New York Employment Lawyer Blog

We previously wrote a Blog about home health care workers who filed a class-action lawsuit to recover unpaid wages. This post is an update regarding overtime wage protection for home health care aides.

The Department of Labor ("DOL") is preparing proposed legislation to cover home health care aides and workers who provide companionship service. The legislation is expected to be introduced in late 2011. Home health aides are currently not protected by federal minimum wage and overtime laws. However; the home health aides are protected under New York State law and entitled to an industry specific overtime rate.

The Fair Standards Labor Act was enacted in the 1940's and some argue that it is antiquated for today's times and employees. Earlier this year, the DOL announced it would introduce legislative updates to provide more clarity and greater compliance to increase employment awareness among employees. As part of this update process, the DOL proposed introducing new legislative protections for live-in domestic employees and employees who are considered to be industrial home care workers under FLSA.

Our New York Overtime Attorneys protect employees throughout New York, New Jersey and Connecticut. Call us now for a no-cost telephone consultation.

Continue reading "Overtime Legislative Update: Overtime Protections under FLSA for Home Health Care Aides " »

Meat processing giant Tyson Foods ("Tyson") and the U.S. Department of Labor recently entered into an agreement to resolve a lawsuit dating back to 2002 which accused Tyson of violating the Fair Labor Standards Act ("FLSA"). The DOL alleged that Tyson violated the federal labor law by failing to pay production line workers for time spent putting on and taking off compulsory safety gear, referred to as "donning and doffing" in the meat and poultry industry.

The settlement agreement, which is subject to court approval, would require Tyson to pay its employees for time they spent putting on and taking off protective and sanitary items, time they spent washing and sanitizing themselves and items, as well as time spent walking and waiting throughout the day. Tyson would also be required to pay almost 3,000 workers $500,000 in overtime back wages under the FLSA. The nationwide injunction also requires Tyson to gradually modify its timekeeping practices at its plants over the next two and half years. Tyson will temporarily provide 8 or 12 minutes of extra pay per shift to its hourly workers. By December 2012, Tyson has agreed to implement a permanent solution for workers to clock in before they put on safety gear and clock out after they remove the gear. According to our New York Overtime Lawyers, this settlement could impact and benefit many employees in the New York Tri-State Area.

Tyson is one of the largest meat processing companies in the world, selling chicken, beef, and pork in the US and over 90 countries in the world. It is a major supplier to restaurant chains including McDonalds.

This injunction comes just months after the nation's largest poultry processor, Pilgrim's Pride, agreed to a $1 million settlement for back wages to 798 former and current processing workers for time spent putting on and taking off work related gear. Taken together, both cases have far reaching implications subjecting the nation's two largest poultry processors to judicially enforced requirements to pay its employees in compliance with the FLSA. The agreement in Tyson and the $1 million Pilgrim's Pride settlement are a great victory for workers not getting paid their rightful wages. It also may be a win for workers in other industries, such as home health care aides and waitresses, with unfair timekeeping practices. This could also impact computer service representatives who have to start their computer systems before their shift begins and shut down after their shift ends. Clearly, it is better to for employers to implement timekeeping procedures on its own terms and schedule than to have them judicially enforced. These two cases send a strong message to other industries violating wage and hour laws.

If you are not getting paid for work-related activity, you may be able to collect your back wages. In 2008, more than 197,000 employees collected a total of $140.2 million in minimum and overtime back wages because of federal labor law violations. If you or someone you care about has experienced any type of wage and hour or overtime violation at the workplace, call our New York Overtime Attorneys at (800) 893-9645 to discuss your possible case.

Continue reading "Wage and Hour Violations News: Poultry Giant Tyson Agrees to Pay Back Wages & Nationwide Injunction " »

Peri Software Solutions, Inc., a New Jersey based IT company, and its President, Sarib Perisamya, were issued significant penalties by the United States Department of Labor for alleged violations of the immigration provisions applicable to H-1B employees. In total, Peri Software and Mr. Perismya received penalties and fines close to 1.5 million dollars for unpaid back wages to over 150 employees. Under the H-1B visa immigration guidelines, Companies can hire foreign workers for limited terms to perform certain professional occupations such as IT programmers, engineers, and physicians. As part of the program, Companies must pay H-1B employees the same wage rates paid to U.S. workers who perform the same types of work or the prevailing wage rate in the areas of intended employment, whichever is higher.

According to the investigation, the Company failed to follow the program guidelines to pay the required prevailing wage to its H-1B computers analysts. Further, it was determined that the Company caused employees to sign under duress employment agreements which included unreasonable penalties if employees left employment. Not only did the Company fail to pay its H-1B employees, it sued them for breach of its unreasonable penalty provisions in the employment agreements. Due to the serious nature of these actions, the Company was also assessed a civil penalty of over $400,000.00 and it may barred from hiring H-1B employees in future years.

