Domestic worker who was not paid overtime alleged a hostile workplace. A domestic worker, “live-in nanny” and full-time student alleged not being paid 1 1/2 times her normal wage rate for regularly working 44 hours per week. She was denied 1 rest day every 7 days, was not paid for 3 rest days each year, and was subjected to sexually explicit comments about her body. She alleged that her employer snuck into her bed to have sex with her, that he evicted her and threatened her with deportation. Her well-pled complaint included a hostile 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. Domestic worker alleged that her employer made sexually explicit comments about her body almost daily. Her employer snuck into her bedroom and tried to sleep next to her. The employer tried to convince the domestic worker to have sex with him. The domestic worker was also a full-time student. She objected to the offensive conduct. Her employer threatened her with deportation and evicted her from the residence, her employer’s home.

In addition to claiming unpaid overtime she alleged “extreme mental anguish, emotional distress, anxiety, depression and humiliation” for which she sought damages.

After the domestic worker demanded her unpaid overtime and wages, unpaid rest days, her employer applied for an order of protection in an effort to evict her. The court didn’t buy it.  She posed no threat to the employer and denied the order of protection.

Whose idea was the order of protection?  Why did defense counsel introduce an inadmissible affidavit rejected by the court? Why was the domestic worker’s credibility attacked since she was taking college classes and had worked for this employer for a period of time? The court commented that defense counsel’s attacks of the live-in nanny’s credibility would be timely at trial but not during motion practice. 

This live-in nanny was prepared. She pled seven additional causes of action. Most survived defense counsel’s objections.  Many employers of live-in nannies have poor time and attendance records.

Defense counsel struggled. These are tough claims to defend. Early resolution helps. This plaintiff was not unsophisticated. She was a full-time student. Defense counsel underestimated this plaintiff. 

Assessing credibility as soon as possible in every employment law case is critical. Defense counsel often fail to do so. When plaintiff’s counsel pleads facts well and the client is credible, defense would be well-advised to consider early resolution.

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