New York Employment Lawyer Blog

Our Overtime Pay Lawyers have been answering questions about proper and improper compensation pay practices for years. A common question our New York Employment Lawyers receive is whether an employer can simply "promote" an employee to a "manager" title to avoid paying overtime. In short, the answer is no, if the employee is not really working as a manager. The employee must be managing two or more employees and actively managing the operations of the business with the power to hire, fire and make decisions. This is just one example of how unscrupulous employers try to avoid paying overtime. Call our experienced Overtime Pay Attorneys at (800) 893-9645 to answer your specific questions.

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In the largest gender bias and sex discrimination class action case to ever go to verdict, a Manhattan jury ordered pharmaceutical giant Novartis to pay $250 million in punitive damages to thousands of female sales representatives. A few days before, the jury found Novartis guilty of gender discrimination in pay, promotional opportunities and pregnancy discrimination related issues and delivered a verdict of $3.36 million in compensatory damages for the 12 testifying witnesses for their specific instances of discrimination. Additionally, the presiding judge over the case, Judge McMahon, can now order Novartis to change its policies and procedures to prevent future instances of sex discrimination. Title VII of the Civil Rights Act of 1964 and The Pregnancy Discrimination Act prohibit discrimination based upon gender and pregnancy, childbirth, or related medical conditions and protect employees who make good faith complaints from retaliation. Our New York employment discrimination attorneys have represented employees who faced sex discrimination and sexual harassment in the workplace.

The class of plaintiffs includes 5600 female sales representatives who worked at Novartis between 2002 and 2007. The trial revealed that Novartis did not pay its female employees at the same compensation rate as men, did not promote them into management and punished them if they got pregnant. Novartis expected their female sales representatives to put up with and comply with inappropriate sexual behavior. The jury sent a clear message to Novartis that this type of behavior will be punished. In this age of government regulation and strict enforcement policies, the jury verdict is a wake-up call to companies who ignore, condone, or encourage sex discrimination at the workplace. Rather than having implemented and enforced its own discrimination policies and procedures, Judge McMahon will now do it for Novartis. Clearly, it is wiser for companies to create and implement policies and procedures before somebody forces it upon them.

Continue reading "New York Sexual Harassment Class Action Victory Against Pharmaceutical Giant Novartis" »

The Equal Employment Opportunity Commission ("EEOC") recently released its statistical figures for employment discrimination charges filed for the year ending September 2009. Over 93,000 discrimination charges were filed with the EEOC in the past year, making it the second highest in the agency's history. The EEOC recovered over $376 million through enforcement, mediation, and litigation programs. The money was not only used to compensate victims of discrimination but was also used to benefit workers through out the country by way of court settlements requiring employers to change discriminatory policies. Our employment law lawyers successfully have represented many clients in charges of discrimination and harassment before the EEOC.

The most frequently filed charges were based on race and retaliation, with sex discrimination next in line. Private sector charges (including those filed against state and local governments) alleging discrimination based on disability were up 10% from the previous year, national origin discrimination complaints increased 5% and religious discrimination complaints were up 3%. Age discrimination charges hit their second highest level. The largest increase was for disability discrimination complaints which went up by 10%.

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In New York, employers are required to pay a separating employee for accrued but unused vacation pay unless the employer issued a written policy outlining how and when an employee can forfeit vacation pay. Most employers in New York State do not have such a written forfeit policy. It is important to remember a separating employee is only entitled to "accrued and unused" vacation time. For example, if an employee, who did not take any vacation time during the year, is terminated on June 30th and the employee earns 12 vacation days per year (one day on the first of each month), the employee would be entitled to be paid for 6 vacation days (January to June) not 12 days. The vacation pay must be paid no later than the regular pay cycle when the employee was terminated. If the employee is offered a severance agreement, the payment of accrued but unused vacation should be clearly stated in the severance contract.

It is worth pointing out that employers in New York are not required to provide vacation pay, sick pay or any benefits to employees. However, many employers do provide such benefits to remain competitive in the job market and to attract quality employees. Finally, it is also worth pointing out that, absent any agreement or policy, employers are not required to pay sick pay to separating employees.

In New Jersey and approximately twenty-five other states, absent a policy or agreement, employers are not required to pay terminated employees for vacation pay. Nonetheless some employers with offices in a multiple states, including a state with the law similar to New York, will voluntarily pay accrued vacation to terminated New Jersey employees because the employer may strive to treat all the employees same. That being said, New Jersey employees should review the Company's employee handbook and policies and procedures regarding the Company's position on vacation pay.

