Employment Law Basics

Proposed Changes to FLSA Overtime Rules - Part II

The Duties Test

As we discussed in our last post, the most commonly used exemptions from the FLSA overtime pay requirements are for executive, administrative, and professional employees, and are often referred to as the “white collar” exemptions.  However, the FLSA does not define the terms “executive,” “administrative,” “professional,” or “outside salesman” and the regulations have generally required that each of the following three tests be satisfied for the exemption to apply: (1) the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (the “salary basis test”); (2) the amount of salary paid must meet a minimum specified amount (the “salary level test”); and (3) the employee’s job duties must primarily involve executive, administrative, or professional duties as defined by the regulations (the “duties test”). 

Although the DOL did not propose any changes (in its June 30, 2015 FLSA amendment proposals) to the duties requirements it did seek comments as to whether the duties tests should be updated.  The following outlines the current duties test. 

Administrative Employees – In order for an administrative employee to be exempt, he or she must satisfy the “salary basis” and “salary level” tests described above and the duties test. A primary duty of the employee must include:

  • the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers and
  • the exercise of discretion and independent judgment with respect to matters of significance.

Executive Employees – In order for an executive employee to be exempt, he or she must satisfy the “salary basis” and “salary level” tests described above and the duties test. A primary duty of the employee must include:

  •  management of the enterprise in which the employee is employed or manages a customarily recognized department or subdivision thereof,
  • customary and regular direction of the work of two or more other employee, and
  • the authority to hire or fire other employees or input (suggestions and recommendations) regarding the hiring, firing, advancement, promotion, or any other change of status of other employees that is given particular weight.

Professional Employees – In order for certain professional employee to be exempt, he or she must he or she must satisfy the “salary basis” and “salary level” tests described above and the duties test. A primary duty of the employee must include:

  • the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character. Advanced knowledge must be in a field of science or learning, and such knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction, or;
  • work that is original and creative in a recognized field of artistic endeavor, or;
  • teaching in a school system or educational institution, or;
  • work as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field.

For each of the categories above, the employee must perform work that requires the consistent exercise of discretion and judgment or “requiring invention, imagination, or talent in a recognized field of artistic endeavor.”

Outside Sales Employees – In order for an outside sales employee to be exempt, he or she must satisfy the duties test.  The salary requirements do not apply. A primary duty of the employee must include:

  • making sales of tangible or intangible items such as goods, insurance, stocks, bonds, or real estate or obtaining orders or contracts for services or the use of facilities; and
  • Customary and regular work away from the employer’s place of business in performing the employee’s primary duty.

For more information on the current duties test and the FLSA exemptions for executive, administrative, professional and outside sales employees, please see the DOL’s Wage and Hour Division’s Fact Sheet (https://www.dol.gov/whd/overtime/fs17a_overview.htm).

Granovsky & Sundaresh Wins at Appellate Division

Granovsky & Sundaresh is delighted to announce that clients Peter W. Chan, Moon Yee Lau and Shang Ching Huang, prevailed in an appeal of the State Supreme Court's decision denying their motion for spoliation sanctions against a defendant in a defamation and tortious interference case.  The Appellate Division, First Department unanimously modified the lower court's order denying sanctions and held that the appropriate sanction was to strike Defendant's answer.

Granovsky & Sundaresh served as lead counsel to Plaintiffs throughout this matter. The team was led by Alex Granovsky, Neeti Sundaresh and former counsel, Ben Kraus.

This decision is a major victory for our clients.  For the full decision and order, click here.

Things not to say to an employment lawyer

We’re a busy employment law firm.  We get tons of calls from potential clients.  Their claims run the gamut of employment law – discrimination to unpaid wages, severance and retaliation.  We try to help as many people as we can.  But there’s only so much that can be done.  If you are thinking about calling an employment lawyer, here are some things you might not want to say.

1.       This case is newsworthy.  Really?  OK, quickly, name one employment law case in the news right now.  How many can you recall ever being   in the news?  Chances are your case is not newsworthy either.  That “bad publicity” you think that your employer is afraid of, is not nearly as big of a concern as you think.  Very few cases make the news. 

