wage

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: 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.

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.

Wage & Hour Employment Law for NY Small Business

Small business owners in New York are often so inundated with the day-to-day hustle of increasing revenue, marketing, and actually working, that they often overlook federal and state wage and hour laws.  But be warned: failure to properly pay employees can significantly harm your business.  However, a few simple pointers will go a long way towards avoiding a devastating wage and hour class action: First, pay your employees the minimum wage.  Sounds easy enough.  The minimum wage in New York and New Jersey is $7.25/hour.  But there’s a bill in New Jersey to increase the minimum wage to $8.50/hour (see this prior blog entry).   And make sure to pay the minimum wage for all hours worked (and see this entry).

Also, as we’ve previously discussed, classify your employees correctly (see this entry).  In terms of classifying your employees as exempt or non-exempt from overtime pay, it is advisable to err on the side of non-exempt.  And don’t think that just because you give an employee a title like “manager” it changes anything -- titles are meaningless and what matters is the nature of the work that the employee actually performs (for more detailed information, please visit http://www.dol.gov/whd/overtime_pay.htm).  The same goes with respect to classifying your employees as employees or independent contractors -- err on the side of employee.  To be an independent contractor, the individual must be truly “independent” (e.g., is available to work for other employers, uses his/her own materials, sets his/her own hours, etc. but for more detailed information, please see http://www.comptroller.ilstu.edu/downloads/20-factor-test-for-independent-contractors.pdf).

Keep good records.  It is worth investing in an automated system which tracks employees hours worked and all compensation paid to employees.  This way you can prove exactly how much a given employee worked and how much he or she was paid for their time.

The last point is probably the most obvious of all:  it is better to be safe than sorry.  The potential damages in wage and hour actions can be financially devastating to a small business -- you are better off treating your employees as non-exempt, paying them for all time worked, and when necessary contacting an employment lawyer, than defending a legal battle that will likely not end well.

If you are a small business owner in NY and have any employment law questions, please contact us for a free initial consultation.