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NEW YORK

EMPLOYMENT
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FAQ about Employment Law

I am not a legal citizen of the United States. Am I still entitled to recover unpaid overtime?

Yes. Federal and New York State law provide that even if an individual is not a citizen, he/she still is entitled to pursue a claim for unpaid overtime or minimum wage compensation. In other words, immigration status is irrelevant when we are suing for damages like unpaid overtime, which have to do with work the employee has already actually done in the past. Several recent efforts by management to change this have all failed. A very large percentage of the unpaid minimum wage and/or overtime wage cases brought by our office are brought on behalf of undocumented immigrants. They are welcome in the federal courts, and there have never been any problems because of immigration status, except where the individual has had some serious criminal history in the past. Where the individual has been convicted of some serious crime, previously deported for some serious crime, or has an arrest warrant of any kind outstanding, we will advise the individual not to bring any kind of a lawsuit in most cases.

Can undocumented workers recover for discrimination?

In most respects, Yes. However, there is a problem in collecting “front pay”, which is the salary the employee did not earn as a result of being fired, i.e., the future pay that would have been earned at that job if the employee had not been fired for discrimination, this is more complicated and more difficult. This is due to a United States Supreme Court case called Hoffman Plastic Compounds v. NLRB (National Labor Relations Board), 535 U.S. 137 (2002). The employee was fired for supporting a union-organizing campaign, and the NLRB ruled that this was a violation by the employer and that he was entitled to payment for the time after he had been fired. Unlike in an overtime case, this pay was to compensate him for a period of time during which he had not actually worked. At a hearing before the Administrative Law Judge (ALJ) to determine the amount of pay he was entitled to, he not only admitted that he was undocumented, but that he had obtained hi employment by furnishing a birth certificate that was not his own, which was fraudulent. The United States Supreme Court reasoned that this created a conflict between the National Labor Relations Act, which was designed to promote the right to organize and form a union, and the IRCA (Immigration Reform and Control Act of 1986, which made it unlawful for employers to knowingly hire undocumented workers and for employees to use fraudulent documents to obtain employment. The United States Supreme Court held that the award of pay the employee would have earned after being fired could not be awarded because it would have violated IRCA, the immigration law. THIS HAS FORTUNATELY NEVER AFFECTED OVERTIME CASES, and the United States Supreme Court has fortunately not accepted cases which tried to make this same argument with respect to time actually worked in overtime cases by undocumented immigrants. This obviously has no effect on cases brought by U.S. citizens, Lawful Permanent Residents and people with valid work permits.

My employer only pays me in cash. Can I still pursue a claim for unpaid overtime or minimum wage compensation?

Yes, Absolutely. Even if you were only paid in cash, you are still entitled to pursue claims for unpaid overtime and minimum wage against your employer. If the employer has not kept signed receipts for the amounts of cash paid to the employee, it makes the case even stronger, because if the amount the employee was actually paid is disputed and the employer kept no records or inadequate records, the employee usually wins this dispute. The employer always has the responsibility of keeping records of the exact amount each employee was paid, and is required to keep these records going back six years under New York State law.

What is the minimum wage in New York and under federal law?

Under New York law, the hourly minimum wage went up $8.00 on 12/31/13, $8.75 on 12/31/14 and $9.00 on 12/31/15. Under federal law, the minimum wage is still only $7.25 per hour, but where the New York State minimum is higher than the federal, the employer is always required to pay the higher wage. . The New York state and federal minimum wage is different for tipped employees like servers and waiters. Under the New York State Department of Labor (NYSDOL) Hospitality Industry Wage Order (Part 146 of Title 12, NYCRR), Employers may calculate tips into a tipped employee’s wage but employers must pay the tipped employee at the applicable minimum tipped wage, and keep records of the amount of tips the employee receives, and the total must be equal to or greater than the regular state minimum wage. In any state, the state may establish its own minimum wage laws; however, if the employee is subject to different federal and state minimum wage laws, the employee is entitled to the higher minimum wage.

What is my hourly rate?

Your employer is required to give you a written statement showing you how much your hourly pay is, and he is supposed to sign it and keep it for 6 years. If you do not receive pay based on an hourly rate, your regular rate must be converted into an hourly rate, called a regular rate of pay (RRP). If there is no clear understanding between you and your employer as to what your hourly rate is, and you work over 40 hours per week, you probably have an overtime violation that you can sue for. If there is no clear understanding about what your hourly rate of pay is, your Regular Rate of Pay (RRP) will calculated according to both New York state and federal regulations. A simple example of this is illustrated below.

What is my overtime rate?