2.       I am entitled to a significant payout.  More likely than not, you are entitled to nothing.  You are almost certainly an employee at will.  The only way you are entitled to compensation is if you have an agreement (e.g. contract, collective bargaining agreement, company policy, etc.).  Otherwise, you have to fight for a payout (let alone a “significant” payout).

3.       The company has tons of money.  Your company did not get “tons of money” by handing it out.  Just because your company can afford a generous settlement, does not mean that it will pay a generous settlement.  The richest companies are often the stingiest.

4.       Why did I get fired?  That’s for you to figure out.  To be sure, the role of employment lawyer includes doing an investigation.  But if you don’t have a rough theory of your case when you first call an employment lawyer, put down the phone and think things through.  To come up with a “theory of the case,” you need to think about your narrative – what happened to you at work, and why you think a lawyer should be helping you out.  Were you fired because of your age, disability, sexual orientation, medical leave?  Were you paid for all of your overtime?  If you don’t have a theory lined up before you call, you are not ready.

5.       It’s a long story.  No its not.  Maybe your whole story is a long one, but when you call an employment lawyer, cut to the chase.  “I was treated unfairly because … ,” “I was fired because … ,”  “I am entitled to compensation because … .”  These are not long stories.  Yes, of course, we will have to fill in the details, and details matter a lot, but when you first call – get right to it.  The rest can be filled in from there.


What is my employment discrimination case worth?

What is my employment discrimination case worth?

There are two parts to every case - liability and damages.  Liability is the hard part.  Demonstrating liability, in the employment discrimination context, means proving that the employer discriminated against the employee.  If an employee can do this, then the next question is, what is the employment discrimination case worth?  Figuring out what an employment discrimination case is worth is actually fairly simple.

There are many remedies available to the employee in a successful employment discrimination or sexual harassment case. Below, we outline a few:

  1. Injunctions - these are court orders which prohibit further acts of discrimination and, sometimes, require reinstatement of employment and money damages.
  2. Compensatory damages - damages to "compensate" the employee for the illegal act(s) of the employer.  Compensatory damages consist of:
    • Back pay - payment of lost wages and benefits from the date of the adverse employment action (i.e. firing) until the date of trial or settlement.
    • Front pay - payment of lost wages carried into the future from the date of trial .
      • Note that an employee has a duty to"mitigate" or reduce his or her damages by finding another job or otherwise replacing lost income.  An employee who fails to mitigate his or her damages may have their recovery reduced.
  3. Punitive damages - these are rarely awarded, but are additional damages intended to punish the employer for egregious wrongdoing.
  4. Attorneys' fees and costs - a prevailing plaintiff in an employment discrimination or harassment case is also entitled to attorneys' fees and costs (even if that employee is represented on a contingency fee basis).

What is my employment discrimination case worth - sample calculation:

Let's assume that we an show that an employer discriminated against an employee in making the decision to terminate that employee.  Now that we've established liability, let's calculate damages.   For a discussion on how employment discrimination lawsuits work, please read this article.

If the employee was making $100,000 per year, and - despite his or her best efforts was unable to find a new job for one year.  One year after termination, he/she wins at trial. How much has he/she lost?

(If you can't do the math on this, you should brush up on your math skills).

Answer, $100K.

But we're not done.  Don't forget about front pay...

Let's assume that a jury determines that it will take the employee another 6 months to find comparable employment.

Now the damages are up to $150K.

We're still not done ... now let's add in attorneys' fees.  These are calculated based on a "lodestar."  A lodestar is a fancy term that courts use to describe this formula:  your attorney's hours multiplied by that attorney's normal hourly rate.  So add that in too. And costs- litigation is not cheap.

In most cases, that's it.  So if you are following along, that is $150K plus attorneys' fees and costs.  In some cases, however, where the employer's conduct is especially egregious, a jury may also award punitive damages.  These are rare, but may also be thrown into the mix to determine what an employment discrimination case is worth.

Ultimately, though, figuring out the value of a case is difficult and requires some degree of expertise.  Questions?  Contact us - we can help!




Should I Sue My Employer?

