New York Employment Lawyer Blog

Pursuant to the provisions of a U Visa, victims of certain qualifying criminal activity can apply to reside and work in the United States lawfully. This could be a significant immigration tool for undocumented individuals. Eligible individuals must meet the following criteria: (i) the individual was a victim of qualifying criminal activity in the country; (ii) the individual suffered substantial physical or mental abuse as a result of the criminal activity; and (iii) the individual must have specific facts regarding the qualifying criminal activity leading a certifying official to determine that the petitioner has, is, or is likely to provide assistance to the investigation or prosecution of the qualifying criminal activity.

The term "qualifying criminal activity" includes crimes such as murder, blackmail, slavery, kidnapping, obstruction of justice, perjury, torture, and witness tampering. This is a partial list. Qualifying criminal activities also include workplace abuses and may include certain complaints to the Department of Labor.

It is very important to recognize that the term "victim" includes individuals who are not necessarily direct victims of the qualifying criminal activity. Specifically, if a direct victim was murdered in the United States, then his wife and minor children under 21 years of age may be eligible to apply for a U visa. Also, if the direct victim was a child under 21 years of age, the parents and minor siblings may be considered eligible victims for a U visa.

Call our U Visa Immigration Attorneys at (800) 893-9645 to learn your rights and to determine if you qualify for a U Visa.

Continue reading "U-Visa Lawyer Update: What is a U Visa and how to qualify under the law" »

The United States Department of Labor is cracking down on New Jersey gas stations that are violating state and federal wage and hour laws. The violations consist of gas station owners failing to pay gas attendants minimum wage as well as withholding overtime pay. New Jersey is just one of two states, the other being Oregon, which employs gas stations attendants because it is illegal for you to pump your own fuel.

New Jersey has 2,800 gas stations, of which at least 3/5 have illegal labor practices. Between 2007 and 2010, the DOL collected $1.2 million in back pay for the gas station attendants. Since October, the DOL has collected over $600,000 under its new campaign called "NINJA" which stands for Noncompliance Initiative for New Jersey Attendants.

Failure to pay minimum wage and overtime is a rampant problem not only at gas stations across New Jersey but in many other industries across the country. Many of the gas attendants are immigrants who don't know their rights. Many are illegal immigrants who are afraid of being deported or of losing their jobs. It is a shame that gas station attendants who not only work in the cold, rain, snow, and extreme heat are not paid their rightful wages and overtime. Failure to pay minimum wages and unpaid overtime could add up to thousands of dollars. If you are afraid of losing your job, of retaliation, or of being reported as an undocumented worker, call our Wage & Hour Attorneys at Villanueva & Sanchala at (800) 893-9645 for a confidential consultation to help you recover your rightful wages and overtime pay. Our attorneys have also helped hundreds of workers in many different industries recover thousands of dollars due to them.

Continue reading "Minimum Wage and Overtime Pay Violations by New Jersey Gas Stations" »

The members of Villanueva & Sanchala, PLLC are proud to announce that their lead trial attorney Joseph P. Villanueva was recognized by Arrive Magazine as one of the Top 10 attorneys in the Northeast in its March 2011 issue.

Mr. Villanueva is a former prosecutor and has extensive experience handling misdemeanor and felony matters. Although he has gained a reputation as a preeminent DWI trial attorney, he has also tried multimillion dollar civil cases involving catastrophic injuries. Tejash V. Sanchala, Mr. Villanueva's law partner, has seen Mr. Villanueva's charismatic personality win over juries in many close cases.

If you would like to discuss your legal matter with Mr. Villanueva, he can be reached at (800) 893-9645.

The New York Wage Theft Protection Act ("Act") went into effect this month amending the New York State Labor Law. If you are a private sector employer, you need to make sure your company is in compliance before you are named in a lawsuit or administrative proceeding (which quite frankly, in these litigious times, may be sooner than later). The new Act imposes tougher penalties, including jail time, as well as strengthened enforcement to protect workers. If you are not paying your workers minimum wage, or overtime pay, or misclassifying them as independent contractors, call our Wage & Hour Defense Attorneys to help your company get into compliance with the Act.

