FMLA in NYC: Workers, Employers Must Know the Law

September 15, 2014

Under the federal Family and Medical Leave Act, workers at most businesses are entitled to take up to 12 weeks of unpaid leave annually to cope with an illness, care for a sick relative or bond with a newborn baby or adopted child.
The problem, however, is that far too many companies are retaliating against workers for taking this time. These employees are being denied raises and promotions, re-assigned to less desirable positions and sometimes even laid off or fired.

This is despite the fact that employers are barred from retaliating against workers who take FMLA. It now seems workers are taking it upon themselves to become more educated about their rights under the statute, first enacted in 1993. The number of lawsuits alleging FMLA retaliation has spiked in recent years, according to the most recent figures released by the Administrative Office of the U.S. Courts.

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Steep Cost for Non-Compliance of New York Workers' Comp Laws

September 9, 2014

The New York State Legislature first passed the Workers' Compensation Law in 1914, and it served as a compromise between the interests of employers and employees. Where workers largely lost the right to sue their bosses for job-related negligence resulting in injury or illness, they also no longer had to prove the company was at-fault when filing a claim for compensation.
As part of the deal, companies are required to maintain workers' compensation insurance, and to properly classify eligible workers. Historically, there have always been businesses that try to skirt the law in an effort to avoid the monthly insurance premiums or hefty claim pay-outs. However, other companies that aren't in compliance are likely not aware of it. Worker classification can be a confusing prospect, and businesses sometimes step afoul of the law without realizing it.

Regardless of the reason, if the state discovers a company is non-compliant with workers' compensation law, the consequences are likely to be severe, and may include criminal as well as civil penalties.

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New York City's Paid Sick Leave Law Protects Workers

September 9, 2014

As of July 30, 2014, most employers in New York City are required to extend up to 40 hours in paid leave time annually to workers who are sick. The law, one of the first of its kind in the country, is applicable not just to large institutions, but also to small businesses and non-profits. chemicalindustry1.jpg

While many companies do offer workers paid leave, along with other benefits, there are many industries where this is not the norm. Research by the Economic Policy Institute indicated 4 in 10 employers in the private sector do not provide paid medical leave, with low-wage workers in the service industries being the least likely to have this benefit. Others who commonly miss out include those who work in child care centers and nursing homes.

That means many workers feel compelled to come to work even when they are sick, risking the spread of diseases and further hampering workplace productivity.

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Federal and State Whistleblower Protections in New York

September 6, 2014

It can be incredibly difficult for an employee to make fraud allegations, or voice civil rights or safety concerns, about the company that pays him. Both state and federal legislators have long recognized this, as well as the fact that most of these situations would never come to light unless workers were assured they would be shielded from institutional backlash and retaliation. This is why we have whistleblower protection laws at both the state and federal level.
Still, employees must proceed with extreme caution because if their action does not meet the specific criteria of protected activity, they may find it difficult to remedy any adverse impact on their career. Consultation with an experienced whistleblower attorney in New York City will be key to determining whether assertions will be protected. Additionally, per both the state and federal False Claims Acts, the worker who blows the whistle on government fraud may be entitle to a significant portion of the recovery via a qui tam lawsuit.

What is classified as whistleblowing activity? There are 17 federal statutes that contain provisions for whistleblower protections, and protections are extended through the Occupational Safety and Health Administration (OSHA). These are: the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Asbestos Hazard Emergency Response Act, the International Safe Container Act, the Energy Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, the AIR21 Act, the Sarbanes-Oxley Act, the Pipeline Safety Improvement Act, the Federal Rail Safety Act, the National Transit Systems Security Act and the Consumer Product Safety Improvement Act.

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Employment Retaliation: Know When - and How - to Fight Back

September 3, 2014

It can be difficult for a worker to stand up against discrimination by an employer, especially when there is a strong likelihood the company will respond with retaliation.
When an employer engages discrimination, retaliation is often used to damage an accuser's credibility, as well as serve as a warning to anyone else who might come forward.