Should I sue my employer?  Maybe. Speaking in very general terms, there are three major categories of laws protecting employees. These categories are: (1) discrimination law, (2) leave law, and (3) wage payment law. Below is a very brief discussion of each:

  1. Discrimination: Discrimination against individuals on the basis of their membership in a protected class is illegal. Protected classes include: gender, race, disability, age, national origin, religion and others. It is unlawful for an employer to discriminate against an employee based on their protected status. The discrimination can be failure to hire, decisions related to pay, discipline and decisions to terminate employment. The principle is that you cannot be treated differently than similarly situated employees on the basis of your protected status.
  2. Leave: Certain employees are entitled to leave by state and/or federal law. If you are entitled to leave, it is illegal for your employer to interfere with your leave, or retaliate against you for taking leave.
  3. Wages: There are also many wage payment laws which govern how your employer must pay your wages. These laws relate to payment of overtime lawful deductions from wages, and what constitutes “work” such that you have to be compensated.

If you are having issues with your employer, you should speak to an employment lawyer. You may have a viable lawsuit against your employer, and a good employment lawyer can help guide you in reviewing your situation.

should I sue my employer?
should I sue my employer?

NY Employment Law -- What is the Duty to Mitigate?

If your employment has been unlawfully terminated, you may be entitled to recover damages in a variety of forms, including front pay.  Front pay is pay to a former employee for monies that he/she would have earned, but for the unlawful termination of employment. However, an employee who was unlawfully terminated cannot just sit at home and wait idly to collect front pay.  The law imposes what is called a "duty to mitigate," which means that the employee has the duty to mitigate his or her losses. If an employee fails to look for work, he/she will not be eligible for an award of front pay during any period in which he/she is not actively seeking work.  The phrase used by the courts is that the employee must be "ready, willing, and able" to obtain employment.  If, instead, the employee elects to stay home, he/she is considered to have withdrawn from the job market and, as a result, is ineligible to receive an award of front pay.  However, if the employee makes constant and good-faith efforts to seek similar employment, he/she is eligible to receive front pay if victorious at trial.

The cases are very fact specific and difficult to predict.  However, at least one thing is settled -- an employee who makes no attempt to look for work after an allegedly unlawful termination is deemed to have voluntarily withdrawn from the job market and is ineligible for an award of front pay for that time.  If you have any questions about your NY unlawful termination or the duty to mitigate, please contact us.

Should I Quit My Job?

NYC Severance Attorneys
NYC Severance Attorneys

Should I quit my job? Our experienced New York Employment Lawyers are asked this question all the time.  Usually, the answer is NO.  If you are thinking about quitting, contact one of our experienced New York Employment Lawyers and Severance Agreement Lawyers.  We can help advise you and possibly soften your landing with a severance agreement. In most states, harassment and bullying are not illegal.  These are only illegal if they are due to race, age, sex, disability, color, national origin, religion, pregnancy, marital status, sexual orientation, genetic information, objecting to an illegal practice of the employer, making a worker’s compensation claim, taking Family and Medical Leave, your testimony under subpoena, serving on jury duty, or some other legally-protected category.

What you should do is report the harassment or bullying to human resources or whoever the appropriate person at your company is.  Make the report in writing.  You have to give your employer time to investigate and take action to stop it.

You should also consider whether you are a victim of constructive discharge. A humiliating demotion, punitive transfer or hostility toward you are among the types of changes that might entitle you to claim constructive discharge after you resign. For example, if you resign because of intolerable discrimination or sexual harassment, or because your employer transferred or demoted you to an undesirable position in retaliation for reporting a wrongdoing, your immediate, resulting resignation might constitute constructive discharge.

Nevertheless, the law hates quitters – don’t do it.  If you want to leave, please contact us – we can help.

New Jersey Employment Lawyers | New Jersey Employment Law Update

New Pay Equality Poster and Notice Law Enacted in New Jersey New Jersey Governor Chris Christie recently signed a bill into law that will require many employers to post and distribute to employees a notice of their right to be free from gender-based pay discrimination in the workplace, and to obtain employees’ acknowledgment of receipt of the notice.

Under the new law, New Jersey employers with 50 or more employees must post and distribute to employees a new notice (to be drafted by the New Jersey Department of Labor) that details “the right to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment” under the New Jersey Law Against Discrimination, Title VII of the Civil Rights Act, and the Equal Pay Act. The law will become effective November 21, 2012, but the required notice will likely not be available until after that date.

