wage hour law

Paid off the books? Your employers are (probably) crooks.

If you are being paid off the books, in cash or via personal check, your employer may be breaking the law. And you might be entitled to compensation.

Are you being paid off the books?  Chances are, your employer is breaking New York wage and hour law.  Just by failing to provide you with notifications regarding your wages and legally compliant pay stubs, your employer is breaking the law. 

If you are being paid off the books, you might be entitled to recover as much as $10,000 or more.

New York Labor Law requires employers to provide all employees with a wage notice when they start, spelling out the terms of their compensation.  The penalty for failure to do so can be as high as $5,000. 

New York Labor Law also requires employers to provide all employees with wage statements when they are paid, spelling out their rate of pay, deductions, and other wage-related matters.  The penalty for failure to do so can also be as high as $5,000.

The attorneys at Granovsky & Sundaresh can help you recoup this penalty - and maybe more.  We are experienced and aggressive wage and hour lawyers who fight to make our clients whole.  Not only will we examine whether we can recover these penalties for you, but we will also try to find other avenues to increase your recovery such as unpaid overtime, minimum wage or wrongful termination issues.

Call now. 646-524-6001. We have attorneys standing by to take your call. Or you can e-mail us - all e-mails receive a response within 24 hours.

Can I Get Overtime Even Though I am Salaried?

Overtime and Salary

If you suspect that you are being denied some of your hard-earned wages, you should call or e-mail us today.  We have lawyers standing by.  You might be entitled to compensation - find out if you are.  All initial consultations are free.

Whether or not you are entitled to overtime depends almost entirely on what you do - not whether you are paid a salary or not.  Depending on your job function, you may or may not be exempt.  For more information on overtime exemptions, click here.   You are probably entitled to overtime (even if you receive a salary) if:

  • Your pay is reduced if there is no work; or
  • You receive less pay if you only work for part of a day; or
  • Your salary is docked because you missed a day (or more) of work.

If you are working a ton of hours for a salary, it is entirely possible that your employer is taking advantage of you by paying you a salary when you are entitled to overtime. Call us, get a consultation and make an informed decision.  You can be on the phone with an overtime lawyer today.

Why would my employer pay me a salary instead of hourly?

Employers often intentionally misclassify employees as salaried workers who are exempt from receiving overtime in order to save money. To be “exempt”, an employee must generally be an executive, administrative, or professional employee. Companies will try to fit employees into these categories even where overtime wage laws do not allow for it.

Some employers do not understand the difference between exempt and non-exempt employees.  These employers should talk to an overtime attorney to make sure they are following all applicable laws.

Call or email us today for a free consultation.  You can speak with a lawyer today.

Proposed Changes to FLSA Overtime Rules - Part I

On June 30, 2015, the United States Department of Labor (DOL) released proposed regulations that would amend various provisions of the Fair Labor Standards Act (FLSA).  In particular, the DOL proposed changes to the regulations governing the “white collar” exemption for executive, administrative, and professional employees.   The FLSA (and wage and hour laws, generally) are complicated but we will try to break down the key changes as simply as possible.

FLSA Overview

The FLSA generally requires employers to pay its employees at least the federal minimum wage plus overtime at a rate of at least 1.5 times the employee’s regular rate of pay for any hours worked over 40 in a week.  However, the FLSA provides for various exemptions from the overtime requirement.

The most commonly used exemptions 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”). 

The regulations also exempt “highly compensated” employees who “customarily and regularly” perform one of the exempt duties of an administrative, executive or professional employee, but who do not otherwise meet the duties test.  Currently, and since 2004, an employee earning $100,000 in total annual compensation (with at least $455 paid weekly on a salary or fee basis) would be exempt from overtime as a highly compensated employee.

Salary Basis Test – NO CHANGE

There were no proposed changes to the first requirement that employees be paid on a predetermined and fixed salary that is not subject to reduction.

Salary Level Test – BIG CHANGES!

Currently, and since 2004, any employee earning less than $455 per week ($23,660 a year) is considered “nonexempt” and therefore entitled to overtime pay for hours worked over 40 in a week, regardless of whether the employee is paid on an hourly or salary basis.

