New York Employment Lawyer Blog

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 thing 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.

Fed up with forced overtime work and no overtime pay?   Workers in Mexico decided to burn the factory down.   Read about it here.

We had an inquiry today from a commercial truck driver. For two years, he made interstate deliveries to a single retail store that sold the goods. The delivery required a 14-hour roundtrip that he made five days a week - for $220 dollars a day. I nearly hit the floor.

It's not easy being a commercial truck driver, and the overtime laws don't help matters at all. Basically, if you are a delivery driver and ship goods in interstate commerce, you are not entitled to overtime. In fact, if you are distributing goods from a warehouse to outlets in the same state, but the goods themselves originated out of state, you are also not entitled to overtime.

Based on my experience, there are only three situations where commercial drivers may be able to demonstrate an entitlement to overtime under the FLSA. First, if your truck has a gross vehicle weight of less than 10,000 pounds, you will be eligible for overtime whether or not you haul goods in interstate commerce. Second, if the goods you haul are manufactured and distributed in a single state, you will be eligible for overtime. This is an uncommon occurrence, but not totally unforeseeable, especially in large states such as California. Third, if you deliver out of state goods, regardless of the size of your haul, from an intermediate in-state storage point and distribute the goods to local retail outlets without a "fixed and persisting transportation intent" to deliver the goods to identifiable retail outlets from the time of out-of-state shipment, you will qualify for overtime. In other words, if you deliver out-of-state goods to an in-state storage warehouse and then distribute the goods to a local retailer, you will qualify for overtime if no fixed destination existed from the out-of-state origin of the goods. For example, if you are a parts runner for an automobile sales franchise that requests replacement parts and sends you to retrieve them from a local warehouse, you will qualify for overtime compensation even if the parts originated from out-of-state and they were not intended for any dealership in particular.

Whew.

If you are a commercial driver and suspect you are getting the shaft, call for a free screening. The law is still very unclear and employers will likely exploit the ambiguity.

I frequently receive calls from potential clients who have been fired after reporting a supervisor's affair with a subordinate. Is it illegal to fire an employee for reporting a supervisor's affair with a subordinate? The short answer: probably not. The EEOC does not consider isolated incidents of "sexual favoritism" to be violations of Title VII. However, coerced sexual conduct by a supervisor may constitute quid pro quo harassment, and "widespread favortism" may give rise to a hostile work environment claim. What is "widespread favoritism"? Generally, it means more than one affair in the workplace resulting in greater opportunities for paramours. The EEOC, and many state and federal courts, have determined that "widespread favoritism" communicates to all female employees that they can obtain job benefits only by acquiescing in sexual conduct. I represented an employee who was fired for reporting his supervisor's affair. In a complete coincidence, a year later, I was contacted by the paramour seeking to sue the same employee for defamation. Workplace affairs are a nasty mess. Nobody should be forced to work for someone who promotes paramours, but if you must, play the game long enough to find another job. If you feel truly humiliated and degraded by a culture of affairs and meritless advancement, call a lawyer. If you are having an affair with a subordinate, do yourself and your employees a favor - stop.

An interesting ruling out of the Third Circuit this past week clarified the boundaries of the FLSA's "learned professional" exemption in a decision involving the classification of pilots. The opinion follows a confusing non-opinion opinion issued by the U.S. Department of Labor which articulated a "nonenforcement position" with respect to the exempt status of pilots. The Third Circuit Court of Appeals in Philadelphia in Michael G. Pignataro; Thompson R. Chase vs. Port Authority of New York and New Jersey affirmed a New Jersey federal judge’s decision granting summary judgment in favor of the pilots holding that they were not exempt employees under the professional exemption. Since the pilots’ knowledge and skills were acquired through experience and supervised training as opposed to intellectual, academic instruction, they did not qualify as "learned professionals." According to the DOL, recognized "professional" occupations include law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, pharmacy, various types of physical, chemical, and biological sciences. A bit of intellectual hogwash? Maybe. But if you're a pilot and now $87,000 richer following reimbursement of unpaid overtime, it may not matter.

And how are theologians paid, anyway? When exactly is a theologian off the clock? Sounds like a tough case for an employer.

Yes, you can be fired for wearing a Yankee hat, especially if your boss likes the Red Sox.

That is very unfair of course, but it is true.   An employee can be fired for any reason or no reason – even for wearing a Yankee hat.   There is no rule of fairness and cause is not needed.   People call our law firm everyday with crazy stories like that.   People seem to think that an employer needs cause to fire them.   Cause is not needed.  This is an “at-will” nation and you can lose your job for any reason or no reason.  

I just got off the phone with a man who was fired for an arbitrary reason.   It was unfair and he loved his job, but there was nothing illegal about his termination.