Minimum Wage

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.

Failure to Pay Overtime in NY | Failure to Pay Overtime NJ

Failure to Pay Overtime in NY | Failure to Pay Overtime NJ

Failure to Pay Overtime
Failure to Pay Overtime

Most employees are entitled to receive one and a half (1½) times their regular hourly rate of pay for work performed in excess of forty hours per week.  All time worked must be counted in calculating overtime including, all work activities and activities before and after a shift, as well as work done at home. Activities performed before assigned shifts, such as logging on to computer systems, programs, and applications, dressing in required clothing or protective gear, or preparation and/or inspection of machinery, tools, equipment or supplies are counted in determining whether the employee is entitled to overtime wages.   Similarly, answering emails and texts from home is considered hours worked for purposes of calculating overtime. Failure to pay overtime in NY and NJ is illegal.

Some employers fail to pay overtime because of misclassification of jobs as exempt from the federal or state wage and hour laws.  This may be the result of wrongful application of the complex tests prescribed under applicable laws or regulations or failure to consider deductions from pay.  Just because your employer tells you that you are not entitled to overtime does not make it so.

If you believe you have been denied overtime pay in New York or New Jersey, you should consult an attorney experienced in wage and hour claims.

Some Things to Think About If Your Employment is Terminated

What should I do if I get fired? Here some things to think about if your employment is terminated:

  • Were you offered severance agreement?  If so, make sure an attorney reviews the severance agreement.  You will be giving up rights, and may be agreeing to take less than you are entitled to or worth.
  • For example, if you have a pension, your severance agreement may be releasing your rights under ERISA, the federal law governing pensions. Make sure you are not accidentally giving up your pension rights. If you had an employer-matched 401 and are not vested, you are probably giving up the employer contribution to your 401.
  • Did you have a non-compete agreement?  If so, it could limit your ability to get a new job.  If not, your employer may include one (as part of your severance agreement), which may limit your ability to get a new job. If the time restriction is longer than the number of weeks of severance, it is probably not worth signing the agreement unless you are going into an entirely new field.
  • If you did sign a non-compete agreement prior to starting your job or during the course of your employment, you should also have an attorney review it for you to make sure you understand your limitations before you sign a severance agreement.  You will most likely be reaffirming those restrictions in a severance agreement, so may be giving up your defenses to the non-competition provisions.  Some employers will try to add restrictions you did not have, make the restrictions longer or for a larger geographic area.  Some know that they had an agreement that was not enforceable and use the severance agreement to put in place an enforceable provision.
  • Is the release mutual?  If the employer wants you to release them from any claims, they should also release you.  Some employers require employees to sign releases and then turn around and sue the former employee for alleged wrongdoing on the job.  Mutual releases assure that any claims are released by both sides.  In banking or other financial arenas, the employer will want an exception for undiscovered financial fraud/embezzlement, which should be acceptable.  But if they know about it at the time of the agreement, they should be willing to release it or give up their right to a release so the employee can assert any defenses or counterclaims he or she might have.
  • Is confidentiality mutual?  Employers want the severance agreement to be kept confidential.  But if the employer does not have to keep it confidential, they may get cute and say things to references like, “I have to look at the agreement to see what I’m allowed to say.”  Protect yourself and make sure that they can’t disclose the existence of the agreement to potential employers.
  • Include non-disparagement provisions.  You don’t want your employer to be able to say bad things to potential employers or to customers, co-workers or others in the community.  They will likely want the non-disparagement to be mutual, to keep you from bad-mouthing them, which is acceptable.  It is worth the peace of mind to know that they will not be making negative comments that keep you from future employment.
  • Do you have health insurance?  Many employers will pay some or all of your COBRA payments to tide you over while you are working.  You need to make sure you understand what will happen to your insurance benefits upon termination.
  • Do you have stock options, stock appreciation rights, or other similar rights?  Make sure the agreement is not making you give up valuable rights you may have.  If you were fired to keep you from vesting, you may have claims against the employer.
  • Do you have any potential claims against the employer?  Potential claims may give you leverage to negotiate a severance package if it is not offered, or to negotiate a better package.  Ask yourself some questions:
    • Am I of a different race, age, sex, national origin, marital status, color, or religion from those who were not terminated for the same reason or offense?  If so, you may have a discrimination claim.
    • Was I recently sexually harassed or the victim of other discriminatory harassment based upon race, age, religion, national origin, marital status, color, or disability?  You can’t be fired in retaliation for reporting such harassment.
    • Did I recently report, object to, or refuse to participate in discrimination, harassment, or illegal activity?  If so, you may be a whistleblower.
    • Did I recently make a worker’s compensation claim?  If so, it’s illegal to terminate you for making such a claim, and you also need to make sure you are not giving up your worker’s compensation claim in the agreement.
    • Did I recently take leave due to bereavement, sickness, disability, or serious medical condition of a family member?  If so, you may have a Family and Medical Leave Act claim.
    • Does the employer owe me overtime or wages?  Make sure you are paid what you are owed.  Plus, failure to pay wages is a great defense to a non-compete agreement.
    • Did I recently testify against the employer or in any court case where I was subpoenaed?  You can’t be terminated for your testimony under subpoena.
    • Am I pregnant?  You can’t be terminated for your pregnancy, or because you recently gave birth and the employer has stereotypical beliefs about women with children.
    • Did the employer breach a contract with me?
    • Am I over 40?  If so, in a layoff or redundancy, the employer is supposed to provide you with a list of the ages of the others laid off or made redundant so you can determine whether or not age discrimination has occurred.

