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What can a NYC employment lawyer do for you?

A lot, actually. A good NYC employment lawyer can help you in a lot of ways you might not be aware of. This article lays out some of the ways that the NYC employment lawyers at our firm can assist you. While this article focuses primarily on NYC Employment Lawyers, it is just as applicable to employment lawyers outside of New York City – it just so happens that we work here.

  • A NYC Employment Lawyer can work with you behind the scenes.

One of the most common misconceptions about employment attorneys – in fact about nearly all attorneys – is that as soon as you’ve hired an attorney, you are going to court. Nothing can be further from the truth. A good employment attorney will start out by working with you behind the scenes to help guide your actions. This is especially useful when you are still employed, but having issues at work (e.g. harassment).

  • A NYC Employment Lawyer can help you get severance.

If your employment has been terminated, an employment attorney can help you get a severance. Contrary to popular belief, most employees are not entitled to severance. In reality, when employees get what they call a “severance agreement,” what they are really getting is a “severance agreement and release.” In exchange for some money (severance) from the company, the employee agrees not to sue (release). An employment attorney can find the leverage points to get severance. For more information on severance, you can look at our other articles. We do a lot of severance work here.

  • If you have already been offered severance, a NYC Employment Lawyer can help you get more severance.

The only thing better than severance, is more severance. You don’t necessarily have to take the employer’s first offer. If you are over 40, the law requires at least 21 days to consider any offer of severance. Use this time to contact an employment lawyer. A good one will help you turn some severance into more severance.

  • A NYC Employment Lawyer can negotiate with your employer

Often, our firm negotiates directly with the employer to get a better severance for our clients.  If you have been offered a severance, consider contacting an employment attorney for help.

  •  A NYC Employment Lawyer can file a lawsuit against your employer.

We put this one last for a reason.  Lawyers are probably best known for filing lawsuits, but most lawyers provide services so that their clients can avoid litigation altogether.  However, if you are interested in filing a lawsuit against your employer, take a look at our practice areas, these might give you an idea of the sorts of issues that employment lawyers can help you with.

If you need more information or a free consultation, feel free to contact us.  We would be happy to help.

 

Q&A: NY Overtime Law | NY Overtime Pay

Do I have an overtime claim? If you think that you may have an overtime claim, chances are that you do.  Below are a few frequently asked questions about New York Overtime Law that can help you to determine whether you have an overtime claim or a claim under the Fair Labor Standards Act (“FLSA”) or NY Overtime Law Law.  If you think you are entitled to overtime, you should contact us for a free consultation.

Q: What do the terms overtime hours and overtime pay mean?

Overtime hours means the time an employee works more than 40 hours per work week.  Under federal law and the NY Overtime Law, overtime pay must equal at least one and one-half times an employee's regular rate of pay. So, if an employee regularly makes $10/hour, that employee is entitled to make $15/hour for all the overtime hours he or she works.

Q: Who must be paid overtime pay?

Most employees are entitled to overtime pay.  You are probably entitled to overtime pay unless your job is an "executive," "administrative," and "professional" positions.  Whether or not you fall into one of these categories depends on the specific nature of your job.  If you have questions about NY Overtime Law, you should talk to a lawyer.

Q: What if I have no written records or proof of the hours I worked?

You do not need written records or proof of the number of hours you worked. It is the employer's duty to maintain certain records regarding your work hours and pay.  If your employer does not have those records, your testimony under oath will be sufficient to prove your claim.

Q: Do I have to be paid overtime pay for working more than eight hours in one day?

No. Overtime pay must only be paid when you work more than 40 hours in week, and not more than eight hours in any one day.

Q: What if my employer tells me that I am an independent contractor?

You may still be entitled to overtime pay because your employer may be wrongly telling you that you are an independent contractor. Whether or not you are an independent contractor depends on a variety of factors that we will need to discuss with you before we can give you an answer.

Q: What if I work 30 hours in one week and 50 hours in the next week, can my employer average the two weeks to avoid paying me overtime?

No. This is a common method employers use to avoid paying overtime. The averaging of workweeks is expressly prohibited by law. You are entitled to receive overtime pay for each individual week you work more than 40 hours. In the above example, you are entitled to receive overtime pay for the 10 hours you worked more than 40 hours in week two.

Q: Is it legal that I am paid "comp time" instead of overtime?

Unless you work for the state or federal government, an employer providing compensatory or "comp time" instead of overtime pay is illegal.

Q: My employer tells me I am exempt from the overtime pay laws, am I?

