New York Employment Lawyer Blog

Are you employed in Florida and wondering why you aren't getting overtime pay? Get in line. Florida led the nation in FLSA lawsuits in 2009 with over 2000 filed. That's 37 wage and hour lawsuits a week in the sunshine state. There's a number of different theories about why so many FLSA lawsuits are filed in Florida, but I haven't found any of them to be convincing. My theory is that since there is no state wage recovery statute in Florida the only remedy for employees deprived of wages is the federal court and the FLSA.

I recently spoke with another plaintiffs' side employment lawyer practicing in Florida about the increase in FLSA lawsuits in his district and he groaned. As it turns out, the federal bench in Florida has grown weary of these lawsuits and perceives most of them to be abusive. In fact, the Middle District of Florida requires all FLSA litigants to answer judicial interrogatories immediately following the filing of a lawsuit in an effort to quickly resolve these cases.

Another possible reason for the FLSA litigation explosition in Florida - timeshares sales. In a January 25, 2007 opinion letter, the Department of Labor determined that on-property timeshare salespeople are nonexempt employees under the FLSA and are entitled to overtime. There are thousands of timeshares sales employees in Florida who may have only recently become aware of their entitlement to overtime.

If you are one of the Florida residents cheated out of overtime, call us for a free screening to determine your rights.

With so many people losing jobs, I have spent a lot of time talking to people about severance packages. After reviewing so many cases lately, there are a few key points that surface and people should be aware of them when considering a proposed severance package.

Employment Discrimination

First, don't sign the severance agreement if you have been terminated due to employment discrimination. If you sign the severance package, you will waive your right to bring an employment discrimination claim. Instead of signing the proposed severance agreement, you should negotiate for more severance pay. As an example, I reviewed a proposed a severance agreement for a client who I will call Ralph (not his real name). Ralph, was in his 60s, and he had worked for the company for about 12 years. He had been doing a great job, but he was told that the company needed to cut back and had to let him go. They also said his performance had been weak lately. But, the day after Ralph was fired, a younger man was sitting in his chair doing his job. And Ralph's performance was not weak, in fact, it was better than ever. Ralph hired my law firm and we negotiated a better deal using the facts that indicated a viable age discrimination claim.

Unemployment Benefits

People often assume that their employer will not contest their request for unemployment benefits. Remember, your company can dispute your request and argue that you were fired for poor performance or even allege that you resigned. Rather than take a chance on a future battle over unemployment benefits, ask your company to include a written promise not to dispute your claim for unemployment benefits in the severance package. It is a non-monetary concession that companies are often willing to provide.

Health Insurance Benefits

If your employment is terminated, most companies are required by COBRA to allow you to stay on their health insurance plan for up to 18 months or more. But, the employee must pay the insurance premiums and these can be costly. If you are offered a severance package, you should ask the company to pay your health insurance premiums for a few months. For example, if you are offered three months of severance pay, ask the company to include three months of COBRA payments as well.

These are a few common situations that arise in severance pay negotiations. If you need assistance with your severance package, give us a call.

The following is a guest blog article by Dolan Law Offices:

Approximately 36% of people with disabilities who are of working age and live in the community are employed. This means that more than 8.5 million disabled people are working in the United States. While some of these people have been disabled their entire lives, others were just victims of serious personal injury accidents which caused their disabilities. For example, a serious motor vehicle accident can result in spinal cord injuries, traumatic brain injuries and other serious physical limitations.

The Right to Return to Work

The federal Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide people with disabilities an equal opportunity to benefit from the full range of employment-related opportunities. A person with a disability, for purposes of ADA protection, is one who has a physical or mental impairment that substantially limits one or more major life functions.

Reasonable Accommodations

An employer has the responsibility to make reasonable accommodations for a person with a disability. Reasonable accommodations are highly individualized and dependent on the person and type of disability. They may include things such as:

• Building renovations to include a handicap-accessible ramp or bathroom;
• Providing sign language interpreters and TTY services;
• Providing Braille materials and / or readers; and
• Allowing a person to take time off to get medical attention or rehabilitation services related to the disability.

The ADA defines reasonable accommodations as the type of activities, services or renovations that do not create an undue hardship for the employer. The U.S. Equal Employment Opportunity Commission (EEOC) and courts will consider things such as the nature of the accommodation, the cost of the accommodation with relation to the assets of the employer, and whether any other accommodations exist that would allow the employee to benefit from the full range of employment-related opportunities and would be less of a burden to the employer.

