New York Employment Lawyer Blog

Pharmaceutical giant Novartis received preliminary approval from a New York federal district court judge this week for a $99 million settlement of a lawsuit in which its sales representatives alleged that they were misclassified as "outside sales" under the Fair Labor Standards Act ("FLSA") and denied overtime pay. The class action settlement could affect over 7,000 current and former sales employees.

Over the past few years, pharmaceutical representatives have filed many overtime claims alleging misclassification of sales employees. They have claimed that they do not fall under the "outside sales" exemption and should be paid overtime. The federal court across the country are divided on this issue. This settlement comes at time when the U.S. Supreme Court is considering another case, Chistopher v. SmithKlineBeecham Corp., which involves the same issue of whether the FLSA's outside sales exemption applies to pharmaceutical representatives. The Supreme Court's decision will affect thousands of employees across the country.

The settlement stems from two lawsuits which were filed back in 2006 pursuant to the FLSA and California and New York labor laws. In July, 2010, the U.S. Court of Appeals for the Second Circuit ruled that the FLSA exemption did not apply to the Novartis sales representative, thus finding the sales representatives to be employees under the law. Rather than waiting for the Supreme Court's ruling in the SmithKlineBeecham case, the parties in Novartis decided to settle and not to wait for the Supreme Court's ruling.

The president of Novartis has stated that "We remain confident that sales representatives should continue to be classified as exempt from overtime because their autonomy and incentive compensation are typical of exempt employees as defined by U.S. law."

The FLSA provides an exemption from both minimum wage and overtime pay for employees who are outside sales employees. In order to qualify for the exemption, an employee must meet certain tests regarding their job responsibilities and be paid at least a salary of $455 per week. Your job title along does not give you an exempt status. For example, if your title is that of an outside sales employee, but your primary job duty is to schedule appointments, you are not exempt.

In order to qualify for the outside sales employee exemption, you must meet the following criteria:

-your primary duty must be making sales, or obtaining orders or contracts for services or for the use of facililites for which your client or customer will pay consideration; and
-you must be customarily and regularly engaged away from your employer's place of business.

Make sure your company is properly classifying your workers according to the guidelines under the FSLA. Misclassification can cost your company thousands in litigation costs as well as fines, penalties, and back taxes. Our attorneys have helped many businesses review the job functions of their workers to ensure that they are in compliance with the FLSA. Our attorneys have also helped companies determine if the Voluntary Classification Settlement Program is their best option. Call our Misclassification Attorneys at Villanueva & Sanchala at (800) 893-9645 if you think you might be misclassifying your employees.

Continue reading "Wage and Hour Update: Don't Let Misclassification of Your Employees Cost You Millions" »

New York federal court judge recently conditionally certified a national collective class action lawsuit alleging that KPMG violated the Fair Labor Standards Act ("FLSA") and the New York Labor Law by misclassifying its Audit Associates as exempt and not paying them overtime wages. KPMG is one of the Big Four Accounting Firms which has over 80 offices and 23,000 employees in the U.S. Audit associates working at such public accounting firms are known for putting in grueling overtime hours which range anywhere from 40 to 80 plus hours a week.

In conditionally certifying the FLSA collection action, the court found that the Audit employees were subject to the same policies and procedures concerning their job duties, had the same training, and worked under the same job description. Moreover, they all had to adhere to the same strict professional and regulatory rules and standards governing the accounting profession. The court did not decide the ultimate issue in the case of whether the audit associates job duties renders them as non-exempt employees. The class certification now allows audit associates across the country who are within the 3 year statute of limitations to join in the lawsuit. Our attorneys have helped many employees figure out their proper classification and recover their rightful overtime wages.

Regardless of where you work or what your job title is, your actual job duties determine whether you are a non-exempt employee and entitled to overtime pay. For example, even if you have the job title of Manager but you are basically performing routine, clerical work which is equivalent to the job duties of a secretary, you are a non-exempt employee under the law and entitled to overtime for all hours worked in excess of 40 hours a week.

