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Articles Posted in Wage and Hour

Federal and New York State laws require that employees be paid minimum wage and overtime. During “normal” times, employers far too frequently violate these laws. Sometimes, employers intentionally skirt wage laws to avoid paying the high costs associated with employee wages. Other times, however, employers try to comply with the law, but they fall into legal pitfalls by misclassifying employees or making other mistakes.

With Covid-19, employees are working from home or being subject to new workplace requirements, such as health screenings, before starting work. These new workplace realities, employers may stumble into new pitfalls concerning properly paying employees. Today’s Long Island employment law blog discusses situations where employers may be improperly paying employees and what employees should do if are they are not being paid correctly.

Non-exempt hourly employees must be paid for all time spent working. Generally, this is not a complicated issue. Most employees come into work and clock in or “punch in.” This records the time the employee reported in for work. After clocking in, the employee starts work.

Today’s Long Island employment law blog discusses the primary beneficiary test which is used to determine whether an individual is an employee for purposes of being covered by minimum wage and overtime laws.

As the prevalence of lawsuits concerning improper payment of wages has continued to rise over the past few years, one area of increased litigation is whether unpaid interns are considered employees and are thus entitled to the protections of minimum wage and overtime laws such as the Fair Labor Standards Act (FLSA). The law in this area became clearer after the Second Circuit Court of Appeals considered the Glatt case in 2016.

Glatt and the unpaid intern line of cases typically involve students who perform work for companies to obtain real-life experience in their field of study. For example, law students often take internships with judges or law firms while in law school to gain practical legal experience. Interns may work for the film industry, as they did in the Glatt case, or with financial services companies.

The news headlines are inundated with buzzwords such as sanctuary cities, illegal aliens, and immigration laws.  Indeed, “illegal aliens” and immigration issues are at the forefront of political issues confronting the nation.  One of the most sensitive areas of employment law which we see at our Long Island employment law firm is the employment of illegal aliens.  On March 3, 2020, the United States Supreme Court issued a decision which touches on three areas of law: immigration, employment, and criminal law.   Today’s Long Island employment law blog discusses the decision reached in Kansas v. Garcia.

Federal immigration law makes it unlawful for an employer to hire an alien “knowing” that the individual is not unauthorized to work in the United States.  But, federal law does not prohibit the employment of illegal aliens.

When hiring employees, immigration law requires employers to attest that they have verified the employee is not an unauthorized alien on form I-9.  To do so, employers must review approved documents such as a passport.  Failure to follow this verification law may result in civil and criminal penalties.  Per the law, employers should make and retain copies of the I-9 and the supporting documents provided by the employee.

The Fair Labor Standards Act requires that employers pay to employees minimum wage and overtime.  When employers violate the FLSA’s requirements, employees may sue the employer to recover the unpaid wages.  Since 2015 when the Second Circuit Court of Appeals decided Cheeks v. Freeport Pancake House, courts have been required to scrutinize agreements settling FLSA cases. Courts generally looked at whether the agreement was fair and reasonable, including as to the amount of attorneys’ fees awarded.

The Cheeks case provided general guidelines about how Courts should review agreements, but uncertainty remained.  Parties have continued to litigate the expansiveness of Cheeks and Judges have struggled to understand their roles.  On February 4, 2020, Judge Chin, writing for the Second Circuit, issued a decision further clarifying court’s responsibilities concerning FLSA settlements. Today’s Long Island employment law blog discusses the decision in Fisher v. SD Protection Inc.

In Fisher, the employee was hired as a “chaperone,” responsible for monitoring the halls in a hotel when student tour groups stayed.  As alleged by the employee, the employer failed to pay him overtime for the nine hours of overtime he worked per week.  Additionally, the employer did not provide to him paystubs, in violation of New York’s Wage Theft Prevention Act (WTPA).

The Fair Labor Standards Act (FLSA) is a federal law which requires that employers pay overtime pay to employees. Generally, overtime pay equals one and one half times an employee’s regular rate of pay. But, not all employees are entitled to overtime pay. The FLSA sets forth various exemptions to the overtime pay requirement. One such exemption is the professional exemption. In January 2020, the Second Circuit Court of Appeals considered whether registered nurses are exempt from overtime pay pursuant to the professional exemption.  Today’s Long Island employment law blog discusses the decision.

In Isett v. Aetna Life Insurance Company, the plaintiff-employee worked as an appeals nurse for an insurance company.  Isett was required to hold a license as a registered nurse. Her job involved reviewing appeals for authorization for medical services which were initially denied by the health insurance claims department. Isett made a clinical determination about whether the service is medically necessary. For her work, Isett was paid on a salary.

To perform her duties, Isett reviewed the patient file, including clinical documents, as well as the initial insurance review documents. Isett then compared the information to the company’s guidelines to determine whether the service is medically necessary. If the patient’s coverage did not meet the company’s criteria, the file was forwarded to a medical director (a doctor) for further review. In other words, Isett did not work in a clinical setting.

