New York Employment Lawyer Blog

Our Overtime Pay Attorneys have been closely following the United States Supreme Court's consideration of Kasten v. Saint-Gobain Performance Plastics Corporation, No. 09-834 (2011). On March 22, 2011, the Supreme Court decided that oral and written complaints of unpaid wage, overtime pay or other protected pay practices were a sufficient basis to prove a retaliation claim under the Fair Labor Standards Act of 1938, 29 U.S.C. Section 215(a)(3). In Kasten, an employee verbally complained that the location of the Company's timekeeping systems prevented employees from being paid for all time worked including time spent traveling to and from the timekeeping system. This is a common complaint under the FLSA and is similar to situations where employers refuse to pay employees for time spent putting required uniforms on and off. Thereafter, the employee was disciplined and terminated. The employee sued the employer claiming he was retaliated against because of his verbal complaint. The United States Supreme Court ruled that complaints of protected activity under the FLSA do not need to be in writing. This ruling will increase the number of retaliation cases and provide additional protections to employees. Our Employee Rights Attorneys have represented many employees in whistleblower cases involving overtime pay or unpaid wages.

The Supreme Court's decision is also a critical reminder for all employers to document and investigate all complaints made by employees. Previously some employers disregarded oral complaints. If you have complained about your employer's pay practices and believe that you have been retaliated against, call now at (800) 893-9645 to speak with one of our experienced Employee Rights Whistleblower Attorneys. Meet our Lead Employment Attorney.

In an effort to raise tax monies in these economically difficult times, the United States federal government has devoted greater resources to identify and fight tax fraud. More importantly, the federal government has enhanced whistleblower rights and is seeking your assistance to report tax fraud. It is estimated that over $200 billion dollars each year is lost every year due to tax evasion and tax fraud. Our Tax Fraud and Qui Tam Attorneys have helped clients report tax fraud and collect significant monetary rewards ranging from 15% to 30% of the fraud. If you know of an individual or a business organization that has violated tax laws, contact our Whistleblower Fraud Attorneys to learn your rights and options during a free confidential consultation. Since the IRS receives almost 2,000 potential leads of fraud per year, it is important for your case to be carefully and skillfully presented by an experienced attorney. Our experienced Whistleblower Fraud attorneys know how to build and prosecute a claim of tax evasion or tax fraud.

Some examples of employment-related tax fraud or tax evasion conducted by the IRS may include:

1. Misclassifying employees as independent contractors to avoid paying payroll and other associated employment and income taxes and benefits. This is an
increasingly common violation;

2. Collecting payroll taxes from employees but failing to remit them to the government;

3. Filing false quarterly payroll returns including false Federal Form 941 or NYS-45;

4. Failure to pay overtime pay and earned wages to employees;

5. Filing false income tax returns; and

6. Incorrectly increasing the expenses and showing decreased income figures.

If you believe that your employer or another individual or company is engaging in tax fraud and/or tax evasion, contact our attorneys by telephone (800) 893-9645 for a free confidential telephone consultation. Meet our Lead Whistleblower Attorney.

Our Misclassification Attorneys have noticed that this is becoming an increasingly common practice as more and more companies are illegally misclassifying employees as independent contractors to avoid paying payroll taxes and providing individuals with employee benefits. Approximately 15 states, including New York and Connecticut (H.B. 5204), and the federal government are cracking down on unscrupulous employers. Being misclassified has significant disadvantages to individuals because they may not be eligible for unemployment insurance benefits, minimum wage, overtime, worker's compensation, protection under the anti-discrimination laws or receive employee benefits such as paid vacation and holiday pay. Thankfully, simply because your employer calls you an independent contractor or consultant and/or issues you a 1099 does not make you one even if you signed an independent contractor agreement. Our Misclassification attorneys have represented many employees with the New York State Department of Labor, United States Department of Labor and the IRS (SS-8) to obtain the correct classification determinations and obtain monetary damages on behalf of our clients. You could be entitled to overtime pay, unpaid wages, compensation for employee benefits (e.g., value of lost vacation pay, health insurance coverage, etc.) and other damages (improper prior tax consequences).