The FLSA provides an exemption for employees working as bona fide executive, administrative, professional, and outside sales employees, and certain computer related occupations from both minimum wage and overtime pay protection. In order for the exemptions to apply, the employee must meet certain criteria regarding their job duties and be paid a base salary of at least $455 per week. If you think you fall into one of the above catergories, our attorneys can help you figure out if you meet all criteria to be a non-exempt employee.

Misclassification occurs in all areas of industry and affects all types of workers including white-collar workers. By giving employees a great job title and classifying them as exempt, employers reap huge savings by not paying overtime wages. It not only costs the misclassified worker his lost wage in overtime pay but also affects the amount of taxes collected by the government.

The outcome in this case may have wide ranging ramifications for white-collar workers as well as for major accounting and financial companies. If you are an exempt white-collar employee, think about whether your job duties really involve significant, independent judgment. Do you have the power the hire and fire employees? Does your supervisor control every aspect of your job? Do your job duties involve routine, clerical work? These are just a few questions to consider. If you think you are misclassified as an exempt employee and losing out on overtime wages, call our FLSA Attorneys at Villanueva & Sanchala at (800) 893-9645 to discuss and analyze whether you really should be treated as a non-exempt employee and thus entitled to the protections of the FLSA and state law.

Continue reading "Call to White-Collar Workers: Make Sure You Are Not Being Misclassified as Exempt" »

The U.S. Department of Labor's Wage and Hour Division's ("DOL") ongoing initiative has thus far recovered $2.3 million in back wages for 578 workers employed at pizza and pasta restaurants in Long Island. The restaurant owners were also fined civil penalties amounting to $202,315 for willful and repeat violations.

The investigation found 35 Italian restaurants in violation of the Fair Labor Standards Act. The illegal acts included paying cash wages "off the books" when the employers should have been maintaining the required employment records, paying a fixed salary for all the hours that an employee worked rather than paying minimum wage and applying overtime, and for falsifying time and payroll records.

The Long Island district office used different strategies to track down noncompliance with the wage and hour laws. Investigators visited restaurants to figure out minimum wage patterns, overtime and record keeping violations, and reminded workers of their FLSA rights. They also reviewed payroll records, interviewed employees to assess employer compliance with wage laws, as well as used surveillance to detect violations. Irv Milijoner, director of the DOL's Long Island district office stated "It's becoming increasingly common for us not only finding minimum wage violations and overtime violations but a preponderance of employees being paid off the books."

The DOL's district office is taking a tough stand against noncompliance and aggressively going after employers breaking the law. It is using all available enforcement tools including litigation, administrative subpoenas, and civil monetary penalty assessments and liquidated damages. In fact, the division has engaged in litigation against 26 local restaurants from which it recovered over $1,914,000 in back wages and liquidated damages for over 300 employees. It also assessed the restaurant owners $127,000 in penalties for their willful and/or repeat violations.

Milijoner also stated that the national estimate of the amount of money employers avoid in paying some taxes is about $800 billion. HIs office is now planning to go after the 100 or so diners in Nassau and Suffolk counties for wage and hour violations.

The FLSA requires an employer to pay an employee at least the federal minimum wage of $7.25 an hour and overtime of time and a half for hours worked in excess of 40 per week. It also requires an employer to maintain accurate records of all employees and their wages, hours, and identifying information. Payroll records must be kept for at least three years while records on which wages are determined should be maintained for two years. For example, you should keep an employees time cards, wage rage tables, work and time schedules for at least 2 years.

The DOL is determined to find any restaurant industry employers who violating wage and hour laws. It has also made it know that it intends to go after diners next. If you have a restaurant or a diner, make sure your personnel records and payroll records are in compliance with the FLSA. Our Wage & Hour Attorneys at Villanueva & Sanchala can help you make sure you are in compliance with state and federal labor laws. Call us at (800) 893-9645 to help you avoid costly litigation or fines and penalties.

