New York Employment Lawyer Blog

I have screened plenty of calls from the recently terminated, and by far the most common inquiry involves a separated employees’ right to accrued vacation pay. My answer – it depends. If your employer has a monthly vacation accrual policy, you are entitled to a prorated share of your annual entitlement based on the number of months worked prior to your termination. However, many employers include disclaimers which nullify the benefit upon termination. Look closely for these policies – if they are in your employment manual, you don’t get anything.

This is not a matter of pocket change. Some generous employers allow for rollover of vacation days, and employees can accumulate a substantial reserve of accrued vacation days. I have a friend who made a down payment on an apartment with his accrued vacation cash out. Don’t leave any money on the table. Accrued vacation time should be the first benefit you seek in your severance payment negotiation, followed by any unpaid overtime wages.

At the end of the 1978 movie "Animal House," before the credits role, the fate of the degenerate frat boys at the heart of the story is revealed in short clips. John "Bluto" Blutarsky, played by John Bulushi, becomes a U.S. Senator, and others become doctors and diplomats, the joke being that drunken depravity is not a liability in some supposedly respectable professions.

If you are an employee in a law firm or medical office, don't expect a civil work environment simply because you work among the well-educated. The Blutos of the world, often blessed with social privilege and elite schooling, take their depravity into adulthood. In fact, there are plenty of professional offices which become small social clubs, like fraternities, centering on the same rituals of drinking and debauchery.

Sexual harassment involves the exploitation of power. Doctors' and lawyers' offices are not immune to these abuses.

One of the dirtiest tricks out there is the so called “overtime waiver.”   Some sleaze bag companies have their employees sign an agreement giving up their right to be paid overtime pay.   It looks legal and sounds legal.   Hey, it is a contract so it must be valid – that is what everyone thinks.  But don’t be fooled.  That agreement is a sham – bogus – practically criminal.

The law is clear – an employee CANNOT waive his right to overtime pay.   If your company had you sign one of these overtime waivers then you are probably working for a sleazy company.   Ignore that waiver – burn it – it means nothing.   You have the right to overtime.  

Just so you know, we see these waivers all the time.  Companies do it a lot – why – it works.   Most employees get tricked into thinking that they do not have the right to overtime pay.   Pretty slimy.   Don’t fall for it. 

Yes, in New York your employer can require that you work overtime.   In fact, your employer can even discipline you if you refuse to work overtime.   The law only requires that you be paid time and half for each hour of overtime that you work, but you do have to work overtime if asked.    You can refuse to work overtime, but then your employer is free to fire you.  If your employer requires overtime from you, you either have to do it or risk being fired.   If you don’t want to work overtime, your best bet is to find another job – one that will not require overtime.  

Yes, salaried employees are often entitled to overtime.   People frequently assume that overtime pay is only for hourly employees, but this is wrong.   Being paid a salary is not a factor – what matters most is the kind of work you do. 

A salaried employee, like an hourly employee,  must be paid overtime unless they meet the test for exempt status as defined by federal and New York state laws.   So – the easy answer to this common question is that being paid a salary is not a factor.   Do not assume that you are not entitled to overtime pay just because you are paid a salary.   You may be entitled to overtime pay. 

Another day, another new disability discrimination case involving a plaintiff with diabetes. In my practice, I have screened a number of cases involving legitimate claims of diabetes-related disability discrimination, more than any other protected disabling condition. As it turns out, there is a long history of intolerance towards employees with diabetes. For many years, a diagnosis of diabetes automatically disqualified many otherwise qualified applicants from certain categories of employment, including firefighting and police work. While these early prohibitions have since been declared illegal, many diabetic plaintiffs still face an uphill battle in court.

What's the problem, anyway? Well, before the 2009 Amendments to the Americans with Disabilities Act, diabetics often slipped through gaps in the law that left them unprotected (i.e. diabetics were not considered disabled because they could entirely mitigate symptoms with medication). However, with the changes to the ADA, employers must now accomodate disabled employees regardless of the impact of mitigation measures (medication) on an employee's disabling condition.

Employers don't like accommodating diabetes in the workplace. I had a case where an employer told a diabetic employee that her diabetes was the result of her own poor lifestyle choices and refused to accommodate her. The most serious disability discrimination case I have ever seen involved a diabetic plaintiff - a graveyard shift employee pleaded with his employer for a daytime shift to accommodate his diabetic condition, and the employer refused. As a result, his diabetes worsened to the point where hospitalization was required.