In order to correctly evaluate whether an individual should be classified as an independent contractor or an employee, the following is a partial list of factors that courts consider: the level of the direction and control over the worker by the Company; the amount of independent discretion and autonomy available to the worker; the worker's schedule and location of work; who provides the tools to perform the work (e.g., laptop computer, blackberry, etc.); whether the worker can and does work for other companies simultaneously; whether the parties have an agreement; and whether working relationship was for a set period of time or indefinite.

If you believe that you have been misclassified as an independent contractor or consultant, contact our office at (800) 893-9645 to speak with one of our Employment Law Attorneys for a confidential consultation. Meet our Lead Employment Lawyer.

Q: I am an H-1B visa holder and work for a computer software company. Lately, I have noticed that my employer has hired several new people to do the same job I do, but they are B-1 visa holders and are being paid much differently than I am. Is this legal?

A: You ask a great question that not only affects all employees but could also be a violation of many state and federal laws. If you work in a company that employs or does business with H-1B or B-1 visa holders, know your company's responsibilities and your rights. Call our experienced Employment-Based Immigration Attorneys to help you determine if your employer is committing visa fraud and tax fraud.

There is a pending lawsuit in the media that will greatly affect your employment situation. Indian software giant Infosys Technologies ("Infosys") is being sued by Jack Palmer, an employee who refused to help the company obtain B-1 visas for temporary workers. Palmer, who is a principal consultant for the company, has alleged that Infosys systematically commits visa fraud and tax fraud to increase profits, and has threatened and retaliated against him for his whistleblowing.

Palmer has alleged that he attended a meeting in Bangalore, India where Infosys management discussed ways to "creatively" get around the H-1B limitations. Palmer was asked to write a letter stating that an "employee was coming to the United States for a meeting rather than to work at a job." When Palmer refused, he was threatened, harassed, and retaliated against.

A B-1 visa applies to temporary business visitors who come to the United States to conduct activities of a commercial or professional nature. For example, these could include consulting with a business associates, negotiating a contract, or attending business conferences. However, if you are here on a B-1 visa, you are not legally allowed to work at a full time job. B-1 visa rules also prohibit a U.S. employer from paying for a worker for obtaining a B-1 visa.

Infosys wanted to obtain B-1 visa workers because B-1 visas are much cheaper, faster and easier to obtain than an H-1B visa. Unlike an H-1B visa, the B-1 visa workers do not have wage requirements and are paid by the foreign entity. A B-1 visa holder also does not have their federal and state income taxes withheld. Given these differences, Palmer also alleged in his lawsuit that customers were overbilled for labor costs for the B-1 workers.

According to a filing with the Securities and Exchange Commission last year, Infosys is a major user and reported that 9,300 of its technology professionals in the U.S. held H-1B visas. Additionally, Infosys applied for 3,800 new H-1B visas last year.

Palmer's lawsuit exposes the visa and tax fraud occurring in many companies that employ H-1B and B-1 visa holders. When an employer uses a B-1 holder to perform an H-1B's job, he is cheating the government of state and federal income taxes. Also, by using low paid B-1 visa holders to perform the higher paid H-1B jobs, employers are committing visa fraud and overcharging clients. Employees who blow the whistle and report tax and visa fraud may be able to collect significant monetary damages. If you have observed tax or visa fraud being committed against the government at your place employment, call our experienced Whistleblower Atttorneys at Villanueva & Sanchala at (800) 893-9645 to help you decide if you have a whistleblower case.

Continue reading "Employee Blows the Whistle on B-1 and H-1B Tax & Visa Fraud at Infosys" »

A: It is very important for you to seek legal advice from an experienced Worker's Compensation Penalty Defense Lawyer as soon as possible as the time period to assert any potential defenses is very limited and, if incorrectly handled, the monetary penalties can exceed $100,000.00. Our attorneys have helped homeowners and small business owners save hundreds of thousands of dollars in fines and can help you. In certain circumstances, you are required to carry workers compensation insurance coverage for domestic workers including nannies, and you are thereby subject to penalties for non-compliance. For example, if your domestic worker is a "live-in" or works more than 40 hours per week for you, you may be required to have workers compensation insurance coverage.