It is an outrage that Peri Software and other companies take advantage of H-1B employees who are new to the country and unaware of their legal rights. Our employment law attorneys have represented many H1-B employees to protect their rights and continue their employment without being harassed by unscrupulous employers. Call our attorneys now to discuss how we can protect your job, assert your employment rights and defend you in a lawsuit if your employer is trying to force you a pay penalty for leaving your job. Many of penalty provisions in these types of employment agreements may be unenforceable.

Continue reading "New Jersey based Software Company issued significant penalties for abusing H-1B workers by not paying back wages and trying to enforce unreasonable penalty provisions in employment agreements" »

Current and former employees of Bank of America recently filed class-action lawsuits alleging wage and hour violations under various state labor laws (including labor laws in California, Texas, Washington and Kansas) and the Federal Fair Labor Standards Act. The lawsuit was filed on behalf of employees who worked at Bank of America retail branches and call centers over the past 3 years. The Complaint alleges that Bank of America made its employees work in excess 40 hours a week and did not pay them both for overtime and all straight time worked. It also alleges that Bank of America required its employees to work during unpaid breaks, did not provide breaks for meals and rest, and did not timely pay terminated employees their wages and accrued vacation time.

Bank of America employs over 280,000 people worldwide and operates close to 6,000 retail branches in the U.S. It is one of the nation's largest employers and is the largest U.S. bank. If the allegations are proven to be true, it is simply wrong and illegal for Bank of America or any Company seek to advantage of its workers by not paying legally-required overtime and other wages. This case could cover more than 180,000 workers and lead to a recovery of hundreds of millions of dollars.

Whether you work for a large company or a small business, the Federal Fair Labor Standards Act and the State Labor Laws in New York, New Jersey and Connecticut provide protections to employees. As set forth in our previous Blog entry, both the FLSA and the New York Labor Law provide that all covered non-exempt employees must be compensated 1 ½ times the regular rate of pay for all time worked in excess of 40 hours per week. Moreover, overtime pay cannot be waived and any unauthorized overtime must also be paid. Your employer cannot ask you to sign a document stating you are not entitled to overtime. Our prior Blog entry discussed your rights to lunch or dinner meal breaks, if applicable, and rest breaks.

Given the recent economic climate and competitive labor market, employers may try to take advantage of employees and employees may be reluctant to ask for their rightful wages. The allegation that such an enormous employer with offices and employees worldwide might engage in unfair labor practice suggests that surely such offenses are still prevalent. If you feel you are a victim of unfair wage and hour violations, our experienced New York, New Jersey and Connecticut Wage and Hour Attorneys can help you recover your rightful wages and benefits. E-mail or call us at (800) 893-9645 to discuss your possible case.

Continue reading "Overtime Violations: Bank of America Employees File Class-Action Lawsuit for Unpaid Wages, Failure to Provide Meal and Rest Breaks and Failure to Pay Vacation Pay " »

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

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

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

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

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

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

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

• Tools and Equipment; and

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

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

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

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

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

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

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

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

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

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

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

Continue reading "FAQ's: Wages, Overtime, and Breaks - Your Rights" »

After a extensive three-week trial, over 700 current and former employees of Raceway Petroleum were awarded nearly 4 million dollars for unpaid overtime and penalties. The majority of the employees were gas station attendants in New Jersey which one of the few states that allows full-service service at gas stations. Under state and federal overtime laws, eligible employees such as gas station attendants are required to be paid time and a half for hours they work in excess of forty hours in a week. Here, some of the employees worked over 100 hours in a week without being paid overtime. Like many employers who do not pay their employees overtime, Raceway Petroleum did not keep accurate time and payroll records which are required by state and federal laws. In the absence of the employer's records, the court may rely on an employee's records and credible testimony. This case and principle demonstrates the importance of every employee keeping accurate time and payroll records in the event there is a dispute for the employer and employee. If an employee is not paid overtime, the employee should start to keep time records in a diary, day planner or online calendar. The employee's records can be informal and handwritten.

In this case, the employees were also docked pay for time periods that were greater than the breaks taken. This is the equivalent of a second theft against the employee. First the employees were robbed of overtime pay and then robbed of pay when they were working but accused of taking a break. Responsible employers will maintain credible time-keeping systems such a punch-card clock system or sign-in and sign-out sheets. In the absence of such systems, employees should ask their employer to implement a proper time keeping system and keep accurate contemporaneous records.

If you, your friends or loved ones were not paid overtime wages and wish to discuss the circumstances surrounding the termination, the experienced Employment Law Attorneys at Villanueva & Sanchala can help you. Call us now at (800) 893-9645 for a free initial telephone consultation.

Continue reading "New Jersey Employee Awarded $3.9 Million in Overtime Wages and Damages" »