Under this new law, covered employers are required to distribute a copy of the notice: (1) to all employees no later than 30 days after it is issued by the New Jersey Department of Labor; (2) at the time of an employee’s hiring; (3) to all employees annually on or before December 31 of each year; and (4) at any time upon the first request of an employee.

Employers may distribute the notice via email, via printed material “including, but not limited to, a pay check insert, brochure or similar informational packet provided to new hires, an attachment to an employee manual or policy book, or flyer distributed at an employee meeting,” or via an internet or intranet website “if the site is for the exclusive use of all workers, can be accessed by all workers, and the employer provides notice to the workers of its posting.” Further, the distributed notice must be accompanied by an acknowledgment to be signed (or electronically verified) by the employee, affirming that the employee has read and understands the notice.

Finally, employers are required to post and distribute the notice in English and Spanish, in addition to any other language that the employer reasonably believes is the first language of a significant number of its workforce.

The new pay equality notice adds to the growing list of notices that must be distributed to employees in New Jersey (not just posted) including:

  • Record-keeping requirements notice, which must be posted and distributed at time of hire;
  • Family Leave Insurance notice, which must be posted and distributed at time of hire, upon the first request of an employee, and when an employee gives notice of taking family leave; and
  • Conscientious Employee Protection Act (CEPA) notice, which must be posted and distributed annually.

Can My Employer Fire Me for Any Reason?

If you are an employee in the State of New York, you may wonder if your employer can fire you for any reason. The short answer is, yes. New York State is an "employment-at-will," state.   This means that as long as there is no contract to restrict firing (like a collective bargaining agreement), an employer has the right to terminate an employee at any time for any reason. However, this also protects the employee's right to resign. So, although an employer may fire you for no reason or for a reason that might seem arbitrary and unfair, you are free to resign at any time without explanation.

Please note that there are a few exceptions to the "employment-at-will" doctrine, the most significant of which are federal and state laws that prohibit discrimination (or discriminatory employment termination) based on things like race, national origin, age, disability, gender, sexual orientation or marital status.

There are also exceptions to the "employment-at-will" doctrine under § 201-d and § 215 of the New York State Labor Law.  Essentially these sections prohibit an employer from firing an employee for engaging in political or recreational activities outside of work, for the legal use of consumable products outside of work or for membership in a union and also prohibit an employer from penalizing an employee for making a complaint to the employer, to the Commissioner of Labor, or to the Commissioner's representative, about any provision of the Labor Law.

For more information, please visit the NY Department of Labor's website here.

The short answer to the question of "can my employer fire me for any reason" is yes, but you should definitely talk to an employment lawyer. If you have any questions about your employment or termination, please contact us!

Am I Entitled to Accrued and Unused Vacation Time in NY?

Are you owed accrued, unused vacation?

If you believe you are owed any wages - call us - we have lawyers standing by.  You can be discussing your case today.  You can also e-mail us.  All e-mails receive a response, from a lawyer, within 24-hours.

If you are an employee in New York and you resign, quit or are terminated from your job, then you may be wondering if you your employer is required to pay you for your accrued and unused vacation time.  According to the New York Department of Labor, whether your employer is required to compensate you for any unused vacation time depends on the terms of the company's vacation and/or resignation policy.  Courts in New York have held that an agreement to provide benefits or wage supplements, like vacation, can specify that employees lose accrued benefits.  See Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980) located here.  In order to be valid, the employer must have told employees, in writing, of the conditions that nullify the benefit.  In other words, if an employee has earned vacation time and has not used it and the employer has no written forfeit policy, then the employer must pay the employee for the accrued vacation. The NY Department of Labor has published a helpful FAQ on this and other wage and hour related issues.

Frankly, if you are being let go, you should consider whether you are entitled to a severance agreement and release.  Our firm helps employees understand and negotiate severance agreements which include payment for accrued, unused vacation time plus additional compensation.

If you have any issues with how/when you are paid, you should call us today.  We can help!

If you are entitled to your accrued unused vacation, we can help you get it.  For a 25% contingency fee, we will write to your employer on your behalf and advise your employer regarding your rights for accrued unused vacation.    If we cannot recover, you owe us nothing.  If you are an employee in NY and have any questions about your vacation pay or other wage and hour matters, please contact us today.

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