If you have diabetes and believe you have been discriminated against, the EEOC has an extremely detailed fact sheet which outlines a disabled employee's rights under the ADA. If you have diabetes, expect hostility from your employer, and protect yourself from discrimination by clearly requesting accommodations necessitated by your condition in an email to your EEO officer or Human Resources representative.

Yes, New York law requires that employers pay overtime, whether authorized or not.  The overtime rate must be one and one-half times the employee's regular rate of pay for all hours worked in excess of 40 hours in a workweek. 

An employer, however, can discipline an employee if he or she violates the employer's policy of working overtime without the required authorization.  So the bottom line is that you must be paid overtime even if your company did not approve it.   But, your company can discipline you for doing this.  

Did you catch Steve Carell’s hilarious exit interview of fellow (and now former) NBC employee Conan O’Brien on The Tonight Show? Carell’s deadpan mockery of the exit interview hardly exaggerates the reality. HR professionals are trained to ask personal questions to probe for morale problems or discrimination which may have motivated an employee’s resignation, often feigning sympathy before coldly asking for keys, badge and your copy card.

Hold your head high in an exit interview. Be forward and blunt, and be candid about discrimination, particularly sexual harassment. If you bring a lawsuit, your statements in your exit interview will be exhibit A. If you decide to play nice and fail to raise discrimination as a reason for leaving, you will lose a tremendous amount of credibility and face an uphill battle in court.

One of the most common issues we hear about from workers is their fear of retaliation if they file a claim against their employer or even make an informal complaint to their employer.  New York City has a very strong anti-retaliation law that protects people.   Here is a summary of the law.

A company cannot fire, threaten to fire, demote, suspend or take any adverse action against an employee who engages in “protected activity.”   Some examples of "protected activity" under the Labor Code include:

1. Filing or threatening to file a claim or complaint with the Labor Department.
2. Taking time off from work to serve on a jury or appear as a witness in court.
3. Disclosing or discussing your wages.
4. Using or attempting to use sick leave to attend to the illness of a child, parent, spouse, domestic partner, or child of the domestic partner.
5. For complaining about safety or health conditions or practices.
6. Complaining about sex harassment or employment discrimination. 

Tom works for a company in Brooklyn that is struggling financially. Tom is being asked to work 15 to 18 hours a day and also on weekends. He is exhausted and his wife called and wanted to know if there was a limit on how many hours a person can be asked to work.

She was amazed when I told her that there is no limit. The law does not provide any limit on how many hours a person can work in a day or a week. The only real regulation that controls are the overtime laws and these do not limit how long you work, it just provides for extra pay for long hours. Under the New York and Federal overtime rules, a person must be paid time and half for each hour worked in excess of 40 hours per week.

In New York, employees are not entitled to be paid for holidays, sick time or vacations. Also, there is no rule requiring extra pay for working on a holiday. Some companies, however, have policies that provide employees with pay for holidays, sick time and even vacation pay. If your company has such a policy, you then have the right to be paid according to its terms. But, under the law in New York, you are only entitled to be paid for the time that you actually work and for overtime pay for each hour worked in excess of 40 per work week.

Lately we have had a few managers contact the firm to ask if they are entitled to overtime pay.   Here is the answer. 

First, someone who is truly a manager is not entitled to overtime pay – they are exempt from the law that requires overtime pay. 

The real question then is when is a manager really a manager?  Companies routinely label people as managers just to avoid paying them overtime.   So be careful – you might be entitled to overtime pay even if your title includes the word “manager.”   Here is the rule.   A person is truly a manager if:

1.  You are paid at least $23,660 a year or $455 per week

2.  Your main job is to manage some part of the company

3.  You supervise/manage at least two full-time employees

4.  You actually do the hiring and firing of the people you manage or play a major role in those decisions. 

If any one of the above is missing from your job, then you are not a manager and you are therefore entitled to overtime.  If you have the title of manager, but do not meet the criteria above, you may have the right to recover unpaid overtime.  

Sometimes I feel more like a shrink than a lawyer.   You see people often call a law firm like ours after they get fired.   They are frequently upset and confused and sometimes they just want a sympathetic ear.   After listening to these calls for more than 10 years now, I have noticed a trend in the stories.

First, people are usually angry because they feel as though they were fired unfairly.   They see a disconnect between their hard work and loyalty and how they were treated.   I have heard so many sad stories of people who worked for decades and then abruptly fired and left with little or nothing.  