Under both state and federal law, the overtime rate is one and one half times your regular rate of pay per hour, or RRP. It is not that complicated. For example, if you work 6 days a week, ten hours a day, and earn $600 per week, your regular rate of pay (RRP) i calculated as follows:

Weekly Pay = $600 ÷ 60 hours per week = $10 per hour (RRP) × 1.5 = $15.00 per hour (Overtime Rate)
Note that this calculation will be different for tipped employees.

How much am I entitled to for my unpaid overtime hours?

The calculation of the amounts due for unpaid overtime change quite a bit in each case, even for different employees within the same company. These calculations should normally be done on Excel spreadsheets, because many times the numbers we input into these calculations will change and we want to be able to “tweak” them without doing the whole thing over. However, to take a very simple example, assume the same employee as the example above has been working 60 hours per week at $600 per week for the 4 years before the filing date of the complaint.

Hourly Overtime (OT) Rate – (Calculated Above) = 15.00 Less RRP (Also Calculated Above) $10 = Hourly OT Deficiency = $5.00

OT Hrs/Wk = 20 × Hourly OT Deficiency = $5.00 = Weekly OT Deficiency = $100

Number of Weeks Worked (4 Yrs x 52 Weeks) = 208 Weeks x Weekly OT Deficiency = $100 = $20,800

Plus Liquidated Damages at 100% = $20,800 × 2 = $41,600

In addition to this, sometimes we can get both state and federal liquidated damages and New York State interest at 9% from a logical midpoint. Both the federal and New York state statutes provide for the employee’s attorney’s fees to be paid by the employer, and the federal statute also provides that the employer has to pay the costs, like filing fees, investigators bills, and court reporter’s charges if the employee is successful in recovering unpaid overtime in the case.

How do I prove the amount of hours and overtime hours I work?

Employees are required to keep accurate records of their employees’ hours worked, and if they fail to do so, the employees’ testimony about his/her hours can be enough to prove the hours worked and bring the case. The burden then shifts to the employer to show the exact number of hours the particular employee worked during the period in question. Employers are required by law to keep accurate and complete records of the exact work hours of all nonexempt employees, and these records are required to be contemporaneous, which means that they have to be on an ongoing basis; the employer is normally not allowed to reconstruct them later on. A punch clock or bio finger scan is acceptable means of keeping time records. The employer is allowed to keep his/her own record of the hours in a notebook, but this will be subject to much more dispute than a punch clock or bioscan, particularly if the employee did not participate in keeping it, (by signing in and out, for example), or if the employee did not know if it was being made. Additionally, if the records always have the exact time, never a few minute late or a few minutes early, this starts to look like a schedule instead of time records, and it will often be called into question. It is clear that work schedules, even if they were posted or distributed to the employees, are normally not enough to meet the employer’s recordkeeping burden. Federal law does not specify the records’ particular form, but it requires employers’ records to include identifying information about the employee and information regarding the employee’s exact hours worked and wages earned. In short, employers can use any method of timekeeping, but the records must be complete and accurate.

What if I do not report my overtime to my employer?

Under both state and federal law, employers are responsible for documenting the work hours and pay of all employees. They are required to keep accurate and complete records and to keep them. Employees who do not report their overtime work to their employer are still entitled to the overtime wages earned, but if the employer has a plausible claim that the employee specifically did not clock in or out after being repeatedly told to do so, this can sometimes create problems in the case. However, if none of the employees ever clock in or out because they are always paid the same amount no matter how many hours they work each week, and the employer has allowed this to go on for long periods of time, this puts the employer in the position of not having kept records at all. This example is the same as if the employer had never installed the punch clock, because what is the point of a punch clock if the employees are not told to use it. This result follows because the employer has control over the workplace – this means the employer has the right to tell the employees what to do, and has the right to fire them if they do not comply.

If you are paid according to a piece rate, your regular rate is calculated by dividing the total weekly earnings by the total hours you worked. For any work in excess of 40 hours, you are entitled to overtime at one and one half times your regular hourly rate.

If you are a salaried worker, your regular pay rate is calculated by dividing your salary by the number of hours for which you were compensated. Again, for any work in excess of 40 hours, you are entitled to overtime at one and one half times your regular hourly rate.

Am I an exempt or nonexempt employee?

Federal law was enacted to ensure that workers are treated fairly, receive the compensation to which they are entitled and are not taken advantage of by employers. Despite this, some employees are exempt from both minimum wage and overtime pay.

Unfortunately, employees who are exempt under federal law are usually exempt under New York state law as well, because many times the state exemptions are keyed to the federal ones, but not always. For example, live in domestic workers are protected under New York state law, even though they are exempt employees under federal law.

My boss says that I am an Independent Contractor. Does that mean that I am one? ?

