New York Employment Lawyer Blog

The New Jersey Conscientious Employee Protection Act (CEPA) is one of the most pro-employee whistleblower protection statutes in the country. Our New Jersey Whistleblower Attorneys have been following a recent lawsuit involving allegations of wrongdoing under CEPA. In Madera v. Horizon Blue Cross Blue Shield of N.J., an employee made an internal complaint of wrongdoing and shortly thereafter was fired. The employee alleged that her termination was wrongful because it violated CEPA.

Under CEPA, in general, an employer is prohibited from retaliating against an employee for objecting to or refusing to participate in any "activity, policy or practice of deception or misrepresentation which an employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, [or] retiree" or activity that "is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment"

In Madera, the employee worked as the Director of Compliance and complained after her employer's demanded that she modify her internal reports about company practices that resulted in prompt pay penalties pursuant to the Prompt Pay Act. Under the Act, insurance companies are required to pay certain claims within a proscribed time period and, if they fail to do, they could be issued prompt pay penalties. The employee stated that the penalties were due to the Service Division's errors and the employer demanded she change her internal report. After the employee refused, the employee was terminated the following month. The employer based the termination on the employee's failure to supervise a subordinate employee for running an outside business. However, the plaintiff-employee alleged that the timing was curious especially since the employer approved of the subordinate employee's outside business activities previously and that the basis for termination was a pretext for her whistleblower complaints.

The employee filed a lawsuit under CEPA and alleged that employer's action violated CEPA. In order to be successful under a CEPA claim, a plaintiff-employee must show the following factors:

1. "the [employee] reasonably believes that her employer's conduct was fraudulent or
criminal";
2. the employee "engaged in protected whistleblower activity";
3. the employee suffered an adverse action by the employer; and
4. there is a casual connection between the adverse action and the whistleblowing
activity.

The plaintiff-employee alleged that the Company's demand that she modify her internal reports was "fraudulent or criminal." However, the Appellate Division ruled that this was a simple employee-employer dispute where the subject matter did not violate any law, rule or regulation. The Appellate Division found that the employee failed to meet her burden on CEPA because she could not show that the employer conduct was fraudulent, criminal or violated a law, rule or regulation.

This case is important because it provides guidance to whistleblowers on what is protected activity and to employers on how to deal with certain complaints. If you believe that you have observed any fraudulent, criminal or otherwise inappropriate actions in the workplace or employee complains of such conduct, our New Jersey Whistleblower Attorneys can assist you. Call now at (800) 893-9645 to learn your rights and obligations under the law.

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.

New Jersey recently passed a bill that makes it illegal for employers to specify in their job listings that unemployed persons will not be considered for hiring. New Jersey's legislative ban on blatant and open discrimination against the unemployed, whether in print or online, is the first of its kind in the US but probably not the last. If you violate the bill, you face a penalty of $1,000 for the first offense and $5,000 for subsequent offenses.

The New Jersey Statute, N.J.S.A. 34:8B-1 makes it illegal for an employer or an employer's agent to "publish, in print or on the Internet" any job postings that provide that the job qualifications include current employment, that unemployed applicants will not be considered, or that only employed job applicants will considered for the position. The New Jersey law becomes effective June 1, 2011. The statute does not require an employer to consider hiring an unemployed job applicant.

New Jersey Representative Celeste Riley, who sponsored the bill, said she became aware of employers discriminating against the unemployed when she saw an online job ad that stated that jobless candidates should not apply. Riley's own district has one of the highest rates of unemployment in New Jersey. Riley has stated that although you "can't control people's behaviors," New Jersey can at least send a message to employers that this practice is unacceptable.

In February of this year, the EEOC held hearings to investigate and determine whether this type of discrimination against unemployed persons seeking jobs is unlawful under federal discrimination laws. Helen Norton, Associate Professor at the University of Colorado School of Law, has found that employers as well as staffing agencies have advertised jobs ranging from electric engineers to restaurant and grocery managers to mortgage underwriters, all seeking only currently employed individuals. Fatima Gross Graves, Vice President of Education and Employment of the National Women's Law Center, has stated that discrimination against the jobless "may well act as a counterweight" against the governments' effort in fighting unemployment. Gross Graves also testified that this type of discrimination disproportionately affects women, especially older women in non-traditional occupations.

