Articles Posted in Employment Law

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Earlier this month, a federal appellate court ruled in an employment law case involving a military service member who claimed he received a lower signing bonus than he was entitled to receive upon his return from deployment. The case presented the court with the opportunity to discuss two employment law concepts that are important to those considering a New York employment discrimination case.

Fighter JetThe Facts of the Case

The plaintiff was an employee of FedEx, and he was also a member of the U.S. Air Force Reserves. The plaintiff was enrolled in a training program to become a first officer, which would make him a pay grade MD-11. However, prior to beginning the program, he was mobilized for active duty in the U.S. Air Force. The plaintiff returned to work about three months later.

While the plaintiff was away, FedEx had implemented a signing bonus program for eligible employees. The bonus was for either $7,400 or $17,700, depending on the employee’s pay grade. The plaintiff was provided a $7,400 bonus because, at the time, he had not obtained his MD-11 grade. Had he been an MD-11, he would have received a $17,700 bonus.

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Paid family leave (PFL) has been becoming more and more popular across the United States, with many employers voluntarily offering PFL programs. In a more recent development, some states are now beginning to require employers to offer PFL in some form. Beginning on January 1, 2018, many New York employers will be required to offer paid family leave (PFL) to certain employees. A New York employment lawyer can explain your rights and obligations under this program.

CalendarWhich Employees Are Entitled to PFL?

Almost all employers will be required to provide PFL, and most employees will be eligible for PFL. For employees who work upwards of 20 hours per week, PFL must be made available to them after having worked at their current position for 26 weeks. Part-time employees who work less than 20 hours per week must first log 175 days of work before becoming eligible. Notably, even New York employees who work for out-of-state companies are eligible for PFL.

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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.
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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.
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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.
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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.
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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.
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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.
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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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