Employee or Independent Contractor? How Some Employers Are Committing Wage Theft

A September 1, 2014 report by the New York Times, revealed an increase in lawsuits across the nation, charging various employers of violating minimum wage and overtime laws. Some of the allegations include erasing work hours and wrongfully taking employees’ tips.

Both federal and state officials argue that more companies are violating wage laws than ever before.  Officials speculate that these violations are motivated by competition and higher profits. However, another argument supposes that the structure of these businesses essentially incentivizes wage theft due to their organizational structure.

For example, the labor department argues that the increased use of franchise operators, subcontractors, and temp agencies leads to more employers being squeezed on costs and more cutting corners. As a result, the companies on top can deny any knowledge of wage theft. Read more

LinkedIn to Pay Millions for Overtime Labor Violations

The popular professional social media networking service, LinkedIn, has recently agreed to pay almost $6 million in unpaid wages and damages to 359 current and former employees.

According to the U.S. Department of Labor, an investigation found LinkedIn Corp. in violation of overtime and record-keeping rules pursuant to the federal Fair Labor Standards Act (FLSA). It said the violations occurred at company branches in California, Illinois, Nebraska and New York.

Federal law requires that hourly employees get paid 1.5 times their regular hourly rates for hours they work beyond 40 per week. The California based company expressed its intent to work closely with the DOL. Representatives for the company maintain that the violations stemmed from a smaller division of the company not having the right tools in place needed to track hours properly. LinkedIn further maintained that it had begun addressing the situation before the Department of Labor got involved. Read more

New Bill to Tighten Restrictions on Employer Inquiry into Applicant Criminal Record

A new NYC Council bill proposes barring employers from asking job candidates if they have a criminal record, or have ever been convicted of a crime, and is expected to become law in New York City very soon.

The ‘Ban the Box’ bill would will essentially prohibit the widely used “check boxes” on job applications that ask about past convictions. Furthermore, the new legislation would prohibit employers from inquiring about an applicant’s criminal record until a conditional job offer has been offered.

A number of states have similar laws. For example, New Jersey’s recently passed a box-banning law that applies to businesses with 15 or more workers. According to sources, New York City will adopt a similar proposal and the law will likely apply to business with four or more employees.

Currently, an employee can legally reject an applicant because of a past conviction.  However, they must go through a mechanical process that, if not properly followed, is likely to result in unlawful discrimination.  Read more

Victims of Unfair Wage and Benefit Practices See Increased Effort by State of New York

Already in the first half of this year (2014), the New York Department of Labor has recovered and dispersed over 16.4 million in wages, interest, and damages, on behalf of workers who were improperly subjected to unfair wages and insufficient benefits.

According to the Department of Labor (DOL), officials have completed approximately 5000 cases in 6 months alone, representing a nearly 50% increase from the amount of cases completed within the same time frame last year. Furthermore, disbursements of monies and benefits that were found to be unfairly withheld have increased by 16%. Generally, these case investigations  centered around accusations of fraud, unpaid wages, misclassification of employees, unemployment benefits, insufficient pay, minimum wage violations and much more.   Read more

New York Annual Wage Notice Requirement to be Discarded

New York’s annual wage notice requirement has been discarded, however other employee protections are in the process of being strengthened

Beginning in 2015, New York employers will no longer be required to provide annual wage notices to existing employees.

The annual Wage Notice duty was imposed on employers as part of the Wage Theft Prevention Act (WTPA or Act), passed in 2010 to remedy supposed abuses of the state’s wage payment laws.

In particular, the WTPA required that all NYS employers provide written notice to existing employees detailing certain wage-related information between the time frame of January 1 and February 1 of each year. This notice required employers to provide information to their employees such as the basis for the employee’s pay rate, whether the employer intended to claim an allowance, the employee’s regular payday, and identifying information about the employer. Read more

Understanding Wrongful Termination

Many circumstances can result in the termination of employment. A firing is often a traumatic and destabilizing event. While these unfortunate occurrences may seem untimely, unfair, and unsubstantiated; the termination may not always qualify as “wrongful.”

What is Wrongful Termination?