On December 6, 2019, the the United States Court of Appeals for the Second Circuit decided an important case which clarifies the law concerning settling federal wage and hour cases. Today’s Long Island employment law blog takes a look at this decision.

In 2015, the United States Court of Appeals for the Second Circuit issued a decision which sent employment lawyers in New York into a panic. The decision, known as Cheeks, essentially requires that when parties settle a lawsuit arising under the Fair Labor Standards Act (FLSA), a court or the Department of Labor must approve the settlement. In other words, in the normal course, parties may settle cases under whatever mutually agreeable terms they decide on and the court has no say in the matter. Cheeks altered this practice for FLSA cases (the federal statute regulating minimum wage and overtime).

Moreover, Cheeks requires that when deciding whether to approve FLSA settlements, courts must review the settlement agreement for fairness and other requirements, including that the release is limited to wage claims and that the agreement does not require confidentiality. Further, courts review any amount of the settlement allotted for attorneys fees to ensure their reasonableness.

Through the Fair Labor Standards Act (FLSA), Congress enacted laws which set minimum wage and overtime pay requirements for employers. The Department of Labor is authorized to issue further guidance about the law, to implement additional rules concerning overtime and minimum wage, and to enforce compliance with the rules and regulations. On September 24, 2019, the United States Department of Labor issued a final rule concerning updates to the overtime rules existing for the past 15 years. Today’s Long Island employment law blog discusses these changes.

Under the FLSA, employers must pay minimum wage to employees. Currently, the federal minimum wage is $7.25 per hour. States may set higher rates, though. For instance, in New York, the minimum wage rate varies depending on county, but it is at least $11.10 per hour and can be as high as $15 per hour in New York City (as of 2019).

The FLSA also requires that employers pay overtime to employees. Overtime pay is one and one half times the employee’s regular rate of pay and kicks in when the employee works more than 40 hours in a workweek. But, not at all employees are entitled to overtime pay. The FLSA classifies employees as either exempt or non-exempt. Exempt employees are not entitled to overtime pay and typically are paid by salary, which remains they receive the same pay no matter how many hours the employee works. Non-exempt employees are typically paid on an hourly basis (or commission) and must be paid overtime hours.

On May 1, 2019, United States District Court Judge Joan M. Azrack issued an ordered in a wage theft case filed by Long Island employment lawyers Famighetti & Weinick, PLLC in the Eastern District of New York. The case alleged that a Long Island food delivery service failed to pay overtime wages to two employees and failed to provide proper and legal wage statements under New York Law.

The lawsuit was served on the defendant corporation and an owner, but the defendants refused to defend themselves. Accordingly, the firm asked the court to enter a default judgment against them. As part of the motion, partner Matt Weinick set forth the applicable laws under the Fair Labor Standards Act and New York Labor Law concerning overtime pay. Weinick discussed how the affidavits submitted by the two employees established that the employer violated the wage and hour laws.

Next, the firm calculated the damages owed to each employee. Weinick set forth the hours each employee worked and how much each was owed for the overtime worked. Weinick also set forth the statutory damages the employer owed for not providing proper wage statements and the amount of liquidated damages allowed for under the FLSA and NYLL.

The Fair Labor Standards Act is the federal law which sets minimum wage and requirements for employers to pay overtime to workers. The law also establishes rules under which employees may be exempt from the overtime requirements.  On March 7, 2019, the United States Department of Labor proposed a rule which would alter the current rules for exempt employees. Today’s Long Island employment law blog discusses the proposal.

Under the FLSA, employers must pay overtime to employees who work more than 40 hours in a workweek.  Overtime must be 1.5 times the employee’s regular rate of pay.

But, some employees are exempt from this requirement. To be exempt, the employee must receive a minimum weekly salary and the employee’s job responsibilities must meet the definition of one of the law’s exemptions.  In 2004, the Department of Labor set the salary requirement to $455 per week, and that amount has remained unchanged since then.

Internships offer students the opportunity for hands on supervised learning experiences in their particular field of study. But, must companies pay their interns? This question has been the subject of fierce litigation for several years and a matter considered by New York’s federal appellate court.  On February 5, 2019, the Second Circuit Court of Appeals considered yet another case concerning unpaid interns. Today’s Long Island employment law blog discusses the case, Velarde v. GW GJ, Inc.

Generally, federal and state labor laws, such as the Fair Labor Standards Act or FLSA, and the New York State Labor Law or NYLL, require that all employees receive, at least, the minimum wage for the hours they perform work for their employer. So, if interns are considered employees, then companies must pay their interns. But, are interns employees entitled to minimum wage or other pay?

In 2015, the Second Circuit faced, for the first time, the question of whether a company must pay temporary interns. The case, known as Glatt v. Fox Searchlight Pictures, set forth a primary beneficiary test.  In its simplest form, the test seeks to determine who is the primary beneficiary of the internship.  For instance, if the internship genuinely provides the intern with a learning experience or other opportunity which benefits the intern more than the company, then the intern is not owed wages. If, on the other hand, the company receives the primary benefit, then the intern is considered an employee and must receive wages.

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