What to Do If You’ve Been Denied Reasonable Accommodations

If you believe that you have been discriminated against because of your disability and that you have been denied an equal opportunity in recruiting, hiring, promotion, training, pay or any other employment benefit, then you may have the right to file a complaint with the EEOC. A lawyer can help you evaluate your case and represent you before the EEOC and in any subsequent or related legal proceedings.

Dolan Law Offices is a Chicago, IL personal injury law firm. We represent victims who suffer serious injuries such as traumatic brain injuries and spinal cord injuries in Illinois. We are committed to helping each of our clients recover full and fair compensation for their injuries.

Are employees in small companies protected by the FLSA and therefore entitled to overtime pay? Most busineses, even small businesses, are required to comply with the FLSA. The FLSA protects employees working for an "enterprise" which employes more than 2 people and makes over $500,000 in gross annual revenue. This brings most small compaines within its protection, including small mom and pop restaurants, grocery stores and pharmacies.

Lawsuits against smaller companies for unpaid overtime are on the rise. See this article for examples of this trend. Some smaller companies simply can't afford to pay employees overtime and willfully violate the law. Other companies are ignorant of the law and negligently misclassify workers. The former are subject to greater penalties for willful violations, but attorneys' fees can be assessed against either category of violator. If you are an employee at a small company and think you are being deprived of overtime compensation, you should call for a free screening to determine your rights.

Overtime pay theft is rampant with some reports saying 19 billion per year in overtime is stolen. What is the reason for this stunning statistic? Why are so many people losing so much money to overtime wage theft? The answer is simple. Companies know that the Department of Labor, the government branch that is supposed to protect workers, is a worthless do nothing government agency. Studies have found that calls for help are not even returned by the Department. In fact, as part of an investigation into the Department's neglect, a caller reported child labor abuses with children being forced to run saws in a meat packing plant during school hours. The call was not even returned. The government does not protect workers and that is why overtime is not paid. See this article explaining in more detail.

Since the government is broken, this means that the private sector has to do the job. It seems like every employment law firm is getting into the overtime pay business. More law firms are needed to help protect workers from overtime pay abuses. Our employment law firm has an office San Francisco and New York City to handle these cases.

This is a very hard question to answer. I usually ask a few questions before providing a response - do you want to? Why? The first think you need to do is look in the mirror and ask why you want to leave. If you can convince yourself (or maybe your spouse or another trusted person in your life) that you are not being treated fairly and need to leave, then you should start to plan a departure. Don't make a hasty decision. With few exceptions, you can't take back a resignation, and if you have access to sensitive company information, your departure may be hastened if your employer perceives any threat of disloyalty.

Practically speaking, the problem with resigning is that the law does not encourage it. With few exceptions, a resignation means forfeiting your right to unemployment, recovery for having to leave the workplace due to harassing behavior, entitlement to any unpaid bonus compensation (even earned) and/or a severance payment. Why are people forced to endure unfairness? If I had a dollar for every time I answered this question, I'd be a rich man. Public policy encourages employment, even if this creates hardship for some.

If you must leave the workplace, consult with an attorney about the best way to go about it. If you are leaving due to workplace hostility, you will need to know (1) what you are allowed to remove from the workplace, (2) what you should say/do on your way out and (3) what type of treatment and compensation you can expect from your employer after you resign.

This video sets out the facts of typical retaliation case.  Retaliation is common and retaliation is often easier to prove than discrimination.  We like retaliation cases at our firm.   Here are the top three signs that retaliation has occurred:

1.  An employee complains about illegal workplace conduct such as discrimination, sex harassment, failure to pay overtime or other wages. 

2.   Soon after the complaint is made, the employer takes adverse employment action against that employee such as firing, demotion, assignment to less desirable work, or any other action that would tend to punish or deter others from making such complaints

3.  There were no other pre-existing disciplinary actions or issues prior to the employee’s complaint such that the employers conduct is clearly and directly linked to the employee’s complaint. 

Good retaliation cases are usually simple.   At our firm, for example we recently  represented an employee who worked for a large company and complained that her boss was sexually harassing her.   The company immediately began a campaign of retaliation by reducing her ranking on her annual evaluations and subjected her to unfounded performance complaints and ultimately the company drove this employee to quit.   We proved that this employee was retaliated against after she complained about sex harassment and she was awarded a substantial sum of money.  