The EEOC hearing also found that this type of discrimination can have a disproportionate effect on racial and ethnic minorities. Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, testified that African-Americans, Hispanics and Native Americans have higher unemployment rates. The rate is also higher for college educated Asian workers. Assistant Secretary of Labor for Policy, Dr. William Spriggs, testified that according to employment statistics, African Americans and Hispanics are overrepresented among the unemployed. He also testified that older applicants and persons with disabilities are also more likely to be affected if employers place job status restrictions in hiring.

Many people today are unemployed, not because of poor work performance, but because the economy suffered, restructuring, layoffs, or because they took time off to take care of kids. Many people who have been unemployed for a long period of time simply have not found another job, not because they didn't try, but because they just can't find another job. It is an outrage that blatantly discriminatory job ads against the unemployed are being seen across the country. This is being referred to as "you have to have a job to get a job." About 4.4 million people, or 40% of the country's unemployed, have been without a job for over a year. For every job opening, there are on average 5 job applicants. Unfortunately, people who have been unemployed for a long period of time have a much more difficult time finding another job.

If this vicious cycle of discriminating against the jobless continues to grow, it could potentially undermine all the recovery efforts the government has made in the past few years. This type of discrimination can also have a disparate impact on women, minorities, and persons with disabilities who have a disproportionately higher rate of unemployment. For example, where such a restrictive job ad rules out a high number of women from even applying for the job, it is a violation of of both Title VII and the Civil Rights Act of 1964. Basically, it is a way for employers to circumvent all the civil rights progress that many in this county have fought long and hard to attain.

Georgia Congressmen Hank Johnson recently introduced the Fair Employment Act of 2011 which is a bill still in committee. If passed, it would make it illegal for employers to discriminate or lower compensation because of a person's employment status.

If you or someone you care about has suffered from any type of discrimination at the workplace, including race, gender, pregnancy, age, sexual orientation, disability, national origin, or religion, call our experienced Employment Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to discuss your possible case.

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.

Source:

EEOC Meeting of February 16, 2011

The U.S. Department of Labor recently brought an action against a group of 3 restaurants in Westchester and Rockland County, New York, for violating the Fair Labor Standards Act. An investigation revealed that the restaurants failed to pay minimum wage and overtime pay, did not keep proper recordkeeping requirements and discriminated against employees who tried to exercise their legal rights.

The lawsuit names as defendants Tomnick Food Services Inc., which does business as New City "American Beauty" Diner in New City, Rockland County, Tomnick Food Services South which operates as New City "American Dream" Diner in Orangeburg, Rockland County, and Tomnick Food Services North, Inc., as New City "American Classic" Diner in Yorktown Heights, Westchester. The suit also names Tom Nikitas Voutsas, the owner and president of the 3 companies, and James Vinieris and Artemesia Vinieris, managers of the companies.

Sonia Rybak, assistant district director of the Wage and Hour Division's White Plains Area Office stated that "cooks, kitchen staff, busboys and wait staff in these restaurants provided their employer with honest labor and should have received at least the federal minimum wage and overtime pay." The lawsuit seeks to prohibit future FLSA violations, payment of minimum wages and back pay to March 2008, and compensation equal to liquidated damages or prejudgment interest.

The FLSA requires restaurant owners to pay non-exempt employees at least their federal minimum wage of $7.25 an hour plus time and one half their regular rate of pay for every hour worked in excess of 40 hours per week. For example, for every hour worked in excess of 40 hours in one week, you must pay your cook, busboy, and waitress $10.88 per hour for overtime.

Effective May 5, 2011, the Department of Labor recently updated its tip credit regulations. The new regulation provides that you must provide your employees with proper notice in order to use the tip credit. You must pay your tip employees wages of at least $2.13 per hour. However, the amount of tip credit you are using against actual tips plus the actual cash wage you are paying your employee must equal the minimum wage of $7.25. For example, if you are paying your waitress $2.13 an hour and combined with her tips, she is only making $6.00 an hour, you cannot claim a tip credit of $5.12. You must pay her wages of $3.38 and claim a maximum tip credit of $3.87.