Continue reading "Vacation Pay: I was terminated and my employer won't pay my unused vacation pay? Should I be paid for vacation time?" »

Whether a person is an employee or an independent contractor will depend on the facts of each case. A company's misclassification can have a significant monetary and tax impact on individuals. Misclassifying employees as independent contractors ("IC") is on the rise in virtually every of sector of the economy from home health care, construction, delivery services, information technology, internet and telecommunications, marketing specialists, copywriters, physicians, and analysts, just to name a few. The US Department of Labor has reported that 10% to 30% of all employers misclassify their employees as ICs in a cost-cutting move. In fact, the federal government estimates that it is losing over three billion dollars each year in federal income and employment tax revenue from this misclassification.

Generally speaking, an individual is an independent contractor if the employer has the "right to control or direct only the result of the work and the not the means and methods of accomplishing the result." In determining the degree of control, the courts and federal agencies examine the following factors:

• Do you have an employment contract? How long will your assignment last?

• Does the Company control or have the right to control what you do and how you perform your duties?

• Are the business aspects of your duties controlled by the Company? For example -- how are you paid, do you bring your own tools to work, do you bring your own computer, are your business expenses reimbursed.

• Is the work being performed as a regular part of the company's business?

• Do you require a special skill to perform the duties?

• Are you provided with employee benefits, such require a as a pension plan, vacation and/or sick pay, health plan, insurance, stock options, etc?


In addition, the New York State Labor Law lists criterion in determining whether an individual is an Independent Contractor ("IC") or an employee. The following are some factors indicating an individual is an IC: having an established business, conducting your own separate advertising, maintaining a listing in the commercial pages of the telephone directory, using business cards, carrying separate liability insurance, maintaining a place of business, paying one's own expenses, setting or negotiating own pay rate, and being free to hire assistants.

The New York State Labor Law provides that even if your Company claims you are an IC, you could be entitled to unemployment insurance benefits if you are legally found to be an employee. For example, merely filling out a 1099 form or signing a statement claiming to be an IC will not make you an IC if your role qualifies as an employee. Like your right to overtime, you cannot legally waive or sign away this right.

Given the current economic atmosphere, employers are extremely motivated to classify workers as IC's instead of employees for several reasons. By using classifying individuals as ICs, employers seek to avoid making payments for overtime, minimum wage, payroll taxes, social security, disability or unemployment insurance. Companies also seem to avoid reimbursing workers for business expenses or providing workers compensation insurance. By classifying a worker as an IC, employers try to avoid compliance with most labor and employment laws such as giving ICs the right to form a union and bargain collectively.

Although it is easier to classify a worker as an IC by giving them an IRS Form 1099 instead of a W-2 and making all the required payments, the consequences of misclassifying are quite harsh and can be devastating to most businesses. An employer caught for misclassifying may be liable for years of unpaid federal, state, local income tax withholdings, Social Security and Medicare contributions, unpaid workers compensation and unemployment insurance premiums, unpaid work related expenses, overtime compensation, as well as interest and penalties. For example, Microsoft paid $97 million to settle a benefits case to its ICs who weren't covered under its stock purchase plan and that amount did not include what it owed the IRS.

Continue reading "Employee Misclassification Q&A: I was misclassified as an Independent Contractor instead of as an Employee? What is the difference and am I entitled to Employee Benefits and Overtime? " »

UPDATE: May 12, 2010: As expected, several unions representing New York State employees filed court challenges to the legality of the furloughs. U.S. District Court Judge Lawrence Kahn temporarily has blocked Governor Patterson from imposing furloughs on about 100,000 state workers.

Following in the paths of the auto industry and many other businesses, New York Governor Paterson has announced he will include one furlough day per week for most executive branch state employees. Affected state employees will not report to work on their designated furlough day and will not be paid for that day. Affected employees will not be allowed to use their paid-time off to offset the salary reduction, and state agencies are prohibited from using overtime to make up for the loss of productivity. In this recession, more and more employers are considering furloughs as a method of saving money. However, if an employer does not properly effectuate a furlough, it can have disastrous consequences and convert exempt employees under the Fair Labor Standards Act and State Labor Law into non-exempt employees under the FLSA and State Labor Law.

