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Home    >  Practice Areas  >  Employment Law  >  Employment Law Topics

Minimum wage

According the Department of Labor (DOL), the NY State minimum wage increased on December 31, 2018. In New York City, it is $13.50 per hour for businesses with 10 or fewer employees, and $15.00 for businesses with 11 or more employees. In Suffolk, Westchester, and Nassau counties, it is $12.00 per hour.

Employers are required by law to pay employees based on the minimum wage. Enforced by the DOL’s Wage and Hour Division, the Fair Labor Standards Act (FLSA) establishes basic minimum wage pay standards. Covered nonexempt workers are entitled to a federal minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the employee's regular rate of pay is required after 40 hours of work in a workweek.

 

States also have minimum wage laws. Some state laws provide greater employee protections; cases in which an employee is subject to both the state and federal minimum wage laws entitle the employee to the higher of the two minimum wages.

Overtime

The FLSA also establishes basic overtime pay standards. The law regarding overtime is simple: a non-exempt employee must be paid time-and-a-half for all hours worked over 40 hours in a workweek. 

 

Employers frequently try to avoid payment of wages by misclassifying workers as:

1. Managers or supervisors;

2. Independent contractors; and/or

3. Unpaid interns.

 

If you feel you have been subject to overtime violations, contact us today.

Spread of hours 

The FLSA also establishes basic overtime pay standards. The law regarding overtime is simple: a non-exempt employee must be paid time-and-a-half for all hours worked over 40 hours in a workweek. 

 

Employers frequently try to avoid payment of wages by misclassifying workers as:

1. Managers or supervisors;

2. Independent contractors; and/or

3. Unpaid interns.

 

If you feel you have been subject to overtime violations, contact us today.

 
 
 

Tipped Employees

According to DOL, a tipped employee is an individual who holds a job in which he or she regularly and customarily receives over $30 monthly in tips. Under the FLSA, a tipped employee’s employer is required to pay $2.13 hourly in direct wages if that amount combined with received tips equals the federal minimum wage or $7.25. However, if tips combined with direct wages of at least $2.13 hourly is lower than $7.25, the employer is obligated to pay the difference.

 

An employer may elect to deduct a “tip credit” from the wages of workers that customarily and regularly receive tips. However, in order to do so, an employer must meet the following requirements:

 

(i) The employer must inform the employee in advance and provide a wage statement detailing the amount of tip credit claimed for each pay period.

 

(ii) The employer must ensure that the employee receives at least the applicable minimum wage rate when direct wages and the employee’s tips are combined.

 

(iii) The employee is entitled to keep all of their tips, except to the extent that they participate in a valid tip pooling or sharing arrangement.

 

(iv) The employer can not cause the tipped employee to engage in non-tipped activities exceeding 20% of each workday.

Misclassification of workers as independent contractors

The misclassification of employees as independent contractors is a major concern for America’s workforce and its economy. This refers to when workers are treated as contractors but should be classified as employees in an employer’s attempt to cut costs. These lower costs include exemption from paying:

* Social security or Medicare (FICA taxes) contributions

* Worker’s compensation premiums

* Unemployment insurance taxes

* The minimum wage

* Overtime

In short, contract workers are less of a legal liability than employees because they can’t sue on the basis of employment laws for unpaid wage as "employees" or under laws that prohibit discrimination, whistleblower retaliation, wrongful termination, and harassment.

 

Not only government officials, but also workers themselves are filing lawsuits to hold employers accountable that engage in misclassification. We are helping these individual workers to crack down on employers who misclassify their employees as independent contractors.

 

 

Our firm is experienced in filing class action lawsuits to address this growing problem. If you feel you have been subject to misclassification, contact us today so we can help you recover back pay and other benefits.

Unpaid sales commission

It is against the law for employers to withhold commissions on sales made during employees’ employment. Employers are obligated to pay all wages, including commissions, before the termination of your employment. Your employer may be liable for damages if they refuse to pay your owed commission sales earned during your employment.

Whether you are currently employed or recently terminated, we can help you recover unpaid sales commissions. We are experienced in helping people recover commissions they rightfully earned.

 
 
 

Wage statements

The NYLL requires employers to furnish each employee with a wage statement listing “the dates of work covered by that payment of wages, name of the employee, name of employer, address and phone number of employer, rate or rates of pay and basis thereof … gross wages; deductions; allowances, if any, claimed as part of the minimum wage; and net wages.” NYLL § 195-3.

Sexual harassment

According to the U.S. Equal Employment Opportunity (EEO) Commission, it is a crime to harass an applicant or employee because of that individual’s sex. Harassment includes sexual harassment, unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment sexual in nature.