Federal law also requires restaurant owners to maintain accurate employee records and prohibits retaliation against employees for exercising their legal rights. According to New York Labor Law, an employee has a 6 year statute of limitations to start an action to recover back wages and benefits. Under the revised New York Labor law, specifically the New York Wage Theft Prevention Act, which went into effect April 9, 2011, an employee in New York can now recover liquidated damages equal to the amount of unpaid wages. The FLSA also allows an employee to recover liquidated damages equal to the amount of lost or unpaid wages. Not only is it legally required to maintain accurate employee records but it is imperative in order to defend against any wage and hour lawsuits.

Failure to pay minimum wages and overtime pay in the restaurant industry is a major problem across the country affecting many workers who only make minimum wage. Most restaurant workers hesitate to complain about wage and hour as well as health and safety violations because they are fearful of losing their jobs and need the money. A study conducted in 2009 by the National Employment Law Project around the country, called Broken Laws, Unprotected Workers, showed that about 2/3 of low wage workers are denied full pay and on average lose about $2,600 in pay every year. The study also found that about 26% of workers are paid below minimum wage in a given work week and that 76% of workers who should receive overtime were not paid their required time and a half. It also showed that about 30% of workers relying on tips were not paid the tipped worker minimum wage.

If you are a restaurant owner, this lawsuit is a wake up call to get your business in compliance with state and federal wage and hour laws before the Department of Labor catches up to you. Call our experienced Labor Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you make sure you are wage compliant as well as set up proper payroll and recordkeeping in accordance with the FLSA.

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.

The United States Department of Labor's Wage and Hour Division has issued a new smartphone app for the IPhone and IPad that helps employees keep track of their hours worked and overtime pay owed. The app is free and may be later introduced on the Blackberry and Android platforms. While this app may sound like a great idea and an easy way for employees record their hours, it has a few drawbacks. It does not have a feature to account for tips, commissions, bonus payments, holiday pay, deductions or shift pay differentials. As such, it may not be the best system for certain classes of workers. The ease of this system emphasizes the need for employers to make sure that their time keeping systems are accurate and in place as employees may soon try to use this app as evidence in an FLSA wage and hour lawsuit. Under the law, it is the employer's burden to keep accurate time and pay records. If it fails to do so, it can be subject to fines and penalties and may face some difficulties defending a false overtime or minimum wage lawsuit.

If you have any questions about overtime pay or correct wage practices, contact our New York Overtime Pay Lawyers at (800) 893-9645 for a confidential consultation.

In a time when medical bills are the number cause for bankruptcy, continued health insurance coverage is crucial. This blog discusses general principles about which individuals can continue health insurance coverage if an employee loses his or her job. Employees who work for a company with 20 or more employees and who participated in an employer's health insurance plan are eligible for continued health insurance coverage under the federal law known as Consolidated Omnibus Budget Reconciliation Act COBRA. COBRA, in part, amends the Employee Retirement Income Security Act (ERISA). Employees who work for a company with less than 20 employees may be eligible for continued coverage under state COBRA laws known as mini-COBRA statutes. New York and New Jersey have state COBRA statutes. COBRA applies to plans maintained by private-sector employers and sponsored by most state and local governments.

COBRA enables certain former employees, retirees, spouses former spouses, and dependent children the right to temporary continuation of health coverage at group rates. COBRA is limited to when health insurance coverage is lost due to certain specific qualifying events.

The following are some general examples of qualifying events for employees: (i) voluntary or involuntary separation of employment for reasons other than gross misconduct including a reduction in force or a layoff; or (ii) reduction in the number of hours of employment from full time to part-time causing loss of coverage.

The following are some general examples of qualifying events for spouses and dependents: (i) voluntary or involuntary separation of a covered employee's employment for any reason other than gross misconduct; (ii) reduction in the hours worked by the covered employee from full-time to part-time causing a loss of benefits.

