Here at the Law Office of Vincent Miletti, Esq. and the home of the #UnusuallyMotivated movement, we take pride as a resilient and dependable legal services firm, providing such services in both a traditional and online, web-based environment. With mastered specialization in areas such as Employment and Labor Law, Intellectual Property (IP) (trademark, copyright, patent), Entertainment Law, and e-Commerce (Supply Chain, Distribution, Fulfillment, Standard Legal & Regulatory), we provide a range of legal services including, but not limited to traditional legal representation (litigation, mediation, arbitration, opinion letters and advisory), non-litigated business legal representation and legal counsel, and unique, online legal services such as smart forms, mobile training, legal marketing and development.

Still, we, here at Miletti Law®, feel obligated to enlighten, educate, and create awareness, free of charge, about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, in order to achieve this goal, we have committed ourselves to creating authoritative, trustworthy, & distinctive content, which looks to not only educate, but also deliver in a manner that only Miletti Law® can. Usually, this content is featured as videos posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM. With that, the ball is in your court and you have an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and benefit from the knowledge bombs that we drop here!

To achieve our goal of keeping you informed, this blog is Part B of Part XXIII and an update of our series on federal laws that apply to workplace harassment, discrimination, & retaliation in New York. In Part A, we started looking into the “Recovery of Damages and Penalties” under several applicable federal laws. As we promised, this blog is Part B of Part XXIII, a continuation of the same, and the last in this long series.

Recovery of Damages and Penalties under Federal Laws Applicable to Workplace Harassment, Discrimination, & Retaliation in New York

As mentioned in Part A, parties may claim and/or recover damages and/or penalties if they prevail during litigations. In this blog and Part B of Part XXIII of this series, we shall dwell more on these damages and penalties, as well as how the prevailing parties can claim or recover them under the following federal laws.

Section 1981

In Section 1981 action, damages recoverable by a plaintiff include (1) injunctive relief, (2) punitive damages, (3) attorney’s fees, and (4) compensatory damages (including front pay and back pay). However, available damages are not capped under Section 1981. As it has been ruled in past cases, Title VII’s cap on punitive damages may be used by courts to guide rulings involving the recovery of damages under Section 1981 because there is a cap on punitive damages under Title VII. Pursuant to 42 U.S.C. § 1981A(b)(1), Section 1981 permits the recovery of damages in two scenarios only:

  • In cases where the employer has engaged in discriminatory practice(s) with malice or reckless indifference to an aggrieved person’s federally protected rights.
  • Against private employers who engage in a discriminatory practice(s).

Patient Protection and Affordable Care Act (ACA)

Under the ACA, a whistleblower plaintiff can recover several damages, including (1) expenses and costs, (2) interest, (3) compensatory damages, (4) back pay, (5) affirmative action to abate the violation, and (6) reinstatement. Furthermore, if a defendant succeeds in convincing the court regarding the frivolity or use of bad faith in bringing a claim, such a defendant may seek attorney’s fees not exceeding $1,000.

Family and Medical Leave Act (FMLA)

The intent element is not available under FMLA violations. However, unless the reasonability of grounds and use of good faith in believing that the FMLA was complied with is demonstrated by an employer, a prevailing employee is entitled to liquidated damages in an amount equal to back pay and interest if such an employee convinces the court that the employer willfully violated the statute. Nonetheless, pursuant to 29 U.S.C. § 2617(a)(1), (3), an employee could recover costs and expenses, attorney’s fees, promotion and/or reinstatement, lost employee benefits, interest, and back pay even if an employer action with the best of intentions.

Immigration Reform and Control Act (IRCA)

Pursuant to 8 U.S.C. § 1324b(g)(2), (B)(iii), (C), damages recoverable by a successful complainant are limited to back pay under IRCA. Although the award is only possible if an administrative law judge (ALJ) finds that the “losing party’s argument is without reasonable foundation in law and fact,” attorney’s fees may also be awarded to any prevailing party by such an ALJ. However, an employer can also be ordered by an ALJ to rehire, through injunctive relief, an employee subject to discrimination under IRCA. Furthermore, depending on the count of violations, prevailing parties may also recover civil penalties under IRCA.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

A prevailing plaintiff may be awarded relief by a court in action enforcing rights under the USERRA. Such relief includes (1) expert witness fees, reasonable attorney’s fees, and other litigation expenses, (2) injunctive relief, (3) liquidated damages amounting to the amount of compensatory damages for willful USERRA violation, (4) damages for any benefit or wage losses suffered due to an employer’s failure to comply with USERRA’s provisions, (5) employer required to comply with USERRA’s provisions.

Genetic Information Nondiscrimination Act of 2008 (GINA)

The damages recovered under Title VII are also recoverable under the GINA and include (1) punitive damages, (2) certain legal costs, (3) compensatory damages (for emotional distress and suffering and pain), (4) attorney’s fees, and (5) economic damages (including both front and back pay in lieu of reinstatement). However, depending on the employer’s size, the amount of punitive and compensatory damages (combined) has been capped under Title VII and include (1) $50,000 for employers with 15–100 employees, (2) $100,000 for employers with 101–200 employees, (3) $200,000 for employers with 201–500 employees, and (4) $300,000 for employers with 501 or more employees. However, pursuant to 42 U.S.C. § 1981a(a)(1), courts can issue, to remedy a Title VII violation, injunctive relief such as promotion, hiring, reinstatement, or other affirmative actions. However, attorney’s fees are not recoverable by an employer that prevails in a Title VII claim unless such an employer can establish the frivolity of a plaintiff’s claim.

With that, we have concluded our long series in which we looked at how workplace harassment, discrimination, & retaliation in New York are dealt with under various federal laws applicable to the same. We sincerely hope that while we did not lose you along the way, you have benefited the most from the knowledge bombs that we have been dropping here since Part of the Series.

While we promise to keep replenishing you with educative, interesting, and enlightening content, we have already started a new and thrilling series on ‘cybersecurity.’ Be on the lookout for more episodes to come and be informed! In the interim, reach us out with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.