Continue reading "U.S. DOL Cracking Down on Restaurants Violating Minimum Wage and Overtime Laws" »

Oracle Corp. recently entered into a settlement to pay $35 million to end a class action lawsuit that charged it with violating wage and hour laws. The suit was filed in 2007 and alleged that Oracle misclassified the workers as exempt workers to avoid paying overtime and meal breaks.

The $35 million settlement will be shared by 1,725 employees who will each get on average a little over $13,000. Our attorneys have helped many misclassified workers recover their rightful wages. If you think you are being misclassified as an exempt employee or an independent contractor, call our attorneys to help you evaluate your claims.

The three groups of workers involved in the class action were quality assurance workers, who test Oracle software, technical analysts, who provide customer support and answer questions, and project managers, who coordinate tasks for other employees. Oracle argued that these employees were either administrators or computer professionals and thus were exempt from state overtime laws and not subject to time and a half pay for hours worked in excess of 40 hours a week. The workers argued that each group worked long hours with repetitive tasks at modest salaries.

The FLSA provides that employees be paid both minimum wage and overtime pay at time and a half for hours worked in excess of 40 hours a week. In order to meet the exemption requirements, employees must meet certain tests pertaining to their job duties and be paid a salary of at least $455 per week. An employee's job title alone does not qualify him or her for an exemption. For example, an employee may have title "executive vice-president" but if his or her sole job function is to make photocopies, the employee does not qualify for an exemption. Federal law provides an exception only for employees who are executives, administrative, computer, professional and outside sales representatives.

In order to be exempt as a computer employee, one must meet the following criteria:

• be compensated either at a rate of at least $455 per week or, if compensated on an hourly basis, then at a rate not less than $27.63 per hour;

• the employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties set forth below;

• his or her primary duties must include the following:

1) application of systems analysis techniques and procedures, including consulting with others, to figure out hardware, software or system functional specifications;

2) the design development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

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

4) a combination of the aforementioned duties, the performance of which requires the same level of skills.

Misclassification of employees is a common problem that affects not just the underpaid employees but also taxpayers and the economy. When employees are not compensated their correct wages, this in turn affects their spending and the amount of taxes they pay which in turn affects the entire economy. If you are not properly classifying your workers and are audited by the IRS or the Department of Labor, the penalties, interest, and back taxes can be devastating to your business. Call our Misclassification Attorneys at Villanueva & Sanchala at (800) 893-9645 to ensure that your company is in compliance with all state and federal laws.

Continue reading "The High Cost of Misclassifying Non-Exempt Employees Regarding Overtime Pay" »

FAQ: I own a small business and recently discovered that I had misclassified some of my workers and was not paying them accurate minimum wages and overtime pay. Can I be held personally liable to these employees for their unpaid compensation?

You ask an excellent question that our Wage and Hour Attorneys are often asked by the heads of many of our family owned businesses as well as small to large sized companies. The Judge in the New York Southern District Court recently ruled in Torres et al. v. Gristedes Operating Corp., et al., that Mr. Catsimatidis, the president and CEO, of a grocery chain was personally and individually liable to his employees for unpaid wages. Depending on your factual circumstances, you are at risk of being personally liable for your employees' unpaid compensation. Our Wage and Hour Attorneys have helped many companies properly classify their employees to avoid any potential personal liability.

The class action lawsuit alleged that Mr. Catsimatidis, Gristede's owner, misclassified hundreds of hourly workers as managers to avoid paying them overtime. The lawsuit originally began in 2004 and was settled in June of 2009 resulting in a $3.5 million settlement structured with a lump sum payment of $425,000 followed by installments. The settlement plan fell apart when Gristede's ran into financial trouble and missed its scheduled payments. Thereafter, the workers filed a motion for summary judgment seeking Mr. Catsimatidis personally liable for the payments.