Qualified beneficiaries must be offered health insurance coverage identical to that available to similarly situated beneficiaries who are not receiving COBRA coverage under the plan (generally, the same coverage that the qualified beneficiary had immediately before qualifying for continuation coverage). If a company changes its health insurance plan, the COBRA plan would change as well.

Generally, beneficiaries (eligible former employees, spouses, and dependents) must be pay for COBRA coverage. The premium for the health insurance coverage cannot exceed 102 percent of the cost to the plan for similarly situated plan members. The beneficiary may be required the additional 2 percent for any administrative costs. Generally, the first premium payment must be made within 45 days after the date of the COBRA election by the qualified beneficiary. Payment generally must cover the period of coverage from the date of COBRA election retroactive to the date of the loss of coverage due to the qualifying event. Successive payments are due each month thereafter on the date stated in the Plan. Generally, there is a 30 day grace period. If payment is not timely, the Plan has the option to cancel coverage.

For your general information, a model COBRA election notice provided by the United States Department of Labor can be found on the US DOL's site at COBRA Model Notices.

This is just a few of the many rules applicable to COBRA. If you have any questions about your rights to continue health insurance coverage, contact our COBRA Health Insurance Coverage Lawyers at (800) 893-9645.

Continue reading "Analysis of COBRA Health Insurance Continuation in New York and New Jersey" »

In these difficult economic times, the New York State Office of the Medicaid Inspector General has been scrutinizing the practices of ambulette providers in a possible effort to save money and avoid paying bills for transportation services and to protect the integrity of the services provided. Our Westchester County Medicaid Lawyers have seen increased enforcement by the Division of Medicaid Investigations regarding the issue of use of subcontractors by ambulette providers.

Under the terms of New York Transportation Manual and Policy Guidelines, Ambulette Service Providers must own or lease ambulettes and employ by its drivers. The following are examples of acceptable and unacceptable practices in subcontracting.

Examples of Acceptable Practices Under Medicaid Guidelines

An Ambulette Service Provider may subcontract or lease with another Medicaid-enrolled provider for a short-term if the existing ambulette fleet is suffering mechanical breakdowns or there are other acute emergent circumstances. This practice cannot be ongoing and must be limited to a short-term use. Long term use may lead to unpaid bills or exclusion from the Medicaid Program.

Examples of Unacceptable Practices Under the Medicaid Guidelines

An Ambulette Service Provider may not subcontract or reassign transportation trips to another provider if it has no intention to secure its own vehicles or drivers. New York State asserts that this practice jeopardizes the safety and financial controls of the Medicaid Program.

If your business has been contacted by the New York State Office of the Medicaid Inspector General, contact our experienced lawyers at (800) 893-9645 to learn your rights and protect your business including payment of your invoices.

Not only may your company be subject to compliance issues with the Medicaid Program due to an unacceptable practice, it may also face employment law exposures if it misclassified its ambulette service provider drivers as independent contractors instead of as employees. This misclassification error could be significant and be subject to scrutiny by the federal and state Department of Labor and IRS and cause you to owe overtime pay. One of the key factors (but not the only factor) that the government considers is the amount of control and direction you provide to your drivers. The greater the control and direction the more likely they could be considered employees. Contact our Employment Lawyers at (800) 893-9645 to determine if there are any misclassification issues affecting your business.

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.

No. Unless there is a contractual obligation or a controlling employment policy requirement, an employer does not have to pay severance pay to a separating employee. Often, this is hard reality for long-time employees who have devoted their life to the Company. However, generally, employees are entitled to accrued vacation pay unless there is a contrary company policy.

In addition, separating employees could be entitled to 60 or 90 days notice under the New York State and Federal WARN acts, respectively, if an employer lays off a triggering amount of its workforce.