The issue of furloughs can be a minefield for employees and employers. At the outset, it is difficult for the employees as their salary will get cut yet none of their expenses will get proportionately cut. For guidance, the Department of Labor has issued several opinion letters on this topic but, it is important to remember, that the opinion letters only address issues under the FLSA and not applicable state laws. In one opinion letter, the United States Department of Labor's Wage and Hour Division cautioned an employer who sought to reduce the salaries of exempt employees because it did not have enough work and offered to allow select employees to use paid-time off and not report to work.

Continue reading "Furloughs Announced by New York State " »

CLIENT ALERT: If you have received a penalty, a notice of judgment or fine by the WCB, check out our FAQs. Contact one of our experienced attorneys for a free telephone consultation. Our Workers Compensation Defense Lawyers have saved small businesses and homeowners over One Million dollars in workers compensation penalties and fines.

In an effort to raise money in this recession, New York State has issued hundreds of penalties to small businesses for failing to have workers' compensation insurance. In fact, the New York State Workers' Compensation Board entered judgments against approximately 10,000 small businesses. These judgments are millions of dollars. While it is fair to penalize employers for failing to carry worker's compensation insurance, the exorbitant amount of money that New York State is penalizing employers does not seem fair. For example, if a small business did not a carry worker's compensation insurance policy which is typically approximately $500.00, New York State may have fined that same small business employer over $50,000.00 for this violation. Among the businesses hit with the judgment was Al Franken, former Star of Saturday Night Live and current Minnesota Senator. While there is an important policy reason for employers to carry worker's compensation insurance to protect employees and so that the costs are proportionately spread among all employers, these level of draconian penalties are causing employers to close their operations and terminate any employees they may have had. In the end, employees are losing their jobs, small businesses are closing and New York State is stuck referring the judgments to debt collectors to collect these improbable amounts.

Under the New York State Workers' Compensation Law, employers are required to carry insurance for employees for work-related accidents, injuries or illness. If an employer has more than one full-time or part-time employer, the employer is required to obtain a workers' compensation insurance policy. The following employers are exempt from coverage:

• The business is owned by one person and said person holds all corporate office titles

• The business is owned by two corporate officers and they hold all of the corporate office titles and are the only employees.

• All businesses with three or more shareholders or corporate officers must have workers' compensation insurance coverage and are not exempt.

In one of the hardest provisions for employers, if a well-intentioned family member (including a spouse or adult child) works for the business and even if the family member does not collect a salary, that family member is considered an employee by the Workers Compensation Board. The Workers Compensation Board strongly scrutinizes small businesses that utilize independent contractors and may consider them employees depending on the circumstances. Simply calling an individual an independent contractor is not a sufficient basis for not carrying worker's compensation insurance coverage.

Continue reading "New York workers' compensation penalties and fines are bankrupting small businesses" »

The Patient Protection and Affordable Care Act (the "Act") requires employers to provide nursing mothers with unpaid break times during the work day to express breast milk. The Act amends the Fair Labor Standards Act - "Reasonable Break Time for Nursing Mothers" states that applicable employers must provide a reasonable break time for an employee to express breast milk for her nursing child for up to one year after the child's birth every time such employee has need to express the milk. This law went to effect immediately and DOL regulations are expected to be promulgated shortly.

Upon the employee's request, the employer must provide an employee with a private space (other than a bathroom) where the employee can express breast milk. The private space can be a conference room or an empty office provided such rooms have locks, electric outlets and are close to the employee's workstation and a bathroom. Employers are not required to build new areas and the private space can be used by more than one nursing mother at separate times.

Unfortunately, the law is silent as to what is a "reasonable break time" and how many breaks an eligible employee can take during a day. In the days ahead as the law is used by new mothers, the law will be interpreted. Conservatively, it is possible that employers may be required to provide nursing mothers with twenty to thirty minute breaks once or twice a work shift.

The Act covers all employers who are subject to the FLSA. The only exception is for employers of less than fifty employees who can show that complying with the requirement would cause an "undue hardship." The term "undue hardship" is similar to the key employee concept under the Family Medical Leave Act. In reviewing whether an undue hardship exists, courts may inquire into the nature of the employer's business, finances, and structural layout of the business. Since the breaks are unpaid and do not appear to be limited per day, it may be difficult for employers to meet the "undue hardship" standard.

Continue reading "Employment Protections for New Mothers: Mandated Reasonable Break Times for New Mothers For Nursing Under the Fair Labor Standards Act" »

It depends on the type of deductions. Employers often try to take advantage of H1-B employees with the hope that the H1-B employees will be too scared or uninformed to complain or bring a legal complaint. Below are some general guidelines.