The Equal Employment Opportunity Commission defines retaliation as occurring when an employer or labor organization takes some kind of adverse action against a covered individual because he or she engaged in protected activity. Proving a claim of employment retaliation in New York City means all three of these elements must be present.

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New York Employers: Beware Costly Non-Compliance With Prevailing Wage

Employers contracted to complete a public work project must become informed of local and state prevailing wage law, as the cost of non-compliance is steep. Because fines and penalties are calculated on a per-day basis, a month-long project can result in 30 separate violations. usadollarbills.jpg

From January 2014 through July 2014, the New York City comptroller's office said it has assessed $4 million in prevailing wage violations, plus an additional $250,000 in penalties paid to the city.

There are similar rules for companies that secure federal government contracts, under the Davis-Bacon Act. That measure applies to contractors and subcontractors working on federally-funded or assisted contracts of more than $2,000 for construction, alteration or repair of public buildings or public works. In addition, companies that land federal contracts in excess of $100,000 must pay laborers, mechanics and guards time-and-one-half the regular rate of pay for any hours worked over 40.

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New York Prevailing Wage: Are You Being Paid Fairly?

Under New York's prevailing wage law, private contractors who are awarded public contracts for construction or maintenance of a public project must pay workers according to the approved prevailing wage schedule, set forth by either the State Department of Labor or the New York City Office of the Comptroller.
The purpose of a prevailing wage is twofold: The first is to ensure workers have a decent quality of life. The second is to assure the construction of and services within a government-owned facility are of high quality.

Workers covered under this statute are most often those in building, construction and service trades, which could include everything from gardeners to janitors. The amount of pay is based on the local collective bargaining agreement with at least a third of the trade union membership for each jurisdiction. That means the wage schedules vary on a county-by-county basis. Based on the current schedule, a Class C janitor in New York County would be entitled to a current prevailing wage of $23.35 an hour, whereas a janitor in Nassau can expect to receive a prevailing wage of $12.32 hourly.

Those employed in trades are increasingly becoming educated on employer obligations under this law, and in turn have received compensation in cases where companies failed to pay workers appropriately. While current laws don't generally allow workers to sue their employer for prevailing wage violations, many have found that hiring an experienced prevailing wage attorney has resulted in the facilitation of formal complaints with relevant government agencies, which in turn remedy the situation by requiring back-pay and future compliance.

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Understanding New York Overtime Rights: A Workers' Guide

A number of successful New York wage-and-hour lawsuits have made headlines recently, after the courts determined companies failed to comply with the state's strict overtime requirements.
These cases are indicative of a growing trend in employment litigation, where the laws have become more strict and employees are increasingly more educated about their rights.

New York Labor Law and the federal Fair Labor Standards Act requires companies to pay time-and-a-half for any hours over 40 in a regular work week to non-exempt employees. Current minimum wage in the state is $8, until Dec. 31, 2014, when it increases to $8.75. It will increase again the following December to $9 hourly.

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New York Labor Law Violations: Don't Risk Your Business

Over the last two decades, the Federal Judicial Center reports the number of wage-and-hour lawsuits filed nationally has spiked by 430 percent. In New York, the number is expected to climb even higher in response to a bill passed by the New York legislature in June 2014.
The measure, A08106C/S05885-B, was drafted for the purpose of bolstering the New York Wage Theft Prevention Act, as well as other provisions of the state's labor law. The action does ease some requirements for employers, but it imposes heftier penalties for violations - particularly for repeat offenders - and allows for successor employer liability, something that didn't before exist.

Because wage and hour theft law in New York has become increasingly complex, and the penalties for breaking the law ever more severe, it's important that business leaders take the time to become educated about their obligations and potential consequences for violations.

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Mandatory Arbitration Agreements: Avoiding "Unconscionable" Finding

February 27, 2014

New York arbitration agreements have become one of the best ways that companies can insulate themselves from costly litigation that may stem from employment disputes or allegations of liability from consumers. handwriting.jpg

However, they will do little good if challenged and found to be "unconscionable," and therefore unenforceable, by a judge. In fact, this may only serve to prolong the proceedings and increase costs.