Not necessarily. You are exempt based on your job duties and responsibilities and not based on what your employer calls you. It makes no difference if your employer calls you exempt or gives you a job title such as "manager" or "supervisor." It is a common practice for employers to give workers the title of "assistant manager" to avoid paying overtime when those employees are not exempt and should be paid overtime.

Q: Can I still be entitled to overtime pay if I am a salaried rather than hourly employee?

Yes. This is one of the common misconceptions about overtime pay. You are not exempt just because you are paid a weekly salary. If you are not otherwise exempt under the FLSA, your employer must convert your weekly salary to an hourly rate and pay you time and a half for all hours worked in excess of 40 hours.

Q: When should I file a claim against my employer?

The longer you wait the less overtime pay you may be able to recover. It is also best to promptly pursue your claim so that time records and witnesses are readily available.

Q: Can my employer fire me for bringing an overtime claim against it?

No. It is illegal for an employer to fire or in any way retaliate against an employee because he or she has filed a claim for overtime against the employer. We will help protect you if your employer tries to retaliate against you for filing an overtime claim.

Q: What should I do if I believe that I am owed overtime pay?

You should seek legal advice. The overtime laws are highly technical and we can help apply the law to your special situation. Our experienced NY Overtime Lawyers provide free consultations and will tell you if you are owed earned wages and if we can help you.

Q: How much does it cost to file a claim?

In most cases, all costs for overtime and unpaid wage cases will be advanced by our firm. Because our fee is typically contingent on a recovery from the employer, the firm does not get paid or reimbursed for expenses until the recovery is made.

Q: Do I have to pay attorneys fees to you if I lose my case?

No. We will only receive a fee if we are successful in resolving your claim.

NY Labor Law Legislation Update

On September 7, 2012, Governor Cuomo signed legislation amending New York Labor Law §193.   The amendment goes into effect on November 6, 2012. Section 193 of the New York Labor Law prohibits employers from making “any deduction from the wages of an employee,” except for (1) deductions required by law or (2) deductions that are expressly authorized by the employee in writing and “are for the benefit of the employee.”  The second exception permits deductions for insurance premiums, pension or health benefits, charitable contributions, and dues for labor organizations, as well as other limited deductions.

The amendment expands the list of categories for which deductions may be taken by employers with an employee’s written consent and allows deductions for overpayments due to clerical or mathematical errors or for repayment of advances on wages or vacations paid to employees.

The permissible deductions under the amendment shall now include the following:

●             prepaid legal plans;

●             purchases made at events sponsored by a charitable organization affiliated with the employer;

●             discounted parking or discounted passes, tokens, fare cards, vouchers, or other items that entitle the employee to use mass transit;

●             fitness center, health club, and/or gym membership dues;

●             cafeteria and vending machine purchases made at the employer’s place of business, and purchases made at gift shops operated by the employer (if the employer is a  hospital, college, or university);

●             pharmacy purchases made at the employer’s place of business;

●             tuition, room, board, and fees for pre-school, nursery, primary, secondary, and/or post-secondary educational institutions;

●             day care, before-school and after-school care expenses;

●             payments for housing provided at no more than market rates by non-profit hospitals or affiliates thereof; and

●             similar payments for the benefit of the employee.

Most significantly, the amendment allows employers to make wage deductions to recover “an overpayment of wages where such overpayment is due to a mathematical or other clerical error by the employer” and “repayment of advances of salary or wages made by the employer to the employee.”

Under the amended law, deductions still are permitted only if expressly authorized in writing, signed by the employee and if the deductions are, generally, for the benefit of the employee.  The amendment requires that, before any deduction is made, the employee must receive “written notice of all terms and conditions of the payment and/or its benefits and the details of the manner in which deductions will be made.”

 

Fast Food and Restaurant Workers and the FLSA

No matter what, people have to eat. And restaurant employees will always be there to serve them. There are over 7 million people employed in restaurants in the United States, a large percentage of whom work in fast food establishments.  These jobs are often very transient, and the fact is that many fast food workers don't realize that they have a number of rights under federal employment law.

Most large fast food restaurants are covered under the Fair Labor Standards Act. Any restaurant or fast food business with annual gross sales from one or more establishments that total at least $500,000 are subject to the FLSA.

Individually, any person who works on or otherwise handles goods that are moving in interstate commerce is subject to the minimum wage and overtime protection of the FLSA. For example, a waitress or cashier who handles a credit card transaction would likely be subject to the Act, according to a post by the Department of Labor.

One interesting question that comes up in restaurant employment is how a food credit is taken against wages. The law is that the employer may take credit for food which is provided at cost. This typically is an hourly deduction from an employee's pay. However, the employer cannot take credit or a pay deduction for discounts given to employees on food (menu) prices.

