney’s soft-pedaling her client’s legitmate objectives and causing her to learn that the seller was a fraud, failing to disclose things that only he could have known. Before a lawsuit against an attorney can be considered, the client must suffer actual, ascertainable monetary damages. Also, the attorney must be insured for me to consider taking the case. I am fully insured, because if I make a mistake, I want the client to get something. The sad thing is, however, that New York, like most states, does not require an attorney to have insurance, not even to disclose if he or she does not. It's a sad comment on our society when lawmakers require merchants, like Best Buy, to post their returns policy, but attorneys do not even have to warn their clients that they are entrusting so much of themselves when they choose, unknowingly, an attorney without insurance.
The very first legal malpractice case I litigated, Baker v. Dorfman, involved an attorney with no insurance. It went on forever, taught me much about the law, resulted in two published opinions at the Second Circuit very early in my career. The case was so novel and chock full of "stuff" (the defendant made many many arguments to relieve himself of the judgment), that it made new law in the State of New York and is taught in tort classes to Columbia Law students, and in Professor Steven Giller's Professional Responsibility Class at NYU. This unforgettable case involved a client, Ricky Baker, who was incorrectly diagnosed as HIV positive. It was a lab error: one person's blood sample was swapped for Ricky Baker's and he learned an incorrect result at a time when HIV was a near certain death sentence. Attorney David Dorfman took the case, and sold himself to the client by misrepresenting his credentials. The claim against the lab was dismissed because Dorfman was inexperienced, so Baker rightfully sued Dorfman. After a trial and an appeal, the Second Circuit held that a negligent diagnosis that one is HIV positive when, in fact, one is not states a claim upon which one can sue the laboratory in the State of New York. The case also held the attorney liable for fraud because he grossly misrepresented his credentials in order to induce the client to give over the case.
I have also represented clients who have sued their attorneys for gross overcharges. An attorney deserves to be paid and doesn't deserve to be nickeled and dimed in a lawsuit, but secret charges and double dipping is, if not common, more prevalent than it should be. One case I argued, Siagha v. Katz, made new law: the judge held that a retainer agreement that states a lawyer will obtain a percentage of the clients’ winnings cannot be read to contain any hidden fees for an appeal or collection on the judgment. In that case, the lawyer double billed and was ordered to refund a total of over $330,000.