 

Harassment is not limited to that of a sexual nature. It includes offensive comments about a person’s sex, such as harassing a woman by making remarks about women in general. Harassment becomes illegal when it is so severe or frequent that it creates a hostile work environment, or when it spurs an adverse employment decision such as termination or demotion.

Victims and harassers can be any sex. If you feel you have been subject to sexual harassment, contact us today.

Gender discrimination

Discrimination based on gender or sex is against the law. This type of discrimination includes considering a person’s gender in hiring, firing, responsibilities, promotions, discipline, job tasks, and any other employment decision.

If you feel you have been subject to gender discrimination, contact us today.

 
 
 
 

Age discrimination

Age discrimination is illegal under federal, state, and city law to protect the rights of all people, regardless of age.

Unlawful discrimination based on age manifests in many forms. For example, employers often advertise to, interview, and hire young candidates in order to have young employees.

If you feel you have been subject to age discrimination, contact us today.

Race discrimination

Race discrimination is illegal under federal, state, and city law to protect the rights of all people, regardless of race.

If you feel you have been subject to race discrimination, contact us today.

Disability discrimination

Having a disability should never discredit or disqualify an individual from gaining or maintaining employment. Many laws protect employees from disability discrimination, and we are committed to defending the rights of those who have been discriminated against due to having a disability.

The American With Disabilities Act of 1990 (ADA) rendered discrimination against the disabled in employment matters illegal. A disability refers to a physical or mental impairment that substantially limits one or more major life activities. A person with a disability may have a history or record of an impairment, or may be perceived by others as having an impairment.

In New York, state and city laws provide that employers must reasonably accommodate employees on account of their disability. This includes modifying the office to allow for employees to engage in their work without impediment, such as making sure the workplace is accessible to those with disabilities.

If you believe that you have been treated differently or discriminated against in the workplace due to a real or perceived disability, contact us today.

 
 

Pregnancy discrimination

Employers cannot discriminate against or harass an employee because of her pregnancy or pregnancy-related health condition. Pregnancy discrimination refers to discrimination on the basis of pregnancy, childbirth, or related medical conditions. This extends to comments made about an employee’s pregnancy or discriminatory hiring practices and job performance evaluations due to the pregnancy.

If you feel you have been subject to pregnancy discrimination, contact us today.

Retaliation

According to the U.S. Equal Employment Opportunity Commission, under all circumstances, participating in the process of a complaint is protected from retaliation. As long as an employee is acting on a reasonable belief that an event is occurring in the workplace that violates equal employment opportunity (EEO) laws, any acts to oppose discrimination are protected. In the federal sector, retaliation is the most frequently alleged basis of discrimination.

 

It is against the law to retaliate against employees or applicants for the following:

1. Being a witness or filing in an equal employment opportunity (EEO) charge, investigation, lawsuit, or complaint

2. Engaging in communication with a manager about employment discrimination, which includes, but is not limited to, harassment

3. Answering questions during a harassment investigation

4. Refusing to follow orders that would result in discrimination

5. Resisting sexual advances or intervening in the efforts to protect another person

6. Requesting disability or religious accommodation

7. Asking managers or co-workers about salaries to uncover discriminatory wages

 

However, engaging in EEO activity does not protect an employee from all discharge or disciplinary action. Employers reserve the right to terminate or discipline employees if motivated by non-discriminatory and non-retaliatory reasons. An employer is, however, not permitted to act against EEO activity that would discourage anyone from resisting or filing a complaint regarding future discriminatory activities.

For instance, an activity could be retaliation if an employer acts due to the employee's EEO activity to:

* discipline the employee or give a performance evaluation that is unreasonably lower than expected;

* demote the employee;

* engage in any form of physical or verbal abuse;

* report or threaten to report to the authorities any information, such as immigration status

* increase scrutiny;

* create and spread false rumors or unfairly treat a family member, such as canceling a contract with the individual’s spouse

* increase the difficulty of the individual’s work

Whistleblower

Whistleblowers are individuals who come forward and expose critical information about misdemeanors and wrongful activity, and they have rights. The False Claims Act of 1863 established that whistleblowers could receive rewards to the exposure of wrongdoings.

 

The DOL’s Occupational Safety & Health Administration’s (OSHA) Whistleblower Protection Program protects employees who report violations of laws including but not limited to those pertaining to safety and health. Section 11(c) of the OSH Act protects employees from discrimination for reporting any such violations, filing OSHA complaints, reporting injuries, raising safety concerns, and other examples of exercising workplace safety rights.

A whistleblower’s action’s success relies heavily on the expertise and experience of the law firm fighting the case. As the law regarding whistleblowing is very complex, experienced whistleblowing litigators make all the difference in ensuring the best outcome for whistleblowers and all employees involved in the mistreatment under consideration. Our skilled attorneys experienced in whistleblower cases have a level of law understanding that can ensure the best outcome possible.