Under the DOL’s proposal, the salary level required for an executive, administrative or professional employee to qualify for exemption from the FLSA minimum wage and overtime requirements would increase from $455 a week ($23,660 a year) to $921 a week ($47,892 a year), based on 2013 data.  This means that anyone who makes less than $47,892 a year will be entitled to overtime pay for hours worked beyond 40.

The proposed regulations also set forth mechanisms for annually updating the minimum salary and if one of the annual update mechanisms is implemented, the DOL anticipates that the annual salary requirement in 2016 will be $970 a week, or $50,440 a year.

Duties Test – STAY TUNED

The DOL did not propose any changes to the duties requirements but did seek comments as to whether the duties tests should be updated.  Please stay tuned for Part II of this series for an outline of the current duties test. 

Highly Compensated Employees - CHANGED

The DOL’sproposed regulations increase the required salary for “highly compensated employees” to $122,148, indexed to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers.

The DOL’s proposed rule would effectively extend overtime protections to nearly 5 million white collar workers within the first year of its implementation.  Because the overtime regulations have not been updated in so long, employers have been able to classify more and more employees as exempt and therefore avoid paying overtime.  The overtime exception was originally meant to apply to highly-compensated executive, administrative, and professional employees although it now applies to workers earning as little as $23,660 a year. 

The DOL is expected to release its final rule later in 2016. 

Am I Entitled to Overtime if I am on Salary?

Maybe.

Just because your employer pays you a salary does not necessarily mean you are ineligible for overtime.  In other words, you may be entitled to receive overtime even if your employer tells you that you are not.

Whether or not an employee is entitled to overtime depends on the following factors:

  • First, you must make at least $455 per week. 
  • Next, you must be treated like a salaried employee – you cannot get docked for working less in a given week.  You must get paid the same every week, no matter what.
  • Finally, there is the nature of the work you do.  The more responsibility (and less supervision) you have, the more likely it is that you are not entitled to overtime.  And vice versa.

Confused?  Curious?  Just want to chat?  Contact us.  An employment lawyer is standing by to speak to you right now.

I am being forced to work off the clock. What should I do?

In general, an employee’s “hours worked” include all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work. All employees must be paid for all time worked. So if your employer is forcing you to work off the clock, you may be entitled to additional compensation (even if you are paid a salary).

Common examples of work off the clock:

  • Your employer asks to you set up, open a store or facility prior to clocking in.
  • Your employer makes you clock out for a meal break, but nonetheless makes you work during that period.
  • Your employer automatically deducts some period of time from your hours (usually for an assumed “break”), but does not compensate you for work you performed during that time.
  • Your employer asks you to clock out and then, after you are clocked out, perform additional work (e.g. cleaning up, shutting down, etc.).

Am I entitled to additional compensation:

Probably. This comes down to a determination of whether an employee is exempt or non-exempt. For further information that should help you determine whether or not you are exempt, these links may be helpful:

What to do if you are being forced to work off the clock:

  • Collect the facts – you need to get a sense of how much you are working off the clock, whether any additional employees are also working off the clock. Get any documents you have about off the clock work together.
  • Contact an employment lawyer – get a better understanding of your rights. We offer a free initial consultation. In most situations involving work off the clock we do not collect a fee unless we get recovery for our client.  Contact us today for a free consultation.

Wage Theft Prevention Act Annual Notice Requirement

On December 29, 2014 Governor Cuomo signed a bill that repealed the Wage Theft Prevention Act annual notice requirement. Essentially, under the New York Wage Theft Prevention Act (WTPA), employers were required to notify and receive written acknowledgement from every worker about their rate of pay, allowances, pay day, etc. before February 1 of each year -- this was the Wage Theft Prevention Act Annual Notice Requirement. Although the Wage Theft Prevention Act Annual Notice Requirement will no longer be effective as of 2015, employers are still required to provide written notice of wage rates to each new hire at the time of hire. Specially, the written notice must include:

  • Rate or rates of pay, including overtime rate of pay (if it applies)
  • How the employee is paid: by the hour, shift, day, week, commission, etc.
  • Regular payday
  • Official name of the employer and any other names used for business (DBA)
  • Address and phone number of the employer's main office or principal location
  • Allowances taken as part of the minimum wage (tips, meal and lodging deductions)

The repeal of the Wage Theft Prevention Act annual notice requirement is cause for celebration for employers in New York as it eliminates a burdensome administrative requirement!  For more information on the Wage Theft Prevention Act, including the recent amendment, please visit the New York Department of Labor's website.

