New York Employment Attorney Blog

Senator Charles Schumer (D-New York) introduced a bill amending the Fair Labor Standards Act (FLSA) to cover over-the-road bus drivers and requiring that they be paid overtime for hours worked in excess of 40 in a workweek. Currently, over-the-road bus drivers are exempt from the maximum hours provisions of the FLSA. The bill, The Driver Fatigue Prevention Act (S. 1977), revises the FLSA, to eliminate the overtime exemption, which applies to "any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service." As a result, over-the-road bus drivers will be entitled to overtime for hours worked in excess of 40 in a given workweek.

An 'over-the-road bus' "means a bus characterized by an elevated passenger deck located over a baggage compartment."

Today, the U.S. Department of Labor Wage and Hour Division released three new fact sheets addressing the topic of retaliation under the Fair Labor Standards Act (FLSA), Family Medical Leave Act (FMLA), and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Each of these statutes contain provisions prohibiting an employer from retaliating against an employee for asserting rights covered by each of the statutes.

Fact Sheet #77A, Prohibiting Retaliation Under the FLSA, provides general information concerning the FLSA’s prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation and is available on the WHD website at http://www.dol.gov/whd/regs/compliance/whdfs77a.htm.

Fact Sheet #77B, Protection for Individuals under the FMLA, provides general information concerning the Family and Medical Leave Act’s (FMLA) prohibition of retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA and is available on the WHD website at http://www.dol.gov/whd/regs/compliance/whdfs77b.htm.

Fact Sheet #77C, Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), provides general information concerning MSPA’s prohibition of discrimination against a migrant or seasonal agricultural worker who has filed a complaint or participated in any proceeding under or related to MSPA and is available on the WHD website at http://www.dol.gov/whd/regs/compliance/whdfs77c.htm

Recently, a bill was introduced in the Senate (S.1747), which seeks to expand the scope of the Fair Labor Standards Acts' current exemption for computer employees. The bill, which is referred to as the "Computer Professional Update" Act ("CPU Act"), attempts to modernize the computer employee exemption by making it applicable to employees, who perform computer-related tasks and work that simply did not exist in the 1990s when the exemption was last modified.

The proposed CPU Act comes in response to the evolution of computer technology, and seeks to take into account changes in the use of computers. For example, the CPU Act seeks to incorporate "information technology" jobs, and would refer to work relating to the internet, intranets, and networks, among other things.

If passed, the CPU Act would result in fewer computer employees being entitled to overtime under the Fair Labor Standards Act.

On November 15, 2011, a group of Brooklyn, New York residents filed a federal civil action against the Atlantic Yard Development Company LLC, Forest City Ratner Companies LLC, Brooklyn United for Innovative Local Development and others, alleging that they should have been paid for work they performed pursuant to a pre-apprentice training program. The progam promised jobs to anyone, who essentially agreed to work for free on a building renovation project in Staten Island, New York.

The plaintiffs worked for two months for the developers and ultimately were not given the jobs that they were promised.

Continue reading "New York "Interns" Seek Unpaid Wages for Hard Labor" »

Two interns filed a lawsuit in federal court in New York City alleging that Fox Searchlight Pictures, the producer of "Black Swan," misclassified them as unpaid interns despite that they engaged in work, typically performed by paid employees. Among other things, the interns alleged that they performed work such as making coffee, taking out trash, and handling lunch orders.

We wrote about the issue of misclassification of workers as unpaid interns in our May 25, 2010 blog, Department of Labor Issues Guidelines on Unpaid Internships. To be valid, an internship must provide an educational experience, and not just amount to an unpaid job. In recent years, both the United States Department of Labor and New York State Department of Labor have scrutinized internships to make sure that they are legitimate.

Both federal and New York law require that employees be paid the minimum wage for hours worked, as well as overtime for hours worked in excess of 40 in a given workweek. Thus, if the court rules that the interns, who worked at Fox Searchlight Pictures, were really employees, the movie studio will be liable for failure to pay minimum wage and overtime pay.

On September 15, 2011, a class of current and former exotic dancers filed a claim against The Executive Club LLC d/b/a The Penthouse Executive Club, in the United States District Court for the Southern District of New York, alleging wage and hour violations. Specifically, the lawsuit against the New York club alleges that the dancers were not paid the applicable minimum wage and overtime pay. In addition, the dancers allege that their tips were misappropriated by the club's management. The complaint asserts claims under the New York Labor Law as well as the federal Fair Labor Standards Act.

A critical issue in the case is whether the dancers were properly classified as independent contractors. The dancers allege that they were actually "employees" based upon the club's exercise of control over their work. If the court finds that the dancers were, in fact, common law employees, then the New York Labor Law and Fair Labor Standards Act will apply to the dancers, and could result in liability for unpaid wages.