Make sure that you are paying your employees their correct wages and overtime pay. See our prior Blog on how to calculate overtime. The Act allows liquidated damages of up to 100% of the total amount of wages due - this represents a 400% increase over the prior 25% liquidated damages amount which was available under the old law. In other words, employees may now be able to recover double the amount they are owed in wages and overtime. The Act also lets an employee recover prejudgment interest and attorneys' fees. Furthermore, if you get a judgment against your employer in court, and he or she fails to pay you within 90 days, you can now collect an extra 15% of the judgment owed to you as well as attorneys' fees and costs. Given the tougher penalties, employers need to stay on top of wage and hour laws as well as have accurate time keeping policies. Our experienced Wage and Hour Defense Attorneys at Villanueva & Sanchala can help you implement polices and practices for your company to avoid any violations that could result in costly lawsuits.

The old law required you to notify in writing all new hires of their regular rate of pay, regular pay day, and overtime pay rate. The Act now also requires you to include the basis of the wage payment. In other words, you must state whether the employee is being paid hourly, by shift, daily, weekly, by a fixed salary, or on a commission basis. You must also provide notice if you plan to claim tips or meal allowances as part of the minimum wage. The new Notice requirements provide that an employer must provide notice of any reduction in wages. However, you don't have to provide notice for wage increases which will be reflected in the next wage payment statement. However, if you are in the hospitality business, you must provide notice for any changes in wages.

Violating the notice provisions in the Act can result in monetary penalties as well as attorneys' fees and costs. Call our Wage and Hour Attorneys to help you avoid incurring unnecessary fines and penalties.

The Act also calls for criminal penalties if you do not pay your employees minimum wage or overtime pay. You may be found guilty of a misdemeanor and if convicted, you may be fined a minimum of $500 and up to $20,000 or could face imprisonment for up to one year. You can also face criminal penalties if you fail to maintain records.

If your employee files a complaint against you, fix the problem and don't retaliate. The Act now contains anti-retaliation remedies which allow liquidated damages up to $10,000, reinstatement with back pay and/or front pay instead of back pay.

Given the increasing number of wage and hour lawsuits, now coupled with stiffer penalties and strengthened enforcement, make sure your company is in compliance with wage and hour laws. The best defense is prevention before you are found to be in violation of any state or federal laws. Call our Wage and Hour Attorneys at Villanueva & Sanchala at (800) 893-9645 to help ensure that you're not in violation of any laws putting you or your company at risk.

Continue reading "New York Employment Defense Lawyer Update for Small Businesses and Restaurants" »

Several of my employees have filed a lawsuit or claim with the Department of Labor's Wage and Hour Division against my company claiming that I am not paying them their correct hourly wage, overtime pay, bonuses, and benefits. How can I protect my company from having to spend thousands of dollars defending against this type of lawsuit?

Wage and hour lawsuits have been on the increase as many workers have lost their jobs over the past few years and have found it difficult to obtain new employment. In 2010, wage and hour lawsuits based on state law and the Fair Labor Standards Act (FLSA) were the fastest growing type of employment lawsuits. Of particular concern to employers, not only do these types of cases have class-action implications and can go back as far as 6 years in certain states such as New York, but in some circumstances a claim for unpaid wages can impose personal liability on an owner. Workers have information at their fingertips and are not afraid to use it. You need to protect yourself and your company as this growing trend is expected to continue into this year. Our experienced FLSA Wage & Hour Defense Attorneys at Villanueva & Sanchala can help you safeguard your company against these types of lawsuits and ensure that your organization is in compliance. Defending these lawsuits will not only cost your company money in legal fees but will also take away your time and resources in running your company. It is important to make sure your pay practices are compliant with federal and state labor laws before a claim is brought so that you are in the best position to defend your practices.