Judge Paul A. Crotty found that under the Fair Labor Standards Act ("FLSA"), the owner, Mr. Catsimatidis was an employer under the law and thus jointly and severally liable for the millions due in overtime pay to the grocery workers.

In reaching its conclusion, the Court found that there was "no aspect of Gristede's operations from top to bottom and side to side which is beyond Mr. Catsimatidis' reach. There is no area of Gristede's which is not subject to his control, whether he chooses to exercise it." Mr. Catsimatidis' own affidavit showed that he was the sole owner, president and CEO of Gristede's and its parent company, which he owned for 20 years, and that he had the right to open, close and reopen stores. He also had the authority to set prices, pick out décor for the stores, and control the store's signs and advertising.

Although Mr. Catsimatidis argued that he should not be held liable merely because of his title, the Court found that he hired management, reviewed financial documents, worked in the corporate office, dealt with the company's day to day operations. The Court pointed out that even though he may have delegated certain power to others, Mr. Catsimatidis had the power to delegate. Thus, given all the circumstances and Mr. Catsimatidis' ownership and authority, he was an employer under the FSLA.

Torres v. Gristedes teaches an expensive lesson to all business owners, officers, directors, and executives who are under the illusion that they cannot be personally liable for their employees' unpaid compensation. If you have sufficient control and authority of your business, you are at risk for potential personal liability if your company is not financially strong enough to protect you. It is crucial that you classify your workers and pay them in accordance with state and federal law. Call our Wage and Hour Attorneys at Villanueva & Sanchala at (800) 893-9645 to help ensure that you are compliant with wage and hour laws to avoid any future potential personal liability.

Continue reading "Personal Liability for Unpaid Wages Caused by Misclassification of Independent Contractors " »

Two interns who worked on the set of "Black Swan" have filed a lawsuit in federal court alleging that Fox Searchlight Pictures ("Fox") violated the federal Fair Labor Standards Act and the New York Labor Laws. The lawsuit alleges that Fox, who produced Black Swan, made the interns do menial work without providing them with educational work experience. Fox classified the interns as exempt from pay and made them do menial work which otherwise should have been done by paid employees. Our firm has worked with many companies and employees to ensure that a proper classification of employee vs. intern under the NYS Department of Labor's guidelines was made. Whether you are an intern or a company we can help determine the correct worker classification.

Fox has over a 100 unpaid interns who play a very important role in its productions performing as assistants and bookkeepers as well as doing secretarial and janitorial work. By misclassifying the workers as interns rather than employees, Fox can get away with not paying them minimum wage, overtime pay as well as other legal protections given to employees.

The lawsuit is trying to obtain class action status for over a 100 unpaid interns that worked on different Fox productions. The lawsuit not only seeks back pay pursuant to state and federal laws but also an injunction to stop Fox from using interns illegally.

The U.S. Department of Labor ("DOL") has established guidelines in determining whether an internship must be paid minimum wage and overtime. In deciding whether an internship should be paid or not, the following six criteria found on the DOL"s Fact Sheet #71 should be applied:

1) The internship is similar to training which would be given in an educational environment even if it includes actual operation of the employer's facilities;

2) The internship experience is for the intern's benefit;

3) The intern does not displace regular employees, but works under the close supervision of existing staff;

4) The employer providing the training does not derive immediate advantage from the intern's activities; and on occasion its operations may actually be impeded;

5) The intern is not necessarily entitled to a job at the end of the internship; and

6) The employer and the intern understand the intern is not entitled to wages for tiem spent in the internship.

One of the interns, plaintiff Alex Footman, who worked as a production intern from October 2009 to February 2010, did no work related to production or film studies. He worked 5 days a week for at least 40 hours. His job was to make coffee for the production office, make sure the coffee pot was full, take lunch orders, take out the trash, and clean the office. Clearly, Footman, Wesleyan graduate who majored in film studies did not sign up to be a coffee intern.