According to the United States Department of Labor regulations (20 CFR Part 655 Subparts H & I), the following are some payroll deductions that are unlawful:

1. A penalty for the employee's failure to complete the full employment period. See Section 212(n)(2)(C)(vi)(I). Often employers try to disguise this penalty in an employment agreement as liquidated damages for non-competition provision. The employment transition period can be a stressful process for H1-B employees. Depending on the circumstances, this provision may be unenforceable and the employee may have rights to change employers.

2. Any part of the training and processing fee required by USCIS. See Section 22(n)(2)(C)(vi)(II).

3. Any part of the five-hundred dollar ($500) anti-fraud and detection fee required by the USCIS. Section 214(c)(12)(A)

4. Any deduction for the employer's business expenses that would reduce the employee's pay below the required wage rate. Some prohibited deductions include:

• Travel Expenses (however this does not include the employee's first trip to the United States);

• Tools and Equipment; and

• Attorney's Fees and expenses directly related to filing the Labor Condition Application.

Continue reading "I am an H1-B employee and my boss is deducting money from my salary? Are these deductions legal?" »

This is a second part in a regular series of Q&A's for minimum wage and overtime questions commonly presented by employees.

Q: My employer refuses to pay me for taking a break during the day or for lunch. Am I entitled to wages for taking a break and for lunch?

It is usual custom for your employer to give you a paid rest period or a break for about 20 minutes or less. However, your employer is not required to give you a break or a rest period. The break is considered hours worked unless your employer has specifically and clearly told you that you can only take a break for x minutes. If you then take a break for more than x minutes, your employer can discipline you.

Your employer does not have to pay you for taking a lunch time. However, New York State Law provides that an employee working for a mercantile or other establishment is entitled to a 30 minute lunch break between 11 a.m. and 2 p.m. if the employee works a shift more than 6 hours that goes beyond lunch time. If you begin working before 11 a.m. and work past 7 p.m., then you are also entitled to an additional meal period of at least 20 minutes between 5 p.m. and 7 p.m. If an employee starts working between 1 p.m. and 6 p.m. with a shift lasting more than 6 hours, then in the mercantile or other establishment, the employee is entitled to a 45 minute meal break. If an employee is employed with a factory, the employee must be given 60 minutes for a lunch break. If you are employed during the day shift in connection with a factory, you should be getting a 60 minute lunch break between 11 a.m. and 2 p.m.

However, you must not be performing any work during lunch or meal time which is meant for eating. For example, if you stay at your desk during your lunch time to finish reading a report and eat at the same time, then you must paid for the time worked. Likewise, if your employer asks you to eat at your desk during lunch because he is expecting an important package, then you must be compensated for this time as having worked.

Q: If I am a waiter who accidentally broke some dishes and glasses, can my employer deduct money from my wages to pay for the items?

New York Labor Law provides that your employer cannot make deductions from your paycheck unless the deductions are legally required or you give your employer permission to do so in writing and the deduction benefits the employee. Some legally required deductions include payroll taxes, child support, and wage garnishments. Examples of deductions that benefit the employee are insurance premiums, pension or health benefits, charitable contributions, or union dues.

Your employer is not allowed to make deductions from your paycheck for any damages you might have caused to his property or for mistakes made at work that cost him money. For example, if you are a waiter or a bartender and you break some glasses or dishes while working, your employer is not allowed to deduct it from your paycheck or make you pay for it. Similarly, if you accidentally delete an important file at work that ends up costing your employer thousands of dollars, he cannot deduct that from your paycheck.

Under the FLSA, there is no clear answer to this question. However, if a deduction is made, the employee's wages cannot fall below the minimum wage or overtime compensation in any given week. If an employee earning minimum wage breaks a printer or computer at work, the employer cannot deduct any wages. However, if the employee is earning $8.25 an hour, $1 over the minimum wage, and works 40 hours, then the employer may in certain situations deduct up to $40 in one week. The employer cannot deduct an amount that would fall below the employee's minimum wage unless the employee consents to such a deduction. Moreover, if an employer intends to deduct an employee's wages for any work related damages, this should be communicated to all employees as being part of the employer's personnel policy.

Continue reading "Paid Employee Breaks & Deductions from Paychecks - FLSA Q&A's" »

As a result of the recent economic recession, layoffs and downsizing, it is increasingly more important to negotiate a fair severance agreement. In 2001, only 5% of professionals and 4% of supportive staff negotiated their severance packages whereas in 2008, 31% of professionals and 22% of administrative workers did so. A strong severance agreement can help cushion the burdens of unemployment until you find your next job. Don't sign your severance agreement until you speak with one of our Severance Pay Agreement Attorneys. Meet Our Lead Severance Pay Attorney.