First, it is crucial to comply with the record keeping requirements under the federal and state employment statutes. Specifically, covered employers are required to maintain accurate timekeeping and payroll records and if they do not do so, they may be subject to certain fines and penalties. Your best defense against a wage and hour lawsuit is data and accurate records which can help disprove an employee's self-serving allegations. Our Wage and Hour Attorneys can confirm whether your current time, record keeping, and payroll systems are legally compliant and provide a strong defense against wage and hour lawsuits. There are simple practices that many companies fail to do which can prove to be fatal in a potential defense. It is a good practice to have your covered employees clock in and clock out everyday using a time clock and initial each time card entry. In addition, it is a good practice to have a supervisor or manager review the time card with the employees on a weekly basis and have them both approve it. Depending on your workforce and organization, there are many other practices that could protect your organization and save you money. Call our office at (800) 893-9645 to learn how our employment lawyers can help implement best practices for your organization.

Second, it is important to make sure you classified your employees properly as exempt or non-exempt under the FLSA. Classification of employees is not a simple determination as many of the overtime statutes are arcane and some date back to the 1940's. It is always helpful to seek input from an experienced labor and employment lawyer. Improper classification of your employees can lead to lawsuits resulting in huge payouts from your company. For example, you cannot automatically classify an employee who is performing high level, managerial work as non-exempt in order to pay them a fixed salary and avoid overtime pay. In other words, you cannot classify an employee managing one employee and making hiring and firing decisions as a professional exempt employee. Similarly, you cannot classify an administrative secretarial worker as a salaried executive non-exempt employee. You should periodically examine and review your employee's job duties and responsibilities to ensure that they are properly classified and ideally before a claim is brought. Our attorneys at Villanueva and Sanchala can help you make sure that you are classifying your employees in accordance with state law and the FLSA.

Continue reading "Defending an Unpaid Wage & Overtime Pay Lawsuit or a DOL Audit" »

Under most circumstances, you question is governed under Federal Fair Labor Standards Act. Here is a 6 step analysis to help you make an informed calculation.

Our lawyers have spent twenty years fighting for employee rights. If you believe you have an overtime wage claim, call our attorneys at 800-893-9645 and ask for a confidential consultation.

Step 1, you need to determine establish the starting point and end point for your pay cycle or work week. This is important because overtime is supposed to be paid for every hour (or increment) that you work above and beyond 40 hour in a given work week. If you do not know when your "clock" is running then you will never be able to determine if you are owed overtime and how much overtime you are owed.

Step 2, similar to Step 1, you need to calculate the number of hours you actually worked each week. Your employer should maintain some kind of a worksheet which calculates the number of hours you have worked each week. If you believe the number of hours kept by your employer is inaccurate, you should keep your own personal log to ensure there are no miscalculations or lost hours of work.

Step 3, you are now ready to determine the number of overtime hours that you have worked.

Due to the fact that you are on a bi-monthly pay cycle, you need to first tally the number of hours worked in one week. Use simple math to deduct forty hours from your tally. For example, if you worked sixty three hours in week one, you take 63-40 and you now see that you are owed 23 hours of overtime pay.

Step 4, you calculate the pay that you are owed for your overtime.

Under most normal circumstances, overtime is calculated as time and a half. In other words, you need to multiply regular hourly rate and times it by 1.5.

Let me give you an illustrative example: in Step 3, we learned that you were owed 23 hours of overtime pay. Let's assume you make $10.00 per hour. Your overtime pay 1.5 at $10.00 per hour is $15.00 per hour. You now take your over time hours worked and multiply it by the 1.5. In this case, you have 23 hours x 15 dollars which equals $345.00.

Step 5, you calculate your overtime for the second week in your bi-monthly pay schedule.

All you need to do is repeat Steps 1-4 as it relates to week number two.

Step 6, you calculate the total compensation due and owing to you. You do this by adding the overtime calculations in Step 4 and Step 5.

