Articles Posted in Overtime Pay and Unpaid Wages

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It is important for employers to understand their obligations under the federal and state labor laws before any action is commenced. Proactive steps in this area can be significant. Our Award Winning NY Employment Lawyer routinely counsels businesses on best practices and compliance issues. A sample New York State Department of Labor notice is included below to show what can happen if a business does not comply with the required legal provisions.

Dear Business Owner:

This letter is in regards to your business, ABC Corp. The New York State Department of Labor (NYSDOL) has completed an investigation in order to determine your compliance with the NYS Labor Law from September 2012 through August 2016.

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New York State Department of Labor Misclassification of Workers Blog Series

https://www.new-york-employment-lawyer-blog.com/wp-content/uploads/sites/338/2016/12/Employee.Freelancer.Misclassification.Lawyer.Notepad.DPC_.3.10.16-300x200.jpgThat was the issue in the recent New York Third Department Appellate Division decision In the Matter of TMR Security Consultants Inc., [Commissioner of Labor] Decided December 29, 2016. This is another key case in a new series of decisions beneficial for companies. We have discussed prior DOL decisions in our blog. This is an area that is evolving and the cases are very fact specific. An adverse determination can have significant consequences including a future claim for unpaid overtime pay. If you have any concerns or questions, contact our Award Winning New York Employment Lawyer to understand your rights and options.

On June 9, 2015, the Unemployment Insurance Appeal Board found that TMR Security Consultants had misclassified its security officers as independent contractors instead of employees. As a result, TMR was responsible for not only making unemployment insurance contributions for the claimant but also for all similarly situated workers; not only can that be expensive, it can also raise other collateral legal issues. TMR appealed that decision to the Appellate Division, which reversed and determined that the workers were independent contractors for multiple reasons (e.g., the Company did not direct or control the workers, the workers could work for competitors, the workers were licensed, etc.). Selections from the Court’s decision are included below:

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Our New York Misclassification Attorney discusses a recent court decision that addresses that question.

Independent Contractor Misclassification
A group of FedEx Ground drivers (“Plaintiffs”) alleged that they were misclassified as independent contractors instead of employees in Padovano v. FedEx Ground Package System, Inc. (the “Company”). The Plaintiffs argued that appellate courts throughout the country previously ruled that the drivers at issue have been found to be employees. Nonetheless, the Company filed a Motion to Dismiss the claims based, in part, on the fact that the Company and the Plantiffs signed independent contractor agreements. The Court denied the Company’s motion last week.

The Workers’ Claims

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Our New York Worker Misclassification Attorney Discusses the Recent Yoga Vida Case

Yoga Vida is a yoga studio in New York City and it used two different types of instructors – staff instructors who were treated as employees and non-staff instructors who were treated as independents. As you can guess, the crux of the legal battle in this case was whether the non-staff instructors were correctly classified as contractors or should have been treated as employees. The Company was fortunate enough to have the resources to fight the long battle because the Unemployment Insurance Appeal Board and the Appellate Division both found that the non-staff instructors were misclassified. As a result, the Company was responsible for certain state payroll contributions and could have been responsible for providing employee benefits. The Company filed an appeal to the Court of Appeals.

On October 25, 2016, the Court of Appeals reversed the prior determinations and found that the non-staff instructors were actually independent contractors because, in part, the evidence did not find that the Company exercised control over the results produced and the means used to achieve the results. In short, the Court found that the Company did not exercise sufficient control and direction over the workers. Some of the key factors that the Court found compelling:

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Our Award Winning New York Employment Lawyer has spoken to employees and employers regarding the legal implications of non-payment of wages under federal and state law. One of the topic that arises often is whether an individual is personally liable for failure to pay wages in accordance with the law. The short answer, in general, is that an individual can be liable and considered an “employer” depending on the circumstances. A recent decision issued on November 10, 2016 in the Eastern District of New York, Awan v. Durrani, 14-CV-4562 (SIL) discussed this issue and relevant part of the decision is quoted below:

“[A]n employer may include an individual owner who exercises a sufficient level of operational control in the company’s employment of employees.” Kalloo v. Unlimited Mech. Co. of NY, Inc., 977 F. Supp. 2d 187, 201 (E.D.N.Y. (citing Irizarry v. Catsimatidis, 722 F.3d 99, 104-11 (2d Cir. 2013)); accord Switzoor,