People want to know how their severance pay was calculated.  Some have asked if I know the formula.   A formula does not exist.  Severance pay is unregulated.   Companies can pay whatever amount they want, including zero.  

Back in the pre-recession days, companies would consider a person’s years of service and their rank or position in the firm when setting severance pay.   But now, the gloves are off.   Today, there is only one factor in determining severance pay – what is the lowest amount possible that will induce a person to waive their rights.   Companies are bargain hunting.   They want your waiver and they want it for less.   They want you to go quietly and cheaply.   But ultimately it is up to you – you don’t have to sign the agreement.   You can say no and that might be a good way to test the company to find out what they are really willing to pay.   You can’t get a good severance package unless you are willing to walk away.   Most people, however, don’t have it in them to push back, they just take the first offer.   Only the shrewd get the really good deals.   

One of the first things I look for in a severance agreement is a non-compete clause.   They should always be removed – or if the company insists on keeping the clause in the agreement, you should either not sign  it or make sure you are paid handsomely for it. 

These clauses are sneaky because people often do not notice them.   Worse, courts may actually enforce a non-compete agreement if extra money is paid for it – even a small severance payment can count.  

Courts typically are reluctant to enforce a non-compete agreement against a person who was terminated.   But, if the non-compete is part of a severance agreement, then the court is more likely to enforce it.  So if you are reviewing a severance agreement, make sure yours does not include a non-compete clause.  If your severance agreement includes a non-compete clause, ask your company to remove it.  Many companies will remove them if you ask.   If the company will not remove the clause, then think about walking away because it might not be worth signing it.  

People call us almost daily asking for help with their severance pay agreements.  Many of them just want to know how to handle the matter themselves because they don’t want to hire a law firm.   If you want to handle your own severance agreement, here are three things you need to understand.  

1.  You Have No Legal Right to Severance Pay

Companies are not required to offer severance pay.   There is no legal formula or standard for severance pay.   Companies can pay whatever amount they want or none at all. 

2.  Your Company Wants Something From You

Companies offer severance pay for one reason only – to get you to sign a waiver giving up your right to sue them or cause problems.   They are paying you to leave quietly.  

3.   Reality

Today, in this recession, most companies take a hard line with severance pay offers.   Often you face a take it or leave it situation.   Typically companies will not materially alter the agreement unless you have a genuine legal claim.   If you have a real case of employment discrimination or sexual harassment of other claim, you can substantially increase the severance pay out.   Most people, however, do not have a case and without real leverage it is tough to negotiate an substantial increase in severance pay.

There is an editorial in today’s New York Times entitled “Open the Door.”   The article states that “victims of employment discrimination are increasingly finding the courthouse door closed, as conservative judges twist the law to throw out civil rights suits on technicalities.” 

This is a good point.  But there are many great judges out there who handle employment cases fairly and those judges should be recognized.   Yes, there are many judges out there who seem opposed to these cases.   The attention though should be focused on the good judges who leave their personal or political views out of the courtroom and thankfully there are many of those.   I appear before excellent judges all the time who give both sides a fair shot.     

My seven month old daughter hardly every blinks. My wife and I noticed this at some point in the fall and debated the origin and seriousness of the condition. In my uninformed opinion, low frequency blinking is a genetic characteristic. My wife was unconvinced and had her checked out by our pediatrician, who said it wasn't a problem (but didn't elaborate).

Why do babies blink less than adults? As it turns out, a number of factors contribute to low frequency blinking in babies, including less stress and more sleep than adults (go figure).

I was not entirely wrong. There is some evidence to suggest that low frequency blinking is an inherited trait. So could an airline require genetic testing for pilot candidates in the hopes of weeding out high frequency blinkers and identifying low frequency blinkers? If the condition is genetic, probably not. In the last 10 years, the federal government, and many local governments, have passed legislation prohibiting discrimination in employment based on genetic predisposition.

Too far fetched? Think again. Disability discrimination claims have originated this way. In fact, the Burlington Northern Santa Fe Railroad was sued by the EEOC for requiring that their employees who file claims for work-related carpal tunnel syndrome undergo genetic testing for a genetic deletion that has been proposed to make a person more susceptible to the condition. Before it went to trial, the Burlington Northern Santa Fe Railroad settled the lawsuit and stopped requiring genetic testing for their employees.