Articles Posted in Employment Law

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Workers in New York have a right to be paid fairly, not only according to minimum wage and overtime laws, but also in accordance with their employment contracts and agreements. Failure to abide by these agreements is a form of wage theft, and companies will be ordered to pay for engaging in such tactics.
A recent high-profile wage theft case in New York involves a pizza shop franchisee with five shops in Harlem. The New York County Supreme Court has ordered the business to reimburse its delivery workers more than $2 million for unpaid wages, expenses that weren’t reimbursed, various damages and interest.

The lawsuit was filed by New York Attorney General Eric Schneiderman last October. It is the latest in a string of judgments against franchise owners of the same restaurant.
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Every worker has a right to expect their employer will pay them fair wages for work in accordance not only with the employment contract or agreement, but, at bare minimum, in accordance with local, state and federal laws.
Unfortunately, this all too often does not happen. In these instances, when employers refuse to acknowledge the discrepancy, provide back-pay, correct error, or when they engage in retaliatory action as a result of reporting the violation, workers can and should seek remedy in the form of a wage-and-hour lawsuit.

However, when a judgment is secured, sometimes workers may have a tough time collecting. Now, a coalition of labor advocates and public interest legal groups are calling on state and federal lawmakers to make changes in state law that would pave the way for easier collection of stolen wages and other damages.
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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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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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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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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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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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In the last several years, the U.S. Supreme Court made it tougher for individuals to bring forth successful discrimination lawsuits – particularly class action cases. One of the most recent examples is that of Wal-Mart Stores v. Dukes, decided in 2011. coins52jpg.jpg

However, workers haven’t stopped filing employment lawsuits in New York. What it appears they are doing is shifting gears. Rather than focusing on things like racial discrimination, workers have been filing a larger number of wage-and-hour lawsuits. Most commonly, they allege employers misclassify workers, allowing them to skirt overtime pay and other benefits.

According to the annual Workplace Class Action Litigation Report, there were approximately 10 percent more wage-and-hour lawsuits filed last years as compared to what was filed in 2012. This year, it appears we might be on track to see even more wage-and-hour claims.
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During their last session, U.S. Supreme Court justices delivered several blows to those who sought to file employment and wage and hour lawsuits in New York and throughout the country.
In effect, there were six major decisions that could be categorized as a “loss” for workers’ rights, ultimately cooling class action filings, clearing the way for more business-friendly arbitration action and heightening the hurdles necessary to file such action in the first place.

In the newest 2013-2014 session, which began this month, the high court is slated to hear at least seven cases that could have some impact on wage and employment law. Some of that impact could be significant.
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Every year, Major League Baseball solicits help from volunteers to assist with its wildly popular New York City FanFest, called the “largest interactive baseball theme park in the world.”
Those volunteers aren’t paid, but they are given the opportunity to win a pair of All-Star Game tickets if they work three shifts at any of the festival events. With about 2,000 volunteers in all, the chances of winning tickets are slim.

Now, one of those volunteers has filed a New York wage and hour lawsuit against the league, alleging the company raked in nearly $192 million during the event, while it was simultaneously violating the state’s minimum wage and hour laws.

Adult patrons to the event are charged $35, while children over the age of 2 pay $30 each.

In all, the volunteer says he worked 17 hours for the league last month. Had he been paid the state’s minimum wage for those hours, he would have earned $123.25. The wages could be even higher if he included the time spent sitting through a mandatory orientation and the time it took to undergo a required background check.

Instead, in addition to the chance to win game tickets, he, along with the other volunteers, were provided with a t-shirt, a drawstring backpack, a water bottle, a baseball and free admission for a friend. They weren’t allowed to bring other food and drinks into the event convention center, but they could purchase a bag of chips for $5 or a lemonade for $7.50.

The lawsuit alleges the MLB, which rakes in an estimated $7 billion in profits annually, is soliciting and receiving free labor, in direct violation of state laws governing such matters. State minimum wage law holds that all workers are entitled to receive minimum wage payment for their labor.

But are volunteers entitled to wages?


New York’s minimum wage law holds that an employee is defined as any person employed or permitted to work in any occupation. However, there are a number of exclusions. Those include babysitters, farm workers, certain religious organization workers, summer camp workers – and certain volunteers.

There are two volunteer exemptions to the New York law. The first holds that an organization is only exempt from the labor law if it is organized and operated solely for religious, charitable or educational purposes and if no part of the net earnings benefit a private shareholder or individual. That does not describe MLB.

The second exemption allows for a pass to companies that are putting on a recreational or amusement event wherein no single event lasts longer than eight straight days or more than once a year. Any volunteer for an event like this has to be at least 18 years-old and the business has to notify each volunteer in righting that he or she is volunteering his or her services and waiving his or her right to receive minimum wage. Such a notice has to be signed and dated by the volunteer and kept on file for at least 36 months.

The media reports on this case don’t indicate whether such an agreement was signed. If it wasn’t, the plaintiff – and many others – may well be entitled to compensation.
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