No. Many employers call their employees independent contractors to avoid paying them overtime and other benefits, and to save money on payroll taxes, unemployment insurance, worker’s compensation. This is called misclassification. If your employer maintains a high degree of control over you, you are probably an employee, and entitled to the benefits an employee gets, regardless of what the employer thinks or says. For example, if you have to be at the employer’s premises according to a set schedule, and you have no control over when or where you are going to work, you are probably an employee. If you have a lot of freedom as to when you want to work and when you don’t, you are probably an independent contractor. The greater the level of control your employer exercises over you, the more likely you are to be an employee. Whether you are an employee or an independent contractor is a legal conclusion that will often be determined after a lawsuit or after a hearing before some type of agency.

Federal law seeks to protect employees from wage and hour abuses, but the law does not cover every employee in all situations. Qualified employees are treated differently from independent contractors with regard to overtime wages. People who are, in fact, independent contractors are not entitled to overtime pay under the NY Labor Law or under the FLSA.

Many state and federal agencies are very upset about the number of employees who are being misclassified as independent contractors, primarily because this costs them tax payroll tax revenue and numerous other fees. Many employers who misclassify their employees as independent contractors will be highly motivated to settle employee’s claims with their attorneys because they wish to avoid attention that may lead to audits by the Wage and Hour and Unemployment Divisions of the New York State Department of Labor, the State Insurance Fund, and many other others. Very commonly, when one of these agencies makes a misclassification finding against an employer, they do cross-notifications to the other agencies, creating a cascade of expensive problems for the offending employer. Many employers are very anxious to avoid scenarios like this.

Am I entitled to receive meal periods or “breaks” under New York law?

Most workers are allowed at least thirty (30) minutes for a noon meal under the New York Labor Law. Every person employed in or in connection with a factory is allowed at least sixty (60) minutes for the noon meal.

The noon meal period is recognized as extending from eleven o’clock in the morning to two o’clock in the afternoon.

Am I entitled paid holidays, sick time or vacations under New York law?

An employer does not have to pay you for holidays, sick time or vacation under New York law, unless an established workplace policy, custom or contract requires it. Nor is the employer required to pay time and half for nights, weekends, or holidays, unless the total hours for that week exceed 40 hours.

If an employer pays you for holiday, sick time or vacation time, the employer can unilaterally impose its own conditions on the benefits, but the employer may not provide those benefits in a discriminatory or retaliatory manner or in a manner that otherwise violates federal, state or local law.

Is there a time limit to filing my Overtime claim?

You only have a limited amount of time to file your claims relating to your employment under the federal and state laws. The time limit is known as the statute of limitations.

Under the federal law, you can only sue for overtime you should have been paid within the two years before your complaint was filed in court. However, if the employer’s violation is proven to be willful, this statute of limitations period is extended to three years. An employer’s violation is willful if it knew that its conduct violated the law, showed a reckless disregard as to whether its behavior violated the law or has a prior history of violating the law.

If I filed an overtime complaint with the Department of Labor, does that mean that I still have time to bring a lawsuit if the Department of Labor does not get me my unpaid overtime?

No. Filing a complaint with the Department of Labor, whether it is the Federal DOL or the NYS DOL, does not “stop the clock” on the running of the statute of limitations. Many people assume that because they filed with the DOL, that their time to sue is not running out – THIS IS NOT CORRECT. If you filed an overtime complaint with the DOL three years ago, it is now too late for you to sue that employer in federal court because that time has now run out. The fact that you thought that it was going to be settled, or that this meant the employer knee about does not matter.

If I filed an overtime complaint with the Dept. of Labor but it has not been settled yet, can I still bring a lawsuit?

Yes, but there are two things you must remember. i) You will have to drop your DOL claim before filing the overtime lawsuit based on the same facts, and we will be happy to do that for you, because you cannot have both proceedings pending against the same employer at the same time; you have to pick one of them. ii) Even if the statute of limitation to sue has not yet run out, whatever time is now gone because the statute of limitations has run out is now lost, and cannot be recovered. This usually means that the employee will have lost some, but not all of the claim. Remember that where the employee is no longer working for the defendant employer, the right to sue for one more week of overtime is lost with each week that goes by before the complaint is filed in court.

Contact Us – New York Employment Law Attorneys

The attorneys at the Law Offices of William Cafaro have broad experience with wage and hour law claims. Our attorneys would be pleased to meet and discuss your concerns with you. There is no charge for the initial consultation. Call our law firm at (212) 583-7400 to schedule an appointment.

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12. b.

Las Officinas-Legales-de-William-Cafaro

108 de la Calle 39 Oeste, Oficina 602
Suite 602
Nueva York, NY 10018

 

Fax: (212) 583-7401

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