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New York Start-Up Ventures Face Many Legal Hurdles

February 25, 2014

Some of the most impressive technology start-ups have some sort of dubious story of origin. It now appears that Square, a credit card processing firm, may be no different.
The company has been hit with a business lawsuit alleging breach of fiduciary duty and patent infringement by a professor who had worked with the co-founders prior to the establishment of the firm.

In Robert E. Morely, Jr. v. Square Inc., the professor claims in the federal court filing that he was wrongly cut out of the business that developed into Square, despite having invented the technology that became the company's bread-and-butter.

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New York Commercial Lease Agreements Require Careful Review

February 22, 2014

In a recent commercial landlord-tenant dispute in New York City, the owner of a new business slated to open where a Chinese restaurant once operated is seeking $22 million from the landlord due to a termite infestation, as well as other structure problems that have so far required extensive repairs.
The BBQ restaurant plaintiff alleges in the New York State Supreme Court filing that the landlord first lied about the condition of the First Avenue structure, and then attempted to initiate an eviction of the tenant when repairs were demanded.

The series of structural issues with the building has delayed the opening of the business for several months, leading to hundreds of thousands of dollars in lost revenue. That's in addition to the $600,000 monthly rent it pays, as well as the $3.1 million it has so far invested in repairs on structural deficiencies that were "almost too many to count," the plaintiff said.

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Regulator Probes Into For-Profit College Loans, Practices, Expands

February 20, 2014

Officials with the Consumer Financial Protection Bureau, along with 32 state attorneys general, are working to expand investigation into the promises and practices of for-profit colleges, with special attention being paid to student loans.
There is ample indication, the watchdogs say, that there are unfair and deceptive lending practices at these institutions. Inquiries have also led authorities to believe that schools have been overstating the results of their offerings, fudging the facts on post-graduate job placement and more. These kinds of actions are likely to spur New York education lawsuits.

Among those that are being more closely scrutinized:

  • Education Management Co. (a chain partially-owned by Goldman Sachs Group Inc.);

  • ITT Educational Services Inc.;

  • Corinthian Colleges Inc.;

  • Career Education Corp.

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New York City Prevailing Wage Lawsuits & Third-Party Breach of Contract

February 18, 2014

Recently, the Second Circuit Court of Appeals sought guidance from New York's highest court on whether to defer to state labor officials on interpretation that the prevailing wage requirement for certain government contracts be paid only prospectively. sprinkler.jpg

The request for certification from the New York Court of Appeals in the case of Ramos v. SimplexGrinnell LP is rooted in a 2011 decision in federal court that granted SimplexGrinnell a summary judgment on a third-party breach of contract claim. Workers who had installed fire and sprinkler systems in government buildings while working for the firm alleged that the company had not paid them prevailing wages since at least as far back as 2001. As this was a "public works" project, the workers indicated, it was in clear violation of New York Labor Law, Article 8, Section 220.

New York City prevailing wage lawyers know that the law is quite clear: Every public works contract must have provisions to pay workers the prevailing wage. The Court of Appeals has previously indicated that employees, as intended third-party beneficiaries of those contracts, can bring breach of contract claims if they are not fairly compensated.

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Court Sets Strict Liability Precedence for Prevailing Wage Compliance

February 10, 2014

Under New York State's Labor Law, government contractors and subcontractors have to pay the set prevailing wage and fringe benefits to workers. The exact rate, which is pre-determined, depends on the type of work and where it's performed.
Willful violations of New York's prevailing wage law by contractors can be met with severe penalties, including interest of 16 percent from the date of underpayments to the date of restitution and a penalty of up to 25 percent of the wages, supplements and interest.

Prime contractors can be held responsible for the non-compliance of subcontractors, so it's important that companies be diligent in ensuring their pay structure is properly designed.

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