If you are in doubt about your rights or any potential claims you may have, contact an attorney at our firm to discuss your options.  Someone will get back to you within 24 hours.

 

Recent Supreme Court Case - Pharmaceutical Sales Reps Exempt from FLSA Minimum Wage and Overtime

On June 18, 2012, the United States Supreme Court resolved a split between circuit courts and held that pharmaceutical sales reps engage in “sales” and therefore are exempt under the Fair Labor Standards Act (FLSA). Under the FLSA, “outside salespersons” are exempt from minimum wage and overtime.  The issue for the Supreme Court was whether pharmaceutical reps “sell” drugs to doctors or whether they merely obtain a promise from the doctor to prescribe their employer’s pharmaceutical products.

Plaintiffs argued that because the pharmaceutical rep makes no actual “sales” he/she should not be considered a salesperson.  Plaintiff argued that these reps should be treated as “promoters” and should therefore be entitled to minimum wage and overtime payments.The Department of Labor filed an amicus brief on behalf of the Plaintiffs and took the position that pharmaceutical reps were non-exempt because “[a]n employee does not make a ‘sale’ for purposes of the ‘outside salesman’ exemption unless he actually transfers title to the property at issue.”

The Supreme Court refused to accept the DOL’s interpretation reasoning that such an interpretation would remove from the exemption many sales persons who previously were exempt, and that it was much narrower than regulations and prior case law.

The decision was 5-4.  The dissent agreed that the DOL’s interpretation was not worth much thought that the duties performed by pharmaceutical reps do not amount to "sales" but are promotion activities and are therefore non-exempt.

The case is Christopher v. Smithkline Beecham:  http://www.supremecourt.gov/opinions/11pdf/11-204.pdf

Please contact us if you have any questions about minimum wage or overtime pay.

Failure to Pay Overtime in New York | NY Overtime Law

Most employees are entitled to receive one and a half (1½) times their regular hourly rate of pay for work performed in excess of forty hours per week. All time worked must be counted in calculating overtime including, all work activities and activities before and after a shift, as well as work done at home. Activities performed before assigned shifts, such as logging on to computer systems, programs, and applications, dressing in required clothing or protective gear, or preparation and/or inspection of machinery, tools, equipment or supplies are counted in determining whether the employee is entitled to overtime wages. Similarly, answering emails and texts from home is considered hours worked for purposes of calculating overtime.  Failure to pay overtime in New York is illegal.  Contact an experienced employment lawyer today for a free consultation.