Even though employers in the United States are generally not required to provide severance, unlike employers in numerous other countries, many employers do so in order to obtain a signed release of a waiver of all claims against the company. If you are given a Severance Package or Severance Pay Agreement, you should have an experienced employment lawyer review it before you sign it so that you know your rights and receive the maximum amount of compensation. If you are over 40 years old, employers must give you atleast 21 or 45 days to review the Agreement in order to obtain a full release of age discrimination claims. However, if you are under 40 years old and are not let go as part of a reduction in force, your employer may give less time to review your separation agreement.

You should never sign an agreement without taking it home and properly considering its consequences and having an experienced employment lawyer review it. Contact our Severance Agreement Lawyers at (800) 893-9645 to learn how to maximize the value of your severance package. Our Severance Pay Lawyers will review your agreement with you paragraph by paragraph and analyze whether you have any employment law claims of discrimination, harassment, or otherwise against the company.

Continue reading "Severance Pay Q&A: I just got laid off from my job. Am I Entitled to a Severance Package?" »

Our Employee Whistleblower Attorneys have been closely following a whistleblowing claim against CVS, the national retail pharmacy chain. A pharmacist brought a whisteblower complaint alleging that CVS submitted inflated prescription claims in approximately 10 states (California, Florida, Indiana, Massachusetts, Michigan, New Hampshire, Nevada, Rhode Island, Alabama and Minnesota). It was alleged that CVS received higher reimbursement rates from Medicaid than if had complied with correct billing procedures and submitted the claims to third-party insurers. Specifically, it was alleged that CVS overcharged Medicaid by filling prescriptions for customers who also had other insurance. In those situations, CVS was supposed to bill Medicaid only for a patient's copayment. As a result of the whistleblowing claim and the ensuing investigation, CVS has agreed to pay $17 million and to have its billing procedures monitored for the next three years. The pharmacist employee who blew the whistle will collect $2.5 million as part of the whistleblower claim.

Warning Bell For Companies in Healthcare Industry

Warning other companies who defraud the Medicaid system, Daniel Levinson, inspector general of the U.S. Department of Health and Human Services stated that "[m]edicaid covers the poorest, most vulnerable people in American society. This needed government program for prescriptions is a disservice to everyone and won't be tolerated." For many years, our Workplace Fraud Attorneys have been advising pharmacists, doctors, physicians, nurses, physician assistants, companies and individuals regarding their rights and opportunity to collect reward for reporting Medicaid fraud. If you see fraud in the workplace, report it to our office and whistleblower hotline.

Below are some of the most common methods used to defraud the Medicaid Program:

• Billing for "phantom patients" who did not really receive services
• Billing for medical services or goods that were not provided
• Billing for tests that the patient did not need or receive
• Paying a "kickback" in exchange for a referral for medical services or goods
• Overcharging for health care services or goods that were provided
• Concealing ownership in a related company
• Using false credentials and/or using one Medicaid provider number to bill services
for many individuals

If you know of any fraudulent practices in your workplace or anyone that is defrauding the Medicaid program, contact our Whistleblower and Medicaid Fraud Attorney for a free confidential consultation at (800) 893-9645 and learn how to report the fraud.

Continue reading "News and Analysis of Medicaid Fraud: Retail Pharmacy Giant CVS to pay $17 Million for Incorrect Billing Practices" »

A: Yes. Contrary to what many unethical employers believe, undocumented workers are protected by the Fair Labor Standards Act (FLSA) and entitled to back wages and earned overtime pay. As a result, if you worked for an employer who paid you less than minimum wage, or was not paid overtime for hours worked, you may be entitled to back pay. Your employer cannot refuse to pay you because of your immigration status or raise that as a defense in your claim. If employers did not have to pay undocumented workers, undocumented workers would be subject to even more abuses in the workplace. It is important to recognize that undocumented workers have the right to be paid the legal minimum wage and overtime rates. In New York State, the current minimum wage is $7.25 per hour and eligible workers are entitled overtime pay (1.5 times your hourly rate) for all hours worked over 40 hours in a work week.

Do not let your employer bully you. It is illegal for an employer to retaliate against you for bringing a claim under the federal and state labor and anti-discrimination laws. Do not let your employer take advantage of you and not pay you for your hard earned wages. You are not alone -- call now to speak with our Experienced Overtime Pay Lawyers who can help fight for you at (800) 893-9645.