The Companionship Exemption

Effective January 1, 2015, the Federal Fair Labor Standard Act’s minimum wage and overtime protections will extend to workers who provide essential home care assistance to elderly people and people with illnesses, injuries or disabilities. The revisions to the law narrow the definition of “companionship services” (and therefore limit the use of the companionship exemption) and prohibit third party agencies or home health care companies from claiming the companionship exemption. Under the revised rules, the companionship exemption is limited to an individual, family or household employing a home care aide. In order to legally use the companionship exemption and avoid paying a home care aide overtime, such aide must (1) provide “companionship services” to an elderly person or a person with an illness, injury or disability who needs help in caring for himself (2) for at least 80% of the total hours such aide works per week.

The term “companionship services” is defined as the provision of fellowship and protection. The term “fellowship” means to engage the person in social, physical and mental activities and “protection” means to be present with the person in their home or to accompany the person outside of the home in order to monitor his safety.   The Department of Labor has provided examples of activities that satisfy the meanings of “fellowship” and “protection”, which include conversation, games, crafts, accompanying the person on walks, and going on errands, appointments or social events with the person.

The exemption is available even if the aide provides “care” so long as (1) the care is provided attendant to and in conjunction with the provision of fellowship and protection and (2) if it does not exceed 20% of the total hours worked per week. The exemption will not be available and the employee will be entitled to minimum wage and overtime if the employee spends more than 20% of his time per week providing care. “Care” is defined as assistance with activities of daily living, which include dressing, grooming, feeding, bathing, toileting and transferring and instrumental activities of daily living, which include meal preparation, driving, light housework, managing finances, assisting with taking medications and arranging medical care. The exemption is also not available if the employee provides household work that goes beyond the benefit of the elderly person or person with a disability like doing laundry or preparing meals for other household members.   Lastly, the definition of companionship services does not include the provision of medically related services that would typically be performed by trained personnel and if the employee provides any medically related services he will be entitled to overtime pay.

Can a third party home health care agency use the companionship exemption now? No. Under the revised rules any home care aides hired through a third party agency cannot be exempt from minimum wage and overtime coverage. The exemptions for aides who mainly provide “companionship services” or for live-in domestic service employees (as described below) are limited to the individual, family or household using the services and explicitly do not extend to third party providers. Such providers must pay its home care aides (1) an hourly rate that is at least minimum wage (currently $8/hour in New York) and (2) time and a half ($12/hour) for all hours worked in excess of 40 hours per week.

Live-In Domestic Service Employees. Live-in domestic service workers who live in the employer’s home permanently or for a period of time and are employed by an individual, family, or household are exempt from overtime pay but they must be paid minimum wage. However, live-in workers who are solely or jointly employed by a third party must be paid at least minimum wage and overtime pay for all hours worked.  But employers of live-in domestic service workers may enter into agreements to exclude certain time from compensable hours worked (such as sleep time, meal time and other periods of time where the employee is completely free of work duties). Such employers must maintain an accurate record of hours worked by live-in domestic service workers but may require the employee to record his or her hours worked and to submit the record to the employer.

Additional Information. The U.S. Department of Labor has created a portal for both employers and employees regarding the law changes summarized in this memo: http://www.dol.gov/whd/homecare/

If you have any questions regarding the companionship exemption and compliance with the new laws, please do not hesitate to contact us.

Can you get overtime if paid salary?

Are you entitled to overtime if paid salary?  Maybe.

How you are paid does not impact whether or not you are entitled to overtime.  This is true regardless of whether you are paid by the hour, by the day or by the week.  It also holds true if you are paid an annual salary. What matters is what you do, not how you are paid.  Whether or not you are exempt from federal and state overtime laws depends almost entirely on the nature of your work.