Some employers fail to pay overtime because of misclassification of jobs as exempt from the federal or state wage and hour laws. This may be the result of wrongful application of the complex tests prescribed under applicable laws or regulations or failure to consider deductions from pay. Just because your employer tells you that you are not entitled to overtime does not make it so.

If you believe you have been denied overtime pay, you should contact an attorney experienced in wage and hour claims.

Administrative Exemption to Overtime Pay

Both the Fair Labor Standards Act (“FLSA”) and the New York Minimum Wage Act (“NYMA”) generally require the payment of overtime wages for work performed after 40 hours per week.  For some general information on overtime and misclassification issues, please see our prior blog posts here, here and here. The FLSA and the NYMA exempt employees who work in a bona fide administrative capacity from the overtime pay requirements.

To meet the Administrative Exemption (and therefore have no entitlement to overtime pay), each of the following must be true:

  1. The Employee’s primary duty consists of the performance of office or non-manual field work directly related to management policies or general operations;
  2. The Employee customarily and regularly exercises discretion and independent judgment;
  3. The Employee regularly and directly assists an employer or an employee employed in a bona fide executive or administrative capacity or who performs under general supervision, works along specialized or technical lines requiring special training, experience or knowledge; and
  4. The Employee is paid for his or her services on a salary basis of not less than $543.75 per week.

If you believe you have incorrectly been classified as exempt from overtime pay, you should contact one of our NY Overtime Pay Attorneys.

Overtime Violations and Misclassification Issues

OVERTIME VIOLATIONS Unless you are specifically classified as an “exempt” worker, your employer must pay you overtime wages for any hours you work over 40 hours in a workweek (see this prior blog entry). Your employer must pay overtime wages at a rate of at least one and one-half times (150%) your regular hourly rate.

Your employer cannot avoid paying overtime by enacting a no-overtime policy or by getting you to agree to a special deal.  Your employer must pay you according to the law.  Set forth below are some common overtime violations:

Unpaid or Improperly Calculated Overtime Pay

Overtime rules are generally based on a single workweek. If you are a non-exempt employee, you may be paid weekly, bi-weekly, or monthly.  But, your employer must calculate overtime based on the actual 40-hour workweek (the pay period does not matter).  Employers cannot average hours over two or more weeks.  Likewise, your employer cannot get you to agree not to follow the overtime rules.

Comp Time Instead of Overtime Pay

Compensatory time is paid time off generally granted to an hourly employee instead of overtime wages.  This is often referred to as "comp time."  Comp time can sometimes be legal, but the employer must pay it at 150%, which is the same rate as overtime wages.

Employees Not Allowed to Report Work over 40 Hours Per Week

Many employers have rules that no overtime work will be permitted or paid for unless authorized in advance.  Some employers choose to ignore overtime hours worked by their employees or do not allow employees to report their overtime hours. These are violations of the overtime rules.

MISCLASSIFIED EMPLOYEE VIOLATIONS

In today’s tough economy, employers face increasing pressure to lower wage and benefit costs. Not surprisingly, some employers do not obey the rules regarding classification of employees, which classification dictates whether its employees are entitled to overtime.

Has your employer not paid you overtime because you are an “exempt” employee? Or, has your employer not paid you overtime and benefits because you are a contract employee or independent contractor?   Your employer may have misclassified you.  And if so, you are losing out on the pay and benefits you deserve.

Misclassification of Employees as Exempt Workers

Exempt employees are employees who are not entitled to receive overtime pay.  Whether or not you are exempt can be confusing.  However, it has nothing to do with your job title or job description, or whether you are paid a salary or hourly. What you actually do at your job on a daily basis determines whether or not you are legally entitled to overtime.  For additional information, please visit www.dol.gov/whd/overtime_pay.htm.