Wrongful termination refers to a fired employee’s claim that the firing breached an employment contract, policy or public law. As such, in order to prevail in a lawsuit against your employer for wrongful termination, you must prove that your firing violated your contract, company policy, or law. Read more

Rights of Pregnant Workers Clarified by the EEOC

In an effort to emphasize the fact that employers are legally prohibited from discriminating against workers because of past, present, or future pregnancies, the Equal Employment Opportunity Commission (EEOC) recently introduced new enforcement guidelines on pregnancy discrimination in the workplace. This is the first time the guidelines have been updated since 1983.

Prompted by an increase in the filing of pregnancy discrimination complaints over the last decade, and the correspondingly high number of legal defeats dealt to employer defendants, the EEOC developed the new guidelines to provide clarification about the applicable rules pertaining to the Pregnancy Discrimination Act and the Americans with Disabilities Act. Read more

NY Attorney General Addresses Job Recruitment Discrimination

Discrimination at work can often manifest itself well before a job seeker has had the opportunity to even secure full- or part-time employment.

Recently, the Office of the New York Attorney General, Eric Schneiderman, came to a series of agreements with five New York City-based employment agencies in an effort to resolve allegations of unlawful discrimination and predatory business practices.

The five agencies — Sunset Employment Services, Rivera Employment Agency, Patricia Employment Agency, United Employment Agency and Excellent Employment Agency —  were charged with allegedly targeting Spanish-speaking job seekers whom they unlawfully steered away from high-paying jobs and unlawfully referred them to employment positions paying a mere $3.75 per hour. Furthermore, the agencies also allegedly charged job seekers excessive referral fees and failed to provide refunds of advance fees. Read more

Federal Bill Proposal Seeks To Raise Overtime Threshold

In a combined effort to ensure overtime protections for low- and mid-wage salaried workers, Senator Tom Harkin (D-IA), Chairman of the Senate Health, Education, Labor, and Pensions (HELP) Committee, along with eight Senate officials, recently introduced the Restoring Overtime Pay for Working Americans Act.

Presently, the Fair Labor Standards Act (FLSA) guarantees a minimum wage and overtime pay for private-sector U.S. workers. However, many workers are considered “exempt” from the law, partly because of a salary threshold, $23,660 per year or $455 per week, which is specifically directed at managers and “professional” employees.

Essentially, salaried workers who earn at least that amount of money or more, along with other criteria, are not eligible for time-and-a-half for overtime.

If passed, the bill would ensure overtime protections by guaranteeing coverage to nearly 47 percent of salaried workers. Currently, only 12 percent of salaried workers enjoy such protections, representing a stark decline from the 67 percent mark in 1975.

Among its key provisions, the bill narrows the term “Primary Duty.” Primary duty previously referred to work which was performed the majority (more than 50%) of the time.  However, regulations issued in 2004 removed the majority requirement, thus allowing a worker to be exempt even if he or she spent only a few hours a week managing or performing other exempt duties.

More promisingly, the bill provides for a gradual overtime salary threshold increase for administrative and professional (EAP) workers from the current $455 a week level to $1,090 a week, essentially matching 1975 levels. In addition, the bill provides for a gradual increase for “highly-compensated employees,” by raising the threshold from $100,000- $125,000.

Simply stated, the Restoring Overtime Pay for Working Americans Act would make it more difficult for employers to declare a worker a managers they do not actually spend most their time managing. Indeed, as one sponsoring Senator noted, “Americans who work hard and play by the rules should be fairly compensated for a hard day’s work.”

Age Discrimination: L.I. Based Company Forced to Pay

A Melville insurance brokerage has agreed to pay $300,000 in back wages to settle a lawsuit accusing it of age-based harassment, discrimination and retaliation against three former employees. The suit was filed by the U.S. Equal Employment Opportunity Commission in July 2013.

The EEOC’s lawsuit charged that the company’s management made discriminatory age-related comments and refused to promote one of the claimants based on her age. The agency also said that the employer terminated two employees based on their age and fired a third claimant within three days after an internal meeting with her about her discrimination complaint. The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against those 40 and older. Retaliation against employees who file discrimination claims is also illegal.   Read more