2013 WL 4838826, at *6 (observing that “[a] person may not be held individually liable for a company’s FLSA violations simply because he was an executive of that company”). In determining whether an individual is an employer, courts consider “whether the individual: ‘(1) had the power to hire and fire employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.’” Gillianv. Starjam Rest. Corp., No. 10 Civ. 6056, 2011 WL 4639842, at *4 (S.D.N.Y. Oct. 4, 2011); see Gayle v. Harry’s Nurses Registry, Inc., No. 07-CV-4672, 2009 WL 605790, at *9 (E.D.N.Y. Mar. 9, 2009) (quoting Keun–Jae Moon v. Joon Gab Kwon, 248 F. Supp. 2d 201, 237 (S.D.N.Y. 2002) (quoting Donavan v. Agnew, 712 F.2d 1509 (1st Cir. 1983))) (“The overwhelming weight of authority is that a corporate officer with operational control of a corporation’s covered enterprise is an employer along with the corporation, jointly and severally liab[le] under the FLSA for unpaid wages.”).”

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Money.dollar.photo.club.1.3.16.jpgA major change is on the horizon for business owners and employees under the federal labor law. The U.S. Department of Labor (“DOL”) recently announced the publication of its final rule amending overtime regulations under the Fair Labor Standards Act (“FLSA”), which will take effect on December 1st of this year. The new regulation will more than double the annual salary threshold from $23,660 to $47,476 for determining whether certain white-collar employees – those in executive, administrative, professional, or certain IT positions – are exempt from FLSA overtime rules.
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Defense.Puzzle.Dollar.Photo.Club.1.24.16.jpgOur Award Winning New York Wage and Hour Attorney has talked extensively on requirements and violations of the Fair Labor Standards Act (“FLSA”) and has been asked to comment on a recent case that was investigated by the U.S. Department of Labor (“DOL”). Here’s a tip: Don’t steal from your employees. Sounds simple doesn’t it.

PEREZ v. SOPHIA’S KALAMAZOO, LLC

Based on press reports, an investigation was conducted by the DOL and it was discovered that the restaurant was requiring its wait staff to pay it, the employer, in order to continue to working. The investigation also reportedly revealed that the employer took retaliatory action against an employee that brought the issue to the attention of the DOL.
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STOP THIEF!

NEW EFFORTS TO PROTECT WORKERS IN NEW YORK

Thumbnail image for overtime-1.jpgIn these difficult economic times, it is not uncommon for workers find themselves taken advantage of by unsavory and corrupt business practices. Workers who are paid in cash, off-the-books, and whose work schedules vary from day-to-day, week-to-week, or month-to-month are particularly vulnerable to exploitation from their employers. Our Award Winning New York Employment Attorney discusses New York State’s latest efforts to combat worker exploitation.

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Thumbnail image for overtime.pay.money.clock.jpgIn an overcrowded job market, many attorneys turn to doing document review for legal firms to help make ends meet. Document review may consist of such tasks as scanning and categorizing documents, using search terms, and redacting text. Often times, many of these tasks are performed by non-lawyers, such as paralegals, rather than attorneys.

While lawyers are not generally classified as non-exempt employees because of their learned profession, they may still be able to receive overtime pay for a document review assignment. Our Award-Winning NY Employment Attorney has been asked to comment on this issue.

As we have previously detailed in our earlier postings, under the Fair Labor Standards Act (FLSA), covered nonexempt employees must be paid one and a half times their regular rate of pay after completing 40 hours of work in any given work week. Licensed attorneys are usually considered to have jobs involving professional skill and therefore are usually exempt workers under federal and state law. As a result, they are not paid overtime, although most work well in excess of 40 hours in a week. However, document review often requires more than 40 hours a week, and the work the attorney may be performing may not be of the type which requires exercising independent legal judgement.

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overtime.pay.money.clock.jpgDo you work more than 40 hours per week for your employer? If so, you may be entitled to overtime pay from your employer, and may even be owed back wages, as well, irrespective of whether you are compensated hourly or salaried. Our Award winning New York Employment Lawyer has advised and counseled clients regarding their rights to minimum wage and overtime pay under the state and federal law. Keep reading to learn about a common misconception about overtime pay.

When is Overtime Paid?

Many employers may be under the belief that overtime pay only applies to hourly workers. In fact, many salaried employees are entitled to overtime pay, under both the Fair Labor Standards Act (FLSA) and New York State Labor Law.