Misclassifaction of Employees as Contract Employees

Contract employees or independent contractors include self-employed workers who are not covered by the tax and wage laws that apply to regular employees. Employers do not pay Social Security, Medicare, or federal unemployment insurance taxes on contract employees or independent contractors.  Thus, employers are strongly motivated to classify workers into this category to save costs.

Whether you qualify as an employee or an independent contractor is not an easy matter.  Three factors are key in determining this:

1.  Control:  Does the company control what you do and how you perform your duties? 2.  Financial:  Do you or the company set the business aspects of your work (method of payment, reimbursement of expenses, etc.)? 3.  Relationship:  Do you have a written contract? Do you receive employee-type benefits, such as a pension plan, insurance, or vacation pay? How long have you been at the company?

You are probably an employee and not an independent contractor or contract employee if the company controls what you do and how you do it, and treats you like other regular employees.  If so, you may be missing out on valuable overtime wages and employee benefits.  For more information on this issue, please see http://www.comptroller.ilstu.edu/downloads/20-factor-test-for-independent-contractors.pdf.

Some other common employer pay practices which may violate the law:

  • Paying you a salary and no overtime when you spend less than 50% of your time managing other employees;
  • Paying you a salary and no overtime with a title like assistant manager, assistant branch manager, or working lead;
  • Paying you hourly and not paying you overtime when you work in excess of 40 hours in any work week;
  • Paying you hourly and not paying you for pre-shift or post-shift work time such as uniform and clothes changing time, the time it takes you to prepare your workstation for the day, or clean up time at the end of your shift;
  • Paying you hourly, but asking you to perform work via cell telephone, email, Blackberry, Twitter, Facebook, etc. when you are not clocked in;
  • Paying you hourly, but asking you to work through your breaks and unpaid meal periods without payment;
  • Rounding you work time down to the nearest 15 minute increment (e.g., you clock in at 7:56 am and your employer rounds your time to 8:00 am); or
  • Hiring you as an “independent contractor,” “contract employee,” or “contingent worker” and not paying you overtime or benefits like regular employees.

Please contact us if you believe your employer has violated the law in paying or classifying you.

NJ Employment Law Alert

The New Jersey state legislature recently proposed a bill that would increase the state minimum wage to $8.50/hour effective July 1, 2012.  This would make New Jersey's minimum wage the third highest in the country (Washington and Oregon are higher).   Although the bill is likely to pass the NJ State Assembly and Senate, it is unclear whether Governor Christie will sign the bill into law. If you have any questions about minimum wage laws in New Jersey or New York, please contact a minimum wage lawyer at our firm for a free initial consultation.

Are You Being Compensated For All Time Worked?

On October 26, 2011, the U.S. Department of Labor announced a settlement with Hilton Reservations Worldwide, LLC, in which the company agreed to pay $715,507 in minimum wages and overtime pay to 2,645 current and former customer service employees in Texas, Florida, Illinois and Pennsylvania. The DOL determined that the company failed to pay workers for pre-shift activities such as booting up their computers, launching necessary programs, and reading work-related e-mails. This settlement reflects the DOL’s focus on pre- and post-shift activities by employees.  The issue of pre- and post-shift work is not limited to booting up computers and reading e-mails -- any off the clock work-related tasks required of an employee can quickly add up and lead to employer liability.

The Takeaway

For employers:  if the time that an employee performs pre- or post-shift tasks is more than “de minimis” (meaning just a minute or two), make sure that your timekeeping system captures all of this time, or have a mechanism to adjust time where needed.  Also, regardless of what safeguards you have in place, make sure to tell your employees (in writing) that they are not to perform any work activities off the clock.  Not paying employees for all time worked can have a crippling impact upon your business. Please contact us for further guidance.

For employees:  if you are not being paid for all time worked, please contact an attorney at Granovsky & Sundaresh PLLC.  Unless you are an exempt employee, not entitled to overtime, you should be compensated for every minute worked, and time and a half for all hours worked over 40 in one week.  Also, don’t take your employer’s word for it that you are “exempt.”  Many employers misclassify workers to avoid their obligation to pay overtime.  Please contact us for further guidance.