flsa - Famighetti & Weinick

Federal Judge Commends Firm’s Work

Famighetti & Weinick — Tue, 30 Jan 2018 19:53:39 GMT

“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.

Accordingly, in early January 2018, Weinick and his client met with Magistrate Judge Pitman and with the plaintiff and her attorney. The parties spent several hours meeting and discussing a resolution and ultimately reached an agreement.

Since the case was brought under the federal statute, the Fair Labor Standards Act, the court was required to approve the settlement reached by the parties, pursuant to the decision in Cheeks v. Freeport Pancake House. On January 30, 2018, Judge Pitman issued his order approving the settlement. In deciding whether to approve an FLSA settlement, courts look at the fairness of the settlement. Judge Pitman held that there was a presumption of fairness which was “bolstered by the caliber of the parties’ attorneys,” including Weinick. Judge Pitman further noted that:

Based on their pre-conference submissions and their performance at the settlement conference, it is clear to me that all parties are represented by counsel who are knowledgeable regarding all issues in the case and who are well suited to assess the risks of litigation and the benefits of the proposed settlement.

Judge Pitman also stated that “both counsel represented their clients zealously at the settlement conference.”

At Famighetti & Weinick, PLLC we’re honored that Judge Pitman had such a great review of our work on the case. We will continue to advocate zealously for our clients and to strive for stellar performance in all aspects of our work.

If you have questions about the FLSA, overtime, minimum wage, or any other employment law questions, contact a Long Island employment lawyer at Famighetti & Weinick, PLLC at 631-352-0050.

Do I Get Paid for a Snow Day?

Famighetti & Weinick — Thu, 04 Jan 2018 15:56:08 GMT

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.

Exempt and Non-Exempt Employees

Both laws separate employees into two categories — exempt and non-exempt. A full discussion of how employees are categorized as exempt or non-exempt is beyond the scope of today’s blog, but more information can be found here. For purposes of today’s discussion about pay for snow days, exempt employees are generally salaried employees who are not eligible for overtime pay. Non-exempt employees are workers who are paid hourly and who should be receiving overtime pay for hours worked over forty in a week. With these principles in mind, we can turn to the question of whether workers should be paid for a snow day.

Snow Day Pay

Non-exempt employees (hourly employees) must generally be paid only for hours worked. So, if the worker does not work on a snow day, then the employer is not required to pay the employee for the day. There is no distinction between whether the business is closed by the employer or if the employee chooses not to report to work for safety or other concerns. Employees must be mindful, however, that if the business is open and the employer expects employees to report to work, that if the worker does not report to work, then the employee may be subject to discipline or reprimand by the employer. Non-exempt employees who report to work but are sent home, must be paid for any hours worked.

Exempt employees are a trickier question. Exempt employees are paid a salary and employers risk converting their exempt employees into non-exempt employees if they improperly dock a salaried employee’s pay. Generally, employers cannot dock an exempt employee’s salary if that employee works part of the workweek or workday. In other words, employers cannot dock the salary of an exempt employee who works Monday through Thursday, but not Friday because of a snow storm. Similarly, if the exempt employee works for a few hours on Monday, but is then sent home before the end of the day because of a snow closure, the employer cannot deduct pay for those hours the business closed. Businesses may, however, require that exempt employees use accrued vacation or other leave time. In sum, a good general rule of thumb is that salaried employees must be paid for a snow day and non-exempt employees do not have to be paid if they do not work, even if the business closes for a snow day.

Wage Laws Have Pitfalls

Both the FLSA and NYLL have numerous exemptions, exceptions, and other pitfalls. Today’s employment law blog about snow day pay should not be accepted as legal advice for any particular situation, but rather should be used for general informational purposes. If you are an employer who is unsure about whether you should pay your employees for a snow day, we are available to discuss your particular situation. Similarly, if you are an employee who believes you should have been paid for a snow day, we can review your case.

Long Island Employment Lawyers

Famighetti & Weinick, PLLC are Long Island employment lawyers. We are experienced in wage, salary, and pay matters and offer free consultations to discuss your questions about payment of wages, whether it be for a snow storm or weather emergency, or whether your question relates to the regular payment of wages. Our employment lawyers are available at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.

Judge Recommends FW Client be paid $30,380

Famighetti & Weinick — Wed, 30 Aug 2017 20:36:08 GMT

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.

Failure to Pay Overtime

The Fair Labor Standards Act and the New York Labor Law require that employers pay employees one and one half times the employee’s regular rate of pay for each hour that the employee works over 40 in a week. In F&W’s gas station case, the plaintiff worked 75 hours per week for nearly a year. The plaintiff alleged that he was not paid overtime for the 35 hours per week that he worked over 40. The Judge agreed and recommended that the plaintiff be paid $8,190 in actual damages and $8,190 in liquidated damages.

Wage Statements and Wage Notices

New York’s Wage Theft Prevention Act requires that employers provide written notice to employees of their wage amounts upon hire and provide wage statements detailing hours and pay rates at each pay period. The law provides that employers must pay statutory damages to employees when the law is violated. In the gas station case, Magistrate Judge Shields determined that the plaintiff was not provided any of the notices or statements required under the law and so he was entitled to statutory damages totaling $14,000.

Attorneys Fees

Both the New York Labor Law and the Fair Labor Standards Act allow attorneys to be awarded fees when they successfully represent clients in cases alleging violations of the laws. To determine the fees to be awarded, courts first determine the reasonable hourly rates for the attorneys who worked on the case, and then the court determines the reasonable amount of hours for attorneys to have worked on the case.

In the gas station, Magistrate Judge Shields determined that $350 per hour is a reasonable hourly rate for Long Island employment lawyers Matthew Weinick and Peter J. Famighetti. The Judge further determined that the amount of time they recorded as having worked on the case was reasonable. By multiplying the hourly rate by the number of hours, the Court recommended that F&W be awarded $11,970 in attorneys’ fees.

Long Island Wage and Hour lawyers

Magistrate Judge Shields’s order will be sent to District Judge Arthur D. Spatt for review. The plaintiff and defendant will have an opportunity to object to Magistrate Judge Shields’s recommendation, and then Judge Spatt will issue an order.

If you have questions about unpaid wages or overtime, contact the Long Island employment lawyers of Famighetti & Weinick, PLLC at 631-352-0050 or visit our website at https://www.linycemploymentlaw.com.