Wage Hour Lawyer

If You Are a Manual Worker in New York - You Must Be Paid Weekly

How Often Should I Be Paid if I Perform Manual Work?

Unless your employer has authorization from the New York Commissioner of Labor (and, among other things, employs at least 1,000 workers in New York) or is a non-profitmaking organization, employees who perform manual work need to be paid weekly within seven days of the work performed.[1]  This means that a lot of manual workers in New York State should be paid weekly.  Even if the exception applies, manual workers cannot be paid any less than twice a month.[2]

If you are a manual worker, and are being paid less often than every week, you may be entitled to considerable damages.

Who is a Manual Worker?

A manual worker can perform a variety of tasks.  For example, courts have found that janitors, cooks, carpenters, and supermarket employees fit the bill and may be entitled to payment on a weekly basis.[3]

What if My Employer Paid All of My Wages Biweekly Instead of Weekly?

You still may be entitled to recovery since an accompanying statue provides that certain violations of the New York Labor Law render employees eligible for damages in the sum of 100% of the delayed wages, attorneys’ fees, and interest on the sum of the delayed wages.[4]  More than one court recently determined that the damages are necessary to remedy the delayed payments.  Otherwise, an employer could ignore the weekly payment requirement—and the law—and avoid a penalty just by paying the employee when the employer felt like it.[5] 


What if My Employer Knew It Was Supposed to Pay Me Weekly, But Decided Not to?

An employer who knows about the obligation to pay manual workers weekly, but actively decides not to do so, could be liable for triple the sum of the delayed wages.[6] As you can imagine, that sum could really add up—especially when you take New York’s 6-year statute of limitations applicable to such claims into consideration!

If you would like to discuss your situation with us, please feel free to call or email us at any time. You will be on the phone with an attorney within 24 hours.

 


[1] NYLL §191(1)(a).

[2] NYLL §191(1)(a).

[3] Scott v. Whole Foods Mkt. Grp., Inc., 18 CV 0086 (SJF)(AKT), 2019 U.S. Dist. LEXIS 61726 *8, 2019 WL 1559424 (E.D.N.Y. Apr. 9, 2019)(collecting cases).

[4] NYLL §198(1-a); Scott, 2019 U.S. Dist. LEXIS 61726 *10-11.

[5] Scott, 2019 U.S. Dist. LEXIS 61726 *10-11; see also Vega v. CM & Assoc.Constr.Mgt., LLC, 9733, 23559/16E, 2019 N.Y. App.Div. LEXIS 6464*, 2019 N.Y. Slip Op 06459, 2019 WL 4264384 (1st Dept. Sep. 10, 2019)

[6] NYLL §198(1-a).

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.

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. 

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.

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.

Paralegal Sues Bankruptcy Firm Over Wrongful Termination

It happens. Sometimes you end up working through lunch. Your boss is pressed for time on a deadline and needs you to lend a hand. When this happens, though, you should be compensated appropriately for your time. Unfortunately, that was not the case according to Carla Muskrath. After more than four years working as a paralegal for California bankruptcy law firm, Simon Resnik & Hayes LLP, Plaintiff was fired and has filed a wrongful termination lawsuit as a result. According to Ms. Muskrath’s allegations, her employer forced her to work through her lunch break and did not compensate her by paying her overtime. In accordance with the Fair Labor Standards Act, employers are required to pay one and a half times an employee’s hourly wage if he/she works more than 40 hours in a week. Ms. Muskrath claimed that during her time at Simon Resnik & Hayes LLP, she was entitled to overtime pay for her work during lunch. When she finally decided to stand up to her employer and begin taking her scheduled 30-minute lunch, she was retaliated against. Plaintiff was promptly fired.

In response, Ms. Muskrath filed a wrongful termination law suit in the Los Angeles County California Superior Court. In her claim, Ms. Muskrath indicates that in addition to not compensating her for overtime, the employer did not keep records of all of the hours that she worked.

It is unfortunate, but these situations occur frequently. Retaliation and wrongful termination can lead to financial and emotional stress. If you feel that you have been wrongfully terminated, contact the experienced NY employment law firm of Granovsky & Sundaresh. You may be entitled to monetary compensation, medical benefits, attorney fees, and more.

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.

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.

DOL Timesheet App

The United States Department of Labor (“DOL”) recently announced that its “DOL-Timesheet” app was available for free download from Apple’s App Store.   This complimentary app is available in English and Spanish and is compatible with the iPhone, iPod Touch and iPad.   The DOL has also promised to explore the viability of similar versions for other smartphone platforms like Android and Blackberry.   This app can “independently track” hours worked and wages owed including regular hours, overtime, and breaks. Not only does the app allow employees to track their time, it allows one-tap access to a list of contact information for the DOL including a toll-free “Wage and Hour Division help line,” email, and website.  Another tap opens a screen enabling the reports generated by the app to be easily emailed.

Granovsky & Sundaresh PLLC is dedicated to fighting for employees’ rights, including minimum wage and overtime pay violations by large employers.  We are easily accessible and responsive to our clients. With our network of employee-friendly attorneys, we can litigate anywhere in the continental United States with no additional cost to you.  Contingency fee arrangements are available.

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

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.