Our attorneys are familiar with the law and your potential defenses. Most people incorrectly assume that their homeowner's insurance or business insurance policies are sufficient but that is not true when workers compensation insurance is required. Ideally, you should consult with an experienced attorney prior to hiring a domestic worker so you can properly determine the appropriate tax treatment and insurance coverage issues. That being said, if you have received a penalty notice from the Workers Compensation Board because you had a domestic worker, call now to speak with our penalty defense attorneys now at (800) 893-9645.

Medline Industries ("Medline") recently settled an $85 million whistleblower lawsuit that alleged it was paying fraudulent kickbacks to hospitals and other purchasers that buy medical supplies paid for by Medicare and Medicaid. The whistleblower, Sean Mason who is a former Medline employee, will receive $23.4 million of the settlement. This settlement represents one of the largest alleged violations of the False Claims Act in which the government did not intervene.

Mason worked at Medline from 1998 to 2005 as a distribution service manager and director of account implementation. His position gave him personal knowledge of the company's fraudulent activities. In his complaint, Mason alleged that Medline offered kickbacks to win new business and falsely labeled the kickbacks as "rebates." Medline also offered expensive gifts and made charitable donations to gain business.

Medline Industries is the nation's largest privately held manufacturer of healthcare products. It manufactures and distributes over 100,000 products to hospitals, extended care facilities, surgery centers, home care dealers and agencies. Medline has claimed that there were "no allegations that Medline caused financial harm to [its] customers or that any government program paid more for [its] products."

It is always a shame when businesses try to profit at the expense of taxpayers. Although Medline thinks it didn't financially harm any of its customers, clearly someone had to pay for the "rebates" and expensive gifts it was giving away to induce more business. By inducing purchasers with kickbacks to contract with Medline, Medline took away their choice to negotiate and obtain the best products at the best prices. Since Medicare and Medicaid monies were involved in reimbursement, this amounted to fraud against all taxpayers. Medline's "rebates" and kickbacks did not provide the government with the choice to obtain the best possible products or prices pursuant to Medicaid and Medicare guidelines.

Continue reading "Medline Settles Alleged Whistleblower Fraud & Kickback Scheme for $85 Million" »

Bank of New York Mellon Corp. ("BNY Mellon") recently got hit with a qui tam whistleblower lawsuit in New York for improperly charging pension funds for foreign exchange transactions. In order to hide their identity, the whistleblowers are using a shell company named FX Analytics, a Delaware partnership, to bring the lawsuit. The lawsuit is under seal and the specific allegations are not public.

FX Analytics has already filed similar suits against BNY Mellon in Virginia and Florida, where both state's attorneys general have intervened. The Virginia lawsuit seeks damages of over $150 million. BNY Mellon holds $55 billion in funds for the Virginia Retirement System and other smaller amounts for local government funds. For its services, Virginia pays BNY Mellon an annual fee of $4.5 million. According to FX Analytics, the bank is supposed to use its foreign exchange system to handle purchases and sales of foreign currency for the state, but has "knowingly and intentionally" charged the state "false exchange rates" for purchases and sales of foreign currency. This has resulted in the state paying more for buys and getting less for its sales.

BNY Mellon is one of the nation's largest custody banks by global assets. In other words, it acts as a custodian for investment firms' securities, which includes handling currency trades for institutional investors. For example, it handles foreign currency transactions on international investments that are held by large pension funds. However, instead of taking into its client's best interests, it has been profiting from large revenues from foreign exchange trading.

It is an outrage that BNY Mellon has been profiting from foreign exchange transactions using state pension funds. Since the government does not have enough resources to detect all fraud being committed against it, it is every taxpayer's job to watch out for fraud being committed against the government. Thanks to whistleblower statutes, a private individual or group with knowledge of fraud being committed against the government can bring suit on the government's behalf. A whistleblower can recover up to 15 - 25% of the recovery if the government intervenes and takes over the lawsuit and up to 24% - 30% if the government does not intervene. However, you must be the first person to bring the evidence of fraud to the government's attention.

