Wage and Hour Category Archives — Long Island Employment Law Blog Published by Long Island Employment Law Attorneys

February 6, 2019

Unpaid Interns? The Saga Continues

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.

October 2, 2018

Shareholders can be Liable for Employees’ Unpaid Wages

by Famighetti & Weinick

Unpaid wage and overtime claims are on the rise across New York. There is no question that companies can be legally on the hook for lawsuits alleging the business did not pay its employees properly. But, can corporate shareholders and owners be personally liable, also? Today’s Long Island employment law blog discusses this issue, including a recent decision from New York’s federal appellate court.

The New York Labor Law (NYLL) and the federal Fair Labor Standards Act (FLSA) both require that employers pay minimum wage and overtime to non-exempt employees. But, who is an employer? Is it just the corporation or can individuals also be considered employers. In the Second Circuit Court of Appeals case, Tapia v. Blch 3d Ave., LLC, the court revisited this question.

In Tapia, the plaintiffs alleged, among other things, that the defendants failed to pay overtime, minimum wage, spread of hours pay, and that they failed to provide wage statements to the employees. After a trial, the District Court judge found in favor of the plaintiffs on all the counts. In addition to a corporation, two individual defendants who owned the corporation were also named as defendants. The District Court determined that one defendant, Ajit Bains, was personally liable, but that another individual defendant, Satinder Sharma, was not liable. The plaintiff appealed that decision.

July 3, 2018

New York Court Rules Delivery Drivers Not Employees

by Famighetti & Weinick

A New York company operates a website whereby users can place delivery orders from local stores and restaurants. The company uses couriers to pick up the orders and deliver them to the customers. Are these couriers employees under New York law? Today’s Long Island employment law blog discusses how a New York appellate court came decided the issue of whether these couriers are employees of the company?

In the case of Matter of Vega, heard and decided by New York’s Third Department, the company, Postmates, Inc. “engaged” individuals to perform work for the company. As noted, Postmates operated a website whereby customers can place orders at local restaurants and stores. The orders are picked up by couriers, such as Vega, and delivered to the customers.

Postmates, however, terminated Vega alleging, among other things, that it had received negative customer feedback about him. So, Vega filed for unemployment insurance benefits, but Postmates challenged the claim. Initially, a worker’s compensation Administrative Law Judge decided that Vega was not eligible for unemployment benefits because he was not an employee. On appeal to the Unemployment Insurance Appeal Board, however, the Board reversed that determination and decided that Vega was indeed an employee, making him eligible for benefits.

May 30, 2018

Penalties for Unpaid Wages in New York

by Famighetti & Weinick

Employers in New York cannot willfully turn their backs to the state’s minimum wage and overtime laws and expect to get away with it. Courts or the Department of Labor are likely to impose hefty fines or penalties. Today’s employment law blog discusses the penalties employers on Long Island and in the rest of the state can face for willfully violating the law. Continue reading

May 29, 2018

Supreme Court Decides Case About Arbitration in Employment Cases

by Famighetti & Weinick

Unpaid wage and overtime lawsuits are often brought as class actions or collective actions. This way, many employees can band together and use the power of numbers to take on powerful corporations. But, on May 21, 2018, The U.S. Supreme Court practically slammed its doors directly in employees’ faces while providing an easy escape route for employer’s to violate workers’ rights. Continue reading

April 11, 2018

Are Service Advisors in New York Entitled to Overtime?

by Famighetti & Weinick

The federal Fair Labor Standards Act (“FLSA”) and the New York State Labor Law (“NYLL”) require employers to pay employees overtime whenever they work over 40 hours in a workweek. The overtime pay rate, under both laws, is 1.5 times the regular rate of pay. So, for example, if an employee’s regular hourly rate is 14 dollars, but that employee works more than 40 hours during a certain week, then the employer must pay the employee 21 dollars an hour for every hour worked over 40. Today’s Long Island employment law blog discusses whether this overtime requirement applies to service advisors working automobile dealerships in New York.

One point that is different between the FLSA and the NYLL is the list of employees who are exempt from the overtime requirement. Being exempt means that the employee is not entitled to receive overtime pay. For example, employees who work at car dealerships as service advisors are one of the types of employees who are exempt from the federal overtime pay requirement, but not from the New York State law requirement.

Some employment agreements may also prevent an employer from simply turning their back to overtime pay requirements and may nevertheless require them to pay an employee overtime even if they are not required to do so under either the FLSA or NYLL.

January 30, 2018

Am I an Employee: The Threshold Question in Employment Discrimination

by Famighetti & Weinick

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on, among other reasons, the employee’s race, religion, national origin, and sex. Title VII also protects employees from retaliation by their employer for reporting or opposing the employer’s discriminatory actions. Before bringing an employment discrimination case, however, the employee must be able to show that he or she is in fact an employee and not, for example, an independent contractor. Today’s Long Island employment discrimination blog discusses the Second Circuit Court of Appeals case, Knight v. State University of New York Stony Brook, which addressed the question of how to determine whether an individual is an employee.

The Discriminatory and Retaliatory Conduct

Anthony Knight is African American and was a member of an electrician’s union. The union had agreed to provide electricians to Stony Brook, when Stony Brook needed additional workers for large construction projects. In April 2011, the union sent Knight to help Stony Brook with a project. While working at Stony Brook, Knight found “racist” graffiti in the bathroom and reported it to his foreman. After the report, Stony Brook terminated Knight’s work. Knight sued Stony Brook alleging the graffiti was discriminatory and the termination was taken in retaliation for his complaint about the graffiti. The court dismissed the discrimination claim, but the retaliation claim went to trial.

January 4, 2018

Do I Get Paid for a Snow Day?

by Famighetti & Weinick

Long Island is prone to Nor’Easters and other significant snow and weather events. A popular question is whether employers must pay their employees when the business closes due to snow or other inclement weather. Today’s Long Island employment law blog discusses pay issues related to weather emergencies.

Pay Laws in New York

In New York, employees are covered primarily by two laws which concern how employers pay employees. The Fair Labor Standards Act (FLSA) is a federal law which sets requirements for minimum wage and overtime. The New York Labor Law (NYLL) is New York’s counterpart to the FLSA and similarly sets a minimum wage in New York, overtime rules, and other pay related rules such as frequency of payments.

December 27, 2017

New York Class Action Lawsuits

by Famighetti & Weinick

In employment law, discrimination and unpaid wage and overtime cases are sometimes brought as class actions. Class actions allow one or more employees to represent a larger group of employees who have been harmed in a similar way as the “class representatives.” By bringing a case as a class action, the court can hear the dispute in a more efficient way than hearing perhaps hundreds of individual employees’ cases. Today’s Long Island employment law blog explores an unsettled question about settling cases involving class actions.

What is a Class Action?

On December 12, 2017, in Desrosiers v. Perry Ellis Menswear, LLC, a class action case, the New York Court of Appeals, the highest New York state court, was asked to decide whether members of a class need to be notified when a court dismissed the case or when a settlement occurred, even if the class action had not yet been certified by the court.

December 21, 2017

Do I Have to Pay Interns?

by Famighetti & Weinick

Employers often wonder whether they have to pay their interns. This is a question courts have also grappled with over the past few years. Today’s Long Island employment law blog explores the question of whether interns are employees, requiring that employers pay them at least minimum wage.

Employees Must be Paid At Least Minimum Wage

Both federal law and state minimum wage laws generally require that employees earn at least the minimum wage. In New York, the minimum wage varies depending on several factors such as, among other things, location (county), the type of work performed, and the size of the business.