The other intern, Eric Glatt, who has an M.B.A. was an accounting intern for "Black Swan" who took the internship because he wanted to go into the film industry. As an intern, he prepared documents for purchase orders and petty cash and created spreadsheets to track missing information.

Given the high rate of unemployment and the economic climate, unpaid internships have risen in the past few years. In his book, Intern Nation: How to Earn Nothing and Learn Little in the Brave New Economy, Ross Perlin estimates that about 500,000 unpaid interns provide $2 billion in free labor every year and that many work in violation of state and federal labor laws.

Many young graduates, who can't find a job, take internships just to get their foot in the door. Secretary of Labor Hilda Solis has stated that "good internships - paid or unpaid - are a valuable bridge between higher learning and the workplace. And enforcement is tough because no one has an incentive to report the problem." In this instance, Black Swan cost $13 million to produce and grossed over $300 million worldwide. Clearly, Fox made out by keeping it costs low. However, it is a grave injustice that not only did Fox use the interns for menial work without paying them but these interns wasted their time and did not benefit with training they thought they had signed up for.

If you are being misclassified as an intern, call our Wage and Hour Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you obtain your rightful wages and overtime pay.

Continue reading "Cautionary Tale for Employers: Unpaid Interns from the "Black Swan" File Lawsuit for Unpaid Wages Against Fox Searchlight Pictures" »

The U.S. Department of Labor ("DOL") signed a memorandum of understanding this week with the Internal Revenue Service ("IRS") in an effort to end misclassification of employees. Leaders from 7 states also signed memorandums of understanding with the DOL's Wage and Hour Division. The states who will be working with the DOL include Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington. Four other states, including New York, Hawaii, Illinois and Montana are also expected to sign memorandums of understanding. Our firm has helped many companies evaluate and correctly classify their workers in accordance with state and federal guidelines to avoid fines, penalties and taxes.

The memorandums of understanding will allow the Labor Department to share information and coordinate law enforcement with the IRS and the 11 states to ensure that employers follow state and federal labor laws. By working together, the Labor Department will be able to target companies that misclassify employees as independent contractors in order to avoid paying minimum wage and overtime pay. Businesses also misclassify employees in order to avoid paying workers compensation, unemployment insurance and federal taxes.

With the DOL, the IRS and the states sharing information, the state and federal government will be able to inflict multiple fines and penalties on companies engaged in violating state and federal employment laws. Patricia Smith, an attorney at the DOL, stated that there's "more of an incentive to be in compliance because the cost of what we consider to be illegal activity has increased." For example, in the past, if a company was found guilty of not making unemployment insurance payments, it would incur a fine from just the state agency. Now, it would be hit with not just state fines, but also federal fines and penalties as well as any tax violations.

Aggressive enforcement and cracking down on labor law violations has been a major priority for Labor Secretary Hilda Solis since she took over the Labor Department in 2009. The DOL collected about $4 million in back wages in 2010 on behalf of about 6,500 misclassified employees. This amount was a 400 percent increase from the amount collected in 2008. Solis has also made it a point to go after the industries who are known for misclassification of employees, such as the restaurant, hotel, health care, and day care industries.

Misclassification of workers is a huge problem in many industries, which not only robs workers of their rightful wages but amounts to theft from the government and all taxpayers across the country. A 2009 report from the Government Accountability Office showed that misclassification of workers cost the government $2.72 billion in 2006. The report also found that about 30% of employers misclassify their employees as independent contractors to avoid paying overtime and minimum wage.

If your company employs independent contractors, make sure you are in compliance with state and federal labor and employment laws. The government's new initiative can have severe financial consequences if you are found to be in violation of any labor laws.
Call our Labor and Employment Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you evaluate your company to ensure that your employees are classified correctly.