A former Advisory Associate of KPMG LLP filed a putative class action against the firm for failing to pay her overtime pay in accordance with the Fair Labor Standards Act ("FLSA") and New York State Labor Law ("NYLL"), for all hours worked in excess of 40 in a workweek. The lawsuit, which was filed in United States District Court for the Southern District of New York, alleges that the firm has a practice of misclassifying Advisory Associates as "exempt" from the overtime pay provisions of the FLSA and NYLL.

According to the Complaint, Advisory Associates perform menial tasks, including "photocopying, data entry and downloading documents." In addition, the Complaint alleges that the Advisory Associates exercise little, if any, independent judgment and discretion on matters of signficance, and, therefore, were covered by the overtime pay obligations of the FLSA and NYLL.

The federal Fair Labor Standards Act ("FLSA") requires that employers pay employees at least the minimum wage for each hour worked, and 1-1/2 times their regular hourly rate for hours worked in excess of 40 in any workweek. In addition, the FLSA contains anti-retaliation protections to employees who make complaints of minimum wage and overtime violations.

Continue reading "U.S. Supreme Court Holds that Anti-Retaliation Protection of Fair Labor Standards Act Applies to Informal Complaints " »

Steven Bullock, Attorney General for the State of Montana has issued a press release stating that FedEx Ground has agreed to pay $2.3 million over its failure to pay unemployment insurance premiums on behalf of its drivers, which FedEx Ground contends are not "employees," but independent contractors.

Gangemi Law Firm, P.C., together with co-counsel represents all FedEx Ground drivers in New York State, in a class action currently pending in federal court before the Multi-District Litigation Panel, in Indiana.

Continue reading "FedEx Ground Settles Misclassification Inquiry with State of Montana" »

A recent Temple University finds that pay disparities between women partners and male partners at law firms are not based upon lower productivity, as traditionally believed. In fact, according to the researchers women partners are as productive as their male counterparts. Consequently, the researchers concluded that female partners may earn less, despite their productivity, because of intentional sexual discrimination. The report is entitled, Gender Gap in Law Firm Partner Compensation.

Today, Governor David Patterson signed into law, the New York Domestic Workers Bill of Rights, which reflects the first sweeping domestic workers' rights legislation in the nation.

Among other things, the New York law provides for overtime pay to domestic workers, and protection against workplace discrimination and harassment based upon race, gender, sexual orientation, national origin, disability, marital status and domestic victim status. The legislation specifically addresses sexual harassment, which is cited as a major problem for domestic workers in New York.

FedEx Ground has settled a case with the Attorney General of Massachusetts for misclassifying its delivery drivers. FedEx Ground classifies its drivers as independent contractors, instead of employees, which results in substantial cost-savings to FedEx Ground because under such an arrangement its drivers bear FedEx Ground's overhead costs, among other things.

Continue reading "Massachusetts Attorney General Recovers $3 Million from FedEx Ground" »

On July 6, 2010, the United States Court of Appeals for the Second Circuit, which sits in New York City, ruled against Novartis Pharmaceuticals Corporation ("Novartis") on claims brought by current and former pharmaceutical representatives for overtime pay. The claims were asserted under the federal Fair Labor Standards Act ("FLSA") and state law, including New York's Minimum Wage Act. The court's decision affects sales representatives in New York, California and other states.

Continue reading "Second Circuit Court of Appeals Holds that Pharmaceutical Sales Representatives Were Entitled to Overtime Pay" »

The United States Department of Labor’s Wage and Hour Division (“WHD”) released guidelines on the use of unpaid interns by employers in the private sector. Typically, an employment relationship will be created unless an internship can meet the six criteria laid out by the WHD.

Continue reading "Department of Labor Issues Guidelines on Unpaid Internships" »

A recent opinion letter issued by the United States Department of Labor has determined that mortgage loan officers do not fall under the Fair Labor Standard Act's administrative exemption provision. The Department of Labor explained that an employee's actual job duties and compensation determine exempt or nonexempt status, and not job title.

Continue reading "Mortgage Loan Officers Are Not Exempt From the FLSA's Overtime Rules" »

A recent decision by the United States Court of Appeals for the Second Circuit (which covers New York, Connecticut and Vermont) clarified the "academic requirements condition" pertaining to the FLSA's professional exemption. In Young v. Cooper Cameron Corp., No. 08-5847 (2d Cir. Nov. 12, 2009), the court held that the plaintiff was not exempt from the FLSA's overtime provisions.