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.

U visas are designed to help victims of qualifying criminal activities who have suffered substantial physical or mental abuse. Individuals who receive U visas may remain in the United States for up to four (4) years and may eventually apply for lawful permanent residency. U Visas may be a significant tool for undocumented workers. The Wage and Hour Division of the U.S. Department of Labor will review and consider whether specific qualifying criminal activity and workplace abuses are appropriate for a U Visa. The Wage and Hour Division has stated that it will consider completing U visa certifications based on five qualifying criminal activities (listed below) when it detects them in the process of investigating violations of minimum wage and overtime rights.

1. Involuntary servitude
2. Peonage
3. Trafficking
4. Obstruction of justice; and
5. Witness tampering.

The U.S. Department of Labor will consider the following issues: (i) whether the qualifying criminal activity arises in the context of an employment relationship or work environment and there is a related, credible allegation of a violation of a law the Department of Labor enforces; (ii) if the petitioner alleges a qualifying criminal activity of involuntary servitude, peonage, trafficking, obstruction of justice or witness tampering; (iii) the petitioner has demonstrated that he or she has been, is being, or is likely to be helpful to law enforcement officials in any investigation or prosecution of the qualifying criminal activity; (iv) if another law enforcement agency is already engaged in the investigation of the qualifying criminal activity or would be in a better position to certify based on the facts presented; and, (v) whether completion of the U Visa Certification would assist the Department's investigation of a violation of a law that it enforces.
It is important to recognize that not every workplace abuse will qualify for a U Visa. For example, non-payment of overtime pay for two weeks most likely would not be a basis for a U Visa.

Our Employment Law Attorneys have represented clients before the U.S. Department of Labor's Wage and Hour Division and in the U Visa process and can help you learn and assert your rights - call now to speak with one of our experienced immigration U Visa lawyers at (800) 893-9645.

Continue reading "Analysis of New Government Protocols Announced for U Visa Form I-918" »

Our New York Overtime Pay Lawyers have been closely following an investigation into the factories producing Apple products in China has revealed that Chinese workers at two factories in China are being treating "inhumanely" and "like machines." Foxconn owns two factories in China, one in Shenzhen and one in Chengdu, and employs about 500,000 Chinese workers who produce millions of Apple products every year. In fact, two NGOs (Non-Governmental Organizations) uncovered the labor abuses which included workers committing suicide last summer.

Foxconn, part of Hon Hai Precision Industries, not only produces the iPhone, iPad and MacBooks for Apple. It also produces other electronic goods for companies such as Hewlett-Packard, Dell, Microsoft, Sony, and Samsung.

The two NGOs, the Center of Research on Multinational Corporations and Students & Scholars Against Corporate Misbehavior, who uncovered the abuse, reported several complaints from workers. Some of the allegations were as follows: workers were routinely working excessive overtime even though the legally allowed limit of overtime is 36 hours a month; workers were being pressured to take only 1 day off in 13 days in order to meet the demand for the first iPad; in factories not performing well, workers were humiliated publicly; and, unbelievably, workers were asked to sign a statement promising that they would not commit suicide.

Since the reports came out about the Chinese workers committing suicide and how little they were paid, Foxconn has since raised the workers' wages. Apple also began training workers and supervisors about their rights, labor laws and safety measures.

Although we have labor laws involving minimum wage and overtime pay as well as protections against unfair and abusive labor practices, unfair and abusive labor practices exist throughout the world. It is fair to say that worldwide demand, including our own demand for Apple products has influenced and contributed to this abusive treatment of workers in China making Apple products. If you or anyone you care about is suffering from abusive working conditions or not being paid their minimum wages or overtime, call our Wage & Hour Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you recover your rightful wages and overtime pay.