Now that you have completed these 6 steps, if you believe your employer has been denying you overtime as provided by Federal law, you should contact our experienced attorneys at Villanueva & Sanchala, PLLC who have spent more than 20 years fighting to protect employee rights. Call us now at 800-893-9645.

N.B., Please note, there are exceptions to this calculation and this will not every hourly employee. We recommend that you call our lawyers and ask for a confidential consultation.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

Q: I would like to sue my employer for age, race and national origin discrimination. I was told by a colleague that I must first file papers with the EEOC. Can you generally walk me through the process?

Filing a charge with the Equal Employment Opportunity Commission (EEOC) can be stressful, daunting, and complicated. We have seen many cases fail due to errors made by litigants at the EEOC stage. These cases that resulted in a failure to prosecute could have been avoided if they retained an experienced employment lawyer. That is why it is important at the outset that you consult our experienced employment law attorneys for a confidential consultation. With over 25 years of legal experience, the or Employment Law attorneys have gained a reputation unparalleled by other firms.

Filing a Charge with the EEOC
First, your deadline to file a Charge with the EEOC is generally 300 days but it depends your jurisdiction and the deadline could be shorter. In addition, depending on your jurisdiction, you may able to file in other governmental agencies such as the New York State Division of Human Rights (NYSDHR), New Jersey Division on Civil Rights (NJ DCR) or the Connecticut Commission on Human Rights and Opportunities (CHRO). Typically, the starting point of any EEOC proceeding begins with the filing a Charge of discrimination. In order to file this Charge in a timely fashion, it is beneficial to meet with our attorneys and weigh your legal options prior to commencement of an EEOC proceeding. Email us now.

Usually, the charge of discrimination will list your basic information such as your name, address, telephone number and date of birth. It will also include basic information about the Respondent/Defendant that the charge is being filed against. Similarly, you will include the Respondent's name, address, telephone number, the number of employees working at the company and other similar background information.

You will also need to state with some specificity the basis for your Charge. Some grounds include but are not limited to age, sex, or race.

Finally, you will need to provide a narrative describing the allegations of discrimination.
Prior to putting anything in writing, it is always advisable to seek the advice of an attorney. Call us now to discuss your potential case in greater detail at 800-893-9645.

After the Charge is Filed
After your charge is filed with the EEOC, they will serve a copy of your Charge on the Respondent within 10 days.

After the Respondent receives the Charge, the EEOC will give the Respondent the option of mediating the charge. If mediation is agreed upon by you and the Respondent, the EEOC will set the case down for a mediation date. At the mediation, a mediator will attempt to bring both sides together and resolve the case without litigation. If both sides settle the case at mediation, the case is closed by the EEOC. However, if the proposed resolution is rejected then the EEOC will investigate the Charge.

The EEOC Investigation
The EEOC will assign an investigator to investigate the matter. In so doing, the EEOC will request that the Respondent submit a Position Statement. The Position Statement is Respondent's written response to the allegations contained in the charge. Thereafter, the investigator may contact you to respond to the Position Statement and submit a rebuttal statement. The investigator can evaluate both positions and interview witnesses to help flush out the issues.

EEOC Determination
At the conclusion of its investigation, the investigator may make a determination whether or not any Federal laws have been violated. This is called a Reasonable Cause finding. The EEOC's determination of reasonable cause means that it believes that discrimination took place based upon the available evidence obtained in the investigation.

Once or before the Reasonable Cause Finding is issued, the EEOC may try to get the parties to engage in a conciliation process. The conciliation process is a device used by the EEOC to try to resolve the Charge with the Respondent and Charging Party.
If the conciliation is agreed upon by all of the parties, the investigation and charge is closed.

If the conciliation fails or if the EEOC does not find Reasonable Cause, then the EEOC will issue you a Right to Sue Letter which gives you 90 days to file a lawsuit in federal court.