As most people know, waiters, waitresses, or other restaurant staff who receive tips are not subject to the federal minimum wage standards. They receive one- half of minimum wage. However, they are still subject to the overtime provisions of the law, and are required to be paid overtime at one and one-half times the applicable minimum wage, not one and one-half times the actual wage.

Buying uniforms is another issue that comes up a lot in restaurant work. There are a couple of different ways this situation can be handled. If uniforms are required by the employer the cost of the uniform is considered to be a business expense of the employer. If the employer requires the employee to bear the cost, such cost may not reduce the employee's wages below the minimum wage or cut into overtime compensation.

If you currently work in a restaurant or fast food place, or have recently left the food business, you may have rights under the law that you aren't aware of.  Contact us to learn about your rights.  An attorney will get back to you within 24 hours.

NY Labor and Employment Lawyer

NY Labor and Employment Lawyer

Most employees will be laid off, fired or otherwise have their employment terminated at some point during their careers. Our NY Labor and Employment Lawyers can help you fight back and understand your rights.

If your employment is terminated, there may be something you can do about it.  You should talk to an experienced NY Labor and Employment Lawyer about your rights.

Employment laws uphold the rights of current and former employees and even job applicants.

If you believe that you were or are being treated unfairly by your employer you should contact a NY Labor and Employment Lawyer to evaluate your rights under federal, state and city employment laws.

Our NY Labor and Employment Lawyers have extensive experience in:

  • Discrimination
  • Harassment
  • Employee Benefits
  • Whistleblower Litigation
  • Wrongful Termination
  • Retaliatory Discharge or other Retaliation
  • Employment Contracts and Non-Compete Agreements
  • Executive Compensation Agreements
  • Severance Packages
  • Americans With Disabilities Act (ADA)
  • Family Medical Leave Act (FMLA)
  • Occupational Safety and Health Act (OSHA)

Our NY Labor and Employment Lawyers will fight for you.

Please contact us for a free consultation today.  An attorney at our firm will get back to you within 24 hours.

 

NY Wage Theft Prevention Act

Employers Beware: the NY Wage Theft Prevention Act is a Potential Misclassification Minefield! The NY Wage Theft Prevention Act, which became effective April 9, 2011, requires all private sector employers with New York employees (regardless of how many) to provide those employees with a "pay notice" at the time of hire and, subsequently, on a yearly basis. The notice must be in English and the employee’s primary language.  The notice can be paper or electronic.  Under the Wage Theft Prevention Act, the first annual notice period began January 1, 2012.  The pay notice must contain the following:

Rate of pay (including overtime, if applicable)

  • Method of payment (hourly, shift, day, week, commission, etc.)
  • Regular pay day
  • Official name of the employer, and any d/b/a's
  • Address and phone number of the employer's main office or principal location
  • Any allowances taken as part of the employee's wage (for example, tip, meal and lodging deductions).

Because these notices require an employer to state the method of payment and regular rate of pay, it is critical that the employer understand whether the employee is exempt from overtime.

This annual notice requirement is not a one-time event. Employers must provide these notices every year between January 1 and February 1, even if the information has not changed from the prior year.  The Act further requires that the notices be kept by the employer for six years and available for inspection by the NY Department of Labor.

Classification issues abound here.  If you have any questions about how to classify an employee (e.g., as exempt or non-exempt), or general questions about the Wage Theft Prevention Act contact us.  A mistake can cost you.

NY Overtime Pay

Am I entitled to NY overtime pay? Both the New York overtime pay laws (New York Minimum Wage Act) and the Federal Fair Labor Standards Act (FLSA) require that employers pay overtime to those individuals who are not “exempt” from the overtime requirements. A non-exempt employee must be paid time and a half for all hours worked over 40 in a given week.  It is important to determine whether you are a “exempt” or “non-exempt” employee.

Even if your employer pays you a salary, calls you an “executive” or “manager”, or tells you that you are exempt, you may still be entitled to overtime compensation.  According to recent studies, the majority of employees today are entitled to minimum wage and overtime pay and many employers misclassify their employees for their own benefit.   It is therefore critical that you understand the laws regarding overtime and what you are entitled to under the law.

Employers in violation of the New York Minimum Wage Act and the FLSA can be forced to provide their employees with the overtime money they are owed in addition to attorney fees and court costs.  A two-year statute of limitations applies to most actions under FLSA, though the time to act is increased to three years if the employer’s violation was willful, and not simply negligent.

If you feel you have been wrongly classified as an exempt employee or that you are otherwise due overtime, contact us today.