Long Island Employment Law BlogEmployers 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
Articles Tagged with unpaid overtime
Are Service Advisors in New York Entitled to Overtime?
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.
Federal Judge Commends Firm’s Work
“Knowledgeable,” “experienced,” an attorney who represented his client “zealously”; these are just some of the comments from United States Magistrate Judge Henry Pitman in describing the “caliber” of Long Island employment lawyer Matthew Weinick’s work at a recent settlement conference held before the judge. On January 30, 2018, Judge Pitman issued an order approving the settlement for an unpaid wage case being defended by F&W. The details are discussed below.
Long Island employment lawyers Famighetti & Weinick PLLC often represent workers who are not paid proper overtime or minimum wage. But, we also defend employers in unpaid wage cases.
In this case, F&W represented a private school which provides instruction for nurses aides. A former employee alleged, among other things, that the school did not pay her overtime for hours for worked above 40 in a week and that the school did not pay her at all for other hours worked. At a conference before the presiding District Court Judge, Long Island employment lawyer Matthew Weinick presented a strong defense to the claims based on a recent case decided the Second Circuit Court of Appeals, New York’s federal appellate court. The judge suggested that instead of spending time and money on a motion which may dismiss the case, the parties should meet with the magistrate judge to see if the case could be settled.
Arbitrating Employment Wage Cases
Many employers include an arbitration clause in their employment contracts. An employee who signs this contract, gives up his or her right to sue in court over any job-related issues that may arise such as claims for wrongful termination, minimum wage payment violations, and overtime pay violations. Today’s employment law blog discusses recent developments about the applicability of arbitration clauses to claims of unpaid wages and overtime in New York.
Employers like to include arbitration clauses because the arbitration process is generally a quicker and cheaper alternative to a proceeding in court. Yet, a worker recently disagreed with a court’s decision requiring that he use arbitration instead of filing his Fair Labor Standards Act (“FLSA”) claim in court.
On December 12, 2017, the Second Circuit Court of Appeals was asked to decide whether claims under unpaid wage and overtime claims underthe FLSA are in fact subject to arbitration.
$39,541 Judgment Obtained for Worker
On October 25, 2017, Long Island employment lawyers Famighetti & Weinick, PLLC obtained a $39,541 judgment for their client, a former cook in a restaurant. The lawsuit, filed in Supreme Court, New York County, alleged that the restaurant did not pay the client overtime and failed to provide with her wage statements as required by New York Law.
New York Overtime Laws
In New York, employers are required to pay their employees overtime pay for all hours worked over 40 in a week. Generally, overtime is one and one half times the employee’s regular rate of pay. In F&W’s case, the employee worked as much as 75 hours per week, but was paid only a flat “salary” rate of $520 in cash. So, F&W argued that the $520 represented payment for only the first 40 hours worked in the week, meaning the employee was owed regular wages plus overtime wages for up to 35 hours per week. Justice Nancy Bannon agreed with F&W and further agreed that the employee was entitled to unpaid wages totaling $17,452 for the 6 months the employee worked for the restaurant.
Judge Grants FW’s Motion in Potential Class Action Case
Long Island employment lawyers, Famighetti & Weinick, PLLC, represented a Long Island limousine company accused in a class action lawsuit of not paying its employees’ tips and overtime. On September 15, 2017, a Nassau County Supreme Court justice granted F&W’s motion to dismiss the case. The situation is discussed below.
F&W’s client operates a limousine company. According to the plaintiff in the case, he alleged that the company did not pay its drivers proper overtime for the hours he, and other employees, worked over 40 in a week. The plaintiff further alleged that the company collected gratuities from its customers and told the customers that the tips would be given to the drivers, but that the company then kept the tips, instead of paying them to the drivers. Additionally, the plaintiff alleged his pay stubs did not meet the requirements of the New York Labor Law’s Wage Theft Prevention Act (WTPA). The plaintiff attempted to bring his claims as a class action, on behalf of himself and all of the limousine company’s drivers.
F&W partner and Long Island employment lawyer Matt Weinick filed a motion on behalf of the limousine company seeking to dismiss the lawsuit in its entirety. Among other things, Weinick argued that the plaintiff’s last pay stub proved he was paid properly, that the overtime claim was otherwise not sufficiently stated and supported by facts in the complaint, that the allegations relating to the tip issue were not sufficiently stated in the complaint, and that since those claims failed, the wage statement claim was also required to be dismissed under the law.
Judge Recommends FW Client be paid $30,380
In October 2015, Long Island employment lawyers, Famighetti & Weinick, PLLC, filed a lawsuit alleging that a Long Island gas station did not pay their client overtime for the 35 hours per week that he worked overtime. The firm also alleged that the gas station did not provide the client proper notice about his wages or proper wage statements when he was paid. On August 30, 2017, United States Magistrate Judge Anne Y. Shields recommended to District Judge Spatt, that he order the gas station to pay $30,380 in damages, and $12,370 to F&W, for their work on the case.
Judge Recommends Answer Be Stricken and Default Entered
In the gas station case, F&W filed a lawsuit to which the defendants appeared in and submitted a response, called an answer. However, in the course of the lawsuit, the defendants or their lawyer failed to obey court orders, failed to respond to motions, and failed to participate in the discovery process. Further, after F&W filed an “amended complaint,” which sought to add a defendant, the defendants failed to respond to the amended complaint by submitting an answer. Magistrate Judge Shields recommended that the defendants’ existing answer be stricken and that a default judgment be entered against all the defendants because of their exhibited “willful” failure to defend themselves in the lawsuit.
Overtime Pay in New York
The Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) require that most employees receive overtime pay for all hours worked over 40 in a workweek. Overtime pay is one and one half times the regular rate of pay. Famighetti & Weinick PLLC are employment lawyers in New York and handle many of the issues discussed below relating to overtime pay in New York.
Who is Entitled to Overtime Pay in New York?
Only employees may be entitled to overtime pay. In other words, independent contractors are not employees and are, therefore, not entitled to overtime pay. Employers, however, frequently misclassify workers as independent contractors. Simply paying an employee “on a 1099” is not the end of the inquiry as to whether a worker is an independent contractor. As a matter of fact, being paid on a 1099 is probably the least important factor. Rather, courts will look at the level of control that the employer has over the worker, the worker’s ability to set work hours and pay, who supplies the tools and equipment, and the permanency of the work. The more control it appears that the employer has over the worker, the more likely it is that the worker is an employee and not an independent contractor.