As with all of our blog posts, this post is meant to provide you with general information and does not constitute legal advice. If you have specific questions about your case, you should consult an experienced employment lawyer such as the attorneys at our Firm. Call us now at (800) 893-9645 or email us if you would like to discuss your specific issues of workplace discrimination.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

Our Restaurant Workers Rights Attorneys have been following the Wage & Hour Division ("Division") of the United States Department of Labor's investigation, wherein it recovered about $95,000 in back wages for 22 employees working at 2 Indian restaurants located in Artesia, California. During its investigation, the Division found violations of minimum wage, overtime, and record keeping. The owner of the 2 restaurants, Chandrakant Patel ("Patel"), required his employees to work an average of 55 hours a week and only paid them "straight time" wages, rather than the legally, required time and a half their regular rate of pay, for hours worked in excess of 40 hours a week, as required by the Fair Labor Standards Act ("FLSA"). The investigation also showed that Patel did not keep accurate records of employee work hours and wages, in violation of the FLSA's record keeping provisions. Patel has agreed to pay the employees their back wages and comply with the FLSA regulations.

Failure to pay the minimum wage rate, overtime pay, and complying with record keeping regulations is a rampant problem in the restaurant industry not just in California, but everywhere including New York and New Jersey. It is especially prevalent in areas with immigrants and illegal aliens, trying to settle down and barely making ends meet. If you are an illegal alien or an undocumented immigrant, you still have rights and should not be taken advantage of. Unpaid overtime and back pay could add up to be thousands of dollars that rightfully belongs to you. If you're afraid of retaliation, losing your job or being reported for being an undocumented worker, let our Employment Attorneys help you. They have helped hundreds of workers in these types of situations. Call now to speak with our attorneys now for a free confidential consultation at (800) 893-9645.

Continue reading "Labor Law Violations of Minimum Wage, Overtime and Record Keeping Affecting Waiters and Bartenders" »

FAQ: I am a nanny and I live with a family in New York City taking care of their two young children and performing light housework. Because of their busy work schedules, I have often worked over 40 hours a week without being paid for the overtime. What are my rights?

Because you live in the great State of New York, you have rights and benefits which domestic workers in the other states do not have. On August 31, 2010, then Governor David Patterson signed the Domestic Workers' Bill of Rights, which became effective on November 29, 2010. New York is the only state in the county that has a law providing labor protection and certain benefits to domestic workers employed directly by a family or household. The law does not cover workers employed by a third party or an agency. If you are a nanny, housekeeper, baby-sitter, cook or caretaker, this new law gives you the same basic protection that other non-domestic workers take for granted. Our Employment Lawyers have represented many nannies and domestic workers assert their rights and can help you too.

Under the new Bill, you have the following protection and benefits:

• Overtime pay at 1½ times the regular hourly rate for hours worked in excess of 40 hours in a week;

• If you work and live at the home of your employer, your overtime wage of 1½ times your pay rate starts after you have worked 44 hours in one workweek;

• One day off for every seven days you work or overtime pay if you choose;

• 3 paid days off annually after one year of employment;

• Right to sue for sexual harassment and discrimination on the basis of race, religion, gender and national origin; and

• Disability benefits for part time and full time domestic workers under the New York Workers' Compensation Law.

Domestic workers perform an essential function in our society enabling the families they work for to perform their jobs. They shouldn't be taken advantage of for taking care of our young and elderly. New York's lead in passing this great legislation should encourage other states to also protect their domestic workers. This bill provides protection to over 270,000 domestic workers, of whom 200,000 are in New York City. According to the Domestic Workers United advocacy group, 99% of domestic workers are foreign-born, 95% are people of color and 93% are women. Clearly, these are the people in our society who are at the greatest risk of being taken advantage of and need the protection. Regardless of your immigration status, you are still covered under the bill. If you are a domestic worker and feel that your rights have been violated, call our experienced Labor Law Attorneys at Villanueva & Sanchala at (800) 893-9645 for a consultation to determine if any of your rights have been violated.

Continue reading "Employee Rights for a Nanny and Domestic Worker in New York State " »