Continue reading "Demand for Apple's Products Lead to Violations of Minimum Wage and Overtime Pay in China " »

A: This is a very serious problem affecting your business. A Stop Work Order means that you MUST cease all operations and that you cannot conduct any work and earn any money until the Order is officially removed. Further, your receipt of an Order may lead to disbarment from Public Works contracts or subcontracts for one (1) year or up to five (5) years. The Order or a Penalty Notice can be devastating to your business. Section 141(a) of the Workers Compensation Law empowers the Board to issue Stop Work Orders.

You should read the Order and Notice thoroughly. Your response must be carefully considered and, if done incorrectly or inaccurately, you risk making damaging admissions which can cost you thousands of dollars in penalties and a possible subsequent judgment. Instead, contact our experienced New York Workers' Compensation Penalty and Fine Lawyers who have over 25 years of legal experience and have successfully saved small businesses hundreds of thousands of dollars from the government.

Contact us now for a free telephone consultation. You spent a lifetime building your business - don't let New York State take away your business and life savings over a technicality.

Q: What can your Law Firm do for me?

A: Our Workers Compensation Penalty and Fine Attorneys will protect your business and your assets. Our New York Lawyers know the Workers' Compensation law and the administrative procedures. Based on our arguments and legal presentations, we have saved companies over $1,000,000.00 dollars by obtaining a rescission and/or complete or partial reduction of the judgment or penalty notice. Call our Attorneys now to discuss how we can defend your business against this Stop Work Order, Penalty or Judgment. Your business may be exempt from the law or you have strong legal defenses. Call us now at (800) 893-9645 for a confidential telephone consultation to learn how to protect and defend your business.

Recently, New York State has increased its efforts to penalize businesses that do not comply with the Workers' Compensation Law and, as part of its process, the State has significantly increased the monetary penalties by approximately ten fold. Currently, covered employers are subject to a $2,000.00 penalty for every ten days of non-compliance. This is a significant increase from the prior penalty amount of $250.00. Once the State has obtained a judgment, it can seize your bank accounts and place liens on valuable and crucial business assets. Collection agencies will be assigned to execute on your account. If unpaid, the amount of the judgment may increase with the accumulation of interest. In addition, a judgment can negatively impact a company's credit report and score, its ability to obtain financing, and its relationships with vendors. The worse thing you can do is to ignore the Notice and hope that it will go away. Unfortunately, that is not a realistic or practical option. Call our office to learn your rights.

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 own a computer software company in New York and employ many people performing different types of jobs, most of who work overtime. How do I determine who is exempt and non-exempt from the minimum wage and overtime laws?

A: The Fair Labor Standards Act ("FLSA") and the New York State Labor Law requires employers in New York State to pay employees at least the minimum wage hourly rate of $7.25 and overtime pay at 1 ½ times the regular rate of pay for hour worked in excess of 40 hours a week. The FLSA exempts certain workers from this minimum wage and overtime pay requirements. In order for an employee to qualify as being exempt, he or she must meet certain job criteria as well as salary requirements. You cannot simply give an employee the job title of "Manager" to avoid paying them overtime.

Generally, in order to classify any of your employees as exempt computer employees, they must meet the following requirements:

• You must compensate your employee with a salary or pay then at least $455 a week. If you pay them hourly, you must pay them at least $27.63 an hour; and

• The employee must be one of the following: a computer systems analyst, computer programmer, software engineer, or a worker with similar computer skills whose primary duties include the following:

1) the application of systems analysis techniques and;

2) design, development, documentation, analysis, creation, testing or modification of computer systems or programs;

3) design, documentation, testing, creation or modification of computer programs related to machine operating systems; or

4) combination of the above duties which requires the same level of skills.

The computer exemption does not apply to employees whose jobs involve the manufacture or repair of computer hardware.

In this day of government crackdowns and rising wage and overtime lawsuits, it is financially imperative that you correctly classify your employees. Make sure that the job title and classification you give corresponds to the employee's job function. Most important, make sure you periodically review your employee's job functions, which might have changed, with their classification. An employee's classification can change over time as duties evolve. Contact our New York Misclassification of Employees Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you properly classify your employees and defend against any potential lawsuits or to learn if you have been misclassified.

Continue reading "Risks in Misclassifying Employees as Exempt from Overtime Pay" »