Continue reading "Bank of New York Mellon Faces Whistleblower Lawsuits for Currency Transactions Involving Pension Funds " »

Our New York and New Jersey Whisteblower and Retaliation Attorneys have represented clients in cases involving New Jersey's powerful anti-retaliation law known as the Conscientious Employee Protection Act (CEPA). Unlike New York Labor Law Sections 740 and 741, CEPA is a very advantageous tool for employees. CEPA is broad in all aspects of its scope and protects employees and independent contractors who report illegal or unethical activities in the workplace. CEPA applies to almost all employers in New Jersey. In short, CEPA protects you if you refused to participate in activities at work that you believed to be fraudulent, criminal or harmful to the public's health and safety. This covers a wide range of activities in the workplace. Our New Jersey Employment Law Attorneys are very familiar with employee rights under CEPA and have successfully represented clients in these matters.

What activities are protected under CEPA?

CEPA protects employees and independent contractors who:

1. Disclose, or threaten to disclose, to a supervisor or to a public body an activity, policy, or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation issued under the law, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care;
2. Provide information to, or testify before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation issued under the law by the employer or another employer, with whom there is a business relationship, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into quality of patient care; or
3. Object to, or refuses to participate in, any activity, policy or practice which the employee reasonably believes:


• is in violation of a law, or a rule or regulation issued under the law, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;


• is fraudulent or criminal; or


• is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment. N.J.S.A. 34:19-3



Importantly, this range of protected activities are far greater than the statutory protected activities in New York and most other states. Similar to New York's Labor Law, an employee will be protected from anti-retaliation under CEPA even if the company's policy, practices or activities are not illegal; the employee or independent contractor merely must have an objectively reasonable belief that his or her allegations are true. Further, the employee does not have to specify the name of the law violated by the employer or state any specific "magic words" invoke protection under CEPA.

Continue reading "New Jersey Whistleblower Law Update: Conscientious Employee Protection Act (CEPA)" »

Q: I work for a major financial bank that has been in a mad rush to sell off credit card debt as well as delinquent mortgages to collection agencies. I have personally observed that many of these personal loan accounts contain gross inaccuracies. When I complained to my manager about the errors, he told me to leave it alone and that it didn't matter. Should I do something about this?

A: This is a great question because credit card debt and the mortgage issue are very much connected to the state of our economy. This in turn affects all taxpayers when the government has to step in and bail out huge banks and financial institutions with taxpayer monies.

Our attorneys at Villanueva & Sanchala have been tracking a recent whistleblower case by a former JP Morgan Chase ("Chase") employee, Linda Almonte ("Almonte"), that alleges that Chase engaged in illegal practices with its credit card debt practices. Almonte originally filed suit against Chase for wrongful termination.

Almonte was a mid-level executive who supervised employees in the credit card litigation department. She claimed that she was fired because she refused to participate in the sale of 23,000 credit card accounts that had a face value of $200 million that Chase packed for sale. Almonte claimed that 5,000 of the accounts listed the wrong amount owed and thousands had other problems. Chase was unloading the debt at about 13 cents on the dollar in order to net $26 million.

Almonte complained to her manager as well as to Chase attorneys. However, she was fired refusing to participate in fraudulent behavior. Almonte added her whistleblower suit alleging that Chase violated the law by selling hundreds of millions of dollars worth of credit card debt to 3rd party debt buyers knowing that many of the accounts were incorrect and overstated. She also charged Chase with routinely destroying information and communications from customers instead of putting it in their customer files. Almonte filed a whistleblower complaint with the Securities and Exchange Commission ("SEC"). If you have any questions about how to blow the whistle in your workplace, call one of our New York Whistleblower Attorneys for a confidential consultation at (800) 893-9645.

Almonte noticed and reported a huge problem being committed by major banking institutions. According to the Federal Trade Commission's report on this subject "Repairing a Broken System," banks are selling information full of errors. Finance institutions and banks have always been selling credit card debt packaged in huge portfolios for pennies on the dollar. These debt buyers then engage in various tactics including hiring debt collectors, letters, phone calls, and lawsuits to collect the debt.

Continue reading "Employee Blows the Whistle on JP Morgan Chase's Alleged Fraudulent Debt Collection Practices" »