Second, because people are angry and sense some kind of unfairness, they often want to strike back and challenge the company.    But most of the time, there is nothing that can be done legally.   This is because fairness is not part of the law.   There is no law requiring fairness or decency.   Rather, an employee can be fired for any reason or no reason.   Yes, after spending 20 years working for your company, you have no right to that job and you can be fired without any notice and severance pay is not required either. 

Many good companies provide notice and severance packages, but they do this voluntarily.  It is not required.   In many other countries, employees are entitled to notice and severance pay, but not in America.   America is tough – people are resources to be exploited by the company – hence the term “human resources.”

Truly great companies, however, usually do not treat people poorly.   The best way to protect yourself and enjoy a rewarding career is to find a good company run by decent human beings who will hopefully treat you fairly and honestly.   But remember,  fairness is not required and you are an employee at will.  Now that you know this, save some money so you have at least a six month buffer in case you get the boot.     

I recently was involved in hiring a nanny and spent the better part of two days trying to structure her compensation. Ok, my wife did. I was eating cookies and playing with my kids.

Bottom line for parent employers - Don’t take nanny employment issues lightly. The FLSA is a minefield when it comes to “domestic service” employees, most of whom are nonexempt and entitled to minimum wage and overtime (not to mention unemployment and workers’ compensation insurance). Just ask Darcy Snodgrass. Her nanny sued her and her husband for breach of contract and failure to pay overtime under state and federal law. Aside from alleging some very unflattering facts about Ms. Snodgrass (repeatedly harassed plaintiff to the point of vomiting), the Plaintiff maintained that the Snodgrass family could not challenge her overtime entitlement accounting because they failed to maintain time records of her employment. Never thought of that, huh? Yes, you might want to think about putting up a punch-card time clock in your living room.

What happens if you are a prevailing party entitled to attorneys’ fees under the FLSA, but the defendant company is hiding assets or otherwise avoiding a judgment? Fraudulent conveyances to avoid a judgment are not uncommon in FLSA cases. If a company is willing to violate the FLSA to lower the bottom line, they probably won’t have a problem hiding assets to avoid a subsequent judgment.

While most statutory fee shifting provisions are interpreted as compensating only services performed up to the time of judgment, a recent opinion from the District of Oregon interprets a similar provision in the FLSA to include post-judgment collection efforts. The Court noted that “without such an award, a judgment is a hollow victory for a plaintiff who was improperly paid.” Deadbeat companies, be warned. The defendant company in the aforementioned case was up to its eyeballs in debt – over $200,000. The Court had little sympathy and piled the fees on top of the outstanding debt.

If a company classifies an employee as salaried or managerial, the employee is not entitled to overtime, right? Wrong. Many companies exploit a common misunderstanding that salaried managers are exempt from overtime by fraudulently labelling employees as "managerial" when they perform mostly non-managerial tasks. In these instances, the company is liable for unpaid overtime wages and an equal amount in damages.

Often, companies leave evidence of their intent to violate the FLSA, in which case a larger class can be certified, and more penalities assessed. A recent lawsuit filed by misclassified AT & T managers sheds light on the tracks a company may leave after they violate the FLSA. According to the allegations in the complaint, Bell South originally paid so-called "First Level Managers" overtime before the AT & T takeover two years ago. The only changed circumstances was AT & T's desire to avoid paying overtime to administrators - they simply changed their titles and classified the newly minted managers as exempt.

Managerial employees should assess their duties and determine if they actually perform managerial tasks, such as hiring and firing employees, rather than clerical or administrative tasks. Do not rely on your employer's classification of your FLSA status, especially in those instances where the status changes suddenly without adequate explanation.

In March 2009, State Labor Commissioner M. Patricia Smith announced a record settlement with nine Asian restaurants in New York City which required owner Tsu Yue Wang to pay $2.3 million in minimum and overtime wage underpayments. In response to the allegations, Mr. Wang claimed that he was not the owner of the restaurants despite clear evidence that he maintained control.

According to a recently filed lawsuit, the hip and prestigious are not immune from the restaurant industry’s notorious defiance of wage and hour obligations. On December 21, 2009, Cipriani's event, catering and restaurant enterprise was sued for wage and hour violations. Specifically, the plaintiffs allege that Cipriani unlawfully retained service charges paid by customers to the waitstaff and shaved time from records in order to pay workers for fewer hours than they actually worked. Aside from failing to pay overtime, unlawful tip pooling and time shaving are two of the most common restaurant industry wage violations.