Tip No. 1 -- The most important thing in any negotiation is to keep your emotions in check. Give yourself time to process what the company is offering you without being angry at the company for laying you off. By acting professional and courteous, you can be in much better to seek assistance of competent counsel and negotiate a much more lucrative agreement.

Tip No. 2 -- Be wary of immediately signing any waivers or releases to claims arising out of your employment with the company. Ask yourself are there are any claims you might have against the company for workplace discrimination based on age, gender, race, sexual orientation, or retaliation. For example, did the company lay off all the higher paid employees who are older employees? Is there a potential age discrimination lawsuit? Every situation is different and depends on the facts. There are special rules for severance agreements under the Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit and Protection Act (OWBPA). The release provision may be invalid if your employer did not follow the specific regulations. In the event you think you might have an employment discrimination lawsuit, do not sign the severance agreement without speaking to an attorney. With the help of a Workplace Attorney, you can figure out if you have a strong lawsuit, how much it is worth, and whether that claim is worth more than the severance package. If your claim is worth more than the severance package and you decide not to go forward, you can still use your claim as leverage to negotiate a better severance package.

Tip No. 3 -- Extended health insurance is an extremely important issue that could cost you thousands of dollars if you don't negotiate. If your former employer has more than 20 employees and offers your health insurance, except in limited circumstances, the company must offer you the opportunity to continue health insurance coverage at your expense for 18 months. Although you will have to pay for it, it may be still be cheaper than buying individual health insurance on your own and it may provide better coverage than you may find with an individual policy. As described in our prior blog post, you may also be eligible for a federal COBRA 65% subsidy of the health insurance coverage.

Continue reading "Negotiating Severance Packages, Severance Agreements & Severance Pay: Top 10 Things You Need to Know" »

This is a first part in a regular series of Q&A's for minimum wage and overtime questions commonly presented by employees.

Q. Am I entitled to be paid for working unauthorized overtime and when should I be paid for it?

Even if you perform work that was not requested, your employer must pay you for the overtime hours worked. The Fair Labor Standards Act ("FLSA") provides that even if an employer announces that overtime work is not requested, the employer must still pay overtime wages to an employee who has performed overtime hours. For example, if a restaurant owner tells his staff to close up at 10 p.m and that overtime will not be paid, but the staff keeps it open an extra hour to allow its patrons to finish eating, the employees must be paid for that extra hour. In addition, if the employee's total hours for the week exceed 40 hours, that extra hour must be paid in overtime wages.

You should be paid in the pay period in which the wages were earned. For example, if you worked overtime on Monday and you normally get paid for the "Monday" work on Friday, then your wages for the overtime work should be included in your Friday paycheck. According to New York State Labor Law, manual workers should be paid at least once a week, a commissioned salesman should be paid as agreed to by both parties but at least once a month, and other types of workers should be paid at least twice a month.

Both the New York State Labor Law and the FLSA provide for all covered non-exempt employees to be compensated 1 ½ times the regular rate of pay for all time worked in excess of 40 hours per week. Both the New York State and the Federal Minimum wage are $7.25 per hour. Certain employees, like tip earning employees are not required to be paid minimum wage as long as their combined pay and tip equal the minimum wage rate. An important difference between New York State law and the FLSA is that in New York, the statute of limitations to bring a wage and hour lawsuit is 6 years while under federal law, an employee has only 3 years at the most to bring a wage and hour lawsuit.

Q: If I am a secretary waiting for my boss to give me an assignment, am I entitled to get paid for waiting?

Generally speaking, you are entitled to be paid. For example, if you are a secretary and you are reading a book while you're waiting for your boss to give you an assignment or if you are a filing clerk waiting for your employer to give you papers to file, such waiting time is considered work time and your employer must pay you for it. However, if your employer asks you to be on call and be ready to come to work when he calls you at home or at a place where you can be reached, then this waiting time is not considered to be work. If your boss asks you to be on call but places constraints or limits on how far you can be from your place of employment, then this waiting time might be considered work. An experienced employment law attorney can help you determine if you should be paid for time spent waiting.

Continue reading "Should I get paid for working unauthorized overtime hours? Wage and Hour FLSA Q&A Series" »