A common trick used by unscrupulous employers is to pay an otherwise non-exempt (i.e. entitled to overtime) employee a "salary" so that the employee - erroneously - believes that he/she is not entitled to overtime.  The employer's decision to pay a salary does not change the employer's obligation to pay certain employees time and a half for hours over forty in a week.  Another misconception is that if someone has a "manager" or "supervisor" title that they are not entitled to overtime.  Titles do not matter - only what you do matters.

While how an employee is paid (salary versus hourly) may impact the calculation of damages (i.e. how much you could win in a lawsuit), it will not impact liability (i.e. whether the employee is entitled to overtime compensation to begin with).

If you believe that you have been denied overtime, or if you have questions about overtime if paid salary, you should contact us today.  Consultations are free - you have nothing to lose.

For more information:

Overtime Law Basics - Debunking Overtime Myths

Q&A - NY Overtime Law

 

 

 

Do I get my final paycheck in New York if I quit or get fired?

Final Paycheck in New York - must be paid on next scheduled payday.

The New York Labor Law (section 191) has clear-cut rules for how final payment for wages, including salary and bonuses, are to be submitted to employees who leave their job or who are terminated. The New York Labor Law states that all wages owed to a separating employee must be paid on the next scheduled payday, irrespective of whether the employee quits or gets fired.

Do you suspect that you have been denied some of your hard-earned wages?  Call or e-mail us today.  We have lawyers standing by.  You might be entitled to compensation - find out if you are.  All initial consultations are free.

New York courts strictly construe the language of the New York Labor Law and have interpreted the Act to provide definite safeguards to employees assuring that they are compensated for their work.  The final paycheck in New York must be paid correctly or else the employer is subject to penalties.

In the event that an employer fails to pay all wages owed to a separating employee within the time limits set forth above, the employee may file a civil suit against the previous employer to recover two times the actual amount of unpaid wages owed, plus attorney’s fees and costs.

The New York Labor Law creates high stakes for employers who do not timely pay all wages and can create liability on behalf of the violating employer well beyond the initial amount of the unpaid wages owed to the employee.

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.  We work for flat fees or on a contingency fee basis.  If you are an employee in NY and have any questions about your final paycheck or other wage and hour matters, please contact us today.

Overtime Law Basics - Debunking 5 Overtime Myths

Overtime Law Basics Basics - Five Common Misconceptions About Overtime Law

This is the first in our ongoing series of overtime law basics.  Below, we go through some of the most common misconceptions about overtime law.  You should educate yourself about your rights as an employee.  Especially when it comes to how you should get paid.  Any questions, call us at 646.524.6001 for a free consultation.

  1. Your title means nothing. Even if you have a “supervisor” title, you may be entitled to overtime. Just because you are called a supervisor, this does not necessarily mean that you are not entitled to overtime pay. There are several factors used to determine whether an employee is entitled to overtime, and none of these factors includes the employee’s title. Your title has nothing to do with your entitlement to overtime.
  2. How you are paid does not determine whether you can get overtime. If you are paid a salary, you may be entitled to overtime. Just like your title, how you are paid does not necessarily make you ineligible for overtime. In fact, many salaried employees are entitled to overtime based on what they do – not how they are paid. Employees paid on a salary basis are only exempt from overtime if they meet all of the requirements for certain exemptions under the Fair Labor Standards Act (Federal Law) or New York Labor Law (State Law).
  3. Your employer may not give you time off instead of overtime pay. Time off may not be provided instead of overtime pay. Only certain municipal, state or federal employers can provide time off in lieu of overtime pay. Private employers are forbidden from doing so – they have to pay overtime.
  4. All time worked, including time spent working from home counts towards your hours. Work from home is no different from work at the workplace. If you work from home, let your employer know about it – this time counts towards overtime.
  5. Time spent traveling for work counts towards your hours. If you have to travel for your job, time spent traveling counts your overtime hours – but your commuting hours to/from work do not. However, if you have to travel between job sites, to meet a client, or make a delivery, these hours all count towards overtime.

If you have any questions, please contact us.