Continue reading "Second Circuit Considers Academic Requirements for FLSA Professional Exemption" »

In Whalen v. J.P. Morgan Chase, the United States Court of Appeals for the Second Circuit, held that a loan underwriter, whose job involved approving loans, in accordance with specific guidelines provided by his employer, was not exempt from the Fair Labor Standards Act ("FLSA"). The Second Circuit covers New York, Connecticut, and Vermont.

Continue reading "U.S. Court of Appeals, Second Circuit Finds Loan Underwriters Entitled to Overtime Pay" »

An important amendment to Article 6 of the New York Labor Law is to become effective on October 26, 2009. The amendment affects New York Labor Law section 195, and requires New York employers to advise all new employees in writing of their regular rate of pay and pay day.

Continue reading "An Important Amendment to Take Effect Under New York Labor Law" »

Many students accept unpaid jobs with the belief that the work experience is the ultimate payoff. However, with the current economic recession, students cannot afford to work for free, and believe it or not, free student labor is against the law.

Continue reading "Student Interns Cannot Work for Free " »

On August 26, 2009, the New York State legislature amended the damages provision of New York's "Payment of Wages" law, set forth in Article 6 of the Labor Law. Among other things, the amendment modifies the standard for recovering the 25% liquidated damages authorized by section 198 of the Labor Law.

Continue reading "New York Increases Damages Potential for Workers with Amendment to New York Labor Law" »

The New York City Council has proposed a law that would provide paid sick days to all private sector workers.

According to the Department of Justice Office of Domestic Social Development, as of February 2009, 76% of low wage workers and 48% of full-time private sector workers are not paid for sick days.

Continue reading "New York City Council Considers Paid Sick Leave Bill" »

In our last blog, we reported that the federal minimum wage was set to increase on July 24, 2009, which would result in an increase from $6.55 to $7.25 per hour, thereby making the minimum wage rate under federal law higher than the minimum wage under New York law, which was $7.15. Under such circumstances, the New York minimum wage would be replaced by the higher rate under the federal Fair Labor Standards Act. Nevertheless, the New York State Department of Labor has acted by formerly increasing the wage rate under New York law to $7.25.

Continue reading "New York Modifies Minimum Wage Rates Effective July 24, 2009" »

Based upon 2007 amendments to the Fair Labor Standards Act (FLSA), the federal minimum wage is set to increase from $6.55 to $7.25. This increase results in the federal minimum wage rate once again being higher than the minimum wage required under New York law. Currently, New York law requires that employers pay a minimum wage of no less than $7.15. Because the New York minimum wage was higher than that required under the FLSA, employers were required to comply with the New York State minimum wage.

Continue reading "Federal Minimum Wage Increase to Take Effect on July 24, 2009" »

Several New York City and area car washes, together with their corporate president, have agreed to pay 1,187 current and former employees a total of $3.4 million, reflecting back pay and liquidated damages in order to resolve a lawsuit filed by the U.S. Department of Labor under the Fair Labor Standards Act (FLSA). The lawsuit was filed in the United States District Court for the Southern District of New York.

Continue reading "New York Area Car Washes Agree to Pay Employees $3.4 Million for Wage Violations" »

The media reported yesterday that the attorneys general for eight states informed FedEx Ground that it had formed a group to examine the company's classification of its drivers as "independent contractors," as opposed to "employees." The decision by the attorneys general is significant because FedEx Ground is currently defending multiple class action lawsuits filed by drivers across the country concerning the alleged misclassification of drivers as independent contractors. In fact, Gangemi Law Firm, P.C. represents a class composed of drivers working for FedEx Ground in New York State.

Continue reading "FedEx Ground Investigated by 8 State Attorneys General on Independent Contractor Status of Drivers" »

The American Recovery and Reinvestment Act (ARRA) of 2009 results in, among other things, substantial amendments to the Consolidated Omnibus Budget Reconciliation Act ("COBRA"). Among other things, the ARRA provides that "assistance eligible individuals" ("AEI") are only required to pay 35% of the health insurance premium charged under a plan. Employers are responsible for paying the remaining 65%. However, the employer ultimately receives reimbursement from the government in the form of a credit against income tax withholding amounts and FICA taxes.

Continue reading "COBRA Subsidies Under the American Recovery and Reinvestment Act of 2009" »

In recent years, employees in the restaurant industry have sued employers for wage and hour violations under the federal Fair Labor Standards Act and New York's Labor Law, alleging that they were required to share their tips with managers and others, who do not customarily receive tips directly from customers. Although the FLSA and New York's Minimum Wage Order for the Restaurant Industry permit tip pooling, employers are not permitted to include participants in the pool, who are not of the type expected to receive tips.