Continue reading "More Bad News For Companies Who Misclassify Workers: Federal (IRS) and State Governments Labor, Including New York, Share Information to Target Employee Misclassification Seeking Penalties" »

The hospitality industry, including hotels, motels and resorts, has been violating workers' wage and hour laws for many years. It's an industry that employs many non-English speaking and undocumented workers who, unfortunately, are scared to ask for their rightful wages. When employees in an industry, whether they are documented or not, are not being paid their rightful wages, it not only affects their cost of living, but it also results in lost tax revenue to the entire country. This in turn, impacts the entire economy.

The U.S. Department of Labor Wage and Hour Division ("DOL") of the Virginia, Norfolk office, recently announced an enforcement initiative against local hotels. Over the past 3 years, the Labor Department found that 60% of the hotels that were investigated had violations. The government audits revealed that employers were taking advantage of workers, especially undocumented workers. Patricia A.J. Pickett, Assistant Director of the DOL in Norfolk, stated that employers tried intimidating undocumented workers by telling them "You're not going to say anything. You're not supposed to be here."

One of the more frequent violations included not paying workers overtime wages. For example, if an employee worked 20 hours per week at one hotel and worked 25 hours at another hotel in the same week, the worker should have been paid time and a half his or her usual rate of pay for the hours worked in excess of 40 hours a week. In other words, he or she should have received 5 hours of overtime pay.

Employers were also found to be violating minimum wage laws. For example, you cannot pay an employee minimum wage and then require him or her to purchase a uniform. You must pay wages such that after paying for the uniform, the employee earns his or her minimum wage of $7.25.

The DOL has made it known that it intends to audit hotels, motels, and resorts across the country for compliance with wage and hour laws. This is greatly due to the fact that it considers the hospitality industry at high risk for violating the Fair Labor Standards Act ("FLSA"). If you're in the hotel business, make sure your personnel records and payroll records are in compliance with the FLSA. Since the government will also check your employees' lawful immigration status, be certain that you're not violating any immigration laws. Our experienced Employment Law attorneys at Villanueva & Sanchala can help you make sure you're in compliance with the Federal and State labor laws. Call us now at (800) 893-9645 to avoid any potential liability and safeguard your company from costly litigation.

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.

Other Resources:

U.S. Department of Labor

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.

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.

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" »

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.

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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.

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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.

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FAQ: My boss says that I don't have to come to work but I have to be on call and available to come in as soon as he calls or pages me. Should I be paid for the time I spend waiting?

Many industries require their employees to be "on call" or "stand by" and wait for a page or phone call to report back to work. You may be required to stay close to your place of business or within a certain range and, in certain situations, you should be paid for your "on call" time.

According to the Fair Labor Standards Act, if you are required to remain on your employer's premises while on call then you are working and your time is compensable. However, if you are required to be on call from home or from a number where you can be reached, it will depend on the specific facts. The more constraints and restrictions on where you can go and what you can do while waiting, the more likely that your on call time will be considered work. For example, the following factors have been used to determine whether your on call time is considered work and therefore compensable:

• How close to your employer's premises are you required to stay. For example, if called, do you need to report back within 10 minutes or 2 hours?

• Are you allowed to consume alcohol or do you need to remain sober?

• How often are you being paged or called? For example, while on call, are you being paged every 5 minutes or once every 3 hours?

• How quickly do you have to respond to your pager?

• Are you required to be ready to report in a uniform?

The more constraints that the above factors place on your ability to use your time, the more likely that your "on call" time will be considered work and compensable under the FLSA. The FLSA states that "an employee who is required to remain on call on the employee's premises or so close thereto that he cannot use the time effectively for his own purposes" is working and therefore compensable. Given all the factors involved, whether your on call time is considered work or not will depend on your particular facts. If you think you should be compensated for your on call time, call our FSLA Attorneys at Villanueva & Sanchala to discuss the facts of your case and determine if your employment rights are being violated.

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