new york wage hour lawyer

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.

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:

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.

Apple Retail Workers Sue Over Unpaid Wages, Overtime

Many retail stores require security bag checks of employees as they are leaving the store on break or ending their shift. But, stand and wait for the inspection for up to 10 minutes when you’re supposed to be getting a break or going home? Many employees find it unfair, but that’s exactly what two former Apple retail store employees are alleging. Amanda Frlekin and Dean Pelle are suing the technology titan, Apple Inc., for back pay. Both plaintiffs claim that they are owed monetary compensation for overtime and unpaid wages. While Frlekin feels that she was not paid approximately $1,500 in wages each year, over the course of her time with Apple, Pelle similarly calculates that he was shorted about $1,400. These sums were based on each employee’s hourly wage and the approximate total time that they spent waiting for security bag checks each week. If this is true, the Fair Labor Standards Act may have been violated by Apple Inc.

According to the Fair Labor Standards Act, nonexempt employees must be paid time and a half (one and a half times the hourly rate) when work exceeds 40 hours in a week. It also demands that all employees be paid at least the federal minimum wage. However, if found guilty, it is possible that Apple has also violated labor laws in the states where the plaintiffs were employed – New York, California, Georgia, and Florida. It is also possible that the lawsuit will be expanded to include numerous Apple retail workers in a class action suit.

Other retail businesses, such as Forever 21 and Polo Ralph Lauren, have already experienced similar lawsuits involving similar accusations by their employees. In the case of Polo Ralph Lauren lawsuit, it was reportedly settled in 2010 for $4 million. Whether the Frlekin and Pelle have a winning case, the message the two are sending is clear – your time is always worth something. If you can relate to this violation of labor laws and feel that you've experienced unfair compensation, contact a knowledgeable NY employment law attorney at Granovsky & Sundaresh PLLC.

Courts Rule Alien Workers Have Rights Under FLSA

In March, 2013 Eleventh Circuit Court of Appeals held that “there is nothing in the [Fair Labor Standards (“FLSA”)] that would allow us to conclude that undocumented aliens, although protected by the Act, are nevertheless barred from recovering unpaid wages thereunder.”  Lamonica v. Safe Hurricane Shutters, Inc.  An undocumented alien’s “ability to recover unpaid wages under the FLSA does not depend upon his immigration status.” Four months later, on July 29, 2013, another federal appellate court, the Eighth Circuit Court of Appeals ruled that, “aliens, authorized to work or not, may recover unpaid and underpaid wages under the [Fair Labor Standards Act].”Lucas v. Jerusalem Cafe, LLC.

The United States Department of Labor’s policy was and is to enforce the FLSA “without regard to whether an employee is documented or undocumented.”

Although it is still unclear to the exact extent that these rulings will affect illegal alien workers, one thing is clear: the FLSA protects alien workers from being underpaid or unpaid.

Business Owner Found Personally Liable, Employment Law Case Study

The ruling issued by the US Court of Appeals for the Second Circuit against John Catsimatidis is an eye-opener to employers and business owners across the US. By holding Gristedes Supermarket owner, John Catsimatidis, personally liable for a Fair Labor Standards Act class action suit, the Court fundamentally redefined the meaning of ‘employer’ under FLSA guidelines. This ruling sets a new precedence that broadens the interpretation of ‘employer’ and District Courts may now apply this analysis in other contexts, which could have a significant impact on future cases.

Qualifying as an 'employer'

The Catsimatidis case originally began in 2004 as a class action lawsuit against various Gristedes Supermarkets’ corporate and individual defendants by several manager and co-managers working in the supermarket. The plaintiffs in the case claimed they were misclassified as exempt under NYLL and FLSA and were wrongfully denied overtime. Two years of litigation led to a settlement agreement of $3.5M by the supermarket to the plaintiffs in the case with $425,000 paid initially and following with 27-month installment payments thereafter. The defendants in the case defaulted on their settlement obligations and the plaintiffs subsequently sought enforcement of the settlement against Catsimatidis, Gristedes Supermarket owner, personally. The Court found that Catsimatidis qualified as an ‘employer’, and thus, held him personally liable.

The Appeal

Catsimatidis appealed this ruling, stating that he was merely a high-level executive and made only general corporate decisions. Catsimatidis argued that the FLSA defined an ‘employer’ as one who exercises day-to-day decision making within the business and that his role in the company did not qualify under that interpretation. To determine Catsimatidis’ capacity at Gristedes Supermarket, the Court endorsed a ‘totality of circumstances’ versus ‘operational control’ test and found that Catsimatidis exercised decision-making which directly affected the conditions of the employees’ employment and made general managerial decisions, including the responsibility for decisions in respect to employee wages.

What The Decision Means

Although this decision is quite notable because of its broadening definition of ‘employer’ under the Fair Labor Standards Act, this is still a case where circumstances played a significant role in the outcome. Had the corporate defendant not defaulted on their payment obligations, Catsimatidis would not have been held personally liable. Nonetheless, the ruling by the US Court of Appeals for the Second Circuit does prompt much food for thought.

If you think your rights have been violated or have questions about a potential case contact our New York City Employment Lawyers today.

Unpaid Internships: Legal Ramifications in New York

Unpaid Interns
Unpaid Interns

The legal ramifications of hiring unpaid interns in New York and elsewhere are making many businesses sit up and take notice.

Two former interns suing Condé Nast Publications have the corporate community in an uproar with rumors of doom and gloom and lawsuits to come as unpaid interns begin challenging labor laws and intern policies.

The practice of hiring underpaid or unpaid interns has become a standard in many industries, especially in media companies and other ‘glamor’ industries. However, with the news of Condé Nast’s lawsuit, many industries are second guessing their intern policy and seeking the advice of legal counsel to avoid unwanted legal ramifications.

Do Unpaid Internships Violate the Fair Labor Act?

The lawsuit filed on June 13th by interns at W Magazine and the New Yorker against parent company, Condé Nast Publications, state that Condé Nast violated federal labor laws. The lawsuit seeks a class action on behalf of all affected workers, citing the Fair Labor Standards Act, which requires all companies to pay employees an hourly minimum wage.

Intern Case Study: Condé Nast

Lauren Ballinger and Matthew Leib, plaintiffs in the case against Condé Nast Publications, believe Condé Nast failed to properly follow labor laws. Ballinger worked as an intern for several months for W Magazine in 2009, organizing accessories, performing vendor deliveries, and running personal errands among other job functions for a rate of $12 per day. Leib worked as an intern from 2009 to 2010 for the New Yorker, managing email correspondences, reviewing ‘Shouts and Murmurs’ submissions, proofreading outgoing mail, and opening incoming mail at a rate of $300-$500 per each three-month or four-month internship.

Who Benefits Most From an Internship?

In the case against Condé Nast Publications, interns are beginning to weigh who the real benefactor is in their internship relationship. Who benefits most? Is it the intern or the company? One key element to determining whether an internship is fair is by looking at the balance between educational value of the experience for the intern and whether the company is using the internship to ‘replace’ regular workers. Many interns have taken an internal analysis of their working relationship and have become conscious of the labor violations being perpetrated by so many. They have simply had enough. With legal ramifications on the horizon, companies are advised to seek counsel from an employment lawyer to ensure their internship policies are on the up-and-up.

Contact Us

Located in Manhattan, the New York City employment lawyers at Granovsky & Sundaresh have experience with these changing laws. We are committed to protecting the rights of New York employees. Contact us for a case evaluation.