Continue reading "Department of Labor Opines that Sushi Chefs may Participate in Tip-Pooling Arrangements" »

Following an investigation by the New York State Department of Labor, New York's Amish Market, Zeytinia, Zeytinz and Zeytuna, which provide "on the go" gourmet cuisine to their customers, agreed to pay almost $1.2 million to resolve New York minimum wage and overtime pay law violations.

Continue reading "New York Gourmet Eateries Agree to $1.2 Million Settlement for Overtime Pay and Other Wage-Hour Violations" »

In a case that will have a profound effect on the enforceability of agreements containing class action waivers, the United States Court of Appeals for the Second Circuit recently held in In re American Express Merchants' Litigation that, depending upon the circumstances, an agreement prohibiting merchants from filing a class action for claims under federal antitrust law would grant a defendant "de facto immunity from antitrust liability by removing plaintiffs' only reasonably feasible means of recovery." The United States Court of Appeals for the Second Circuit is the federal appellate court for New York, Vermont and Connecticut.

Continue reading "Second Circuit Strikes Class Action Waiver Provision" »

President Obama signed the Lilly Ledbetter Fair Pay Act on January 29, 2009. It was the first bill signed into law by the new President. As discussed in earlier blogs, the new law amends Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973 "to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.”

Continue reading "President Signs Lilly Ledbetter Fair Pay Act of 2009" »

On January 22, 2009, the Senate passed the Lilly Ledbetter Fair Pay Act by a vote of 61-36. In our January 9, 2009 blog posting, we reported that the Senate had passed the identical bill.

Continue reading "Senate Passes Lilly Ledbetter Fair Pay Act" »

In our October 21, 2008 Blog entry, we discussed a recent award of $4.6 million dollars imposed upon New York's famed Saigon Grill as a result of federal and New York State wage violations.

Continue reading "New York Restaurateurs Arrested for Wage Violations" »

A federal magistrate judge from the United States District Court for the Southern District of New York awarded food delivery workers of New York's famed Saigon Grill $4.6 Million in damages as a result of federal and New York State wage violations.

Continue reading "Federal Court Awards New York Food Delivery Workers $4.6 Million " »

Recently, two companies, J. Siebold Construction and Finklestein-Morgan, a real estate management firm, agreed to a $1.23 million settlement for violations of the New York overtime law.

Continue reading "Overtime Pay Settlement for Bronx, New York Construction Workers" »

The House of Representatives, reacting to congressional findings, has passed, 247- 178, the Paycheck Fairness Act– which aims to amend the Fair Labor and Standards Act of 1938 (FLSA) to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex. Reacting to findings that pay disparities between sexes have large negative effects on the economy and labor resources, the Paycheck Fairness Act will, if enacted, work toward removing the artificial barriers to the elimination of discrimination in the payment of wages.

Continue reading "Paycheck Fairness Act Passes in House" »

This week, employees of “Cake Man,” a celebrity baker in Brooklyn, filed an overtime pay lawsuit in United States District Court for the Eastern District of New York. The lawsuit claims that 15 employees are owed at least a half million dollars in overtime pay over a six year period.

The obligation to pay overtime under New York law and the federal Fair Labor Standards Act is absolute. An employer does not satisfy its obligation to pay time and a half for all hours worked over 40 in a workweek by rewarding employees with bonuses. Yet, that appears to be precisely what many employers, particularly smaller ones, do.

Continue reading "New York City Bakery Faces Overtime Pay Lawsuit" »

Effective July 24, 2008, the federal minimum wage increased from $5.85 per hour to $6.55 per hour. The federal minimum wage is still lower than the minimum wage required under New York law. New York requires that employers pay a minimum wage of $7.15. Accordingly, employees must still be paid the higher minimum wage in order for employers to comply with New York law.

The federal minimum wage is set to increase again on July 24, 2009 to $7.25 per hour. Assuming there are no further increases to New York's minimum wage, employers will be required to pay this higher amount to their employees. Indeed, the New York minimum wage is automatically replaced by the federal minimum wage if the latter is higher than New York's minimum.

For more information concerning minimum wage and overtime, please visit our website.

On June 10, 2008, the New York State Court of Appeals resolved an issue over which lower New York courts were divided. According to New York's highest court, individuals who serve in executive or "white collar" capacities are entitled to protection under some of the wage provisions of New York's Labor Law. The case, Pachter v. Bernard Hodes Group, Inc., is of particular interest to us, because our firm represented the executive.

Prior to the Court's decision in Pachter many lower courts were divided on whether the Labor Law covered so-called white collar workers. Many courts had held incorrectly that only manual workers and those making less than $600 a week were protected by the Labor Law. The Court in Pachter recognized that, in fact, white collar employees were protected against unlawful deductions to compensation, and were also protected against pay discrimination on the basis of sex.